28. appeals from the crown court Flashcards
can sentence / order by CC be varied?
yes within 56 days of it being passed or made
who can vary CC sentence/order?
same judge who made it
extent of power to vary sentence / orders?
- replace sentence with a different form
- add an extra order
- make sentence harsher / more lenient
- correct sentence wrong in principle
where do appeals from CC go?
COA crim div
what is a full court in COA and what do they determine?
no fewer than 3 judges (sometimes 5 or 7) to determine:
* appeal against conviction
* review of sentence
* appeal against unfit to plead
* application of leave to appeal to SC
can be 2 sometimes.
what is needed for an appeal against conviction?
- leave of COA or
- trial judge certificate that fit for appeal (within 28 days of conviction) - removes need for leave to appeal.
procedure for getting leave?
- written grounds of appeal submitted within 28 days of conviction
- decision taken on papers
- hearing often needed where unlawful sentence and it will need adjusting
when leave is refused by single judge what can be done?
the applicant is entitled to renew the application before a two-judge or full cour
3 categories of case where COA will consider appeals against convictions following G plea?
- G plea vitiated
- abuse of process cases
- where it was established D had not committed
when can a guilty plea be set aside?
if circs are such to make conviction unsafe.
examples of defects in indictment leading to appeal?
- where it charges an offence not in law - quash
- where preferred without jurisdiction - proceedings a nullity
- duplicity = unsafe conviction
- improper joinder of counts = quash
commonly occurring errors raised on appeal ?
wrongful admission/exclusion of evidence - if conviction unsafe = quash
erroneous exercise of discretion - not lead to quashing
wrongful rejection of submission of no case to answer = unsafe conviction
defects in indictments
inconsistent verdicts and jury irregularities
conduct of trial judge
when will inconsistent verdicts and jury irregularities lead to appeal?
COA will only quash where verdicts are such that no reasonable jury applying its mind to the evidence would have reached that conclusion.
misconduct of jurors if there was a real danger that they were influenced by it and D was prejudicied.
when will conduct of trial judge lead to appeal?
excessive judicial intervention.
e.g. - interrupting accused ev, rudeness, dismissive remarks
what are commonly occurring errors in summing up?
- misdirection on law if conviction unsafe
- wrongful withdrawal of issues from jury
- misdirection on facts
- improper comment on facts or defence case
- comment on failure of accused to testify
- comment on accused character
wrongful withdrawal of issues from jury means…
if judge fails to direct jury as to an issue of fact to an element of the offence, the conviction may be quashed if it is as a result unsafe.
when will a conviction be affirmed when there was wrongful withdrawal of issues ?
only affirmed if no miscarriage of justice, on ground that if question had been left to jury, they MUST have come to conclusion that they were guilty
when will misdirection of fact lead to quashing?
if fact was so important that if it had been correctly stated, jury may not have reached same verdict.
was error significant to mislead the jury.
commonly occurring grounds of appeal against sentence?
- sentence wrong in law
- sentence wrong in principle/manifestly excessive
- judges remarks when sentencing
- procedural errors
- sense of grievance
- disparity of sentence
- failure to distinguish between offenders
when will improper comment lead to quashing?
only where judge exhibits blatant unfairness and pro-prosecution bias
when will sentence be wrong in principle?
- not appropriate form
- inappropriate combination of sentences
when will a sentence be manifestly excessive?
where outside the appropriate range for the offence and offender in question
when will judges sentencing remarks lead to appeal?
if reveal irrelevant factors have been taken into account when deciding sentence.
when will procedural errors lead to appeal?
- failure to follow correct procedure
- failure to get PSR
- failure to hold a newton hearing
when will disparity of sentence lead to appeal?
disparity = difference between co-accused and accused sentence
Disparity in itself is not a sufficient ground of appeal - question is whether the sentence received by the appellant was wrong in principle or manifestly excessive
when deciding disparity of sentence what is the test?
would right-thinking members of the public, with full knowledge of all the relevant facts and circumstances, learning of this sentence consider that something had gone wrong with the administration of justice
what notices are required for appeals?
notice of appeal (if trial judge gives certificate)
notice of application for leave (all other cases w/o certificates
when must notice of appeal/application be lodged?
within 28 days of conviction or sentence depending which is appealed
what has to be served on registrar of criminal appeals?
- form NG
- signed grounds of appeal
- accompanying forms
- all DCS material (as soon as practicable)
what should legal reps do at conclusion of case?
see D and advocates should orally express their final view as to the prospects of an appeal against conviction and/or sentence.
what does COA require for advice and facts
grounds of appeal and relevant facts be in same document
if there are reasonable grounds of appeal - advocate should?
draft and sign grounds and sent to sols asap.
sols then send to accused
can there be perfection and variation of grounds?
The grounds of appeal first lodged may be varied or amplified within such time as the Court of Appeal will allow
how long do counsel have to perfect grounds of appeal?
14 days from when necessary transcripts are sent
what should counsel do if they need more time to perfect?
contact registrar as soon as possible
what duties do counsel have with regards to grounds of appeal?
- not settle or sign grounds unless properly arguable
- not settle grounds if unable to support
If the advocate advises abandonment and the applicant continues…
applicant is at risk of direction that time served does not count
what happens once grounds are perfected?
case referred to single judge for consideration of whether leave to appeal should be granted
notice of appeal hearing date must be served on?
all parties
can period for lodging notice be extended?
yes, before or after expiry
notice of appeal date should be …
as much as reasonably practicable
is notice given in public interest immunity hearings?
not ordinarily given,
who grants representation order for appellant and when?
registrar or single judge
same time leave is given
rep order = advocate
what do respondents submit?
respondent notice setting out reply to applicants grounds of appeal.
when is skeleton argument required?
must be served if appeal notice does not sufficiently outline appeal grounds - especially where complex or novel point of law has been raised
If single judge grants leave on particular ground without deciding issue of leave on other ground what happens?
appellant can argue the other grounds too.
who hears a renewed application for leave?
the court with at least 2 judges (usually 3)
If the single judge grants leave on one ground but refuses leave on others what happens?
appellant must renew application forleave in relation to other grounds and inform R and registrar of that intention
what are directions concering loss of time?
COA directs that all or part of the time an applicant for leave has spent in custody shall not count in relation to sentence applicant is required to serve.
what evidence can COA admit?
any evidence which is relevant to appeal
when will court of appeal admit fresh evidence?
necessary or expedient in the interests of justice
when are loss of time directions expected?
where renewed application made and single judge has marked appeal without merit - order that time served should not count
when COA is admitting fresh evidence what factors must they consider?
- capable of belief
- evidence may afford any ground for allowing appeal
- would ev have been admissible in prior proceedings and
- is there a reasonable explanation for the failure to adduce the evidence in those proceedings
what is the statutory basis for determination of appeals against conviction?
- allow appeal against conviction if it is unsafe and
- dismiss appeal in any other case
if appeal against conviction successful what can happen?
- quash or
- retrial if in interests of justice or
- substituting verdict
what factors will be taken into account when deciding whether to order retrial?
length of time since orignal conviction
extent to which any fresh evidence undermines strength of case against appellant
when will a verdict be substituted?
if jury could have found D guilty of some other offence and appears that jury must have been satisfied of facts which proved him guilty of other offence.
what options are open to pros after acquittal?
reference by AG on a point of law - used where AG requires opinion of COA on point of law
is acquittal affected by reference of point of law?
never. but D can be represented at hearing.
who considers appealing for unduly lenient sentence?
A-G
how will COA decide whether sentence was unduly lenient?
they will look at the evidence that was before the sentencing judge. No new evidence used
if COA decide it was unduly lenient - can they have new evidence?
yes. once decided it was unduly lenient can receive fresh evidence to reach conclusion as to correct new sentence.
what are the 2 categories of appeal for pros on adverse rulings?
- appeals against terminating rulings
- appeals against evidentiary rulings that significantly weaken pros case
s.58 CJA 2003 allows pros to challenge which rulings?
Rulings of CC which would otherwise bring proceedings to an end in such a way that if found to be incorrect it would be possible for proceedings to continue.
is leave needed for s.58 appeal?
yes either trial judge or COA.
steps in relation to pros appeal?
- inform court that it intends to appeal or ask for adjournment to consider appeal or not
- notice of intention to appeal does not have to be made orally in court.
- if pros request adjournment - court must allow - usual rule next business day
- if pros intend to appeal - serve notice on court or apply orally for leave to appeal
- judge hears reps from defence and must make leave decision same day as pros app
- allow if in interests of justice
when appealing against terminating ruling what must pros do?
must undertake to offer no evidence against accused in event that appeal is either abandoned or refused
what is the test for the CCRC to refer?
must be a real possibility that COA or CC will quash original conviction / sentence
what can Criminal Cases Review commission do?
at any time refer conviction on indictment or sentence to COA
procedure where reference by CCRC is made?
- serve reference on appellant = notice of appeal
- reference or notice then served on R
- R can then serve R’s notice and MUST if they want to make reps or if they are directed to by court
when are CCRC references usually made?
made in respect of arguments / info not available to court on first instance or on appeal.
when can appeals be made to supreme court?
only if:
* appeal involves point of law of general public importance
when must application to appeal to SC be made?
made to COA no more than 28 days after the decision or the date on which court gives reasons for decision (whichever is later).
can SC grant rep orders?
no. application for representation must be made to COA.
how can COA decide whether to grant leave to appeal to SC?
can decide on papers
can a refusal by COA be appealed?
no.
