More pain (and $$$$) Simon Power might have saved

July 16th, 2011

So Weatherston is pursuing his appeal to the Supreme Court. There may be another chance to see the kind of judgment I hoped to see from the Court of Appeal.

But the appeal is likely to be a waste of money, time and emotion. It is not yet clear whether he has leave. The Court of Appeal seemed to me to have not left much room for the Supreme Court to express second thoughts. But even Weatherston's willingness to inflict the application costs on us, and on his victim's family, reminds us of the mumbling gummy weakness projected by criminal law that fails to deter silly appeals.

There is no point in railing against Robert Lithgow QC. He is obliged to act on his client's instructions. As Sophie's father says, "There is absolutely no cost, risk or disadvantage to Weatherston for appealing. The system just invites abuse". So it continues.

If Lithgow tried to refuse some other lawyer would have been obliged to do act for Weatherston. The lawyer’s duty is to act for the client, and as long as the law leaves open these costless abuses the lawyer would be in breach of duty not to try, because there is only upside and no downside for the client.

The lawyer’s own opinion or preference is irrelevant, and that is as it should be. Fixing the problem lies squarely in the corner of the judges and the legislature

Maybe this case does not leave the Court room to ensure that the offender faces some downside for the hurt caused in pursuing fanciful appeals. But even if he was appealing against sentence, where there would be room to increase it, our judges are too wussy to use their powers in that way. I've explained earlier how it might have affected Weatherston. UK judges can deter meritless appeals, and sometimes do. So can the German Supreme Court.

Why not ours? I think they've pushed a virtue, objectivity, too far. Objectivity is imperative before guilt is established. But after conviction there is no reason to show apparent indifference to the morality of steps the convict takes.

I fear that they've become professional sooks. In too many areas they seem to dare not 'judge' lest they be thought too 'judgmental'. They remind me, when they complain of their appeal workload, of doctors complaining about thuggish ingratitude and bullying in A and E. The remedy is in their own hands. Draw distinctions in priority of service or quality of service. All service is rationed in some form. Try some rationing according to moral deserts.

And if there is not enough power at present, where were you when the Minister was looking for reforms to cut the exploding cost of criminal justice?

A UK court hearing Weatherston's appeal could at the least ensure that time stopped running on Weatherston's sentence while the appeal was heard. That small cost seems to be enough to reduce the propensity to waste time with meritless appeals in the UK.

As Garth McVicar said when the Court of Appeal comprehensively rejected Weatherston's arguments,

“Offenders must be [made] aware that while an appeal is their right there is substantial personal risk and consequence to be considered.”

Filed under Criminal Justice

Comments

An evil, self absorbed murderer is allowed to continue to victimise the parents of the girl he murdered in their home and to bring expense and disruption to the legal system in circumstances where there is absolutely no downside to him. It calls to mind the expression "what we tolerate, we teach" and never was there a more teachable moment available to the courts to show that a cost will be levied. A significant increase to the sentence given in the light of complete absence of any contrition for his egregious act would not only serve the cause of justice, but also give ammunition to lawyers compelled to act such scum in future to caution them that appealing may well bring an increase in time to be served. I dream of a day when such things become reality.
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Of course, if we'd just hung the b*st*rd, this problem wouldn't exist.

I just replied the bot check didn't like my attempt at an anti-spam word, so my comment just got lost!

I shall try again, but it will be shorter.
Stephen, I have disagreed with you before on this and I do so again. The Supreme Court is told by s13 of the Supreme Court Act that it must not hear an appeal unless it is satisfied that it is necessary in the interests of justice and the appeal involves a matter of general or public importance or a substantial miscarriage of justice may have occurred, or may occur unless the appeal is heard. The SC is using that to set a pretty high hurdle, so I see no issue here at all.
I am pleased that you defend his lawyers, though, as many have attacked them in the past for doing a necessary and laudable (yes, laudable) job.

Oh, and one other thing- our Courts already have the ability to increase sentence upon appeal from a lower court if the appeal is about the sentence imposed upon the appellant. So what you are suggesting is that their sentence also be increased for the appellant suggesting that they might in fact be innocent or that their trial was in fact a miscarriage of justice.
Surely that would put too much of a chill on our system of justice? How many appellants with a good case would refrain from appealing simply to avoid an uplift? Or are we to agree with Tony Blair that the real miscarriage of justice is the guilty being acquitted, not the innocent being imprisoned?

Surely there must be an understanding by the legal fraternity that once a terrible act has been done and a sentence given that it is given to cover the hurt and humiliation that society has suffered already. If we accept that the offender will cause more hurt and humiliation by appealing (as surely any reasonable person would accept in this case) then the appealant has a clear choice. He can accept the given sentence or if he truly believes he is innocent he can wager the chances that he will be aquitted, freed from prison and perhaps granted compensation against the chance that he will recieve a significant increase in sentence to cover the additional harm he causes society and the victims relatives by appealing. To do otherwise tells the victims and the taxpayer who covers this cost that it will always be worth the alleged offender (in this case the convicted offender) taking a free roll of the dice with no downside. I am not arguing that Weatherston should not be allowed to appeal, but rather that if it is found that his appeal is without merit, the time, cost and emotional harm caused by him bringing it brings additional punishment on behalf of the society he has harmed.

Jim,

we accept that there is a risk on a sentence appeal. Fair enough. But the purpose of an appeal is not to give an appellant another crack at the victim, but instead to ensure that there is a robust procedure by which the justice system can ensure that trials are conducted fairly.

What the suggestion of an uplift in sentence for an appeal 'without merit' does is simply attempt to stifle that self-correction process. However, much depends on the definition of 'without merit'. Does that mean the appeal is unsuccessful? Or is a higher standard used?
After all, there are around 500 criminal appeals to the Court of Appeal each year. About 25% of them are successful. But many of the others are accepted as identifying problems in the case but not so serious as to amount to a miscarriage of justice? Are those appellants to be hit by an uplift? Or are you talking about the very, very small number of cases that convicted persons file each year that could never succeed? In which case, is it worth it?

I think it is a given that any appeal which is allowed to proceed has a chance of success, and if it does succeed there is an expectation that the sentence would be reduced in favour of the offender. My concern is that the victim has become lost in this process and the harm done to the victim is ignored by a court only interested in the process. If the law is to have any meaning to the "man in the street" then it is important that this harm is always factored in to the equation otherwise it becomes impossible for the general public to accept they have real "buy in" to a process where the Justice system acts on their behalf. It is already difficult enough for those who suffer the most egregious harm and few would argue that Weatherston's evil actions and subsequent attempt to "blame the victim" do not fall into that category. It has already resulted in an ill advised removal of the defence of provocation which in itself may deny justice to someone truly deserving of it. It is fair to acknowledge that I do not have the legal training or mental acuity of some who comment here but I do feel I fairly represent a significant sector of those in society entitled to clearly understand, and feel adequately served by the Justice system. Weatherston's offence was truly obscene and however it is explained, further appeal is prompted by his desire to avoid responsibility for his actions. It must not be seen as a risk free venture on his part

I commend the way you have conducted this gentlemen, though I am very much in Jim's camp. From what my intern researcher was able to find out of the UK practice when we tried to get a similar power inserted into NZ law, the UK court exercises its power to deter silly appeals very rarely indeed. Yet they had a far lower rate of appeal.

FE Smith, even the 25% success rate tells the Court of Appeal judges they should be doing something to discourage appeals. You will be aware of the rule of thumb that appeal court error correction commonly results in around 30% appeal success. Perhaps they are getting too many if only 25% succeed.