Guidance

Court of Appeal Criminal Division guidance for third parties assisting litigants in person

Updated 30 May 2023

Applies to England and Wales

1. Public access barristers

When an applicant instructs a barrister directly under the Public Access Scheme, without a solicitor, the barrister can advise the applicant and draft legal documents on their behalf. For example, grounds of appeal.

However, the barrister cannot lodge documents and correspond with the Criminal Appeal Office on behalf of an applicant, unless they have been authorised by the Bar Standards Board to issue court proceedings (known as ‘conducting litigation’).

Authorisation to conduct litigation will be listed on the barrister’s entry on the Bar Standards Board’s Barrister’s Register. An applicant should ask their barrister if they are authorised to conduct litigation if they are not sure.

If a barrister acting under the Public Access Scheme is not authorised to conduct litigation, the applicant will be classed as a litigant in person. All documents and correspondence will be sent to the litigant in person and copied to counsel by the Criminal Appeal Office.

2. Unqualified third parties

An unqualified third party is anyone who is not qualified and practising as a barrister or solicitor.

An unqualified third party cannot represent the applicant as if they were a practising solicitor or barrister. Barristers and solicitors have professional duties to their clients and to the court. Legal representatives can also be held to account by their professional bodies and are insured against claims for negligence.

It can be a criminal offence for them to conduct litigation as if they were a qualified lawyer. This means that the Criminal Appeal Office cannot write to an unqualified third party or send them copies of documents or letters, but an applicant can share information about their case and their documents or letters with an unqualified third party if they wish to.

3. Before the case goes to a single judge (the leave stage)

Once an application is lodged, if the registrar sees that an unqualified third party is providing assistance, a letter will be sent to the applicant and the third party with this guidance, if their details are known.

The applicant will be sent written updates as their case progresses.

An unqualified third party can assist an applicant by:

• helping the applicant complete Criminal Appeal Office form NG (the applicant must always sign the completed form and the grounds of appeal)
• assisting an applicant with their grounds of appeal by providing practical help, such as writing out or typing the grounds
• helping an applicant prepare a chronology setting out any delay in making the application, to support an application for an extension of time
• helping the applicant to find any other forms they need
• lodging forms or documents that the applicant has signed, with the court
• providing moral support
• calling the Criminal Appeal Office to track the progress of the applicant’s case
• asking the Criminal Appeal Office for guidance on procedural matters, such as making an application for bail

They cannot (unless permission has been granted by the registrar):

• sign Criminal Appeal Office form NG, grounds of appeal, or any other official documents on behalf of an applicant
• lodge a document on behalf of an applicant that has not been signed by the applicant, including grounds of appeal and fresh evidence – any document that has not been signed by the applicant cannot be included as part of the applicant’s case
• request transcripts of the proceedings in the lower court
• correspond directly with the applicant’s previous legal representatives on the applicant’s behalf, to check whether the grounds of appeal are factually accurate, unless the court directs otherwise

4. After the case goes to a single judge

An applicant who has been refused leave to appeal by a single judge should consider very carefully whether to renew the application to the court.

An applicant who pursues an application that has no merit, is always at risk of a ‘loss of time order’. This is an order that some, or all, of the time an applicant spent in custody on remand will not count towards sentence, increasing an applicant’s sentence. The applicant can also be ordered to pay costs.

In many cases, unqualified third parties have presented applications with no merit. This has raised the hopes of an applicant, taken up court time and resources and put the applicant at risk of a loss of time order.

Before assisting a litigant in person with a renewed application, the court advises all third parties who are assisting applicants to warn the applicants of these consequences.

5. At the hearing

An unqualified third party or a litigant in person does not have ‘rights of audience’ in the Court of Appeal. This is a right to speak to or address the court. Any representations about the case can still be made to the court in writing and should be signed by the applicant.

The court can give special permission for:

• an applicant or a third party to address the court at a hearing
• the third party to give practical assistance to an applicant

A written application must be made in good time before the hearing using the Application for a McKenzie friend form. The application will be considered by the most senior judge hearing the case. A request for a third party to address the court is only likely to be granted in exceptional circumstances.

6. When an unqualified third party might be granted permission to manage proceedings on behalf of an applicant

In exceptional circumstances, the registrar of Criminal Appeals can give permission for an unqualified third party to manage proceedings in the Court of Appeal on behalf of the applicant. Examples might include where the registrar considers that this is in the best interests of a very young, old, or mentally vulnerable applicant.

An unqualified third party seeking special permission to manage proceedings on behalf of an applicant should write to the registrar, setting out their concerns about the applicant’s ability to manage proceedings themselves. Any supporting documents, such as a power of attorney, should be lodged with the application.

The registrar will also need to receive confirmation from the applicant that they wish the third party to manage their case. This can be provided by the applicant completing the unqualified third party application form.

Both the applicant and the third party will then receive written notification of the registrar’s decision and of any directions which the registrar has given.

It is important to note that even where, exceptionally, the registrar grants permission for a third party who is not legally qualified to manage proceedings on behalf of applicant, this does not mean that the third party may address the court orally at any hearing. Any application to address the court, will be a decision for the court itself.