The Appeal Process

What happens after conviction if you want to challenge it

The appeal process in Scotland

For most people the word appeal conjures something straightforward. A decision was wrong, so you challenge it, and someone considers whether it was wrong. The reality of the Scottish criminal appeal process is considerably more complicated than that. It is also considerably more limited than most people expect.

This page explains how the appeal process works in Scotland, what grounds are available, what the realistic expectations are, and what the process actually looks like for the people going through it.

The starting point

An appeal is not a retrial. It is not an opportunity to present the case again from the beginning, call different witnesses, or argue that the jury reached the wrong conclusion on the facts. The appeal court does not sit as a second jury.

What an appeal court does is examine whether something went wrong in the legal process that produced the conviction. Whether the trial was conducted fairly. Whether the law was correctly applied. Whether the jury was properly directed. Whether evidence was wrongly admitted or wrongly excluded. Whether something has come to light since the trial that undermines the safety of the conviction.

Types of appeal

In Scotland there are two main types of appeal following conviction on indictment in a solemn case.

An appeal against conviction challenges the conviction itself on one or more stated grounds. The appellant must identify specific legal grounds on which it is argued the conviction is unsafe.

An appeal against sentence challenges the length or nature of the sentence imposed rather than the conviction itself. The argument is that the sentence was excessive or that the sentencing sheriff or judge made an error in how they approached the disposal.

It is possible to appeal against both conviction and sentence at the same time. It is also possible to appeal against sentence alone where the conviction itself is not challenged.

The grounds of appeal

An appeal against conviction requires specific legal grounds. Broadly these fall into a number of categories.

Misdirection of the jury covers situations where the judge or sheriff gave the jury incorrect or inadequate legal directions in the charge. If the jury was told to apply the wrong legal test, or was not directed on a matter it should have been, that may form a ground of appeal.

Wrongful admission or exclusion of evidence covers situations where evidence was placed before the jury that should not have been, or where evidence was kept from the jury that should have been admitted. Section 275 applications that were wrongly refused or wrongly granted can give rise to grounds of appeal in this category.

Insufficiency of evidence covers situations where the Crown's evidence, properly analysed, was not sufficient in law to sustain a conviction. The question is not whether the evidence was strong but whether it met the minimum legal threshold.

Unreasonable verdict covers situations where no reasonable jury, properly directed, could have returned a guilty verdict on the evidence before it. This is an extremely high bar and successful appeals on this ground alone are rare.

Fresh evidence covers situations where evidence has come to light since the trial that was not available at the time and which might have produced a different verdict. The fresh evidence must be credible, relevant and material. The fact that new evidence exists is not by itself sufficient.

Procedural irregularity covers situations where something went wrong with the conduct of the trial itself in a way that affected its fairness.

In practice many appeals raise multiple grounds simultaneously.

The note of appeal

To begin an appeal the convicted person or their solicitor must lodge a note of appeal with the High Court of Justiciary. This document sets out the grounds of appeal in detail. It must be lodged within specific time limits.

For an appeal against conviction the note of appeal must generally be lodged within eight weeks of the final determination of the proceedings at first instance. Missing this deadline can result in the right to appeal being lost entirely, although extensions can sometimes be sought where there is good reason for the delay.

Legal aid for appeals

Legal aid is available for criminal appeals in Scotland subject to the usual means and merits tests. The merits test requires that there are arguable grounds of appeal. A solicitor or advocate will assess whether the grounds are sufficiently arguable to justify legal aid being granted.

In practice this means that a person who wishes to appeal needs early legal advice about whether their case has arguable grounds. Not every conviction has grounds of appeal even where the convicted person is certain an injustice has occurred. The existence of a genuine sense of injustice is not the same as the existence of legal grounds.

The appeal hearing

Once a note of appeal is lodged the High Court considers whether to grant leave to appeal. This is an initial filter. If leave is refused the appeal goes no further unless the refusal is itself challenged.

If leave is granted the appeal proceeds to a full hearing before a bench of judges, usually three in serious cases. The appeal is argued by counsel on both sides. The court considers the grounds of appeal, the trial proceedings, and any relevant authorities.

The appeal court has a range of powers. It can refuse the appeal and uphold the conviction. It can allow the appeal and quash the conviction entirely. It can allow the appeal and order a retrial. It can substitute a different verdict or a different sentence. What it does depends entirely on what grounds have been established and what the appropriate remedy is.

The realistic picture

It is important to be honest about what the appeal process looks like in practice.

Most appeals fail. That is not a reason not to appeal where proper grounds exist. It is a reason to go into the process with accurate expectations.

The appeal court gives significant deference to the jury's verdict. It is slow to interfere with findings of fact made by a jury who heard the evidence directly. It is more willing to intervene where a clear legal error has been identified than where the argument amounts to a general sense that the jury got it wrong.

Appeals take time. From lodging the note of appeal to a final determination can take a year or more. During that time a person serving a custodial sentence continues to serve it. The appeal process does not suspend the sentence.

The process is also emotionally demanding in ways that are easy to underestimate. Families who have already been through a trial find themselves going through another prolonged period of uncertainty, document review and waiting. The gap between the lived experience of injustice and the legal framework within which it can be challenged is one of the most difficult aspects of this entire area.

When the appeal process has been exhausted

If an appeal has been heard and refused, or if leave to appeal has been refused, the normal routes through the court system have been exhausted. That does not mean all options have been exhausted.

The Scottish Criminal Cases Review Commission exists specifically for cases where the normal appeal process has run its course and questions about the safety of a conviction remain. The SCCRC is covered in detail in the next page in this section.

A note on representing yourself

It is technically possible to conduct an appeal without legal representation. It is almost never a good idea in a serious case. The appeal process is technical, procedurally demanding and unforgiving of errors. The drafting of grounds of appeal requires legal knowledge and skill. An unrepresented appellant is at a significant disadvantage and risks losing available grounds through procedural mistakes that a lawyer would have avoided.

If cost is the barrier, legal aid should be explored first. If legal aid is refused, organisations that support people with wrongful conviction claims may be able to assist with identifying pro bono legal support. Some of these are listed in the Support and Organisations section of this site.

What to take from this page

An appeal is not a retrial. It requires specific legal grounds and must be lodged within strict time limits. Most appeals fail but where proper grounds exist an appeal is the right and necessary step. Legal representation is essential. Where the normal appeal process has been exhausted the SCCRC is the next avenue to consider.

This page is information only and does not constitute legal advice. Law changes and individual cases vary. Anyone facing criminal proceedings in Scotland should seek advice from a qualified Scottish solicitor at the earliest opportunity.