Lliberty to appeal.

NUTLEY BOY

The position in the Circuit / Central / Special Criminal courts appears to be that, after conviction, defence counsel might apply for liberty to appeal against the conviction. There appears to be a default refusal of all such applications thus requiring the defendant to make the application to the Court of Appeal.

Additionally, where the conviction is a jury decision does an application for liberty to appeal not mean that the trial judge is effectively making a decision on the soundness of the verdict just reached in the trial over which he has presided ? This seems a touch unsatisfactory if, for example, one of the proposed grounds of appeal might relate to a ruling rendered by the judge during the trial. Whilst this practice may not rise to the level of nemo judex in causa sua it does seems unreasonable.

Why are such applications refused so consistently ?

I find this a little bit difficult to understand conceptually where, for example, on the civil side of the High Court it seems that either party can appeal as of right.

hullaballoo

It's just a procedural step that you ought to seek leave to appeal after conviction is pronounced. The relief is refused because the ancillary application is a stay on the sentence pending appeal but then the defence could just dilly dally and not really bother pushing the appeal on because why would they, there's a stay in place.

If you are serious about appealing, you apply before the TJ to indicate you (or the client) have formed the relevant intention to appeal within time (without having to ex post facto swear you formed the intention within time) and when that's refused, you apply to the relevant appeal court for the relief and are then compelled to comply with time-limits therein.

The reason it isn't nemo iudex (or anything like it) is that the TJ has to stand over the process he has just overseen to insure the integrity of the verdict. The whole system would be (even more of) a mess if TJs were routinely effectively saying "ah yeah, I'm not sure we got that one right lads, off you go to the CA."

johnnyskeleton

NUTLEY BOY wrote: »

The position in the Circuit / Central / Special Criminal courts appears to be that, after conviction, defence counsel might apply for liberty to appeal against the conviction. There appears to be a default refusal of all such applications thus requiring the defendant to make the application to the Court of Appeal.

There has been an automatic right to appeal without leave since 2010:


http://www.irishstatutebook.ie/eli/2010/act/27/section/31/enacted/en/html#sec31

Additionally, where the conviction is a jury decision does an application for liberty to appeal not mean that the trial judge is effectively making a decision on the soundness of the verdict just reached in the trial over which he has presided ?

Most appeals relate to the Judges rulings, and if he or she was wrong it means that the Jury was misdirected or that they heard inadmissible evidence. So it is that fact which is being impugned not the jury verdict per se. Occasionally an appeal will arise due to irregularities with the jury or new evidence coming to light but those are very rare.

This seems a touch unsatisfactory if, for example, one of the proposed grounds of appeal might relate to a ruling rendered by the judge during the trial. Whilst this practice may not rise to the level of nemo judex in causa sua it does seems unreasonable.

It was an old courtesy designed to give a Judge an opportunity to reassess or express doubt about their ruling, requesting clarification from the superior courts. By the time it was abolished, most of the applications for leave were made formally and in conjunction with an application for legal aid to extend to any appeal.

GM228

johnnyskeleton wrote: »

There has been an automatic right to appeal without leave since 2010:


http://www.irishstatutebook.ie/eli/2010/act/27/section/31/enacted/en/html#sec31

Only applied to the CCA and so no longer applies (due to be repealed when a commencement order is issued by the way).

Is there something similar for the CA?

Fred Swanson

This post has been deleted.

johnnyskeleton

GM228 wrote: »

Only applied to the CCA and so no longer applies (due to be repealed when a commencement order is issued by the way).

Is there something similar for the CA?

I'm not sure I get your point?

http://www.irishstatutebook.ie/eli/2014/act/18/section/8/enacted/en/html#sec8

Court of Appeal exercises all jurisdiction formerly exercised by the Court of Criminal Appeal.

The 2010 Act was commenced in 2010:

http://www.irishstatutebook.ie/eli/2010/si/414/made/en/print

I havent heard anything about them repealing the amendment to the 1924 Act

johnnyskeleton

Fred Swanson wrote: »

Would there ever be a case where the superior courts would refuse to hear an appeal?

Where they dont have jurisdiction to do so or, in the case of the Supreme Court, where leave to appeal has been refused.

Victor

johnnyskeleton wrote: »

Where they dont have jurisdiction to do so or, in the case of the Supreme Court, where leave to appeal has been refused.

So it's the lower court that decides that the appeal is prima facie justifiable (but not necessarily provable)?

GM228

johnnyskeleton wrote: »

I havent heard anything about them repealing the amendment to the 1924 Act

Sorry johnnyskeleton, ignore my post.

I made a complete t**s of that, I was thinking of S29 of the 1924 Act rather than S31, S29 is to be repealed.

johnnyskeleton

Victor wrote: »

So it's the lower court that decides that the appeal is prima facie justifiable (but not necessarily provable)?

Jurisdiction is set by legislation. So, for instance, some High Court Judicial Review and Extradition matters cannot be appealled to the Court of Appeal without a certificate to appeal from the High Court Judge. *There may be some question as to whether the Supreme Court can hear an appeal against a refusal to grant such a certificate but that's a matter for another day*. In that scenario, the lower court would decide whether the question is of exceptional public importance and in the interests of justice.

In terms of the Supreme Court, they decide whether to give leave to appeal in a written decision based solely on the papers in most cases (occasionally calling a case in for oral submissions) so it would be the SC themselves who decide whether the appeal can proceed or not.

Under the old system, the CCA would treat the leave to appeal hearing as the substantive appeal so would either refuse leave or grant leave and quash the conviction/sentence.