6.2 Appeals - Crown Court decisions 2

Question 1

Under what circumstances may the attorney general make a reference on a point of law?

Answer 1

Section 36 Criminal Justice Act 1972

[When D is acquitted on indictment. The acquittal stands regardless.]

(1)
Where a person tried on indictment has been acquitted (whether in respect of the whole or part of the indictment) the Attorney General may, if he desires the opinion of the Court of Appeal on a point of law which has arisen in the case, refer that point to the court, and the court shall, in accordance with this section, consider the point and give their opinion on it.

Question 2

Under what circumstances can the attorney general refer a sentence to the Court of Appeal?

Answer 2

Sections35 and36of theCriminal Justice Act 1988empower theLawOfficers to apply to the Court of Appeal for leave to refer for review any sentence which:
1.
was passed in respect of an offence to which Part IV of theActapplies;
2.
was passed in a proceeding in the Crown Court; and
3.
appears to be unduly lenient.

Question 3

Under what circumstances can the Criminal Cases Review Commission refer a conviction or sentence to the Crown Court?

Answer 3

Section 11 Criminal Appeal Act 1995
[Where the conviction or sentence is summary.]

Section 13(1) Criminal Appeal Act 1995
Any reference of a conviction, finding or sentence shall not be made … unless -
(a)
The Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made

Question 4

Under what circumstances can the Criminal Cases Review Commission refer a conviction or sentence to the Court of Appeal?

Answer 4

Section 9 Criminal Appeal Act 1995
[Where the conviction was on indictment, and]

Section 13(1) Criminal Appeal Act 1995
Any reference of a conviction, finding or sentence shall not be made … unless -
(a)
The Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made

Question 5

What is the test for a referral by the CCRC?

Answer 5

Section 13 Criminal Appeal Act 1995
1.
Real possibility it would not be upheld
2.
The argument, evidence or information was not raised in trial
3.
An appeal has been rejected or leave refused
4.
Alternatively, there are exceptional circumstances.

Question 6

In what types of trial can the prosecution appeal to the Court of Appeal against a terminatory ruling?

Answer 6

Section 58 Criminal Justice Act 2003
(1)
This section applies where a judge makes a ruling in relation to a trial on indictment

Question 7

What are the three main requirements for an appeal against a terminatory ruling to take place?

Answer 7

1.
The application must be made before summing up
2.
The prosecution must give an assurance that if leave to appeal is refused D will be acquitted
3.
There must be no other means for the prosecution to appeal to the CA

Question 8

What should the prosecution do to appeal a terminatory ruling?

Answer 8

Part 38 CrimPR
1.
Notify the judge or ask for an adjournment to discuss with the CPS
2.
Serve written notice on the court, Registrar and D (within 5 days or one day in expedited cases) or apply orally to the trial judge for leave
3.
The trial judge will decide if there is a real prospect of success
4.
If (3) fails, lodge notice and proceed to the CA

Question 9

What decisions can be appealed to the UKSC?

Answer 9

Section 33 Criminal Appeal Act 1968
(1)
[CA decisions]
(2)
... a point of law of general public importance...

Question 10

When is the deadline by which D must apply to the UKSC?

Answer 10

Part 43 CrimPR

No more than 28 days after the CA gives reasons