28. Appeals from the Crown Court Flashcards
Can the crown court vary sentence?
Yes, it may be varied or rescinded within 56 days of being passed or made.
The judge who makes such a variation must be the judge who originally passed sentence, except where there were justices present as they do not need to be. The judge who announces the variation does not have to be the judge who makes the variation.
Can the crown court use its power to vary sentence where an appeal against it (an application for appeal) has been determined?
No. The power to vary may not be exercised in relation to any sentence or order if an appeal against it (or application for leave to appeal against it) has been determined (s. 385(3)).
Can the power to vary a sentence in the crown court be used to replace one form of sentence with a different one?
Yes.
The power in the SA 2020, s. 385, may be used to replace one form of sentence with a quite different form. This was illustrated in:
(a) Sodhi (1978) 66 Cr App R 260, where the Crown Court, upon learning that D had been diagnosed by psychiatrists as suffering from paranoid psychosis and was dangerous, substituted for a six-month prison sentence a hospital order plus restriction order without time-limit; and
(b) Iqbal (1985) 7 Cr App R (S) 35, in which an unlawful sentence of 30 months’ youth custody passed on a 16-year-old was replaced by an equivalent term of detention under what is now the SA 2020, s. 250.
The Court of Appeal upheld both variations, saying in Sodhi that the word ‘varied’ in (what is now) s. 385 has a wide meaning and the court’s power is therefore not restricted to changing the length of a sentence.
The section may also be used to add an extra order to the sentence already passed.
The Court may use the power to impose either a more punitive or more lenient sentence and to correct a sentence that is, on reflection, considered to have been wrong in principle.
What appeals can be dealt with by the CoA?
- Appeals against conviction on indictment
- Appeals against sentence passed following conviction on indictment
- Jurisdiction to determine appeals against sentence passed on committal
- Jurisdiction to give an opinion on a point of law referred by the AG following an acquittal
- Jurisdiction to determine appeals against rulings made at preparatory hearings in serious fraud cases
- Jurisdiction to increase sentence on a reference by the AG following an unduly lenient sentence for an indictable-only offence
- Jurisdiction to determine appeals on a reference by the CCRC
There is no power to hear an appeal against a refusal to make a football banning order.
What is the composition of the court of appeal?
An uneven number of judges no fewer than three for:
(a) an appeal against conviction,
(b) a review of a sentence under the CJA 1988, Part IV (A-G’s references),
(c) an appeal against a finding under the Criminal Procedure (Insanity) Act 1964, s. 4 (unfitness to plead), that a person is under a disability,
(d) an application for leave to appeal a verdict of not guilty by reason of insanity or a finding under s. 4 of the 1964 Act which has not previously been refused by a single judge, and
(e) an application for leave to appeal to the Supreme Court
Generally the court will compose only three judges. But, where the matter is very important and would benefit from the authority of a court or where there have been conflicting decisions from the court of appeal on the same point, five or seven judges will sit.
A court of only two may deal with any matter other than those above.
Where a person convicted on indictment wishes to appeal to the CoA against conviction, what does he first need to obtain?
- Either:
a. A certificate within 28 days of the date of conviction, the judge grants a certificate that the case is fit for appeal. This should only be issues in exceptional circumstances. This does not commence the appeal, it only remove the need for leave.
b. The CoA grants leave
Where a judge has refused leave to appeal against conviction to the CoA following conviction on indictment, what does any wannabe appellant need to do?
They need leave to appeal.
Written grounds of appeal need to be submitted within 28 days of conviction.
The initial decision to grant leave to appeal is dealt with by a single judge on the papers, but could also be made by a two-judge or full court at the discretion of the registrar.
The need for expedition is sometimes a reason for having a fuller court decide the leave matter. It also can be done where an unlawful sentence has been passed and the sentence will inevitably need adjusting.
If leave to appeal against conviction following conviction on indictment is refused by the single judge, does the applicant have any other possibility of renewing their application?
Yes, they are ENTITLED to renew their application before a two-judge or full court.
Does a plea of guilty preclude an appeal against a resultant conviction on indictment?
No. if the conviction is found unsafe despite this plea, it will be quashed. But of course the fact of a fit plea, where they had received advice, will be highly relevant to its safety.
In what circumstances would the court of appeal have jurisdiction to consider appeals against conviction following unequivocal pleas of guilty?
Those categories are:
(a) where the guilty plea was vitiated by, for example, erroneous legal advice (such as where a defence was not advised upon and that defence would quite probably have succeeded);
(b) ‘abuse of process’ cases (such as where CPS policy had not been followed and therefore proceedings not discontinued where they should have been); and,
(c) where it was established that the defendant had not committed the offence (i.e. is innocent, not that there is a doubt).
Also where there has been an incorrect ruling on a point of law by the trial judge which allows the appellant no escape from a guilty verdict (except where there is merely evidence admitted, such as bad character, which renders the prospects of acquittal hopeless)
Also following admission of fresh evidence.
Is there an exhaustive list of errors which lead to appeals in criminal cases?
No
Can the wrongful admission or exclusion of evidence lead to quashing of a conviction?
Yes, if it means the conviction is unsafe.
This is true even if the advocate failed to object to the admission of evidence being admitted, but it is a factor in considering the conviction’s safety.
Can the erroneous exercise of discretion lead to the quashing of a conviction?
No, save in very limited circumstances.
Easier to show it was erroneous if the judge has:
1. failed to exercise the discretion
2. failed to take relevant factors into account
3. taken irrelevant factors into account in the exercise of the discretion
The Court said that the review was not limited to cases in which a trial judge had erred in principle or where there was no material on which the decision reached could properly have been arrived at.
Also, if necessary, the court could examine afresh the relevant facts and circumstances in order to exercise a discretion by way of review where the judge’s ruling may have resulted in injustice to the appellants.
Can the wrongful rejection of a submission of no case to answer lead to the quashing of a conviction?
Yes, it will lead to the conclusion that a conviction is unsafe. That can even be so when the appellant has given evidence and admitted guilt in XX.
The failure of an experienced advocate to make a submission of no case to answer will not preclude the quashing of a conviction on the basis that there was in fact no case to answer, but the Court will presume the advocate had reason not to make the submission and look at the whole of the evidence before making the decision.
The court will not ordinarily interfere if a submission would have succeeded but was not made, and evidence of guilt emerged later in the trial.
Can defects in the indictment lead to the quashing of a conviction?
Yes.
1. Where the indictment charges an offence not known to law, the conviction will be quashed. No ifs and no buts
- Where the indictment is preferred and signed without jurisdiction, (where the indictment needed to be signed) the proceedings will be a nullity. But trials which proceed on indictments uploaded to the DCS which have not been formally amended and the defendants not arraigned on the new one would not constitute a successful appeal as there had been no unfairness or unsafety in proceeding on those indictments.
- Where an indictment is duplicitous, it can be quashed where the duplicity results in an unsafe conviction. That is so whether the objection was taken at trial or not.
- Where counts are improperly joined or included in an indictment, the conviction may be quashed subject to the caveat that the application must be made at trial to quash the indictment. Where a D is unrepresented but a judge raises that point, this is sufficient. The CoA also may have the view that the CoA could quash added or substitute counts if they might result in injustice even though they were founded on the committal papers and no objection was taken at trial.
Can inconsistent verdicts/jury irregularities lead to quashing of a conviction?
The CoA will quash a conviction based on apparently inconsistent verdicts only if those verdicts are such that no reasonable jury applying its mind to the evidence could have reached the conclusions it did.
The fact that D is the only person convicted of an ‘open’ conspiracy is insufficient to render a conviction unsafe on the basis of inconsistent verdicts.
It is necessary on appeal to demonstrate the verdicts were not merely inconsistent but were so inconsistent to demand interference on appeal
Where the number of jurors agreeing and disagreeing is insufficient for the purpose of the juries act, the conviction will be quashed
Misconduct by jurors, such as using a ouija board, downloading information from the internet e.c.t may constitute valid grounds for quashing.
Can the conduct of the trial judge lead to quashing of a conviction?
Yes, sometimes if there has been excessive judicial intervention during the evidence of the accused.
Other conduct can also lead to a successful appeal against conviction, such as dismissive remarks about the prospects of acquittal, albeit in the absence of the jury, when D was in the course of giving evidence, would have an effect on D.
Discourtesy would also potentially be a ground.
Denial of the accused’s request to change clothes after bail was withdrawn could.
Question is does the judge’s conduct inhibit D in the course of his defence?
In Cole [2008] EWCA Crim 3234, the Court quashed a conviction for dangerous driving when the trial judge had not only made inappropriate interventions, but had treated defence counsel’s questions and submissions with hostility. It culminated in his sending a note to defence counsel headed ‘6P’s’. The 6P’s were explained in bold as ‘Prior Planning Prevents Piss Poor Performance’.
Can errors in summing-up lead to quashing of a conviction?
Yes, if leading to the conclusion that the conviction is unsafe.
Can misdirections on the law lead to quashing of a conviction?
Yes, if this causes the conviction to be unsafe.
Not necessarily unsafe failing to direct the jury as to the standard and burden of proof respectively (this was in different cases).
It is where the judge fails to direct on an essential element of the offence.
Can wrongful withdrawal of an issue from the jury lead to quashing of a conviction?
Yes, where the court arrives at the conclusion that a vital question of fact has not been left ot the jury, the only ground on which a conviction can be affirmed is that there has been no miscarriage of justice in that if the question had been left they would have necessarily come to the conclusion that he was guilty.
Therefore, if a judge fails to direct a jury as to an issue of fact going to an element of the offence the conviction may be quashed if it is unsafe as a result.
Where ethe evidence on a particular issue is agreed, it can be appropriate for a judge to direct a jury that they may draw an adverse inference against d on that issue. But if the judge removes all issues of fact and law from the jury so that they are effectively directs to convict, the conviction is highlight likely to be quashed. That is not inevitably so if a not guilty verdict from a properly direct jury would have been perverse.
Can a misdirection on the facts lead to quashing of a conviction?
A mis-statement or omission of a fact in the course of the summing up may lead to the quashing of a conviction if the fact was of such importance that, if it had been correctly stated, the jury may not have reached the same verdict.
In Bateson [1969] 3 All ER 1372, the Court of Appeal quashed the conviction where the judge told the jury that D had first mentioned his defence when the trial had commenced. The Court took the view that it was at least ‘on the cards’ that the jury would have acquitted if the facts had been correctly stated to them. Conversely in Wright [1974] 58 Cr App R 444, the Court dismissed an appeal when the misdirection as to facts was not sufficiently central. Scarman LJ said (at p. 452):
“At the end of the day, when the appellant’s case is not that the judge erred in law but that the judge erred in his handling of the facts, the question must be, first of all, was there error, and secondly, if there was, was it significant error which might have misled the jury? If this court has a lurking doubt it is its duty to quash the conviction as unsafe, but this court … has reached the clear conclusion that this verdict was safe and satisfactory.”
Can improper comment on facts or defence case lead to quashing of a conviction?
Rarely, as they are permitted to comment and express an opinion as to those facts.
It is only when a judge exhibits blatant unfairness and pro-prosecution bias that the conviction will be imperilled (such as repeatedly describing the defence case as absurd)
Can an error on a direction on the failure of an accused to testify constitute grounds of appeal?
Yes, if there is an error made making a conviction unsafe.
Can comment on the accused’s character lead to quashing of a conviction?
Yes.
However, where the accused is entitled to a good character direction and the judge fails to give it, the conviction will not be quashed as a matter of course. An appellate court should interfere only if, on the facts, it was not properly open to the judge to reach the conclusions he or she did.
Can a sentence be quashed if the sentence could not be legally passed?
Obviously.
Can a sentence wrong in principle be quashed?
Yes, if they are of the view that it was outside of the broad range of appropriate penalties.
The fact of a sentence being severe is not sufficient.
this court never interferes with the discretion of the court below merely on the ground that this court might have passed a somewhat different sentence; for this court to revise a sentence there must be some error in principle.
If the sentence is not of the appropriate form (i.e. because an offender was not eligible for the custodial sentence imposed), the more appropriate description is that the sentence is “wrong in principle”.
Equally, an inappropriate combination of sentence can be described as wrong in principle (i.e. a short custodial term combined with a probation order)
Can a sentence manifestly excessive be quashed?
Yes.
Such an appeal will only succeed if the sentence was excessive in the sense of being outside the appropriate range for the offence and offender in question, as opposed to being merely more than the CoA would have passed itself.
For example in Withers [1983] Crim LR 339, the principal submission was that a sentence of nine months’ imprisonment for stealing £1,000 from employers was too long by three months. The Court held that a sentence of six months would not have been wrong, but to reduce the sentence by such a small amount would have been ‘tinkering’ with the judge’s decision and the appeal was dismissed. Although the sentence was ‘excessive’ in one sense, it was not so excessive as to be outside the appropriate range.
Equally, where ethe sentence was not manifestly excessive at the time of passing, the CoA will not interfere with the level just because the tariff for that sentence is reduced after sentence is passed.
A judge must follow the sentencing guidelines and may disregard any preceding authority.
Can a judge’s remarks when sentencing lead to a sentence being quashed?
Potentially yes.
If those remarks tend to reveal irrelevant factors have been taken into account (such as the fact the defendant pleaded not guilty or made attacks on the character of witnesses), the CoA may allow the appeal and substitute a different sentence.
However, if the CoA takes the view that the sentence was nonetheless appropriate, it may nonetheless uphold the sentence.
May procedural errors when passing sentence lead to a variation in the sentence?
Yes, but this is by no means necessarily the case.
For example, the failure to obtain a PSR will not necessarily lead to a reduction in a sentence, but the CoA will secure such a report before dealing with the appeal.
Similarly, where information about an offender’s antecedents has been inappropriately given to the court, the court may reduce or maintain the sentence.
The failure to hold a newton hearing is more likely to result in a reduction.
Will a sense of grievance lead to the CoA intervening?
Yes, such as where a judge orders PSRs and indicates that if the reports are satisfactory a non-custodial sentence will be passed but nonetheless sends them into custody.
Furthermore, an indication of a non-custodial sentence and then a guilty plea after will restrict what the judge can do during sentencing. If they go outside of that, then the CoA may interfere.
If PSR have been ordered and the judge makes it clear that all options are on the table, then the CoA will not be moved to vary it.
