12) Appeals procedure

Question 1

Appeals from magistrates to crown court - Circumstances

Answer 1

Can appeal in the following circumstances:
1) If they pleaded guilty they may appeal against sentence they received
2) If they pleaded not guilty they may appeal against any resulting conviction and/or sentence they received

Question 2

Appealing against conviction - Magistrates court

Answer 2

A defendant convicted following a trial in the magistrates’ court may appeal against conviction
to the Crown Court on the basis that the magistrates made errors of fact and/or law.
Prosecution cannot appeal to crown court

Question 3

Appealing against sentence - Magistrates

Answer 3

A defendant may appeal to the Crown Court against a sentence imposed by the magistrates’ court on the basis that the sentence imposed by the magistrates is excessive.
Prosecution cannot appeal to crown court

Question 4

Appeals from magistrates to crown court - Who will hear the appeal

Answer 4

The appeal will usually be heard by a recorder or a circuit judge who will sit with an even number of magistrates. Will normally be 2 magistrates but can be up to 4.

Question 5

Appeals from magistrates to crown court - Prosecution

Answer 5

The prosecution does not have any rights of appeal to the crown court against the acquittal of a defendant or the sentence imposed on a defendant by the magistrates court. They can however appeal to the High court on a point of law by way of case stated as can the defence

Question 6

Appeals from magistrates to crown court - Procedure for appeal

Answer 6

Must file a notice of appeal with both the magistrates court and the CPS no more than 15 business days from the magistrates passing sentence. Crown court judge DOES have discretionary power to extend this.

Question 7

Appeals from magistrates to crown court - Powers of the crown court

Answer 7

They may confirm, reverse or vary the decision. They have the power to impose on the defendant any sentence as long as it is a sentence which the magistrates had the power to impose. This means that a defendant appealing against a sentence imposed by the magistrates’ court may have that sentence increased if the Crown Court takes a more serious view of the case

Question 8

Appeals from magistrates to High court - Way of case stated

Answer 8

This is an appeal to the High Court after an appeal to crown court on a point of law or on an argument that the magistrates have exceeded their jurisdiction

Question 9

Appeals from magistrates to High court - Way of case stated - Arguments raised in an appeal

Answer 9

1) Magistrates misread, misunderstood or misapplied the law
2) Magistrates decided to hear a case when they did not have jurisdiction
3) Magistrates made errors in deciding the admissibility or otherwise
4) Magistrates erred in their decision following a submission of no case to answer

Question 10

Appeal to the high court by way of case stated - Procedure for appealing

Answer 10

Must apply to the magistrates court within 21 days of the relevant decision. The application must identify the Q of law. They must then state a case for the opinion of the high court. They will do this by preparing a draft statement of case.

Question 11

Appeals from magistrates to High court - Appeal to the high court by way of case stated - Power of the divisional court

Answer 11

They have the power to reverse, vary or affirm the decision made by the magistrates. It may also remit the case back to the magistrates with a direction to acquit or convict the defendant

Question 12

Appeals from magistrates to Supreme court - After appeal to High court

Answer 12

Both CPS and the defendant are able to appeal to the SC in respect of any decision or order made by the high court following an appeal to the high court by way of case stated. Any such appeal must be on a point of law only and the high court must certify it to be a point of law of general public importance

Question 13

Appeals from magistrates to Supreme court - Judicial review

Answer 13

Not strictly a form of appeal but it does present an alternative method of challenging a decision made. As with an appeal by way of case stated, an application for judicial review may be made either by the CPS or the defendant if:
a) the magistrates’ court has made an order that they had no power to make (and so have acted ‘ultra vires’, or beyond their powers); or
b) the magistrates’ court has breached the rules of natural justice (either by contravening a party’s right to a fair hearing, or by appearing to be biased)

Question 14

Appeals from the crown court by a defendant - Rights of appeal to the Court of Appeal

Answer 14

1) Appeal against conviction. They may appeal against their conviction if either the court of appeal grants leave to appeal or the trial judge grants a certificate that the case is fit for appeal
2) Appeal against sentence The defendant may appeal against the sentence they received if either the court of appeal grants leave appeal or the judge who passes the sentence has granted a certificate that the case is fit for appeal against sentence

Question 15

Appeals from the crown court by a defendant - Appeal against conviction - When will this be allowed

Answer 15

If the court of appeal considers a conviction to be unsafe there are numerous factors for this

Question 16

Appeals from the crown court by a defendant - Appeal against conviction - Factors - Failure by trial judge to direct the jury

Answer 16

A failure by the trial judge to direct the jury as to:
1) burden and standard of proof
2) substantive law concerning the offence
3) the fact that it is for the jury rather than the judge to determine facts of the case
4) the fact that the jury should try to return a unanimous verdict
5) the jury’s power to convict the defendant of any lesser offence which there was evidence to support

Question 17

Appeals from the crown court by a defendant - Appeal against conviction - Factors - The trial judge wrongfully admitted/excluded evidence

Answer 17

• The judge wrongfully admitted evidence of a disputed confession of the defendant’s previous convictions
• The judge wrongfully excluded hearsay evidence which would have assisted the defendant’s case

Question 18

Appeals from the crown court by a defendant - Appeal against conviction -Factors - Trial judge failed to administer the correct warnings to the jury

Answer 18

• The judge failed to give a turnbull warning in a case of disputed identification
• Judge failed to give a proper direction to the jury as to the drawing of adverse inferences from the defendant’s silence
• The judge failed to give a proper direction to the jury as to the relevance of any previous convictions which may have been adduced in evidence

Question 19

Appeals from the crown court by a defendant - Appeal against conviction - Factors - Inappropriate interventions by trial judge

Answer 19

E.g if the judge had constantly interrupted defence counsel during the cross-examination of a prosecution witness

Question 20

Appeals from the crown court by a defendant - Appeal against conviction - Factors - A failure by the trial judge when summing up the case to the jury

Answer 20

Failure to:
- Deal with the essential points of the defence case
- Identify any inconsistencies in the prosecution case
- Summarise the evidence on which the jury may properly rely in order to convict the defendant
- Tell the jury when special measures have been used to enable a prosecution witness to give evidence that they should not allow this to prejudice them against the defendant

Question 21

Appeals from the crown court by a defendant - Appeal against conviction - Factors - Fresh evidence

Answer 21

Even if a trial has been conducted properly the defendant may argue his conviction is unsafe if fresh evidence comes to light which casts doubt upon his guilt

Question 22

Appeals from the crown court by a defendant - Procedure

Answer 22

• Within 28 days of the conviction must serve appeal notice and draft grounds of appeal
• On receipt of this the registrar will obtain a transcript of the evidence given at trial and a single judge will determine whether permission to appeal ought to be granted
• The hearing will take place before the full court of appeal 3 judge panel

Question 23

Appeals from the crown court by a defendant - Power of court of appeal

Answer 23

• Quash the conviction and acquit the defendant
• Quash the conviction and order a retrial
• Allow part of the appeal and dismiss other parts of appeal
• Find the defendant guilty of an alternative offence
• Dismiss the appeal

Question 24

Appeals from the crown court by a defendant - When must the court dismiss the appeal

Answer 24

The court must dismiss the appeal unless it considers that the conviction is unsafe

Question 25

Appeals from the crown court by a defendant - When will the court order a retrial

Answer 25

It will order a retrial if the interests of justice so require. If the court is satisfied that the defendant would have been acquitted at trial the court will not order a retrial

Question 26

Appeals from the crown court by a defendant - When will an appeal against sentence be successful

Answer 26

• The sentence passed by the trial judge is wrong in law
• The sentence passed is wrong in principle
• Judge adopted the wrong approach when sentencing
• In the case of co-defendants there is an unjustified disparity in the sentence each defendant receives
• The sentence is manifestly excessive

Question 27

Appeals from the crown court by a defendant - When will an appeal against sentence be successful - Powers of court of appeal

Answer 27

The Court of Appeal may confirm a sentence passed by the Crown Court or quash the
sentence and replace it with an alternative sentence or order as it thinks appropriate. The
Court of Appeal cannot, however, increase the sentence imposed by the judge in the Crown
Court

Question 28

Time limit for an appeal against conviction from the crown court

Answer 28

28 days from conviction

Question 29

What route of appeal is left if there are no errors of law or procedure

Answer 29

Crown court

Question 30

When can the prosecution appeal

Answer 30

Prosecution has a right of appeal to the court of appeal in respect of rulings made by a trial judge either before or during the trial which:
1) either effectively terminate the trial
2) significantly weaken the prosecution case