6. Appeals Procedure

Question 1

Within what time must a defendant lodge a written notice of appeal conviction or sentence passed in the Magistrates Court?

Answer 1

15 working days from after sentencing or deferall of sentence.

• where the prosecution contests the appeal, it has 15 workings days from service to respond.

Question 2

How will an appeal hearing to the Crown Court be conducted?

Answer 2

Complete re-hearing of the whole case or sentencing hearing.

• Conviction - no obligation on the prosecution to put forth the same case and Crown Court is free to make a decision on a different basis.
• Sentence - when deciding what sentence to pass down, C.C does not refer to the Magistrate’s sentence.
  However, its sentencing powers are limited by those available in the Magistrate’s Court, but within these bounds, may give a sentence that is more or less severe than original one.

Question 3

What is the presumption regarding bail for appeals?

Answer 3

Presumption of bail does not apply and if they wish to obtain it, must specify this in application notice.

Question 4

Why does the defendant not have to set out the basis for an appeal to the Crown Court?

Answer 4

Because the court has no power to decline jurisdiction

Question 5

Who hears an appeal from Magistrates Court, and what does the hearing consist of?

Answer 5

Crown Court judge, supported by at least two and no more than four magistrates.

It is a complete rehearing, meaning new evidence can be called.

Question 6

Who may appeal from the Magistrates Court to the Divisional Court of the High Court by way of case stated?

Answer 6

Prosecution and defence

Question 7

On what grounds can a decision be appealed by way of case stated?

Answer 7

Decision is either:
1) Wrong in law
2) Exceeds the jurisdiction of the court

Question 8

What is the procedure for appeal by way of case stated to the High Court?

Answer 8

1) Written application is made to the magistrate court to state the case within 21 days from the original decision or sentence.

THEN
2) If magistrates’ court rejects application, issue a certificate of refusal (subject to JR).
3) If accepted, court officer must serve a draft statement of case on all parties within 15 business days following court’s decision to state the case.

Question 9

On what grounds might the Magistrate’s Court refuse to state a case to the High Court?

Answer 9

Where the application is considered be ‘frivolous.’
* term should be defined to mean*‘futile, misconceived, hopeless or academic’ *(cf. ordinary everyday meaning).

Question 10

What is one key point to consider when considering time extensions for appeals by way of case stated?

Answer 10

If application is made directly to the Magistrate’s Court- no extension to 21 day time limit is obtainable.
Cf.
Crown Court - extension is available following an appeal heard in the Crown Court.

Question 11

How does the High Court’s hearing of a stated case ensue?

Answer 11

hearing is confined to legal arguments, and no evidence will be reviewed.

• powers include (1)reversing/affirming/varying a M.Cs decision; or
  (2) remitting the case back down for consideration following its opinion on legal points.

Question 12

If a defendant seeks leave to appeal a Crown Court decision to the Court of Appeal, within what time of the conviction must the application be made?

Answer 12

28 days, where a single CoA judge will decide whether to grant the appeal

Question 13

What occurs if this single Court of Appeal judge refuses the appeal?

Answer 13

Defendant can renew the application to the full court

Question 14

What is the single basis on which a defendant can appeal a Crown Court conviction?

Answer 14

Ground that the convictions is unsafe

Question 15

In what six situations could a claim be made that a Crown Court conviction is unsafe?

Answer 15

1. Evidence wrongly admitted or excluded
2. Direction wrongly given or omitted
3. Trial judge conduct showed bias
4. Wrongful exercise of discretion
5. Errors in summing up
6. Problems with the jury

Question 16

Where the Court of Appeal agrees that a Crown Court conviction is unsafe, what are their four options?

Answer 16

1. Quash the conviction, and order acquittal or retrial
2. Find defendant guilty of some offences but not others
3. Find the defendant guilty of alternate offences
4. Dismiss the appeal

Question 17

On what three basis can a defendant appeal a Crown Court sentence?

Answer 17

1. Wrong in law
2. Wrong in principle
3. Manifestly excessive

Question 18

When is any new sentence imposed by the Court of Appeal deemed to run from?

Answer 18

The original sentencing date, which means time in custody pending appeal will be taken into account

Question 19

On what grounds can the prosecution appeal to the Court of Appeals?

Answer 19

1) Terminatory rulings; or
2) Retrial for serious offences - exeption to general rule that prosecution cannot appeal against an acquital.
* ground only arises where there is ‘new and compelling’ evidence.
* applies to murder, attempted murder, manslaughter, aggravated arson.

Question 20

In what situation can the Attorney General refer a case to the Court of Appeal?

Answer 20

They feel sentence was unduly lenient and Court of Appeal itself grants permission

Question 21

What are the two criteria for the decision of the Court of Appeal to be appealed to the Supreme Court by either the prosecution or defence?

Answer 21

1. Court of Appeal or Supreme Court grant leave to appeal, and
2. Court of Appeal certifies that a point of law of general public importance is involved

Question 22

Where will an appeal following a High Court ruling be heard, and what must the case involve?

Answer 22

Supreme Court
* High Court must certify that case involves a point of law of general public importance.
* Leave is obtainable from either Supreme Court of High Court.

Question 23

How are costs awarded where a defendant loses their appeal in the CoA or High Court?

Answer 23

loser covers the other party’s costs.

Question 24

Where a defendant seeks leave to appeal on two grounds, and a single judge only grants leave in part, can the defendant appeal the part refusal?

Answer 24

Yes, but procedure is slightly different.
* entitled to renew his application for leave at his appeal hearing, which may be granted right then and there.

Question 25

What is a consequence of appealing directly to the High Court by way of case stated?

Answer 25

defendant loses their right to a re-hearing/appeal in the Crown Court

Question 26

When does the 28-day timeclock to seek leave from the CoA start?

Answer 26

If a defendant is appealing against conviction - date of conviction.

If a defendant is appealing against sentence - date of sentencing.

Question 27

What is the difference between an appeal by way of case stated and judicial review?

Answer 27

• Judicial review is appropriate if bias and unfairness is alleged in handling of case by magistrates. Longer timeframe to apply.
• Cf. lower threshold for case stated - mere misdirection or error of law suffices.

Question 28

What is the procedure to appeal a Crown Court decision against conviction or sentence?

Answer 28

leave is always required from either the Court of Appeals or trial judge at the end of trial by means of a certificate.

• Leave = granted only if conviction is ‘unsafe.

1) Defendant serve an appeal notice on Registrate within 28 days from the date of conviction/sentence.
2) Single judge will consider paper application;
2) If granted, then full hearing is shceduled before a full court.
3) If refused, appellant has 14 days to renew its appeal for an oral hearing before a full panel
* Only defendant’s legal representative is entitled to attend.

Question 29

What is required for a defendant’s conviction to be deemed unsafe?

Answer 29

not sufficient to prove that a single misdirection of jury occured, but instead that in light of all the other evidence, this one failure would have led the jury to change their verdict.

Question 30

What powers does the Court of Appeals for appeals against conviction?

Answer 30

• Quashing order
• Dismiss the appeal and uphold the conviction
• Order retrial if interest of justice to do so
• Make an order for loss of time
• Allow the appeal and find the appellant guilty of an alternate offence.

Discretion - any time spent in custody whilst appeal is determined will not be credit towards defendant’s custodial sentence.

Question 31

What is required for a defendant’s sentence to be deemed manifestly excessive or wrong in principle?

Answer 31

Where the sentence is not the most appropriate given the circumstances.

ie. custodial sentence was imposed when non-custodial provision were available and arguably more appropriate, or procedural failure by judge to reason why they departed from the sentencing guidelines.

Question 32

What powers does the Court of Appeals on appeal against sentence?

Answer 32

• Confirm the sentence
• Quash any sentence or order which appeal concerns.
• Re-sentence - w/ caveat that it cannot increase trial judge’s sentence.
• Make an order for loss of time

Question 33

What general powers does the CoA have in dealing with appeals?

Answer 33

1) Impose a loss of time order for unmeritious applications;
2) Admit fresh evidence if it is in the interests of justice.

Question 34

What is the consequence of a loss of time order for a defendant?

Answer 34

will not be credited for time served in custody between date of lodging appeal until dismissal of appeal

Question 35

Beyond the prosecution and defence, who can exercise a right appeal?

Answer 35

Attorney General has the power to appeal to CoA to review defendant’s sentence where it finds it ‘unduly lenient.’

• sentence can be increased, subject to a discount for ‘double jeopardy.’

Question 36

How long does the Attorney General have to subject a sentence to review?

Answer 36

28 days from defendant’s sentencing.

Question 37

What is the procedure for the prosecution to appeal against terminatory rulings?

Answer 37

1) Oral application to trial judge
* Defendant can submit respose.
* Requires for a ‘real prospect of sucess on appeal.’
* Where trial judge refuses leave, can still apply to CoA.

2) Leave from the CoA
* Serve notice on court, Registrar, and defendant within 5 business days in non-expedited (or next day if expedited) (CrPR 38.3).

Question 38

What is one key fetter to the prosecution’s right to appeal against terminatory rulings?

Answer 38

May only be exercised up to defence’s opening.

Question 39

What is the timeframe to appeal to the Supreme Court?

Answer 39

28 days following the Court of Appeal’s decision