12) Appeals procedure Flashcards
Appeals from magistrates to crown court - Circumstances
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
Appealing against conviction - Magistrates court
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
Appealing against sentence - Magistrates
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
Appeals from magistrates to crown court - Who will hear the appeal
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.
Appeal from magistrates to Crown Court - How will the CC decide
They will carry out a full rehearing of the issues and take an independent view of what the correct conviction or sentence should be.
Appeals from magistrates to crown court - Prosecution
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
Appeals from magistrates to crown court - Procedure for appeal
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.
Appeals from magistrates to crown court - Powers of the crown court
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
What happens if Crown Court dismiss the appeal from magistrates?
There are no further avenues for appeal
Appeals by way of case stated
Both prosecution and defence can appeal a decision from the magistrates to the High Court if:
1) the decision which has been made is wrong in law
2) the magistrates have acted outside their jurisdiction
Appeals by way of case stated - Arguments raised in an appeal
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
Appeal by way of case stated - Procedure
Must apply to the magistrates court within 21 days of the relevant decision. The application must identify the Q of law they want the HC to review. They will do this by preparing a draft statement of case. Appeal is heard by the Divisional court of queen’s bench division
Appeal by way of case stated - Power of the divisional court
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
Appeals to Supreme court after appeal by way of case stated
Both parties can appeal to SC after 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
Judicial review
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)
Appeals from the crown court by a defendant to the Court of Appeal
1) Appeal against conviction - if 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 - 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
Appeals from the crown court by a defendant - Appeal against conviction
If the court of appeal considers a conviction to be unsafe there are numerous factors:
1) Failure by trial judge to direct the jury correctly
2) Trial judge wrongfully admitted or excluded evidence
3) Trial judge failed to administer correct warnings
4) Inappropriate interventions
5) Failure when summing up
6) Fresh evidence
Appeals from the crown court by a defendant - Appeal against conviction - Factors - Failure by trial judge to direct the jury
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
Appeals from the crown court by a defendant - Appeal against conviction - Factors - The trial judge wrongfully admitted/excluded evidence
- 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
Appeals from the crown court by a defendant - Appeal against conviction -Factors - Trial judge failed to administer the correct warnings to the jury
- 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
Appeals from the crown court by a defendant - Appeal against conviction - Factors - Inappropriate interventions by trial judge
E.g if the judge had constantly interrupted defence counsel during the cross-examination of a prosecution witness
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
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
Appeals from the crown court by a defendant - Appeal against conviction - Factors - Fresh evidence
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
Appeals from the crown court by a defendant - Appeal against conviction - Procedure
- 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
Appeals from the crown court by a defendant - Appeal against conviction - Power of court of appeal
1) Quash the conviction and acquit the defendant
2) Quash the conviction and order a retrial
3) Allow part of the appeal and dismiss other parts of appeal
4) Find the defendant guilty of an alternative offence
5) Dismiss the appeal
Appeals from the crown court by a defendant - When will the court order a retrial
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
Appeals from the crown court by a defendant - Appeals against sentence - Procedure
Same as for conviction
Appeals from the crown court by a defendant - When will an appeal against sentence be successful
1) The sentence passed by the trial judge is wrong in law
2) The sentence passed is wrong in principle
3) Judge adopted the wrong approach when sentencing
4) In the case of co-defendants there is an unjustified disparity in the sentence each defendant receives
5) The sentence is manifestly excessive
Appeals from the crown court by a defendant - When will an appeal against sentence be successful - Powers of court of appeal
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
Can you appeal a summary offence to court of appeal?
No - can only appeal to court of appeal from crown court
Time limit for an appeal against conviction from the crown court
28 days from conviction
When can the prosecution appeal
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
