Being appealing to the Court of Appeal (R v Franklin – case note )

The Court of Appeal gave judgment in the case of Franklin & Others [2013] EWCA Crim 84 on 11th February. It was a nasty case of Attempted Murder where the victim was shot in the back. The appeal dealt with various issues, including bad character, joint enterprise and witness anonymity. It’s worth a read, but we are not going to write it up as there’s no great point of law in it.

What we’d highlight, more by way of a plea to the powers that be rather than anything else, is the comments in paras 59-62 :

  1. We come finally to Franklin. Franklin does not challenge the sentence imposed, but she does challenge her conviction. Miss Sherry Nabijou, who is Franklin’s counsel, produced an advice including grounds of appeal which runs to thirty four pages and elaborates seven separate grounds of appeal. Those seven grounds are as follows [They are then listed].
  1. This thirty four page document is discursive and conversational in style. It contains many points which quite properly were put to the jury, but which cannot form the basis of a successful appeal. There is a danger that a document like this may lead to injustice. Good points may become overlooked amongst the mass of irrelevancies and bad points.
  1. In those circumstances the single judge granted leave to appeal on grounds B, E, F and G. He added the following comment:

“I have considered the papers in your case and your grounds of appeal.

As to conviction, the primary question is whether there are any arguable grounds on which the full court could conclude that the conviction was unsafe.

The summing up was full and fair as to joint enterprise (Ground D). The jury appear to have considered the evidence for many hours and were entitled to reach the conclusions they did.

There was no error in relation to “Paul’s” bad character (Ground C) or your own (Ground A).

I am afraid that the written submissions are rather rambling and unfocussed, and I believe that it would be fair in the circumstances to afford an opportunity to argue Grounds B, E, F and G as there may be some merit in one or more of them. But the full court will need the assistance of a clear and carefully argued skeleton argument with proper cross-references to the relevant transcripts.”

  1. Counsel responded to the single judge’s order by preparing and filing a skeleton argument which (although unpaginated) runs to eighteen closely typed pages. In this skeleton argument counsel pursues all of her original grounds of appeal. She seeks leave to appeal in respect of those grounds where the single judge had refused leave. Our task is to discern whether any of the material within this skeleton argument, as elaborated in Miss Nabijou’s oral submissions, provides a proper basis for quashing Franklin’s conviction.

 

We have not seen either of the documents mentioned above (a separate problem which could be easily remedied), but it raises a question everyone who has argued a case in the Court of Appeal (particularly anyone who has been on the wrong end of a judicial kicking) has asked themselves – how do you strike the right balance?

A few years ago, Moses LJ gave a lecture at Middle Temple. It was excellent (as you would expect) and quite forthright in what he wanted from grounds of appeal – a very short document that doesn’t recite the facts and sets out the grounds in skeletal form. Just as every advocate has a different style, so does every Judge – one Judge’s prolix and unnecessarily verbose document is another’s necessary level of detail. What’s a poor advocate to do?

There is further guidance issued by the Court of Appeal itself ‘A Guide to Commencing Proceedings in the Court of Appeal’ which is useful to some extent (as is the CPR), but certainly doesn’t give all the answers.

What would be useful would be if the Lord Chief Justice, or a group of Judges perhaps, could publish templates grounds and skeleton arguments. This would give us advocates some comfort when preparing for a hearing and would benefit the Judges in that they would know that they would get consistency (and it’s easier to give someone a bollocking if they failed to comply).

But, more importantly, this would be of huge interest to the public. As an educational tool it would be second to none. Not just in relation to the individual cases, but in explaining to the interested layperson who the system works. We talk often of open justice, this would be a small step forward, but with a big impact.

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