This document is intended as a simple guide for people who want to appeal their convictions without the help of a lawyer.
The Scottish Criminal Cases Review Commission reviews cases of alleged miscarriage of justice. The Commission usually deals with cases in which the convicted person has already appealed. Recently, the Commission has had more people applying to it before they have appealed. Many of those people say that they have found it hard to get a solicitor to help them with an appeal.
This document is not legal advice. It does not take the place of professional legal advice. The Commission always suggests that convicted people seek legal advice from a solicitor if they want to challenge their conviction.
This document covers only the ordinary course of the common forms of appeal. There are rarer types of appeal that may apply to your case. There are other unusual situations that this document does not address. If you are unrepresented and have questions about any matter relating to appeal procedure, you should address them to Justiciary Office. Their contact details are in the “Useful Resources” section, below.
Criminal cases in Scotland come in two different types. These are called “solemn procedure” and “summary procedure”. This is important because the form of appeal in each is different. If you’re not sure which applies, ask the court in which you were convicted.
Solemn procedure usually starts with a petition warrant and then an indictment. The indictment states the charges against you. All indictments set out your name and address and then use the following words:
“you are indicted at the instance of His Majesty’s Advocate, and the charges against you are that”
Unless you plead guilty, solemn procedure leads to a trial before a sheriff or judge and a jury. All trials in the High Court use solemn procedure. Some trials in the sheriff court also use solemn procedure.
Summary procedure starts with a complaint. The complaint states the charges against you. Complaints set out the court in which you are charged and then use the following words:
“The COMPLAINT of the PROCURATOR FISCAL against”
Unless you plead guilty, summary procedure leads to a trial before a justice of the peace or a sheriff sitting without a jury. All trials in the JP Court use summary procedure. Most trials in the sheriff court also use summary procedure.
Section 106 of the Criminal Procedure (Scotland) Act 1995 gives you the right to appeal to the High Court against your conviction, your sentence or both.
If you want to appeal you conviction (or both your conviction and sentence) you need to submit intimation of intention to appeal (section 109) and then a note of appeal (section 110) to Justiciary Office.
Your intimation of intention to appeal needs to identify your case. There is a form that you should use, which may be found in appendix 2.
You need to send your application for an extension of timeintimation of intention to appeal to Justiciary Office and the Crown Agent.
Your note of appeal needs to identify your case and set out your grounds of appeal. There is a form that you should use, which may be found in appendix 2.
You need to send your note of appeal to Justiciary Office and the Crown Agent.
If you are appealing against your sentence only, you need to submit a note of appeal. You don’t need to submit intimation of intention to appeal.
Your note of appeal needs to identify your case and set out your grounds of appeal. There is a form that you should use, which may be found in appendix 2.
You need to send your note of appeal to Justiciary Office and the Crown Agent.
Justiciary Office use the following email address for solemn procedure:
solemnappeals@scotcourts.gov.uk
You can write to them at this address:
Parliament House
11 Parliament Square
Edinburgh
EH1 1RQ
The Crown Agent’s address is as follows:
Crown Office
25 Chambers Street
Edinburgh
EH1 1LA
The powers of the court may be found in section 118 of the 1995 Act.
In an appeal against conviction, the court may overturn the verdict or it may change the terms of the verdict. It may also decide not to do either.
If the court overturns the verdict, then it will also overturn any sentence. If it changes the verdict, then it will pass a new sentence.
Sentence
In an appeal against sentence, the court may overturn the sentence and pass a new one. It may also decide not to do this.
Can the court increase my sentence?
This is possible, but only if there is an appeal against sentence. It does not happen often. If the appeal is against conviction only, the court has no power to increase the sentence.
Conviction
You need to submit your intimation of intention to appeal within 14 days of the final determination of your case. This usually means within 14 days of sentencing.
You need to submit your note of appeal within eight weeks of the date you submitted your intimation of intention to appeal.
Sentence
You need to submit your note of appeal within two weeks of the “appropriate date”, which is usually the date of sentencing.
What can I do if I’ve missed these time limits?
The court has the power to extend these time limits, even if they have already run out. This is covered in section 111 of the 1995 Act.
If you want to apply for an extension, you need to set out why you missed the deadline and what your grounds of appeal are. There is a form that you should use, which is found in appendix 2.
You need to send your application for an extension of time to Justiciary Office and the Crown Agent.
Section 175 of the Criminal Procedure (Scotland) Act 1995 gives you the right to appeal to the Sheriff Appeal Court against your conviction, your sentence or both.
If you want to appeal against your conviction (or conviction and sentence), you need to apply to the court for a stated case (section 176 of the 1995 Act).
Your application for a stated case needs to set out the grounds for your appeal. You should make clear whether you want to appeal just your conviction or both conviction and sentence.
You need to lodge your application for a stated case with the clerk of the court in which you were convicted. You can find the address on the Scottish Courts and Tribunal Service website (www.scotcourts.gov.uk).
You also need to send a copy of the application to the procurator fiscal. You can find the address of your local office on the Crown Office website (www.copfs.gov.uk).
The sheriff or JP court will then prepare a draft stated case. This sets out the facts of the case and proposes legal questions for the Sheriff Appeal Court to answer. It usually also contains notes on the case.
You then have the chance to suggest “adjustments” (changes) to the stated case if you wish to do so. This is covered by section 179 of the 1995 Act. You must send the clerk of court and the procurator fiscal any adjustments that you want to suggest. You must also tell the clerk of court ifthat you don’t want to propose any adjustments. If you don’t do that, the appeal will be deemed abandoned.
If you or the procurator fiscal suggests any adjustments, there will be a hearing before the judge. The court will let you know when this will be. If you are in prison, you should be taken to court. If you are not in prison, you will need to attend the sheriff court yourself.
If you want to appeal against sentence only, you need to lodge a note of appeal (section 186 of the 1995 Act)
The note of appeal should set out the grounds of appeal. There is a form that you should use, which may be found in appendix 2.
The powers of the court may be found in sections 183 and 189 of the 1995 Act.
Conviction
In an appeal against conviction, the court may overturn the verdict or it may change the terms of the verdict. It may also decide not to do either.
If the court overturns the verdict, then it will also overturn any sentence. If it changes the verdict, then it will pass a new sentence.
Sentence
In an appeal against sentence, the court may overturn the sentence and pass a new one. It may also decide not to do this.
Can the court increase my sentence?
This is possible, but only if there is an appeal against sentence. It does not happen often. If the appeal is against conviction only, the court has no power to increase the sentence.
If an appeal to the sSheriff Aappeal cCourt is unsuccessful, you have the right to appeal to the High Court on a point of law. Part 10ZA of the 1995 Act sets out the procedure for doing this.
The Commission does not usually require people convicted under summary procedure to try to appeal to the High Court before making an application.
Conviction
You need to submit your application for a stated case within seven days of the final determination of your case. This usually means within seven days of sentencing.
You need to submit your adjustments to the stated case or tell the court that you have no adjustments within three weeks of the issue of the draft stated case being issued to you.
Sentence
You need to submit your note of appeal within 1 week of the date of sentencing.
What can I do if I’ve missed these time limits?
The Sheriff Appeal Court has the power to extend these time limits, even if they have already run out. This is covered in section 181 of the 1995 Act.
If you want to apply for an extension, you need to set out why you missed the deadline and what your grounds of appeal are.
You need to send your application for an extension of time to Justiciary Office and the procurator fiscal. You can contact Justiciary Office using the summaryappeals@scotcourts.gov.uk mailbox. You can write to them at the following address:
Parliament House
11 Parliament Square
Edinburgh
EH1 1RQ
You can find the procurator fiscal’s address on the Crown Office website (www.copfs.gov.uk)