27. Appeals from the magistrates' courts and from the Crown Court in its appellate capacity

Question 1

Can an accused ask magistrates to set a conviction aside?

Answer 1

Yes, under s142 MCA.

Question 2

Who can an application to set aside a conviction be made to in the mags?

Answer 2

The same bench who convicted or by a different bench.

Question 3

Who is the case heard by when a conviction has been set aside in the mags?

Answer 3

A differently constituted bench.

Question 4

When may setting aside a conviction in the mags be appropriate?

Answer 4

If the mags made an error of law or there was some defect in the procedure which led to the conviction.
This is a slip rule, to rectify mistakes only

Question 5

Can an accused who is convicted make further submissions after being found guilty to try an activate s142 MCA?

Answer 5

No, that is not the purpose of the section. It is only for simple mistakes.
An accused who wishes to take this course should instead appeal to the Crown or case state the mags

Question 6

Can sentence be varied in the Mags?

Answer 6

Yes, via s142 MCA, if it is in the interests of justice to do so.
Can either vary or rescind its decision.
This can happen regardless of whether the accused pleaded guilty or was found guilty.
Cannot re-open where an accused was acquitted

Question 7

Is the power under s142 to vary/rescind sentence only to be used for a mistake of law?

Answer 7

No, it can also be used to increase sentence where it has been misled into imposing a particular sentence and, therefore by being misled, has made a mistake as to the appropriate sentence by failing to appreciate the relevant fact.

Cases where it is appropriate for this to occur is one where the mistake is quickly identified and accepted on all sides that a mistake has been made.

This should only occur in very rate circumstances, especially where an increase in sentence up to a custodial sentence which had not been previously imposed was being considered.

Question 8

What are the three routes of appeal for someone aggrieved by a decision in the magistrates’?

Answer 8

(a) Appeal to the Crown Court (potentially even if pleading guilty, governed by MCA 1980 s108 and CrimPR Part 34);
(b) Appeal to the High Court by way of case stated (at the outcome of proceedings);
(c) Application to the High Court for judicial review (heard by a Divisional Court of the KBD).
This may be either against conviction and/or sentence.

Question 9

Where an appeal is made to the Crown Court from the Magistrates, what can the Crown Court do before hearing the appeal?

Answer 9

Conduct a pre-appeal hearing like a PTPH

Question 10

Where an appeal is made to the Crown Court from the Magistrates, what is the constitution of the court?

Answer 10

One CC judge and at least two justices of the peace, with no more than four.
However, only one justice of the peace may be included if one or more of the JPs who started hearing the appeal is absent OR only the judge if the respondent agrees it is a slip rule case.

Question 11

Who should sit on appeals from the youth court to the crown?

Answer 11

A judge and two lay justices, or potentially with only one if one of the justices is absent

Question 12

What qualifies as sentence for the purpose of appeals against sentence to the Crown?

Answer 12

It is a broad definition, mirroring s50 of the Criminal Appeal Act 1968

Question 13

Where a person wants to appeal from the mags, what needs to be done?

Answer 13

Notice has to be given within 15 business days of sentence being passed or being deferred.
This also applies to where they are only appealing after conviction.
The time limit is also 15 business days where the appeal is against an order or failure to make an order
There are specific requirements on contents of the notice

Question 14

Where a person wants to appeal from the mags, what should the notice contain?

Answer 14

It should state whether the appeal is against conviction or sentence or an order/failure to make an order.
It must also summarise the issues and, in an appeal against conviction, specify which witnesses whom the appellant will want to question and state how long the trial lasted in the magistrates’ court and how long the appeal is likely to take.
Where the appeal is against a finding that the appellant insulted someone or interrupted proceedings, the court’s written findings of fact and the appellant’s response to those findings must be attached to the notice.
Notice must also stipulate whether the appellant has asked the court to reconsider the case and identify all those who have been served with the notice
Notice could either be in a form or made orally.

Question 15

Is there any leave required to appeal from the mags to the crown court?

Answer 15

No, not if it is within time.
If not, then an application or extension of time should be served and delay explained.
The crown court may shorten or extend, even after expiry, any time-limit for this.

Question 16

If a person wishes to introduce bad character evidence or previous sexual history, or hearsay, or evidence involving the use of special measures, for their appeal from the mags to the crown, what should be done?

Answer 16

Notice should be given not more than 15 business days after service of the appeal notice.

Question 17

What can an accused appealing from the mags to the crown request from the clerk of the mags?

Answer 17

A copy of their notes of evidence of the trial. Any request the appellant might make should be viewed sympathetically

Question 18

How does an appeal against conviction from the mags to the crown work?

Answer 18

As a complete re-hearing. Almost like a new trial.
Respondent opens, calls evidence, there may be a submission of no case, if that fails then defence evidence is called, counsel make closing speeches, and the court announces its decision.
They can use new evidence and do not have to use the same evidence as before.
The information (charge) on which the appellant was convicted may not be amended, and any amendment made by the mags cannot be striken out.

Question 19

How does an appeal against sentence from the mags to the crown work?

Answer 19

It is a fresh sentencing hearing.
The prosecution open the facts and antecedents of the appellant, and defence counsel then mitigates. The court then decides sentence.
When dealing with an appeal, the CC should not ask itself whether the sentence was within the discretion of the magistrates but should consider whether the sentence was the correct one.
If the court differs in opinion significantly, it should allow the appeal and substitute its view for that of the mags.
The crown court is not entitled to increase the sentence on the basis that the mags ought to have committed the offender to the crown for sentence in the first place.
The crown court, however, may increase the sentence to the maximum that could be imposed by the mags court.

Question 20

Who decides appeals from the mags court in the crown?

Answer 20

The justices can out vote the single judge but they must accept his rulings on the law

Question 21

What are the powers of the crown court on an appeal from the mags?

Answer 21

SCA 1981 Section 48(2) provides that, following an appeal from the magistrates’ court, the Crown Court:

(a) may confirm, reverse or vary any part of the decision appealed against, including a determination not to impose a separate penalty in respect of an offence; or

(b) may remit the matter with its opinion thereon to the authority whose decision is appealed against; or

(c) may make such other order in the matter as the court thinks just, and by such order exercise any power which the said authority might have exercised.

Section 48(4) and (5) further provide that:

(4) … if the appeal is against a conviction or a sentence, the preceding provisions of this section shall be construed as including power to award any punishment, whether more or less severe than that awarded by the magistrates’ court whose decision is appealed against, if that is a punishment which that magistrates’ court might have awarded.

(5) This section applies whether or not the appeal is against the whole of the decision.

Thus, s. 48 allows the Crown Court to:

(a) quash the conviction;
(b) remit the case to the magistrates’ court (e.g., in the case of an equivocal plea);
(c) vary the sentence imposed by the magistrates (this includes the power to increase the sentence, but not beyond the maximum sentence which the magistrates’ court could have passed: s. 48(4)).

Question 22

Can a person appealing from the mags to the crown abandon his appeal?

Answer 22

Yes, by giving notice in writing to that effect to the mags court, the appropriate officer of the crown, and to the prosecution and any other party in the appeal.
Can be done without permission if it is done before the hearing commences. Once started, it can only be abandoned with the permission of the crown.

Question 23

How is notice of abandonment of appeal given where a person appeals from the mags to the crown?

Answer 23

Either in a form or orally.

Question 24

Can the crown award costs where an appeal from the mags is abandoned?

Answer 24

Yes

Question 25

Is an appeal from the mags to the crown abandoned by merely an appellant failing to attend or instruct an advocate?

Answer 25

No

Question 26

After an appeal from the mags to the crown has been abandoned, can the crown still increase sentence?

Answer 26

no

Question 27

Once an appeal from the mags to the crown court has been abandoned, does the crown have any power to reinstate the proceedings?

Answer 27

No, unless it was a nullity

Question 28

What is an appeal by case stated?

Answer 28

The appeal is to a Divisional Court of the King’s Bench Division of the High Court. The essence of the procedure is an appeal on a point of law which is identified by the lay bench or district judge in a document known as the ‘case’.

Question 29

In what circumstances does the case stated procedure apply?

Answer 29

The remedy operates only in relation to an error of law or a decision taken in excess of jurisdiction.
A decision as to a question of fact will ordinarily not give rise to an appeal by way of case stated but may do so if the finding of fact is alleged to be such that no reasonable bench could have properly reached that factual conclusion on the evidence

Question 30

Can a person who case states the mags also appeal to the crown?

Answer 30

No. Under s. 111(4), any appellant who employs the case stated procedure forfeits the right to appeal to the Crown Court.

Question 31

At what point of the proceedings can the case stated procedure be used?

Answer 31

The remedy is available only after the final determination of proceedings in the magistrates’ court. If trial proceedings are adjourned the procedure cannot be employed during the period of adjournment

Question 32

Can the case stated procedure be used for sentence?

Answer 32

Yes.
The remedy is available in respect of errors made in relation to sentence as well as conviction. Such appeals have often been successfully established by the prosecution where the court has wrongly held that there were ‘special reasons’ for not disqualifying a driver
A defendant may use the case stated procedure if the bench has passed a sentence which is so far beyond the usual level of sentence for such an offence that it is ‘harsh and oppressive’

Question 33

Does an acquittal being quashed pursuant to a case state application by the prosecution extinguish the defendant’s right to appeal against the conviction to the crown court?

Answer 33

In these circumstances, no.

Question 34

How will the court be constituted when it hears an application by way of case stated?

Answer 34

At least two judges, and often three

Question 35

On an application by way of case stated, where there are only two judges but they both disagree on the outcome, what happens to the appeal?

Answer 35

It is unsuccessful.

Question 36

Is any evidence called during a case stated hearing?

Answer 36

No, as the only thing which needs to be referred to will be contained in the stated case.
The appeal is instead heard by way of submissions

Question 37

During the state case hearing, may a defendant argue a point of law that he did not argue in front of the mags?

Answer 37

Yes, if he is not required to call any further evidence

Question 38

What may the court do on an application by way of case stated?

Answer 38

The court may ‘reverse, affirm or amend’ the decision of the magistrates’ court, or remit the case with its opinion, or make any other order (including an order as to costs) as it sees fit.
Thus, the Divisional Court may quash an acquittal with a direction that the magistrates’ court convicts and sentences. Alternatively, the court may simply substitute a conviction for the previous acquittal and proceed to sentence. Similarly, if the appeal concerns sentence only, the court may substitute the appropriate sentence.

Question 39

Is leave required for an appellant to abandon an appeal by way of case stated?

Answer 39

No

Question 40

On an appeal by case stated, can the court order a retrial?

Answer 40

Yes. The Divisional Court is entitled to order a retrial before the same bench or a different bench where a fair trial is still possible

Question 41

Are decisions of the magistrates’ court and crown court susceptible to judicial review?

Answer 41

Yes.

Question 42

How does the High Court deal (in terms of what orders) with judicial review of the crown court and magistrates court?

Answer 42

With prerogative orders, including:
1. Quashing orders
2. Mandatory orders
3. Prohibiting orders

Question 43

Who is an application for judicial review dealt with by?

Answer 43

A divisional court of the KBD of the High Court.

Question 44

Under what grounds can judicial review of a crown court/magistrates court decision be made?

Answer 44

The principal grounds upon which judicial review may be sought are:

(a) error of law on the face of the record — i.e. an error disclosed by the court records;

(b) excess of jurisdiction;

(c) breach of natural justice.

Question 45

What, as a ground for judicial review, can count as a breach of natural justice?

Answer 45

The concept of breach of natural justice has frequently been litigated and has been widely drawn. It has been held to include:

(i) failing to give D adequate time to prepare a defence (Thames Magistrates’ Court, ex parte Polemis [1974] 2 All ER 1219);

(ii) failing to grant an adjournment to allow for the attendance of a witness (Bracknell Justices, ex parte Hughes [1990] Crim LR 266; and see R (Parashar) v Sunderland Magistrates’ Court [2019] EWHC 514 (Admin), for a detailed examination of the authorities bearing on this issue);

(iii) the prosecution failing to call or disclose the statement of a witness who might assist the defence (Leyland Justices, ex parte Hawthorn [1979] QB 283);

(iv) the prosecution failing to disclose the previous convictions of prosecution witnesses (Knightsbridge Crown Court, ex parte Goonatilleke [1986] QB 1);

(v) making an order as to costs against D without inquiring as to D’s means (Newham Justices, ex parte Samuels [1991] COD 412).

Question 46

What guidance is there on the appropriate choice where judicial review and case stated procedure both apply?

Answer 46

(a) the normal route for an appeal against a decision of justices where it is alleged there has been an error of law is by way of case stated;

(b) it would be wrong to seek judicial review where case stated was appropriate, merely in order to avoid the more stringent time-limit;

(c) however, judicial review is more appropriate where there is an issue of fact to be raised and decided which the justices did not decide themselves;

(d) judicial review may also be appropriate where it is alleged that there has been unfairness or bias in the conduct of the case by the justices but, where it is alleged that there has been a misdirection or an error of law, case stated is the appropriate remedy.

In North Essex Justices, ex parte Lloyd [2001] 2 Cr App R (S) 15, the Divisional Court said that judicial review should be pursued where the inferior court has acted in excess of jurisdiction.

Judicial review is the only remedy available where the defence wish to challenge a committal for sentence, as the case stated procedure is not available where there has not been a final determination of the case.

Question 47

What remedy is there where an accused wishes to challenge a committal for sentence?

Answer 47

Judicial review is the only remedy available where the defence wish to challenge a committal for sentence, as the case stated procedure is not available where there has not been a final determination of the case.

Question 48

Where an accused wants to appeal against a determination by the High Court of a judicial review/case stated?

Answer 48

Any appeal from the High Court in a criminal cause or matter, either in relation to an appeal by way of case stated or a judicial review, is direct to the Supreme Court

Question 49

Can the crown court be case stated?

Answer 49

ONLY ON A DETERMINATION OF AN APPEAL FROM THE MAGS. NOT (AND I REPEAT NOT) ON A TRIAL ON INDICTMENT.
Yes, in respect of an error of law or where it is alleged the CC acted in excess of jurisdiction. There can be no challenge on the basis that a decision is against the weight of the evidence

Question 50

When (at what stage of the proceedings) can the crown court be case stated?

Answer 50

At the conclusion of the proceedings (where it is finally decided)

Question 51

What is the procedure where the crown court is being case stated?

Answer 51

The application must be made in writing no more than 21 days after the decision and must be sought on each party and the court officer.
In contrast to the position in the mags court, an extension of time may be granted at the time of the application.
In common with the mags, the notice must include:
Details of the decision in issue as well as the proposed questions of law or jurisdiction on which the opinion of the high Court will be sought.
It must also indicate the proposed grounds of appeal and include any application for bail pending appeal and the suspension of any disqualification pending appeal.

Question 52

What must the application to state a case specify?

Answer 52

In common with the mags:
The decision in issue as well as the proposed questions of law or jurisdiction on which the opinion of the high Court will be sought.
It must also indicate the proposed grounds of appeal and include any application for bail pending appeal and the suspension of any disqualification pending appeal.

Question 53

Where a party wishes to make representations on a crown court case state, what must he do?

Answer 53

Serve them on the court officer and any other parties within ten business days of service of the application for a case to be stated.

Question 54

Must the court hold a hearing to determine the application of case state?

Answer 54

No.

Question 55

If the crown court refuses to state a case, what must it do?

Answer 55

It must serve notice of the decision on each party.
If the applicant asks for written reasons, those reasons must be served on each party no more than 15 business days after the notice of the refusal

Question 56

Can the crown court be judicially reviewed?

Answer 56

Yes, provided that the decision does not concern a matter relating to trial on indictment.
This phrase includes all decisions relating to the conduct of the trial, including applications to stay any part of the indictment, orders to lie counts on file, order in which indictments are tried, disclosure, a trial on the issue of fitness to plead, and the imposition of a mandatory life sentence.
Matters which are not included include a forfeiture of surety, forfeiture of property used in the course of offending belonging to a third party, binding over, and restrictions of the publication of the identity of a convicted youth.

Question 57

Can bail be granted pending judicial review of the crown court?

Answer 57

Yes.

Question 58

If a defendant is convicted in the mags and appeals to the crown court, via what process should any further appeal on a point of law be made?

Answer 58

Via case stated and not judicial review.