Sex cases most likely to be appealed but least likely to succeed

Almost one-third of cases heard by the Court of Appeal relate to sexual offences, the vast majority of which are unsuccessful, an analysis of judgments shows.

Appeals in sexual offences are less likely to be successful compared with nearly every other category of serious offending regularly dealt with by the court. Just 25 per cent of such appeals are granted. Only murder cases had a lower success rate (11 per cent).

Sexual offending forms an outsized portion of the workload of the Court of Appeal. Such offences make up 18 per cent of the work of the Circuit and Central Criminal courts, yet they make up 31 per cent of the cases which have come before the Court of Appeal since 2017.

The Irish Times analysed all 300 Court of Appeal judgments relating to criminal matters which have been published by the Court Service since February 1st, 2017.

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Of these, 93 (31 per cent) dealt with sexual offences (including 47 which involved rape), 54 (19 per cent) concerned burglary, robbery or theft, 47 (16 per cent) involved non-fatal crimes of violence or threats of violence and 37 (12 per cent) involved drug dealing.

The remaining 78 cases related to a wide variety of offences including financial crimes, weapons possession and criminal damage.

According to legal sources, there are several possible explanations for the high number of appeals of sexual offences.

"People accused of sexual offences tend to be much less accepting of a verdict compared with other clients and are, therefore, more likely to litigate," said senior counsel James Dwyer.

Refusal to accept

Mr Dwyer said such defendants often refused to accept jury verdicts as doing so would mean admitting to their families that they were sex offenders. They will opt to take an appeal even if it has little chance of success.

“They simply can’t admit they’ve raped your daughter or granddaughter,” said another senior counsel. “Your client in a sexual assault case isn’t the same as your client in a burglary or assault or drugs case who will typically hold their hands up and take their medicine.

“In most cases, there’s a rational assessment of the likelihood of success in an appeal. But that doesn’t happen when it comes to sex cases.

“You tell them they’ve no chance of appeal, that it’s a waste of time. And nine times out of 10, they’ll still tell you to appeal anyway.”

There are typically three types of criminal cases before the Court of Appeal. Defendants can appeal against their conviction or severity of sentence (or both). Since 1993 the Director of Public Prosecutions (DPP) has also had the power to appeal against a sentence it believes is unduly lenient.

Appeals against severity of sentence are the most common, making up 45 per cent of cases analysed.

Appeals against conviction make up 30 per cent while DPP appeals against leniency make up 22 per cent.

The DPP is far more likely to succeed in its appeals compared with defendants. In 64 per cent of appeals brought by the director, the court agreed to increase the sentence imposed by the original judge.

By comparison, just 14 per cent of defendants’ appeals against conviction succeeded. Defendants were successful in persuading the Court of Appeal to reduce their prison sentence 27 per cent of the time.

Defendants appealing burglary, robbery or theft were most likely to be successful with 33 per cent winning an appeal against conviction or sentence. The DPP was most successful when appealing the leniency of sentences in non-fatal crimes of violence where it won 79 per cent of the time.

The DPP’s high rate of success is because it usually appeals only the more extreme cases, said senior counsel Garnet Orange SC.

“The DPP rarely takes cases on a wing and a prayer. Generally the view is sentences would have to be well below the norm for her to direct an appeal.”

‘Pro-prosecutor’

Other lawyers said there was a view that several of the current judges on the Court of Appeal had a reputation of being “pro-prosecutor”.

“There’s a view, whether or not it’s justified, that a couple of the judges have a more sympathetic ear for the prosecution when it comes to leniency. They know the DPP isn’t just appealing things for the sake of it like would be the case with many defendants,” said one barrister.

Judges’ closing addresses to juries before deliberations, known as the judge’s charge, are a common ground for contention in appeals against convictions.

Perceived problems with the judge’s charge were cited in 41 per cent of conviction appeals. However, only 14 per cent of those appeals were successful.

The charge was a particularly common issue in sex offence appeals. Some defence lawyers submitted judges had failed to give adequate warnings to jurors about the quality of evidence in historic cases where memories might have faded.

Others argued judges had failed to give adequate warnings about the dangers of convicting without corroboration of the complainant’s evidence from another source.

Such legal issues were "well rehearsed" and judges rarely got them wrong when addressing the jury, said Mr Orange. Hence they are rarely accepted as convincing grounds by the Court of Appeal.