Fiona Onasanya: what is it like to represent yourself in the Court of Appeal? | BARRISTER BLOGGER | 6 March 2019
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 Olansanya, 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:
- 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.
- If permission is granted, the actual appeal is arranged for a later date in front of a three judge court.
- 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 aviation 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 a small and slightly eccentric collection of mannequins in grotesque poses wearing 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.