Appeal Court – The End of the Line

The heavily-trailed documentary “Appeal Court – The End of the Line” aired on BBC One Scotland at 10.45 pm yesterday (Monday 18 May).   On a superficial level – and “superficial” neatly characterises the exercise – it is easy to regret what was produced as an opportunity missed.   The business of appeals is, after all, the least publicised, the least scrutinised and the least understood aspect of our criminal justice system.   It cries out for exposure, for explanation.  In his opening narration, David Hayman promised us that “this programme goes inside Scotland’s criminal justice system”.   I dared to hope…

For that, I have only myself to blame.  The true state of our appeals process is kept dark for a reason, after all.  I know that, and so does anyone who has come into personal contact with it.   The same might be said, with justification, of the whole edifice of criminal justice.  But this programme was about appeals.  Its failure was not simply that it only scratched the surface, but that it presented, through the selective use of evidence, a comfortably reassuring image of a system whose reality is far from comfortable, or reassuring.

We were offered three examples of appeals, each of which turned on technical, procedural, argument about the manner in which the conviction was secured.   There was no doubt that each of the individual appellants had been present when the (mostly appalling) acts had been committed, and no doubt that these acts had been committed.   No difficulty, then, for the casual observer to feel only relief when the appeal was refused – as it was, of course, in each case.

Each of the appeals was a first appeal.   The route to court for these is relatively straight-forward, and was amply explained by the Dean of the Faculty of Advocates in a couple of sentences.   No huge difficulty with the system there.  What was not explained, or even alluded to, was the exponentially more difficult, energy and sanity-sapping obstacle course faced by those who have not met the time-limits for a first appeal, or who have previously appealed and lost.   It was as if the SCCRC didn’t exist.  An illusion given credence by the very title of the programme.   The reality, of course, is that many who are ultimately proved to have been innocent require more than one visit to the Appeal Court.

For me, the subtext of this programme was one of cosy reassurance that the Appeal Court doesn’t let guilty people escape the consequences of their crimes.   The question however remains: What about the innocent?  Unfortunately, that question wasn’t addressed.   The existence of the question wasn’t even addressed.  Neither were the appalling statistics that lay bare the true prospects of success in the Appeal Court.  Especially if your route to court is through the SCCRC.

It’s a shame that what presented itself as a credible examination of our appeals process actually wasn’t.  Care was taken to explain obscure legal terms, so that the viewer could better engage with the serious topic under discussion.   The system serves the people; better, then, that the people can have some sense of ownership of it.  The problem with this is that when you’re only allowed to see the bits that work, how do you challenge the bits that don’t?   Once upon a time, it was the job of our broadcasters to show it all.

Perhaps the most disappointing insight came late in the programme, when we were offered the views of one experienced defence counsel on the nature of the contest:

“I am interested in making sure that we have a good criminal justice system, and it’s a robust system, and it stands up to criticism.   If I go with a ground of appeal and the court doesn’t agree with it, at least I know that I have tested the case, and that person has had the point that we thought might have helped to overturn their conviction put to the court, and the court has explained to us that it hasn’t.”

If the object of this documentary was to promote the infallibility of the Appeal Court, then job done.   Which takes me back to my initial reaction.  Opportunity missed, or opportunity taken?

“Appeal Court – The End of the Line” is available on the BBC iPlayer.