Appealing wrong decisions

Suggested clause:

'Parties to proceedings before a court of law must be given an effective right of appeal against court decisions which effect them.'

Original idea:

All lawyers know that it is extremely difficult to successfully argue that a judge has wrongly decided a factual question as the current case law is stacked heavily against such appeals. 

i suggest that our new constitution embraces positive language and declares that all persons subject to judgments of courts should have an "effective right of appeal" ushering in a new approach to appeals. 

 

ian

edited on Apr 18, 2015 by Ian Smith

Ian Smith Apr 6, 2015

Dear All,

I am posting a quick comment here and in my other ideas.

Firstly, I want to say how much I have enjoyed seeing all of your contributions on this and other ideas and how impressed I am with the range of expertise and erudition which has filled these debates.

Secondly, I wish to put forward a couple of suggestions as to a way forward at this stage.  They are:

A.   I suggest that we all refrain from further voting until the ideas have been refined and represented and have then been debated for a while.  My thinking here is that we will want to see the reshaped ideas and see the comments on those refined ideas before we decide whether they are to be voted up or down,  I do not think that we should refrain from voting on comments but perhaps try not to vote too hastily on them.

B.  Now that the hurly burly of the "Hacking" phase (some of it quite savage) has passed, I hope and wish that we will adopt a more collaborative and less combative approach in our commentary, so that commentary is given a chance to be constructive and really do the job of refining the ideas in question.

C.  I would hope that we can refrain from attacking the very existence of the idea under discussion in this phase or the fact that it has successfully gone through to this phase against the wishes of those who voted it down.  I sincerely hope that the previous critics of an idea, will still respect that it found favour with the crowd and now help to refine the idea in this phase.

Thirdly, I will try my best not to introduce any more typos and mangled phrases! 

Best wishes,

Ian 

Ian Smith Apr 7, 2015

Dear All,

Before I draft a suggested clause for the constitution, I should be very grateful if you would let me have any further thoughts on this idea and in particular the form of a constitutional clause.

Kind regards,

Ian

Richard Durkin Apr 8, 2015

A victim of a wrong judgement should be allowed an explanation of how the judgement has come about leading to an opportunity to show the judges the error of their ways.

The explanation, of course, must come from the judges issuing the ruling. 

The opportunity to right the wrong could come via an internet forum with access to a body that can call for a review of the judgements.

Rob G Apr 8, 2015

Not sure this is going to be helpful, Ian, but I'll say it anyway. And it's all based on the law in England and Wales, as I don't know very much about the Scottish criminal system.

I think one of the reasons that it's hard to appeal a decision on the facts is that in jury trials, it's the jury that decides the facts - so at least 10 people must have come to a common understanding. So an appeal court of 3 judges who didn't hear the evidence can't bring a more informed perspective to the case - they're experts in the law, not the factual situation of a given case. (When new evidence comes to light, they're likely to order a retrial to allow the old and new evidence to be assessed together - though the CPS may decide not to present a case.)

That does of course make it impossible for the statement that Judge Rico suggests, as jury deliberations are secret. The judge has no greater insight into why they came to the decision they did than does the defendant's counsel.

I don't think it's any more difficult to appeal cases from the magistrates' court on the facts than it is on the law. The "Appeal Notice" form asks for a summary of the "matters of fact or law ... which are in dispute".

Richard Durkin Apr 8, 2015

If a jury finds as a matter of fact that black is white (when we all know black is black), the victim must be entitled to a reason for the finding.

In the cases decided by jury, the jury must offer an explanation for their findings.

I'm more concerned when judges rule without the benefit of a jury or evidence and even ignore the facts! In particular "supreme" justices who as things stand aren't required to even mention what the submissions were!

Ian Smith Apr 8, 2015

Many thanks for commenting on this idea. 

Criminal appeals: I agree with you Rob that the jury system, with all its advantages, brings with it the serious disadvantage of not being able to scrutinise the reasons for a guilty verdict.  As long as we have juries, that, it seems to me, must be the acceptable price we pay. 

Civil appeals: in theory it should be easier to appeal reasoned judgements of fact but in practice this is extremely difficult.  I suggested the use of the phrase "effective" right of appeal in the hope that it would pave the way for a greater number of appeals getting through to appeal hearings and succeeding.  As things stand, one judge's opinion in a case can ruin lives and whilst we should, in my opinion, have high regard for the quality of UK judges, we should recognise that they are fallible and it is important that an appeal court does fully scrutinise a case and allow a greater number  of factual appeals to succeed.  Another way to approach civil appeals is to allow an automatic right of appeal and I would be interested in hearing the crowd's thoughts on that.

kind regards

ian

 

 

 

Ian Smith Apr 11, 2015

I'd be very grateful for more thoughts from the facilitators and crowd.

Kind regards,

Ian

Rob G Apr 13, 2015

I've taken a look at the Civil Procedure Rules, and they state that the key determinant in deciding whether to allow an appeal is whether there's a reasonable prospect of success. Not whether it's based on issues of fact or of law; (Provisions making it difficult to present new evidence at an appeal could possibly make it harder on a facts-based appeal, but I'm not sure that that would be inappropriate.) I don't have any experience of appeals, so I'm not sure how much of an issue this actually is...

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