Fiona Onasanya: what is it like to represent yourself in the Court of Appeal?

Fiona Onasanya’s attempt to appeal against her conviction for perverting the course of justice failed at the Court of Appeal yesterday. It leaves the way open to her constituents recalling her and forcing her to contest her seat in a by-election. She will not be the Labour Party candidate and surely has literally no hope of winning the seat as an independent. Sadly for her, her political career will have to be put on ice for a few years, and her legal career – she is a qualified solicitor – is unlikely to be available to her for much longer either. A conviction for perverting the course of justice is simply inconsistent with that profession.

I have no wish to add to Ms Onasanya’s woes. Even though she was responsible for her own downfall, it is hard not to feel some sympathy for a woman who has recently been diagnosed as suffering from multiple sclerosis and who committed a crime that – to many members of the public, although not to the higher courts – is often regarded relatively minor. Perhaps she can take comfort from the near complete rehabilitation of Vicky Pryce, the economist who served a longer prison sentence than that imposed on Onasanya for wrongly agreeing to take her politician husband’s speeding points. She is now a regular media commentator on economic affairs and nobody seems to hold her conviction against her.

One of the curious and so far unexplained aspects of the case is that Ms Onasanya chose to represent herself in the Court of Appeal. She had been represented by leading counsel Christine Agnew QC at her two trials, and normally one would expect the same advocate to appear at her appeal.

However, a barrister’s role on an appeal is somewhat different from that before conviction. Before you are convicted and sentenced your barrister cannot decide the case is hopeless and refuse to act for you. (In fact, at Ms Onasanya’s first trial there was a hung jury so it clearly was not entirely hopeless anyway). Once you are convicted though, an advocate is no longer professionally obliged to draft grounds of appeal, or to represent you at any application for leave to appeal; indeed the bar code of conduct states that a barrister must not draft any document “containing a contention which [they] do not believe is properly arguable.”

Convicted defendants sometimes think that they have an automatic right to appeal. It can come as an unpleasant surprise when they learn that they do not. You have to have arguable grounds – normally based on something that went wrong at the trial – and before you can argue them, you have to be given permission to do so.

An appeal hearing is not a retrial; it is a review to make sure the original trial was conducted fairly and in accordance with the law. The Court of Appeal sets enormous store by a jury’s verdict. It is no good simply asserting that the jury got it wrong, or that they believed witnesses whom they should have disbelieved. The assumption is that if the rules were observed, the jury can be trusted to have got it right. Very occasionally fresh evidence can be introduced, but it has to be highly significant and there has to be a convincing explanation for why it was not called at the original trial.

I don’t know if this was the case with Ms Onasanya, but it seems very likely that the reason she was unrepresented is that her counsel took the view that she had no arguable grounds for an appeal. I am sure that Sir Brian Leveson, the most senior judge at the hearing yesterday, would have listened to her arguments carefully but it is hard not to think that the lack of representation says to the court “even her own lawyers don’t think her arguments are much good.” Psychologically, it is not a good place to start.

Strictly speaking yesterday’s hearing was not an appeal; it was an application for permission to appeal; it was the initial hurdle to establish that her appeal was even arguable.

The procedure for an appeal usually goes like this:

  1. Written grounds of appeal are submitted to the Court and examined by a single High Court judge. At that stage there is generally no hearing; the judge simply grants permission to appeal if the grounds seem arguable, or refuses permission if they do not.
  2. If permission is granted, the actual appeal is arranged for a later date in front of a three judge court.
  3. If permission is refused that is not necessarily the end of the story. The disappointed applicant (still not at that stage an “appellant”) has one last throw of the dice: she can ask the full court for permission to appeal, in other words to over-rule the single judge. Note, that success at the “permission to appeal”  stage certainly does not guarantee success in the appeal itself.

The figures are pretty stark. In the year ending September 2017 (the latest for which the figures have been published) the Court of Appeal received 1,383 applications for permission to appeal against conviction, heard only 215, and just 78 were successful in the sense that the conviction was quashed. It is not a precise figure (applications made in one year are often not decided until the following year), but the chance of any one application for permission to appeal resulting in a quashed conviction is only around 5.5%.

The procedure is kept running smoothly by an important but little publicised lawyer called the Registrar of Criminal Appeals. The current holder of the post is Alexandra Beldam, who rather confusingly is known as “Master Beldam.” She has a little discretion to tweak the procedure. She can see that some cases are dealt with more speedily, and can sometimes refer applications for permission to appeal straight to the full court, by-passing the single judge. She seems to have done both of those things in this case, taking the view that it was in the public interest for an MP’s case to be decided more quickly than usual.

Ms Onasanya is a solicitor, but her professional experience was in commercial property. Checking the enforceability of restrictive covenants in office blocks is a fine and honourable job, and someone has to do it, but – except perhaps if rarified questions of real property law are involved, which unfortunately for her they were not in this case – a commercial property solicitor is no more equipped to appear in the Court of Appeal than an avionics engineer is equipped to pilot an F-16 in armed conflict.

Even abandoning an appeal can be rather tricky. It’s no good just writing and saying you want to surrender; you have to use the correct form, and if you get in a muddle, and particularly if you leave it too late, the Court can insist on hearing the case anyway.

This happened not long ago to another hapless solicitor, Afame Offiah, who tried without success to abandon a hopeless appeal against a criminal confiscation order made against his clients. The law of confiscation is very unfair, as well as hopelessly complex, technical and mind-numbingly tedious, so I can well understand both Mr Offiah’s initial instinct to appeal, and his subsequent failure to realise that the appeal he lodged was doomed to crash and burn. Far too late in the day his firm wrote to say that it wished to throw in the towel, but the court listed the case anyway, requiring Mr Offiah to attend. In an excrutiating hearing judges extracted from him a confession that the service he had provided was “complete and utter rubbish.” According to the Law Society Gazette:

… his explanations were variously described as “nonsense” and “incompetence” and the subsequent judgment stated that “the errors were so basic and the grounds so defective that we questioned when we read the papers, whether any qualified lawyer could have been near them.”

The unfortunate Mr Offiah – a solicitor of 19 years’ experience – was even accused of giving dishonest and misleading answers to the judges, but the Solicitors Disciplinary Tribunal accepted his “plausible and consistent” explanation that he had not been dishonest but had acted as he did “due to confusion and error.” His appearance in the Court, like Ms Onasanya without any papers, had been, he said, “much worse than a catastrophe.” Due to fear and anxiety he was like a “rabbit caught in the headlights,” he “did not know his left from his right” and was in a state of “sheer terror.”  This is indeed entirely plausible.

The Court usually sits in the the Royal Courts of Justice in central London. This vast Victorian-Gothic palace of justice, could have been designed – probably was designed – to intimidate, so that you quiver before the magnificence and omnipotence of the law. If you have not been there before the first thing that strikes you is the sheer size and soaring height of the main hall – imagine the nave of a huge cathedral. You then have to find the relevant courtroom, which inevitably involves climbing stone staircases so winding that you quickly lose all sense of direction. Until you know your way about, every route seems to lead back to a dark alcove where a pair of dusty glass cabinets contains an eccentric collection of mannequins striking grotesque poses in historic judicial robes. I have never seen anyone paying the slightest attention to this curiously sinister display; its purpose is simply to increase the atmosphere of menace. Eventually, after much anxious pacing along echoing stone corridors reminiscent of the Narnian castle Cair Pareval (during the reign of the White Witch, not that of the Pevensies), you finally reach your allotted court-room, probably a few minutes late.

The court-rooms themselves are certainly not designed to put you at your ease. They are, of course, enormous, panelled with dark oak and shelves of law reports. There are rows of wooden desks and seats, and a strict but unwritten etiquette about who sits where. Needless to say, if you are a litigant in person you inevitably sit in the wrong place and have to be moved. I don’t know whether this happened to Ms Onasanya, but it probably did.

Even experienced barristers are nervous, and anyone unfamiliar with speaking in such a court will, I guarantee, suffer from a dry mouth, shaking legs and a horrible feeling that they would rather be anywhere else but here. Of course Ms Onasanya’s career as a politician and time in the House of Commons has accustomed her to speaking in public, but pleading for your good name, your career and your reputation in such a court cannot be easy, especially if your own lawyers have told you that your case is hopeless.

Nor will it have helped Ms Onasanya’s nerves that the prosecution were represented by an experienced Queen’s Counsel.

Then there are three judges to deal with. I don’t know quite what she was expecting, but Court of Appeal judges tend not to sit back and listen, or at least not all at the same time. They are usually very polite, at first, but they ask questions. Inconvenient questions. They make you deal there and then with points that you hadn’t anticipated. They try to pull your arguments apart, and because they tend to be very clever, very knowledgeable and very skilful at doing so, they often succeed. It is a good way of testing arguments, but it is not a pleasant way to spend the morning when those arguments start to fall apart. It sounds as though Ms Onasanya got this treatment. Her main argument seems to have been that she was innocent and the jury ought to have realised the fact, which is not really good enough. In theory the judges can quash your conviction if they harbour a “lurking doubt” about the safety of your conviction: in practice – I haven’t checked – I think the last time the court admitted to a “lurking doubt” was some time before the Great War.

In a way Ms Onasanya was lucky. Had she persisted with her application for leave to appeal after the single judge had rejected it on paper, she would have run the risk of the Court decreeing that some of the time she spent in prison should not count towards her sentence. It is a power the court has shown itself increasingly ready to exercise in recent years in order to further deter hopeless appeals. Fortunately for her, it seems – although I was not there and could be wrong – that Master Beldam had mercifully referred her hopeless application to the full court before the single judge had the opportunity to refuse it. As a result she did not face the indignity of being returned to prison for another week or two. This crumb of comfort is the only positive thing that she can take from what was otherwise another disastrous day in court.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

17 thoughts on “Fiona Onasanya: what is it like to represent yourself in the Court of Appeal?”

  1. Surely law school would teach the basics of appeal criteria as part of the degree? It’s pretty elementary stuff even if you were a commercial property solicitor and at the very least there’s websites and law books that could give you the basics. One has to wonder why she didn’t read any of this stuff before filing the appeal

    1. Of course she would have some grounding in criminal law – not necessarily criminal procedure – and would know how difficult it is to win any case in the Court of Appeal without very good legal representation. Which makes me suspect that the appeal was for “political” reasons. Just as our Home Secretaries make unwise decisions and are then overruled by our courts whom they can then blame for thwarting the will of the people, so she may have felt that if she didn’t appeal it would be assumed that she was satisfied with the verdict, and by appealing and failing she could then say that the judges let her down by unreasonably failing to heed her arguments.

  2. Matthew – if of interest, I wrote an article “Lurking Doubts Remain” – (2012) 176 JPN 313 – cited in the case of R v Pope [2012] EWCA 2241. The last successful appeal on this basis that I could find was a Privy Council case in 2007, Dookran and another v. The State [2007] UKPC 15 . So maybe not quite the Great War. But I certainly couldn’t find many of them.

    1. Thanks Rupert, although I think things have moved on since then and I’m grateful to @leeofthebailey for pointing out Fanning [2016] EWCA Crim 550, per Lord Thomas of Cwmgiedd CJ:

      57 A further ground submits that there must be a lurking doubt as to the safety of the convictions. In this context, matters going to the credibility of C were raised, and reliance was placed on comments made by the judge at the time of verdict and in passing sentence. We are not persuaded that there is any arguable ground. The evidence as to C’s credibility was fully before the jury, and the views of the trial judge are, with respect, irrelevant. The decision in the case was for the jury not for the judge.

      58 We deprecate the use of the phrase “lurking doubt” as it represents an invitation to this court to substitute its view for that of the jury. The question for this court is whether by reason of the matters raised the convictions are unsafe. For the reasons given, we refuse this application.

      (Sorry, the link only works if you’re logged into Westlaw).

  3. When I read about this case, I formed the impression that the defendant’s evidence and that of her brother contradicted, as to whether she had directed the crime to which he had pleaded guilty and received a reduced sentence as a reward for helping the police’s enquiries aimed at securing a conviction against his sister too. In such a case, I do not understand how any individual juror failed to have a reasonable doubt as to her complicity, especially if adequately warned about evidence tainted in this way. She stood to benefit from the fraud her brother committed by taking her rap. But that does not require that she had knowledge of her brother’s fraud and acquiesced in it.

    To me, it is obviously possible that she is innocent, even though many will think this unlikely.

    1. The post is more about the experience of appealing a conviction, not the detailed facts of this particular case. I’m not going to express any view of my own on her innocence or guilt. Generally speaking we have to trust that juries get these things right and I would be very reluctant to second guess them. On the other hand, it is sadly obvious that sometimes they get it wrong.

  4. ‘the near complete rehabilitation of Vicky Pryce, the economist who served a longer prison sentence than that imposed on Onasanya for wrongly agreeing to take her politician husband’s speeding points.’

    Perhaps the public takes different views of those who giveth and those who taketh away.

    ‘a woman who has recently been diagnosed as suffering from multiple sclerosis’: I’m old enough to remember “Deadly Ernest” Saunders and his amazing disappearing Alzheimer’s Disease. We must all hope that Ms Onasanya is similarly blessed.

    1. Unfortunately too many people representing themselves have a fool for a judge. And doesn’t sound as if she had much choice if her lawyer bailed out on her.

  5. Surely there was no reason to avoid the usual procedure by referring to the full court to decide if leave should be granted? In most cases an appellant would be refused by the single judge (who could have dealt with the application quicker than the full court) and, if refused, the appellant then takes the same risk as others on costs and time served if the appeal is renewed. The lady was dealt with differently and in a way that may have benefitted her to someone else’s detriment (the space could have been used for an appeal with legs).
    The procedure adopted seems to have been politically motivated so as to move things along more quickly to allow a by-election to be held sooner.
    Unfortunately there seem to be occasions when the blindfold is removed from Lady Justice and as a consequence someone else suffers. We ought to remember that the blindfold represents impartiality, the ideal that justice should be applied without regard to wealth, power, or other status.

  6. I watched an episode of the recent documentary series on TV – I think it was about prosecutors and how they prosecute a crime (the CPS possibly ?). Anyway I caught the tail end which I believe was in the appeal court. Quite frankly I watched the performance of one of the barrister’s and it was abysmal. My first thought was if this is the best he can do, and I ever find myself in need of legal representation, remind me to represent myself. I know he had probably submitted his case in writing but the bumbling way he outlined his points to the judges lacked coherence, authority and any sort of conviction that he had a case.

    Anyway back to the MP. I don’t know why she, or Hune for that matter, just didn’t take the points. Its not the crime of the century.

  7. Are the UK courts Article 6 compliant when it comes to appeals? I would have thought custodial penalties for unsuccessful appeals and people having to pay for their own appeals wouldn’t be. Any relevant case law?

    1. I’m not sure if anyone has challenged “loss of time orders” for appeals, or indeed the power of Crown Courts to increase sentences on appeals from the Magistrates. I doubt the ECtHR would be that interested; my impression (not well-researched admittedly) is that lots of European jurisdictions seem to involve penalties being raised and lowered as people go through the appeal system. As for paying for her own appeal: no, legal aid would have covered her for an application for leave appeal if her lawyers had advised it.

      1. Thanks for your reply Matthew.

        The Article 6 question was more to do with penalties for unsuccessful appeals than cases where a higher court increases a sentence it believes is too lenient. Financial or custodial penalties purely for bringing an unsuccessful appeal as a way of discouraging appellants would be something I would think might interest the ECHR, but not sure how this works in other countries.

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