One of the two men found guilty
of the horrific murder of solider Lee Rigby is to appeal against his
conviction. What is the law on appeals?
Introduction
In December 2013, Michael
Adebolajo and Michael Adebowale were found guilty of murdering the solider
outside his army barracks in Woolwich, south London. The pair is yet to be
sentenced. The judge, Mr Justice Sweeney, adjourned sentencing to await the
outcome of another appeal which is considering whether whole life sentences are
lawful (for more information on that appeal, see this
article).
Adebolajo is now seeking to
appeal against his conviction. He will be appealing on five separate grounds,
one of which is that the judge refused to allow his defence – that he was
acting as a soldier – to be determined by the jury. He alleges that the United
Kingdom is at war with Muslims and therefore his attack was a military strike. In English law, murder cannot be committed in the heat and exercise of war, so a military strike can theoretically be a defence.
What is the law on appeals
against conviction?
Appeals Against Conviction: Permission
Adebolajo is entitled, as are all
convicted offenders, to appeal against his conviction under section 1 of the
Criminal Appeal Act 1968. In order to appeal, section 1 of the 1968 Act
provides that the offender has to
obtain permission (or leave) to appeal from the Court of Appeal. Alternatively,
the trial court can grant permission within 28 days of the conviction.
Ordinarily it is necessary to seek permission from the Court of Appeal. The
application for permission to appeal (which identifies the reasons, or grounds,
for appeal) must be made within 28 days of the conviction, under section 18 of the
1968 Act.
The grounds for appeal are normally considered by a single
judge on the case papers alone; there will be no actual hearing. The judge
can grant leave to appeal if they feel there are grounds for an appeal or they
can reject the appeal if they find there are no grounds for an appeal. Should
the application for permission to appeal be rejected, the applicant can make a
renewed application for appeal within 14 days of the refusal under rule
65.5 of the Criminal Procedure Rules 2013. These renewed applications are
heard in person, normally by three judges.
Appeal Against Conviction: Grounds for Appeal
In the event that leave to appeal
is granted, the question to be determined at the appeal is set out in section 2 of the
1986 Act. That provides that an appeal will be successful if, and only if,
the Court of Appeal considers that the conviction is ‘unsafe’.
Any argument can be deployed to contend
that a conviction is unsafe. Common arguments focus on evidence that was
arguably wrongfully admitted or excluded, alleged errors on the part of
lawyers, defects in the indictment and the conduct of the judge.
In the event that the Court of Appeal
agrees the conviction is unsafe, it shall quash the conviction under section 2
of the 1968 Act. It may order a retrial under section 7 of the
1968 Act if the interests of justice so require. Otherwise section 2
provides the defendant shall be treated as though they were acquitted at trial –
that is, found not guilty.
Comment
I would be surprised if Adebolajo’s
appeal is successful. The evidence against him was remarkably strong. It is
almost impossible to argue he killed Lee Rigby in the course of a war, and certainly
not in the heat of a war. Even if there were errors during the trial, it would
be surprising if they were enough to convince the Court of Appeal that
Adebolajo’s conviction is unsafe.
