Defence Barrister Podcast

In this episode as we continue with appeals, we hear about how people who have had their case heard in the magistrates’ court can appeal against their conviction and sentence and what actually happens during the process, which you’ll be pleased to hear is far simpler than appealing against a conviction or sentence in the Crown Court. 

And we also go into the detail about perhaps the most complex type of appeal from the magistrates’ court, which is known as an Appeal by way of Case Stated and how a man who refused to pay a fixed penalty notice found himself in the Supreme Court. 

And what is Judicial Review and how can it be used in a criminal case? In this episode we find out, including how a robbery charge against two youths ended up in front of the Lord Chief Justice.

This is the final episode of Series 2 of the Defence Barrister Podcast and I would like to take this opportunity to thank you all for listening.

We will be back early next year with more interesting and thought-provoking content which shows how, warts and all, the criminal justice system really works.

NOTES

Throughout this podcast I have referred to legislation, cases and to further information and reading. Becoming a member of Defence-Barrister.co.uk gives you access to information on what is covered in this podcast, as well as detailed guides and information on trials, sentencing and appeals. https://www.defence-barrister.co.uk/subscribe 

PLEASE NOTE:

It is a pleasure to hear from you and to answer your questions, but due to the matters set out below please understand that there are certain questions I am unable to respond to:

Please bear in mind that this podcast is for general information purposes only and does not constitute legal advice.

I am unable to provide legal advice on your specific case. If you require legal advice about a specific case or legal problem it is vital that you seek legal advice from a legal professional, such as a barrister or solicitor.

Due to contempt of court provisions and other legal requirements, I am limited in what I can say about ongoing legal proceedings in any court.

Thank you for your understanding.

CONTACT

Email: [email protected]

X https://twitter.com/defencebar

Instagram https://www.instagram.com/defencebar/

COPYRIGHT

Music and content created and recorded by Chris Kessling © 2024. All rights reserved.

External links to (and provision of information from) .gov.uk websites, the sentencing council website (sentencingcouncil.org.uk), the Judiciary website (judiciary.uk) and other information subject to Crown copyright is provided under the terms of the open goverment licence.

Content warning. This episode contains details (relevant to the legal issues being considered) of a case concerning the murder of a young woman in terrible circumstances which may cause distress to listeners.

In the vast majority of cases, once you have been sentenced, the prosecution are not entitled to appeal against that sentence, except where the sentence is within a relatively small category of offences which can be overturned by the Court of Appeal as being ‘unduly lenient’. In this episode we look at how this process really works.

And there are also situations where the prosecution can, following an acquittal, seek to clarify a point of law by appealing to the Court of Appeal (an Attorney-General’s reference), but whatever the outcome, it will not affect the defendant’s not guilty verdict. 

Contrast this with the situation where the prosecution can seek to appeal against what is commonly known as a ‘terminating ruling’ by a Crown Court Judge (i.e. a legal ruling which usually has the effect of bringing the case to an end, such as the judge agreeing with a defence submission of no case to answer) where the Court of Appeal can set that ruling aside (sometimes very quickly) and the defendant, instead of believing that his or her case was at an end, must now see the trial through to its logical conclusion and await the jury’s verdict.

Thanks for listening.

NOTES

Throughout this podcast I have referred to legislation, cases and to further information and reading. Becoming a member of Defence-Barrister.co.uk gives you access to information on what is covered in this podcast, as well as detailed guides and information on trials, sentencing and appeals. https://www.defence-barrister.co.uk/subscribe 

PLEASE NOTE:

It is a pleasure to hear from you and to answer your questions, but due to the matters set out below please understand that there are certain questions I am unable to respond to:

Please bear in mind that this podcast is for general information purposes only and does not constitute legal advice.

I am unable to provide legal advice on your specific case. If you require legal advice about a specific case or legal problem it is vital that you seek legal advice from a legal professional, such as a barrister or solicitor.

Due to contempt of court provisions and other legal requirements, I am limited in what I can say about ongoing legal proceedings in any court.

Thank you for your understanding.

CONTACT

Email: [email protected]

X https://twitter.com/defencebar

Instagram https://www.instagram.com/defencebar/

COPYRIGHT

Music and content created and recorded by Chris Kessling © 2024. All rights reserved.

External links to (and provision of information from) .gov.uk websites, the sentencing council website (sentencingcouncil.org.uk), the Judiciary website (judiciary.uk) and other information subject to Crown copyright is provided under the terms of the open goverment licence.

Withdrawing a guilty plea and appeals following a plea of guilty.

What do you do if you have pleaded guilty to a criminal offence, but now realise you were not in fact guilty? In this episode we find out how the courts deal with applications to withdraw or vacate guilty pleas, and on what grounds you can appeal against your conviction based on your own plea of guilty.

I hope you enjoy this episode and thank you for listening.

NOTES

Throughout this podcast I have referred to legislation, cases and to further information and reading. Becoming a member of Defence-Barrister.co.uk gives you access to information on what is covered in this podcast, as well as detailed guides and information on trials, sentencing and appeals. https://www.defence-barrister.co.uk/subscribe 

PLEASE NOTE:

It is a pleasure to hear from you and to answer your questions, but due to the matters set out below please understand that there are certain questions I am unable to respond to:

Please bear in mind that this podcast is for general information purposes only and does not constitute legal advice.

I am unable to provide legal advice on your specific case. If you require legal advice about a specific case or legal problem it is vital that you seek legal advice from a legal professional, such as a barrister or solicitor.

Due to contempt of court provisions and other legal requirements, I am limited in what I can say about ongoing legal proceedings in any court.

Thank you for your understanding.

CONTACT

Email: [email protected]

X https://twitter.com/defencebar

Instagram https://www.instagram.com/defencebar/

COPYRIGHT

Music and content created and recorded by Chris Kessling © 2024. All rights reserved.

External links to (and provision of information from) .gov.uk websites, the sentencing council website (sentencingcouncil.org.uk), the Judiciary website (judiciary.uk) and other information subject to Crown copyright is provided under the terms of the open goverment licence.

Is there such a thing as an appeal against a verdict of Not Guilty?

In this episode we look at the law on what is commonly known as double jeopardy, the idea (entrenched in law for many hundreds of years) that once you have been lawfully tried for an offence and a verdict entered, that is the end of it, even if you are acquitted.

In this series I have looked at numerous examples of when people are wrongfully convicted of a crime, and the various grounds of appeal that might be available to quash a wrongful conviction. 

But what about when it can be shown that someone has been wrongly acquitted? Can their Not Guilty verdict be quashed and can they be tried all over again for the same offence? In this episode we find out.

I hope you enjoy this episode and thank you for listening.

NOTES

Throughout this podcast I have referred to legislation, cases and to further information and reading. Becoming a member of Defence-Barrister.co.uk gives you access to information on what is covered in this podcast, as well as detailed guides and information on trials, sentencing and appeals. https://www.defence-barrister.co.uk/subscribe 

PLEASE NOTE:
It is a pleasure to hear from you and to answer your questions, but due to the matters set out below please understand that there are certain questions I am unable to respond to:

Please bear in mind that this podcast is for general information purposes only and does not constitute legal advice.

I am unable to provide legal advice on your specific case. If you require legal advice about a specific case or legal problem it is vital that you seek legal advice from a legal professional, such as a barrister or solicitor.

Due to contempt of court provisions and other legal requirements, I am limited in what I can say about ongoing legal proceedings in any court.

Thank you for your understanding.

CONTACT

Email: [email protected]

X https://twitter.com/defencebar

Instagram https://www.instagram.com/defencebar/

COPYRIGHT

Music and content created and recorded by Chris Kessling © 2024. All rights reserved.

External links to (and provision of information from) .gov.uk websites, the sentencing council website (sentencingcouncil.org.uk), the Judiciary website (judiciary.uk) and other information subject to Crown copyright is provided under the terms of the open goverment licence.

In this episode we go to the Court of Appeal Criminal Division to hear the appeal of Aidan Johnson against his conviction for the murder of Daniel Clarke.

Seeking to overturn the conviction on the grounds of fresh evidence and material non-disclosure, Gabriella Hadden - Aidan’s barrister - is confident in her approach, but sometimes hearings in the Court of Appeal can be less straightforward than you anticipated!

I hope you enjoy this episode and thank you for listening.

NOTES

Throughout this podcast I have referred to legislation, cases and to further information and reading. Becoming a member of Defence-Barrister.co.uk gives you access to information on what is covered in this podcast on Life Sentences, as well as detailed guides and information on trials, sentencing and appeals. https://www.defence-barrister.co.uk/subscribe 

Attorney General v Crosland [2021] UKSC 15 https://www.supremecourt.uk/cases/docs/uksc-2021-0099-judgment.pdf 

PLEASE NOTE:

It is a pleasure to hear from you and to answer your questions, but due to the matters set out below please understand that there are certain questions I am unable to respond to:

Please bear in mind that this podcast is for general information purposes only and does not constitute legal advice.

I am unable to provide legal advice on your specific case. If you require legal advice about a specific case or legal problem it is vital that you seek legal advice from a legal professional, such as a barrister or solicitor.

Due to contempt of court provisions and other legal requirements, I am limited in what I can say about ongoing legal proceedings in any court.

The story, all names, characters, and incidents portrayed in this podcast are fictitious. No identification with actual persons (living or deceased), places, buildings, and products is intended or should be inferred.

Thank you for your understanding.

CONTACT

Email: [email protected]

X https://twitter.com/defencebar

Instagram https://www.instagram.com/defencebar/

COPYRIGHT

Music and content created and recorded by Chris Kessling © 2024. All rights reserved.

External links to (and provision of information from) .gov.uk websites, the sentencing council website (sentencingcouncil.org.uk), the Judiciary website (judiciary.uk) and other information subject to Crown copyright is provided under the terms of the open goverment licence.

In this episode, we take a deep dive into disclosure, that is how disclosure in criminal cases should actually work and why it is of vital importance in every criminal trial. 

What do the rules actually require of the prosecution? And can the defence ever be satisfied that disclosure has actually been carried out correctly? 

What can the defence do to ensure (as best they can) that full disclosure is provided? And what happens when things go wrong? 

I hope you enjoy this episode and thank you for listening.

NOTES

Throughout this podcast I have referred to legislation, cases and to further information and reading. Becoming a member of Defence-Barrister.co.uk gives you access to information on what is covered in this podcast, as well as detailed guides and information on trials, sentencing and appeals. https://www.defence-barrister.co.uk/subscribe 

Disclosure

R v H [2004] UKHL 3; [2004] 2 Cr. App. R. 10, House of Lords (forerunner to the Supreme Court) https://publications.parliament.uk/pa/ld200304/ldjudgmt/jd040205/hc-1.htm 

Criminal Procedure and Investigations Act 1996 https://www.legislation.gov.uk/ukpga/1996/25/contents 

Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice https://www.gov.uk/government/publications/criminal-procedure-and-investigations-act-1996-section-231-code-of-practice 

Attorney General’s Guidelines on Disclosure https://www.gov.uk/government/publications/attorney-generals-guidelines-on-disclosure 

Hill v Chief Constable of West Yorkshire [1987] UKHL 12, [1989] AC 53 https://knyvet.bailii.org/uk/cases/UKHL/1987/12.html 

National Police Chiefs’ Council (NPCC) Guidance on Retention, Storage and Destruction of Materials and Records relating to Forensic Examination https://www.fcn.police.uk/node/142 

Conrad Jones [2014] EWCA Crim 1337 https://www.bailii.org/ew/cases/EWCA/Crim/2014/1337.html 

PLEASE NOTE:
It is a pleasure to hear from you and to answer your questions, but due to the matters set out below please understand that there are certain questions I am unable to respond to:

Please bear in mind that this podcast is for general information purposes only and does not constitute legal advice.

I am unable to provide legal advice on your specific case. If you require legal advice about a specific case or legal problem it is vital that you seek legal advice from a legal professional, such as a barrister or solicitor.

Due to contempt of court provisions and other legal requirements, I am limited in what I can say about ongoing legal proceedings in any court.

The story, all names, characters, and incidents portrayed in this podcast are fictitious. No identification with actual persons (living or deceased), places, buildings, and products is intended or should be inferred.

Thank you for your understanding.

CONTACT

Email: [email protected]

X https://twitter.com/defencebar

Instagram https://www.instagram.com/defencebar/

COPYRIGHT

Music and content created and recorded by Chris Kessling © 2024. All rights reserved.

External links to (and provision of information from) .gov.uk websites, the sentencing council website (sentencingcouncil.org.uk), the Judiciary website (judiciary.uk) and other information subject to Crown copyright is provided under the terms of the open goverment licence.

Identification, science and non-disclosure as grounds of appeal in criminal cases

Warning: this episode contains a criminal appeal case in which limited reference is made to sexual violence. Listener discretion is advised.

In Episode 5 of Series 2 of the Defence Barrister Podcast, we move on to another case which depended considerably on eyewitness evidence, and how the Court of Appeal dealt with it, and that is the case of Andrew Malkinson, a case where advances in scientific evidence came to his aid, albeit many years after his conviction. 

This was a case in which the grounds of appeal also raised clear failures by the prosecution to act in accordance with its duty of disclosure, so we’ll look at that too, and also why non-disclosure was at the heart of the multiple miscarriages of justice in the Post Office appeals.

I hope you enjoy this episode and thank you for listening.

NOTES

Throughout this podcast I have referred to legislation, cases and to further information and reading. Becoming a member of Defence-Barrister.co.uk gives you access to information on what is covered in this podcast on Life Sentences, as well as detailed guides and information on trials, sentencing and appeals. https://www.defence-barrister.co.uk/subscribe 

Malkinson [2023] EWCA Crim 954 https://www.judiciary.uk/wp-content/uploads/2023/08/Malkinson-v-the-King-070823-judgment2.pdf 

Hamilton and others v Post Office Limited [2021] EWCA Crim 21 https://www.judiciary.uk/wp-content/uploads/2022/07/Hamilton-Others-v-Post-Office-judgment-230421.pdf 

PLEASE NOTE:

It is a pleasure to hear from you and to answer your questions, but due to the matters set out below please understand that there are certain questions I am unable to respond to:

Please bear in mind that this podcast is for general information purposes only and does not constitute legal advice.

I am unable to provide legal advice on your specific case. If you require legal advice about a specific case or legal problem it is vital that you seek legal advice from a legal professional, such as a barrister or solicitor.

Due to contempt of court provisions and other legal requirements, I am limited in what I can say about ongoing legal proceedings in any court.

The story, all names, characters, and incidents portrayed in this podcast are fictitious. No identification with actual persons (living or deceased), places, buildings, and products is intended or should be inferred.

Thank you for your understanding.

CONTACT

Email: [email protected]

X https://twitter.com/defencebar

Instagram https://www.instagram.com/defencebar/

COPYRIGHT

Music and content created and recorded by Chris Kessling © 2024. All rights reserved.

External links to (and provision of information from) .gov.uk websites, the sentencing council website (sentencingcouncil.org.uk), the Judiciary website (judiciary.uk) and other information subject to Crown copyright is provided under the terms of the open goverment licence.

Today we turn to grounds of appeal, i.e. the reasons why it is said that the jury's verdict is unsafe. And we look at a number of common grounds of appeal and the cases where they have been considered.

We cover judicial bias, lawyers’ incompetence, the admissibility of evidence, the rules on producing fresh evidence in support of your appeal, appeals based on the refusal of a submissions of no case to answer, material irregularities in the course of a trial, appeals based on changes in the law, as well as on errors of law and the special need for caution in eyewitness identification evidence.

As ever, thank you for listening.

NOTES

Throughout this podcast I have referred to legislation, cases and to further information and reading. Becoming a member of Defence-Barrister.co.uk gives you access to information on what is covered in this podcast on Life Sentences, as well as detailed guides and information on trials, sentencing and appeals. https://www.defence-barrister.co.uk/subscribe 

Bias

Cole [2008] EWCA Crim 3234 https://www.bailii.org/ew/cases/EWCA/Crim/2008/3234.html 

AA [2018] EWCA Crim 2191 https://www.bailii.org/ew/cases/EWCA/Crim/2018/2191.html 

Incompetent representation

Coombes [2024] EWCA Crim 188 https://www.bailii.org/ew/cases/EWCA/Crim/2024/188.html 

Ekaireb [2015] EWCA Crim 1936 https://knyvet.bailii.org/ew/cases/EWCA/Crim/2015/1936.html 

Farooqi [2013] EWCA Crim 1649 https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Judgments/r-v-farooqi-others.pdf 

Admissibility (confessions)

Paris, Abdullahi and Miller (1993) 97 Cr App R 99 (Cardiff 3 appeal). (No full transcript publicly available)

Campbell [2024] EWCA Crim 1036 https://www.judiciary.uk/wp-content/uploads/2024/09/Oliver-Campbell-judgment-11.09.2024.pdf 

Fresh Evidence

s.23 Criminal Appeal Act 1968 https://www.legislation.gov.uk/ukpga/1968/19/section/23 

Jury misconduct

Haji [2024] EWCA Crim 955 https://www.bailii.org/ew/cases/EWCA/Crim/2024/955.html 

Yussuf v Governor of HMP Belmarsh [2024] EWHC 692 (Admin) https://www.judiciary.uk/judgments/yusuff-and-others-v-the-governor-of-his-majestys-prison-belmarsh/ 

Identification

Turnbull [1977] QB 224 (CA)

PACE Code D - Code of Practice for the identification of persons by Police Officers https://www.gov.uk/government/publications/pace-code-d-2023 

PLEASE NOTE:

It is a pleasure to hear from you and to answer your questions, but due to the matters set out below please understand that there are certain questions I am unable to respond to:

Please bear in mind that this podcast is for general information purposes only and does not constitute legal advice.

I am unable to provide legal advice on your specific case. If you require legal advice about a specific case or legal problem it is vital that you seek legal advice from a legal professional, such as a barrister or solicitor.

Due to contempt of court provisions and other legal requirements, I am limited in what I can say about ongoing legal proceedings in any court.

The story, all names, characters, and incidents portrayed in this podcast are fictitious. No identification with actual persons (living or deceased), places, buildings, and products is intended or should be inferred.

Thank you for your understanding.

CONTACT

Email: [email protected]

X https://twitter.com/defencebar

Instagram https://www.instagram.com/defencebar/

COPYRIGHT

Music and content created and recorded by Chris Kessling © 2024. All rights reserved.

External links to (and provision of information from) .gov.uk websites, the sentencing council website (sentencingcouncil.org.uk), the Judiciary website (judiciary.uk) and other information subject to Crown copyright is provided under the terms of the open goverment licence.

How do appeals against conviction from the Crown Court really work?

In episode 3 of Series 2 of the Defence Barrister Podcast, we delve into the appeal process and exactly how you can seek to turn around a wrongful Crown Court conviction. 

As we’ll find out, there is no automatic right to appeal against a Crown Court conviction, so what is the process of getting permission to appeal, and then if successful arguing your case in the Court of Appeal?

If you are successful, what powers does the court have and will there always be a retrial? We’ll find out.

And we’ll also look at the case of Tony Martin and how he overturned his conviction for the murder of a burglar who broke into his isolated Norfolk home.

Bear in mind that appealing against a Crown Court conviction is different in almost every way from appealing against a magistrates’ court conviction, and we’ll look at the appeal process from the magistrates in a later episode.

I hope you enjoy this episode and I look forward to you joining me again for episode 4 and the rest of Series 2.

As ever, thank you for listening.

NOTES

Throughout this podcast I have referred to legislation, cases and to further information and reading. Becoming a member of Defence-Barrister.co.uk gives you access to information on what is covered in this podcast on Life Sentences, as well as detailed guides and information on trials, sentencing and appeals. https://www.defence-barrister.co.uk/subscribe 

The ‘safety’ test for an appeal against conviction is laid out in s.2(1) of the Criminal Appeal Act 1968 https://www.legislation.gov.uk/ukpga/1968/19/section/2 

Application for Permission to Appeal against Conviction (form NG Conviction + Guidance Notes) https://www.gov.uk/government/publications/criminal-appeal-office-form-ng-conviction 

Notice of Application for bail (Form B)

https://www.gov.uk/government/publications/notice-of-application-for-bail 

Guide to Proceedings in the Court of Appeal, Criminal Division https://www.judiciary.uk/guidance-and-resources/guide-to-proceedings-in-the-court-of-appeal-criminal-division-2/ 

PLEASE NOTE:

It is a pleasure to hear from you and to answer your questions, but due to the matters set out below please understand that there are certain questions I am unable to respond to:

Please bear in mind that this podcast is for general information purposes only and does not constitute legal advice.

I am unable to provide legal advice on your specific case. If you require legal advice about a specific case or legal problem it is vital that you seek legal advice from a legal professional, such as a barrister or solicitor.

Due to contempt of court provisions and other legal requirements, I am limited in what I can say about ongoing legal proceedings in any court.

The story, all names, characters, and incidents portrayed in this podcast are fictitious. No identification with actual persons (living or deceased), places, buildings, and products is intended or should be inferred.

Thank you for your understanding.

CONTACT

Email: [email protected]

X https://twitter.com/defencebar

Instagram https://www.instagram.com/defencebar/

COPYRIGHT

Music and content created and recorded by Chris Kessling © 2024. All rights reserved.

External links to (and provision of information from) .gov.uk websites, the sentencing council website (sentencingcouncil.org.uk), the Judiciary website (judiciary.uk) and other information subject to Crown copyright is provided under the terms of the open goverment licence.

Aidan Johnson is sentenced for the murder of Daniel Clarke.

DESCRIPTION

In episode 2 of Series 2 of the Defence Barrister Podcast, Aidan Johnson is sentenced for the murder of Daniel Clarke.

From discovering the ins and outs of life sentences for murder and other crimes in Episode 1 of this series, we now join the sentencing hearing for the one and only defendant to be convicted of the murder of Daniel Clarke.

What exactly is the role of the prosecutor at a sentencing hearing? Is it true, as many people think, that the prosecution suggests what the sentence should be?

And what is the role of the defence advocate? As we find out, the plea in mitigation is one of the most important, and sometimes the most powerful, advocacy that a defence advocate can undertake.

In addition, we look at what a pre-sentence report is, who prepares it, why, and when is it actually necessary? And how do victims of crime have their say in the sentencing process? Again, we have that covered in Episode 2.

And then, we find out what sentence Aidan Johnson receives for the crime he has been convicted of.

And next week, the trial and sentencing process now being all but finished, we join Aidan and his solicitor and barrister again, as we explore his options to appeal. Because for Aidan, the truth is that he has just been convicted and sentenced for a crime he did not commit.

I hope you enjoy this episode and I look forward to you joining me again for the next episode and the rest of Series 2.

As ever, thank you for listening.

NOTES

Throughout this podcast I have referred to legislation, cases and to further information and reading. Becoming a member of Defence-Barrister.co.uk gives you access to information on what is covered in this podcast on Life Sentences, as well as detailed guides and information on trials, sentencing and appeals. https://www.defence-barrister.co.uk/subscribe 

Prosecution duties at sentence:

Cain [2006] EWCA Crim 3233 https://www.bailii.org/ew/cases/EWCA/Crim/2006/3233.html 

Pre-Sentence Reports and Victim Impact Statements:

Criminal Practice Directions 2023 (Direction 9) https://www.judiciary.uk/wp-content/uploads/2023/04/Criminal-Practice-Directions-2023.pdf 

PLEASE NOTE:

It is a pleasure to hear from you and to answer your questions, but due to the matters set out below please understand that there are certain questions I am unable to respond to:

Please bear in mind that this podcast is for general information purposes only and does not constitute legal advice.

I am unable to provide legal advice on your specific case. If you require legal advice about a specific case or legal problem it is vital that you seek legal advice from a legal professional, such as a barrister or solicitor.

Due to contempt of court provisions and other legal requirements, I am limited in what I can say about ongoing legal proceedings in any court.

The story, all names, characters, and incidents portrayed in this podcast are fictitious. No identification with actual persons (living or deceased), places, buildings, and products is intended or should be inferred.

Thank you for your understanding.

CONTACT

Email: [email protected]

X https://twitter.com/defencebar

Instagram https://www.instagram.com/defencebar/

COPYRIGHT

Music and content created and recorded by Chris Kessling © 2024. All rights reserved.

External links to (and provision of information from) .gov.uk websites, the sentencing council website (sentencingcouncil.org.uk), the Judiciary website (judiciary.uk) and other information subject to Crown copyright is provided under the terms of the open goverment licence.