6.2 Appeals - magistrates' decisions

Question 1

What test must be satisfied to correct a decision in the magistrates court for mistake?

Answer 1

Section 142 MCA - the “slip rule”
A magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so.

Question 2

When can section 142 MCA not be used to correct a mistake?

Answer 2

Coles v East Penworth Justices (1998) 162 JP 687
Section 142 cannot be used to correct a mistake after D has been acquitted.

However, it can be used after D pleaded guilty or not guilty.

Question 3

For what types of shortcomings can s.142 MCA / the slip rule be used?

Answer 3

Holme v Liverpool City Justices [2004] EWHC 3131
Section 142 “is to be used in a relatively limited situation, namely one which is equivalent to a mistake”.
E.g.,
The court was misled into imposing the wrong sentence (although only use the slip rule to increase sentence in exceptional circumstances, i.e., D misled the bench).

Williamson v City of Westminster Magistrates Court [2012] EWHC 1444 (Admin) 31
Obiter: maybe use the slip rule for “manifestly excessive” sentences…?

Question 4

Who can invoke the slip rule?

Answer 4

CrimPR 28.4(2)
The parties (usually by agreement) or the court of its own initiative.

Question 5

What are the appeal options available following conviction in the magistrates court?

Answer 5

1.
Re-hearing at the Crown Court;
2.
Case stated in the High Court;
3.
Judicial review in the High Court.

Question 6

Which appeal route is suitable for which situation?

Answer 6

R v Hereford Magistrates Court ex p Rowlands [1972] 2 Cr App R 340
1.
Errors of fact or mixed fact and law - re-hearing in the Crown Court;
2.
Errors or law or excess or jurisdiction - appeal by way of case stated (High Court);
3.
Unfairness, bias or procedural irregularity - judicial review in the High Court.

Question 7

What is the most common form of appeal from the magistrates court?

Answer 7

Section 108 MCA

Re-hearing in the High Court

Question 8

When is appeal to the Crown Court available?

Answer 8

Section 108(1) MCA
A person convicted by a magistrates’ court may appeal to the Crown Court [as of right] —
(a)
if he pleaded guilty, against his sentence;
(b)
if he did not, against the conviction or sentence.

Question 9

Why is appealing sentence to the Crown Court risky?

Answer 9

Once in the Crown Court the sentence is “at large”, i.e., the court can pass any sentence up to the summary maximum.

Question 10

When must D serve notice of appeal to the Crown Court?

Answer 10

CrimPR 34.2(2)(b)

not more than 21 days after [sentence]

Question 11

What must the appeal notice to the Crown Court state?

Answer 11

CrimPR 34.3(1)
(a)
[The thing appealed against]
(b)
summarise the issues;
(c)
[identify witnesses];
(f)
Say whether the magistrates court has been asked to reconsider its case;
(g)
Include a list of those on whom the appellant has served the appeal notice.

Question 12

What must D do if it cannot serve its appeal notice with 21 days of being sentenced?

Answer 12

CrimPR 34.2(3)
The appellant must serve with the appeal notice any application for the following, with reasons -
(a)
an extension of the time limit under this rule, if the appeal notice is late

Question 13

Can new evidence be adduced in a re-hearing?

Answer 13

Yes. It is effectively a brand new trial.

Question 14

Who hears a re-hearing in the Crown Court?

Answer 14

A Crown Court Judge and two lay magistrates.

Question 15

Can D be bailed while she appeals her magistrates court conviction to the Crown Court?

Answer 15

There is no right of bail in this situation but

Section 113(1) MCA
Where a person has given notice of appeal to the Crown Court against a decision of a magistrates court... then, if he is in custody, the magistrates court may ... grant him bail.

Question 16

When can D abandon an appeal to the Crown Court?

Answer 16

CrimPR 34.9(1
At any time. 
(a)
Before re-hearing - without permission;
(b)
During the hearing - with the Crown Court's permission.

Question 17

What must D do to abandon an appeal to the Crown Court?

Answer 17

CrimPR 34.9(1)(a)
Serve notice on
(i)
The magistrates court officer;
(ii)
The Crown Court officer;
(iii)
Every other party.

Question 18

What are the Crown Court’s powers on appeal?

Answer 18

Section 48 Senior Courts Act 1981
(1)
… correct any error or mistake in the order or judgment …
(2)
(a)
… confirm, reverse or varyany part of the decision appealed against …; or
(b)
… remit the matter with its opinion thereon to the [magistrates court] or
(c)
… make such other order in the matter as the court thinks just, and by such order exercise any power which the [magistrates court] might have exercised.
(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.

Question 19

When should a party apply for costs if it wins an appeal hearing?

Answer 19

CrimPR 45.6(4)(a)

As soon as practicable

Question 20

Is D automatically entitled to a costs order if she wins on appeal to the Crown Court?

Answer 20

Section 16(3) Prosecution of Offences Act 1985
"the Crown Court may make a defendant's cost order in favour of the accused"

Question 21

How much by way of costs can D claim if the court makes an order in her favour after she wins on appeal to the Crown Court?

Answer 21

Section 16 POA
(6)
… such amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.
(6A)
Where the court considers that there are circumstances that make it inappropriate for the accused to recover the full amount … a defendant’s costs order must be for the payment out of central funds of such lesser amount as the court considers just and reasonable.

Question 22

What is the appropriate route of appeal when a matter of fact is disputed?

Answer 22

Re-hearing in the Crown Court / section 108 Magistrates Courts Act 1980

Question 23

On what ground can D appeal to the High Court by way of case stated?

Answer 23

Section 111(1) Magistrates Courts Act 1980
... may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction ...

Question 24

What is the deadline to appeal by way of case stated?

Answer 24

Section 111(2) MCA
Within 21 days of the decision

Question 25

What happens when an appeal by way of case stated is heard?

Answer 25

Section 111 MCA
(3)
Any appeal to the Crown Court is extinguished
(6)
The trial court must “state its case” to the High Court.

Question 26

When must applications for judicial review be filed?

Answer 26

CrimPR 54.5(1)
(a)
Promptly, and
(b)
Within three months after the ground of the claim arose (i.e. the decision was made).

Question 27

How to choose appeal by way of case stated or judicial review?

Answer 27

R (P) v Liverpool City Magistrates Court [2006] EWHC 887 (Admin)
(a)
Error of law: normally case stated;
(b)
Issues of fact: judicial review;
(c)
Unfairness or bias: judicial review;
(d)
Misdirections and errors of law: case stated;
(d)
Do not use judicial review to get around the 21-day deadline for case stated.

North Essex Justices ex p Lloyd [2001] 2 Cr App R (S) 15 (86)
Judicial review is the only remedy against committal for sentence.