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Defendants (criminal proceedings)


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Can I appeal?

You have the right to appeal against your conviction, or against the sentence. You can also appeal against both the conviction and sentence. The appeal is made to the High Court of Justiciary which sits as a court of appeal. The appeals are heard in Edinburgh.

How do I appeal?

If the trial was heard by a jury the appeal is made by lodging a document with the appeal court within 2 weeks of the end of the trial proceedings. If you are appealing against your conviction or a sentence made by a judge you must apply to the court where the trial took place within 1 week.

What are the grounds of appeal?

When you make your appeal you must give a detailed statement of your reasons. The ground of appeal is that your case involved a miscarriage of justice. This can happen in various ways. Examples include:

  • The jury's verdict was unreasonable;
  • The availability of new evidence which could not have been heard at the original trial;
  • The judge gave wrong directions to the jury;
  • There was a mistake or irregularity in the trial procedure;
  • Evidence was wrongly allowed, or disallowed, to be heard;
  • Your sentence was too severe.

What happens if I am in prison when I appeal?

Once you have applied for an appeal you can apply for release from prison during the period until the appeal hearing takes place.

If you are not released from prison on bail to await your appeal you can appear at the appeal hearing by video link from prison.

How long will it be before the appeal is heard?

There is no fixed period of time for the hearing of the appeal but if you are in prison the court will try to ensure that your appeal is heard early.

What happens at the appeal hearing?

At the appeal hearing your lawyer and the prosecutor will make arguments about the merits of your grounds of appeal. The court can call for more information and hear evidence if it wishes to. It will also consider reports made by the trial judge.

What happens if the appeal against conviction is successful/unsuccessful?

If an appeal against a conviction is successful the court will generally nullify the verdict of guilty. This means that your conviction is removed from the official records. However, if you succeed in establishing that part of the prosecutor's case cannot be upheld, but what remains what still be sufficient to show you were guilty of a different crime, changes will be made to the record to show this. In some circumstances the court may set aside the conviction but give the prosecutor authority to bring a new trial. This will happen if there has been a mistake at the trial which was not the fault of the prosecutor.

If the appeal is unsuccessful, normally no change is made to the trial verdict.

What happens if the appeal against sentence is successful/unsuccessful?

If the appeal is successful the court will make a lesser sentence which it thinks appropriate.

If the appeal is unsuccessful the court may affirm the original sentence. However, it may instead increase it.

Is there a right to appeal again to a higher/different court?

You may have a right to a further appeal to the Supreme Court of the United Kingdom. You have this right of appeal only if you appeal on a point of constitutional law or on the basis that the trial breached your rights under the European Convention on Human Rights or EU law. Should the Supreme Court decide in your favour, however, it must send your case back to the High Court of Justiciary in Scotland, and it will be for the High Court to decide what to do.

If my appeal is successful will I get any compensation?

If your appeal is successful you will get compensation only if the previous proceedings breached your rights under the European Convention on Human Rights or if you can demonstrate malice on the part of the investigating and prosecuting authorities.

Is a further appeal possible if the first appeal fails?

You may be able to make a further appeal if you can show a ground of appeal that was not available at the time of the first appeal. The appeal is made to the same appeal court as for the first appeal. If you want to produce new evidence for the appeal you must explain why it was not heard at the trial.

Are there any other ways for me to make an appeal?

If you have been convicted you can apply to the Scottish Criminal Cases Review Commission. The Commission will make investigations to discover if your conviction involved a miscarriage of justice. The Commission has the power to refer your case to the appeal court. If they do, your case is heard as a normal appeal.

If I am convicted, can I be tried again for the same crime?

If you have been convicted of a crime after a trial in any part of the United Kingdom, you cannot be tried again in Scotland for the same crime. The same rule applies where a guilty verdict has been given after a trial in another Member State.

I am from another Member State. Can I be sent back there after the trial?

When you are convicted the judge may recommend that you are deported when your sentence ends, under the terms of s.3(6) of the Immigration Act 1971. If the judge does not recommend deportation, the UK Home Office can still consider your case and may serve you with a deportation order, depending on the severity of offence, length of sentence and personal circumstances. However, if you are a national of another Member State you can be deported only on the grounds of public policy, public security or public health. The fact that you have been convicted of a crime does not by itself justify you being deported on the grounds of public policy, public security or public health. You have the right to appeal to a special tribunal against a decision to deport you. You can read about how to appeal and how to seek help and advice on the UK Government's website.

What information will be held about the charges against me?

The details of the charge against you and what happened at your trial will be held at the court where your trial took place.

What information will be held about my conviction?

Details of a conviction are held on the Scottish Criminal History System (CHS). In less serious cases the record is held until both you reach the age of 40 and the conviction itself is 20 years old. For serious cases (e.g. if your trial was before a judge and jury, or if you were sent to prison) the record remains until both you reach the age of 70 and the conviction is 30 years old.

Information about a Scottish conviction will also be stored on the Police National Computer (PNC). This information will be stored and retained on the PNC for the same length of time as it is held on the CHS.

Related links

Criminal Procedure (Scotland) Act 1995

Scottish Courts and Tribunals Service

Scottish Criminal Cases Review Commission

Supreme Court of the United Kingdom

Scottish Police Authority

Immigration Enforcement

Last update: 05/02/2020

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