Have you ever wondered if justice truly prevails in the UK's criminal appeals system? This week, we're joined by heavyweights Simon Natas and Jeremy Dein KC to tackle this very question, pulling back the curtain on the urgent need for reform. As we navigate the complexities of the Court of Appeal's narrow criteria and the 'lurking doubt' that haunts some convictions, our guests expose the critical issues and potential solutions that could reshape the path to a fairer legal process.
The conversation takes a turn into the labyrinth of introducing fresh evidence, a task akin to scaling a legal Everest beyond the typical 28-day appeal window. Through the lens of a harrowing Section 18 conviction, Simon and Jeremy illustrate the steep resistance and the concept of 'expert shopping' that often obstructs the road to justice. But it's not just the courts—our critique extends to the critical role and challenges faced by the Criminal Cases Review Commission (CCRC), an entity designed to be a beacon of hope that now struggles under the weight of bureaucracy and skepticism.
Our exchange culminates in a frank discussion on the broader implications plaguing our justice system, from the troubling power of the prosecution to appeal lenient sentences to the dire state of incarceration for individuals with mental health issues. This episode is more than just a revelation of systemic faults—it's a clarion call for modernization and compassion in a system that affects lives long after the courtroom falls silent. Join us for this eye-opening journey through the UK's criminal appeals process, and lend your ear to a dialogue that champions the pursuit of justice.
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Have you ever wondered if justice truly prevails in the UK's criminal appeals system? This week, we're joined by heavyweights Simon Natas and Jeremy Dein KC to tackle this very question, pulling back the curtain on the urgent need for reform. As we navigate the complexities of the Court of Appeal's narrow criteria and the 'lurking doubt' that haunts some convictions, our guests expose the critical issues and potential solutions that could reshape the path to a fairer legal process.
The conversation takes a turn into the labyrinth of introducing fresh evidence, a task akin to scaling a legal Everest beyond the typical 28-day appeal window. Through the lens of a harrowing Section 18 conviction, Simon and Jeremy illustrate the steep resistance and the concept of 'expert shopping' that often obstructs the road to justice. But it's not just the courts—our critique extends to the critical role and challenges faced by the Criminal Cases Review Commission (CCRC), an entity designed to be a beacon of hope that now struggles under the weight of bureaucracy and skepticism.
Our exchange culminates in a frank discussion on the broader implications plaguing our justice system, from the troubling power of the prosecution to appeal lenient sentences to the dire state of incarceration for individuals with mental health issues. This episode is more than just a revelation of systemic faults—it's a clarion call for modernization and compassion in a system that affects lives long after the courtroom falls silent. Join us for this eye-opening journey through the UK's criminal appeals process, and lend your ear to a dialogue that champions the pursuit of justice.
For more unmissable content from The View sign up here
Welcome to the View Magazine's Rebel Justice podcast. This week is the second part of our discussion between Simon Natus and Jeremy Dean KC. Simon is an award-winning solicitor specialising in criminal defence and protest law and human rights related work. Jeremy Dean is one of the UK's most experienced and highly regarded criminal defence and appeals barristers. He's served as joint head of chambers at 25 Bedford Row and has vast experience in defending serious, complex and high profile cases. In part one, jeremy talked about his rise from a working class background to become a top criminal defence advocate representing the interests of people less fortunate in life. Simon and Jeremy shared stories of successful cases and talked about how the legal system has evolved over the years, including the game-changing Jogi case. This week they discussed the appeals process, including looking at where things need to change to allow a fairer and more just system where people can appeal their convictions and sentences.
Speaker 2:Probably a good time to talk a bit about the appeals system. I think it might be right I'm not sure whether you agree, jeremy say that the appeals system is probably the area of our criminal justice system that has the most scrutiny, perhaps the most criticism, perhaps arouses the most concern amongst practitioners, I think it's fair to say, certainly amongst people who get involved in the criminal justice system and come out at the other end with a bad result and are reliant on the appeal system to try and correct what they often feel is the wrong result. But once they come up against it they find that it doesn't do the things that they necessarily hope it will. Obviously you've had a lot of experience with the call of appeal and for the first time in a very long time we've actually got the law commission talking about quite fundamental change to the cause of appeal, which I think is a really significant development. But I just wondered whether you could perhaps tell us what, in your view, are the major problems with the call of appeal? A big question.
Speaker 3:What I say to you, simon, first of all, is that I think the makeup of the criminal appeal judiciary is bizarre, because something that I find strange, and I've always found strange, is that you go to the Court of Appeal criminal division and very often you're met with a constitution of judges none of whom have any criminal experience at all. I know Professor David Ormrod gave a lecture on this about a year ago and the question of whether the Court of Appeal criminal division should in fact be made up of criminal practitioners. So that's the first point I've made that so often that feel of criminal justice just isn't there and things are looked at far too academically rather than the reality of the situation. That's my first point.
Speaker 3:I think that the platform for success in the Court of Appeal needs radical change the limitations of grounds for appeal being essentially error of law by the judge, misdirection by the judge and the admission of fresh evidence.
Speaker 3:The framework is just far too tight and, although the ultimate test is whether the conviction is unsafe, you have to get over those specific obstacles. Did the judge make a significant error of law? Did the judge materially misdirect the jury? Is the fresh evidence admissible under what in itself is a complex and prosecution weighted regime for the admission of fresh evidence. So the major change, it seems to me, should be that the ultimate test of whether the conviction is unsafe should be widened to allow the Court of Appeal to focus much more on the quality of the evidence that led to the conviction and also the fairness of the trial. At the moment, if it's blatantly obvious that the trial was unfair, unless you can get over the specific hurdles under the Criminal Appeals Act which I've referred to, you won't win. So ultimately, I think scope for success in the Court of Appeal has to be significantly widened and that's the major change that needs to come.
Speaker 2:Yeah, well, I actually agree with that. I think one of my experiences as a solicitor is I quite often get people coming to me saying I've been convicted quite a bit of murder. These are all the things that went wrong in my trial, and I'll go through a whole list of things and quite often they are just that the evidence was weak. The jury should never have come to the conclusion that they did. Based on the evidence, the judge let in things which, to be honest, you know we're talking previously about letting in previous convictions of knives and things like this. This comes up quite often. But they think that because the outcome was so unexpected that it often is particularly in joint enterprise murder cases they think they therefore should have an opportunity to have a re-hearing, effectively in the court, with some description. But of course that's not the case and it's as you've explained.
Speaker 2:It is necessary to demonstrate that something actually went quite fundamentally wrong in the trial process, which is often a very hard thing to do. And even if you manage to do that, the court will quite often say that the outcome wouldn't have changed the outcome anyway, which is obviously so unbelievably difficult. I mean, the law commission appeared to recognize that it is all drawn too tight, as you say, and they've asked whether there were various things that should change. I mean, one of the concepts that they talk about is lurking doubt. So where, yeah, you might not be able to demonstrate that something went fundamentally wrong with the trial, the judges ruling that, summing up the admission of evidence, you may not have any fresh evidence but nonetheless, when you stand back and you look at a conviction, it just feels that it's fundamentally wrong. And that is still supposedly part of our appeal system. It just it never really comes up. And I don't think, jeremy, you can recall a case where you've had an appeal cross for lurking down.
Speaker 3:Not for as long as I can remember, no, not.
Speaker 2:And I think lurking doubt.
Speaker 3:You know it's a very, very old fashioned expression now, but it's one that you know is as pertinent today as it ever was. I mean, if you or I went before the Court of Appeal in the modern era and said that the basis of this appeal against which is lurking doubt, you'd be laughed out of court, wouldn't you? But actually actually lurking doubt it should be really what it's all about, exactly Well it should be all about.
Speaker 2:Yeah, most people would think that that is exactly the situation in which you would stand the best chance of getting your appeal overturned the law commission. Actually, you know that there is a case of Crown Against Pope in which the Court actually examined what lurking doubt meant. Right, the definition is well, they said it required an inexorable conclusion reached through a reasoned analysis of the evidence or the trial process, or both, that the conviction was unsafe. Well, in practice, that just seems to me to be the same test in the appeal act. You've got to show something went fundamentally wrong with the trial.
Speaker 3:Yeah, doesn't sound like lurking doubt to me.
Speaker 2:It doesn't no so.
Speaker 3:I think I think you know the problem is, as you've said, it's just so difficult to succeed on conviction in the Court of Appeal. It's incredibly difficult to succeed. They always seem to find a way of upholding the conviction. So we do have an appellate structure, but it has to be changed to make the prospect of success more realistic. Otherwise sometimes you just feel, I mean, it's such hard work as well that it's soul destroying at its point.
Speaker 2:Yes, it is, it is. I think some of the other things they point out are quite interesting. So I think you mentioned earlier about fresh evidence and admitting fresh evidence. There's another really big part of appeals, particularly normally these are going to be out of time appeals. You always have 28 days from conviction to watching appeal. But how are you going to find fresh evidence within 28 days? So these sometimes come months or years after the event.
Speaker 2:But I think and maybe you've got some good examples of this, I don't know quite often you'll come up with some fresh evidence that you think is really good, like I'm really important, and yet when you get to the court of appeal, for some reason they're not interested. I mean, I can just think of one example of the top of my head, which is a case where a client was convicted of Section 18, but largely on the basis that there was some of the victims' blood were on his shoes and I actually worked out that the forensic evidence trial, the blood splatter evidence, was actually completely wrong, completely misleading the people who represented it, had instructed an expert I don't think had done a proper job and I want an expert who really did do a proper job and it was pretty clear that the guy who was serving an eight-year sentence should never have been convicted. But the court of appeal basically said oh, you're just an expert shopping and they weren't interested. I don't know whether that's been your experience, yeah.
Speaker 3:I mean, it has been my experience. One of the sort of specific problems with the fresh evidence regime is that you know at the moment you've got to get past a number of sub-herdals, so you have to establish that the evidence is new, in that it wasn't reasonably available at the trial, that it's credible, that it potentially would have had a significant impact on the jury's verdict. Those are very difficult things to establish and if you come in as a new lawyer and you secure fresh evidence, you know very often you're greeted with skepticism and you get a call reception on the basis Well, you know like you're coming with this fresh evidence but no one at the trial seemed to think that it was important and you know, when quite often that was an error or a lack of thoroughness.
Speaker 3:But that obviously brings us to another aspect, which is how difficult it is to base an appeal on the suggested incompetence of other people. And I don't like putting other people down, but there are cases that I know you will have experienced the Simon which are linked to fresh evidence or not linked to fresh evidence, where we are instructed as new lawyers and we feel that things should have been done which weren't done, but then it's very, very difficult to argue those kind of points and it's also very difficult to get fresh evidence in when the trial legal team didn't pursue those angles. So whichever way you approach an appeal against conviction, you are met with extremely difficult obstacles and the prospects of establishing that conviction is unsafe are limited.
Speaker 3:But lawyers like you and I, who enjoy pellet work, who feel that the appellate structure is really, really important, you know we pursue appeals because we believe that it's a route that needs to be maximized and I strongly believe that I think it's a vastly underused facility. The appellate route.
Speaker 2:No, I actually agree. I mean, I think the point that you make is quite right. It's just the barriers to admitting fresh evidence. Evidence need to be just a great deal lower, and really what we need, I think, is a call of appeal which is eager to accept fresh evidence, not overwhelmingly opposed to it, because they should be thinking, well, has anything gone wrong in this case? Well, we actually need to give this really serious thought, because the idea that an innocent person may be convicted is such an appalling one that we will, even if we ultimately, it turns out we have wasted our time because it turns out that there's nothing in it. Actually, we haven't wasted our time because what we've done is ensure that there is no possibility that an innocent person is there.
Speaker 3:Very briefly take up a couple of aspects of that because they're really important.
Speaker 3:Firstly, I think what you've just said does drive us back to the question of the makeup of the criminal appellate judiciary, because I do think that if the criminal appellate judiciary was far more embedded with people like you and me who live and breathe criminal practice, that the prospect of the appellate judiciary looking at appeals favorably and admitting fresh evidence would be higher. Secondly, just to give one example of the problems that we face, I mean there is, as you know, almost a blanket prohibition against basing an appeal on the suggested incompetence of trial legal teams. So what that means is that, as, for example, in a murder appeal that I'm doing at the moment, where it cries out that the defendant was autistic and that a psychologist and or psychiatrist should have been instructed you know it's clear that that should have happened, but it didn't happen but to actually base an appeal on, you know, the suggested admission of psychological, psychiatric evidence when the defense had the opportunity to pursue that trial and didn't? I mean, we have to jump so many hurdles, don't we?
Speaker 1:And so many obstacles are put in our way.
Speaker 3:And you feel like saying in the end for God's sake, it's so obvious that the jury should have heard expert evidence, just let us call that evidence. But of course it doesn't work like that. You end up with this long and winding road, which very often you hear a cold as that, and that's just how it is, that's just how it is Absolutely 100%.
Speaker 2:I mean, what was also just actually, when you read this, you read this issue paper the law commissioners put out they actually go, you know they analyze things that I suppose we kind of forget the way. But what they point out is the rationale. One of the key rationales that the Court of Appeals uses to justify erecting these barriers to emitting fresh evidence is their concern that defendants will use the first trial as a dry run for an appeal.
Speaker 2:But, as I'm sure as a defense lawyer, that is barking mad. I've never come across a case where I thought my client was using the trials of dry run for an appeal Never. They don't even know about how the appeal system works it wouldn't even occur to them.
Speaker 3:I totally agree. If I could just bring in very quickly here, you know, the question of appeal against sentence and one of the most shocking examples of my career of how it can be demonstrated that the appellate structure is just far too tight, because on an appeal against sentence the defense have to establish either the sentence was wrong in principle ie that it should have been a custodial sentence, for example or that the sentence was manifestly excessive. So one of those two, I defended a guy about 18 months ago who had no previous convictions, who got 30 months for a drug supply offense. He went into Wormer Scrubs with perfect sight. He came out of Wormer Scrubs blind in one eye and the appeal came on just when he was about to be released. We were able to show conclusively that he developed some sort of eye problem early in his sentence a catalog of over-sights and errors at Wormer Scrubs prison which undoubtedly led to him going blind in one eye and we based the appeal against sentence. He had about four or five months of his sentence to go. We wanted immediate.
Speaker 3:I didn't defend him at the trial, I was instructed on the appeal but anyway we wanted the sentence reduced. You know their response to this was. The test on appeal against sentence is whether a sentence imposed was manifestly excessive. We are not prepared to look at events which develop post-sentence in judging the merits of the sentence and therefore the fact, if it be correct that this person went blind in one eye while he was serving his sentence is irrelevant. So strict application of manifestly excessive no compassion guy, you know, is left blind in one eye for life and he has no recourse to the failures that he experienced at Wormers-Groves prison because the test was applied so so incredibly inflexibly. I mean, that's justice, is it?
Speaker 2:Absolutely. That's not justice. I mean, I don't think most people who are not actually, you know, bold in the criminal justice system deal with it on a day to day base basis, would believe. But it wasn't possible for a call to exercise the discretion in that situation. And it is. The word is compact, the word uses compassion, that's not one day on sentence.
Speaker 3:No, that really I mean I felt like saying to them where the judge came in. It was clear that they were to go that way from the way they were dealing with my submission. I felt like saying you know, are you serious?
Speaker 2:Obviously, yeah, I mean the converse sometimes happens. We've got somebody who's in a may have grounds to argue the sentence is manifested excessive, but also wants to rely on how well they've done, yeah, custody, how they've achieved a lot since they've been serving their sentence, and wants to rely on that sort of thing.
Speaker 3:That's pretty much equally difficult, not really interested is also unpredictability, where you could be in court. Eight and they'll say that post sentence behaviors irrelevant and then you'll see people coming out of court. Nine he said how do you get on with a year off because he got a fantastic prison report.
Speaker 2:Yeah, lack of consistency. So another big part of the appeal system, and equally controversial one, I think it's fair to say, is the CCR C criminal cases review commission. I'm not sure Everybody listening will necessarily know exactly what that is, but perhaps you could tell us a bit about the backgrounds of the CCR C and how it came came to be.
Speaker 3:But my understanding recollection is that it came about following the Guildford for case and you know repeated appeals going to the court of appeal and being unsuccessful and that time honored declaration by Lord Lane. That then you know historic, lord, chief Justice, that you know every time this appeal comes before me I feel that effectively the prosecution position is stronger. So this new body was set up, the CCR C, the criminal cases review commission, which would allow people to go to the CCR C and potentially have their cases refer back to the Court of Appeal. If it was considered by the CCR C, that is a real possibility that conviction might be overturned on conviction or sentence. So it's a body which a defender could go to post appeal in the quest for the case to be referred back to the Court of Appeal and then have a subsequent appeal.
Speaker 3:Unfortunately, in my view I don't know what you think, simon, but I think on the whole, as it's been demonstrated by the case of Andy Malkin said this year, that I felt it for some time the CCR C hasn't really worked. I mean, firstly, the test of real possibility that the conviction or sentence will be overturned, you know, is too high a threshold and it really should be something on the lines of you know that the conviction might be unsafe or that the sentence might be considered manifestly excessive, but also it just takes far too long. It can take two, three, four, five years for the CCR C to make their decision and that's just too long. I mean if you've been unjustly convicted or unjustly sentenced, you know for you to serve an extra five years because the process is just too cumbersome, is unjust, it's just layers of injustice and I think the CCR C is cumbersome and too slow.
Speaker 2:Yeah, well, I mean the CCR C, I think, when it was set up and it was set up following the Guilford-Forecase and the other high profile miscarriages of justice cases that there were in the 1980s and that were overturned in the early 1990s and it was felt that what was needed was an active body it's not a reactive one, yeah one that would actively go out and investigate and have the resources and the tools to investigate miscarriages of justice, to make sure that you didn't have a situation where someone would serve 16 years or longer for a crime that they didn't commit.
Speaker 2:You know couldn't allow that to happen again. That was the idea, and the idea I think, behind the CCR C was that it would be funded to do this, properly funded, and actually it's just had its funding stripped away over the years to the point at which I think the delays you talk about, which are absolutely true, can be put down largely just through lack of funding, lack of personnel, but also, I think it was a envisage that it would be really quite powerful Body and that's the other side to it.
Speaker 2:When the criminal cases review commission spoke and said we think something's gone wrong, the court of appeal would listen. Your spot on, your spot on it hasn't happened and the real I mean that is possible, that that was always going to be the case, because the real possibility test. They cannot refer case unless they think there's a real possibility, the court of appeal, term, conviction and when you get a call appeal, that is as resistant to to overturning convictions as we've identified that much more difficult.
Speaker 3:Yeah, you're so right, because your point is that you know this powerful body was set up to send the message to the court of appeal on appropriate occasions. Look this, there's a problem here and we need you to sort it, whereas my experience and I'm sure yours is the same is that if you go to the court of appeal via the CCRC, that there's a kind of skepticism along the lines of what they manage to cobble together here. So One concept I'd like to mention briefly, one aspect of the system that I've never liked is the innovation of the prosecutions right to appeal against sentence on the grounds that sentence is unduly linear. So for many years of my career, I don't remember exactly when unduly linear sentences the concept was introduced, but I really don't like the fact that the last 2025 years, the prosecution have been allowed to appeal sentences and that there are occasions when an offender gets a non custodial sentence and then, six months later, is effectively sent to prison, and also where, let's say, an offender gets five years from the judge and the court of appeal double it or double it plus. I think that's cruel and I really don't like that aspect of the system at all.
Speaker 3:I was in a death by dangerous. Recently I had a guy who was a exemplary character went out one night. He got drunk. He killed a woman and two dogs at some traffic lights. He was immediately contrite. He knew he was going to prison, took 18 months for the case, come on, even though he's bleeding guilty. He was amazing, you know got his life together, said I'll take whatever. I was given very strong mitigation. He got six and a half years prosecution. Appealed it increased it by four years so he settled into a sentence. He was contrite, he was remorseful. Six months into his sentence it's effectively doubled. I mean that's cruel, isn't it?
Speaker 2:in my view, it is cruel and I think you can really justifiably ask what social purpose that actually serves. Why should that be the case, that the court of appeal should be able to increase people sentences, quite often when they were really serving quite long sentences anyway? I suppose that does raise another question. I think it's very fundamental one and I'm sure we've got time to explore it. Necessarily any great that, but it does seem to me that prison sentences have got quite a lot longer over the years and there just seems to be a belief that exist in the judiciary and perhaps beyond the prison sentences is somehow a panacea. I know by making them longer and longer we can somehow somehow deal with social ills that give rise to criminal behavior and the damage that it causes. But I mean, what I've never heard once is anyone adequately explaining why that should be so. I mean, is that your, is that your experience?
Speaker 3:yeah, without doubt.
Speaker 3:I mean I find that 41 years later, I still find the whole idea of locking people up challenging one, you know, and obviously, as you know, and it's obvious, there are cases in which incarceration is the only means of disposal, that there are so many others where it isn't.
Speaker 3:Just very briefly, I mean on a slightly different angle, I mean what troubles, troubles be hugely about prison in this country is the number of offenders who are in prison, who shouldn't be in prison, people with personality disorders and mental disorders.
Speaker 3:You know, I think prison staff are incredibly poorly trained and the quality of prison staff is is poor, and I know this is not quite the issue you're raising. But what I would like to say while you and I speaking, simon, is that I think that the public don't understand, because it's not their world, that our prisons are mainly human dustbins where people are just thrown in together the whole business, like the guy that I just spoke about, the guy convicted of dangerous driving, who was a professional, who made a mistake for five minutes that led to him going to prison fine, but then he's put in a cell with some, some, you know, mentally disordered offender who's charged with violent offenses, who shouldn't be in prison at all. The doors open, they're both chucked into this room and they're left there for you know, days, weeks or months. I mean, it's the year 2023, for God's sake, and we're doing that all the time.
Speaker 2:So, yes, I agree with your point about whether the whole ethos of imprisonment serves any purpose or a purpose, but I also think in real terms, the prison system in this country is a complete disgrace and and that's a fact no, I mean, that is, that is a fact, what doesn't really know what, what these judges expect to happen to people when they are, when they are condemning them to go off and live in these appalling conditions with no real hope of rehabilitation. I mean, if it happens, it happens despite the prison's, not because of it, yeah, and and why they think, ultimately, that's going to make things any better?
Speaker 3:I just don't think judges think about it. Really I don't think they think because you know they don't not part of their remit to think about it. Maybe if they spend more time in prisons and saw the mess the prison system is. We do have a terrible prison system, but there it is. That's what you know, that's what we have now.
Speaker 2:I sincerely hope that within my lifetime that changes. Something fundamentally changes there, and I kind of, I suppose, when I started out on my job, I thought that by the time I got to this age people would have realized that this is unsustainable and it just doesn't happen, which is I don't think it will change in our lifetimes, because there's no, there's no real move for change and there are no resources for change.
Speaker 3:The buildings are generally getting older and older.
Speaker 3:You know there's still lots of prisons where people slop out. There are no toilets in their cells. We have, you know, thousands of prisoners in cells designed for two people, whether three people, three people, whether four people. In many prisons there's no selection process. So you can be convicted of shoplifting and put in a cell with someone who's convicted of murder. So you've got two people in a cell. One's going to be released at the end of the month, the other one's going to be released at the end of the century. It's just ridiculous. And what are they going to talk about? That's, you know, has scope for rehabilitation. It's just shocking.
Speaker 2:But anyway, it's a topic for another day because it's just too big a topic it is too big a topic but it has been, I hope, a really interesting discussion for our listeners. I hope we've not been too technical and at times we take in the time to go back and explain some of the technical terms we've used them, but it certainly has been a really interesting conversation and the privilege to talk to you likewise it's been really enlightening actually listening to you.
Speaker 3:I'm a barrister, you're a slister, you know, but we have so much in common and it's interesting and notable that many of our thoughts and ideas mirror each other, you know. I hope that's helpful to the people who listen to this, that they can see that what emerges from the likes of what you and I do are some very fixed concerns that need addressing no, I I think that's right and I think that's really a very fitting conclusion to our discussion in this podcast.
Speaker 1:Thank, you very much thank you once again, jeremy, thank you, thank you, simon and that concludes this two-part episode featuring top criminal defence barrister Jeremy Dean in discussion with expert solicitor Simon Natas. Thanks to Jeremy and Simon for sharing their views, insights and concerns on the prison system, the appeals process and how we should see the system change in future. Rebel justice podcast is produced by the View magazine. You can subscribe to the View at the view magorguk and follow us on our social media. We are rebel justice on x, formerly twitter, and the View magazine on instagram, linkedin and facebook.