Who does not know about the Reading factor? You have settled Grounds of Appeal with enthusiasm and a degree of forensic indignation, days after conviction and/or sentence. Your accompanying Advice is a model of clarity. You are now on the train to London en route to the Court of Appeal, CrIm Div. You have re-read all the documents and you have reached Reading. And suddenly things seem a little less clear cut….
Court of Appeal advocacy can be a scary business. There is no point pretending otherwise. The three Judges appear formidable, even remote at first blush. The LJ in the middle has a fearsome reputation and you have never seen any of them before. You know, however, that brevity is essential and that they will be or appear to be completely on top of the papers. Well, one of them will be. All of them will have read the professional and extremely skillful summary that has been prepared.
Take heart and launch with suitable confidence…
‘ My Lords, I propose to argue simply the first two Grounds of my Grounds of Appeal.’
Very wise, Mr Pascoe, the others are beside the point.
As your Lordship pleases.’
Then do exactly that, in language of precision and devoid of the least suspicion of jury advocacy. Expand your grounds in moderate terms and finish cleanly.
My Lords, those are my submissions.’
If they want to hear more, they will tell you.
Confession and avoidance is a useful technique. And be prepared to explain oddities of the trial which may puzzle them. Avoid like the plague unnecessary attacks on the Crown. Phrase your criticism of the Trial Judge in moderate language. But the key rule is clarity at all times. Be sure that you have supplied your list of authorities and if providing photocopies, they must be meticulously copied and enlarged. No black patches.
All this is conduct for the day itself. But the success or otherwise of your heroic enterprise is usually not your performance on the day. It is the skill, detachment and precision of your appeal documents. Good presentation in a readable font is essential. Worthwhile then thinking about each of them.
Advice on Appeal against Sentence.
First in nearly every case you should let the dust settle before you
recommend an appeal. I very rarely tell the client in the cells that I shall be advising an appeal. Instead I tell him or her that I want to look at the very latest cases on the topic and also think carefully about the sentencing remarks. For giving false hope to a depressed defendant is close to a criminal offence. Back in chambers, I will kick the sentence around with colleagues, particularly the more detached ones. I want to get a feel for the level of injustice, if that really is what it was.
Then I will look at sentencing cases or occasionally have the luxury of asking others to do so for me. Of course I went into court with some examples of the existing authorities, but they need to be read again in the lights of the sentencing remarks: they will have been adopted and adapted by the judge to mould the sentence. Remember that no facts are identical and your advice and grounds should look for sentencing trends rather than putting too much weight on reports of what appear to be very similar facts.
Then couch your advice in clear, authoritative and moderate language. Do not let your anger at the sheer stupidity of the sentence, as you perceived it, spill over into the subtext of your advice. There is much to be said for careful understatement when you are,in effect, criticising a monstrous sentence. Let the injustice speak from your language without inflating it.
Your Notice of Appeal should be precision itself. Pare down your numerous potential grounds of appeal to the best six at most. Remember there is authority deploring personal attacks on your opponents and similarly you are firmly discouraged from suggestions of judicial bias, save in the clearest cases. That said, occasionally it will be your duty to attack fearlessly judges who have lost the plot and with it, the concept of a fair trial. But don’t elevate a few crass unfair comments into an unmeritorious ground.
If you then get leave or on refusal, want to chance your arm pro bono, then all the luck in the world. Occasional successes are very stimulating. A recent double top in their Lordships’ Court left me a very happy bunny.
Nigel Pascoe QC