7 - Appeals

Question 1

What is the power to rectify mistakes in the magistrates’ court under Section 142 of the Magistrates’ Court Act 1980?

Answer 1

Section 142 of the Magistrates’ Court Act 1980 grants magistrates the power to vary a sentence or set aside a conviction if it is in the interests of justice.

This power applies to sentences, other orders, and convictions, regardless of whether the conviction followed a trial or a guilty plea (the latter being rare).

Commonly known as the ‘slip rule,’ this power is narrow and not intended as an alternative means for the defendant to re-argue their case.

It is used to correct mistakes in law and procedure, typically when all parties agree a mistake was made as per case law. It is not intended to permit a defendant to argue that the magistrates’ decision on their case was wrong - that is a matter for appeal.

The court can amend a decision on its own initiative or upon the defendant’s application. The application can be heard by the same magistrates who convicted the defendant.

If a conviction is set aside, a different bench will retry the case.

Question 2

In what circumstances might a finding of guilt or sentence be set aside or varied under s.142?

Answer 2

A finding of guilt might be set aside in cases such as:
- Incorrect legal advice was provided to the magistrates by the legal adviser.
- The defendant was absent for trial without an initial explanation, was tried in their absence, and later presented a valid reason (e.g., emergency hospital admission) for non-attendance, making it just to set aside the conviction.

In terms of varying a sentence:
- This power is generally used to reduce a sentence, for example, if a financial penalty exceeded the statutory maximum for the offence.
- Exceptionally, a sentence might be increased if the court was misled by the defendant, allowing the application of s.142 in such cases.

Question 3

How can a defendant challenge decisions made by the magistrates’ court?

Answer 3

If a defendant believes the magistrates reached the wrong decision, they have three options:
1. Appeal to the Crown Court for a re-hearing.
2. Appeal to the High Court by way of case stated.
3. Apply to the High Court for judicial review of the decision.

The appropriate method depends on the nature of the error being challenged.

Question 4

What is the structure of the criminal courts in relation to appeals?

Answer 4

Magistrates’ Court: Initial hearing for all adult defendants and trial for summary and some either-way offences.
Appeals go to:
- Crown Court for trial and re-hearing, or Court of Appeal (Criminal Division).
- High Court for case stated and judicial review.

Youth Court: First hearing for those under 18 unless jointly charged with an adult (in that case it would be tried in the Magistrates Court).
Appeals go to:
- Crown Court for appeals, or High Court (Queens Bench Division) for case stated and judicial review.

Crown Court: Functions as both trial court and appellate court, with potential appeals going to:
- The Court of Appeal or High Court.

Question 5

Which appeal route should be taken depending on the complaint about a magistrates’ decision?

Answer 5

In R v Hereford Magistrates’ Court ex p Rowlands [1997], the guidance is:
- Appeal to the Crown Court if the complaint involves a mistake of fact or mixed fact and law.
- Appeal by way of case stated for an error of law or jurisdictional excess.
- Apply for judicial review for allegations of unfairness, bias, or procedural irregularity.

Question 6

What are the procedures for appealing from the magistrates’ court to the Crown Court under Section 108 of the Magistrates’ Court Act 1980?

Answer 6

This is an automatic right, requiring no leave, and is the most common appeal route.

A defendant may appeal:
- Against sentence if they pleaded guilty.
- Against conviction or sentence if they pleaded not guilty and were found guilty.

The prosecution cannot appeal via this route. The options of redress are limited to case stated and JR.

On conviction appeals by the defendant, the sentence is ‘at large,’ meaning the Crown Court can impose any sentence that the magistrates’ court could have passed, including a more severe one.

An appeal against sentence is the only option after a guilty plea unless the defendant can demonstrate that their plea was equivocal.

Question 7

What is the procedure for filing an appeal to the Crown Court?

Answer 7

Notice of appeal must be lodged within 15 business days of sentencing, irrespective of whether the appeal is against conviction or sentence.

The notice of appeal must be served on the magistrates court and the prosecution.

It must specify:
- The conviction, sentence, order, or decision appealed.
- Summarise the issues involved.
- State whether the magistrates’ decision has been reconsidered under s.142 MCA 1980.
- The parties on whom the appeal notice is served.

An extension request with reasons must accompany any late notice outside of the 15 business day limit.

Compliance with procedural requirements under Part 34 of the Criminal Procedure Rules is essential.

Question 8

How is an appeal hearing conducted in the Crown Court?

Answer 8

• The appeal is a re-hearing, with all evidence and arguments presented anew, similar to the original trial.
• New evidence may be introduced, and the appeal is heard by a Crown Court judge with two lay magistrates.
• Importantly, the information (the written charge on which the appellant was convicted) cannot be amended by the Crown Court.
• In exceptional cases, the court may proceed with only one lay justice to avoid unreasonable delays.
• For a sentence appeal, it resembles the original sentencing hearing, with facts and mitigation presented.

Question 9

Can a defendant apply for bail pending appeal?

Answer 9

• Bail pending appeal can be applied for in the magistrates’ court.
• If refused, the appellant can apply to the Crown Court.
• There is no automatic right to bail under the Bail Act 1976 pending appeal.

Question 10

What are the rules for abandoning an appeal?

Answer 10

• An appellant may abandon their appeal at any time by notifying the magistrates’ court, Crown Court, and prosecution in writing.
• Once an appeal has been abandoned, the Crown Court has no power to vary the Magistrates’ decisions.
• If the appellant fails to attend and is unrepresented, the appeal is treated as abandoned.
• An appeal is abandoned only with Crown Court permission once the hearing has begun.

Question 11

What powers does the Crown Court have on appeal under Section 48(2) of the Senior Courts Act 1981?

Answer 11

The Crown Court can:
- Confirm, reverse, or vary the decision.
- Remit the matter with its opinion to the magistrates.
- Make any other order which the court thinks is just, so long as they exercise only the power the magistrates could have.

Question 12

What are the courts’ powers on conviction and sentence appeals?

Answer 12

Conviction Appeal:
- The Crown Court will hear the evidence and must give reasons for the verdict reached.
- The reasons do not involve a formal re-examination of the magistrates decision.

Sentence Appeal:
- The Magistrates; sentence is not formally re-examined.
- The appeal panel will consider whether, in light of all they have heard, the sentence imposed by the magistrates was correct.
- Sentence can be both increased and reduced.

Question 13

What costs can be awarded in an appeal?

Answer 13

• A successful appellant may receive a defence costs order.
• An unsuccessful appellant may be required to pay prosecution costs.
• Costs can be awarded on abandonment, typically if the notice was served within 24 hours of the appeal hearing or on the day itself.

Question 14

What is an appeal by way of Case Stated under Section 111 of the Magistrates’ Court Act 1980?

Answer 14

• A form of appeal to the High Court for errors of law or excess of jurisdiction.
• The defendant applies to the magistrates’ court to “state a case” for the opinion of the high court. This will usually take the form of a question(s) about decisions of law or procedure which the defendant asserts were wrongly decided.
• The final case stated includes evidence, legal arguments, and the decision details, with procedural guidance under Crim PR Pt 35. For this reason this is not the appropriate route of appeal where a matter of fact is disputed. It is handled as a civil matter for procedural purposes.
• The appeal is heard by the Divisional Court of the Queen’s Bench division of the High Court. The court will comprise of at least two judges, usually three. No evidence is heard, it is based on legal submissions by the parties.

Question 15

What are the main points to note regarding appeals by way of case stated?

Answer 15

• Who can appeal: Both the prosecution and defence.
• Timing: Only after final determination in the magistrates’ court; not during adjournments.
• Deadline: 21 days from the decision date; if sentence is adjourned, the decision date is deemed the date of sentencing.
• Refusal: Magistrates can refuse to state a case if it is considered vexatious.
• Bail: May be granted by magistrates or, if refused, by the High Court.
• Appeal rights: Appeal by way of case stated removes the right to appeal to the Crown Court under section 108.
• Subsequent appeals: If appealing to the Crown Court under section 108 and that court upholds the magistrates’ decision, an appeal by way of case stated is possible from the Crown Court.
• Divisional Court powers: Can reverse, affirm, amend, remit the case with an opinion, or make any other order.
• High Court appeals: Appeals from the High Court go directly to the Supreme Court.

Question 16

What are the key principles for an application for Judicial Review in the High Court?

Answer 16

Judicial review allows the High Court (Divisional Court of the QBD) to supervise inferior tribunals and public bodies based on the following grounds:
- Error of law: An error on the face of the records, disclosed by court records.
- Excess of jurisdiction: Acting beyond lawful powers.

Breach of natural justice: This broadly includes failures such as:
- Prosecution not disclosing witness statements beneficial to the defence.
- Magistrates denying an adjournment for witness attendance.
- Defence not being given adequate time to prepare.

Question 17

What are the procedural requirements and considerations for applications for Judicial Review in the High Court?

Answer 17

Applications for judicial review must adhere to specific procedures and considerations, including:
- Parties Eligible: Both the prosecution and defence have the right to apply.
- Timing Requirement: The application should follow the conclusion of proceedings unless reviewing a decision to prosecute.
- Strict Deadline: Must be lodged promptly and no later than three months after grounds arise; delays can lead to rejection.
- Authority Over Bail: Only the High Court may grant bail for judicial review applications.
- Error of Law Appeals: Errors of law decisions by the Crown Court on magistrates’ court appeals should proceed by case stated, following Gloucester Crown Court ex parte Chester [1998].

High Court Appeal Path: Appeals from High Court decisions on judicial review proceed directly to the Supreme Court.

Question 18

When is case stated or judicial review the appropriate route for addressing issues with a magistrates’ court decision?

Answer 18

Guidance from R (P) v Liverpool City Magistrates (2006) suggests when to use each route:
- Case stated: Preferred for misdirection or legal errors.
- Judicial review: Appropriate in cases of factual disputes not decided by justices, or where unfairness or bias is alleged in the magistrates’ conduct.

Avoiding misuse: Judicial review should not replace case stated to circumvent stricter time limits for the latter.

Question 19

Provide a summary of appeals: magistrates decisions.

Answer 19

This element explored:

• The power to rectify mistakes; and

Appeals against decisions of the magistrates’ court to:
* The Crown Court- if D complains there was an error of fact or fact and law;
* The High Court by way of case stated- if D complains there was an error of law or the magistrates’ acted in excess of jurisdiction; or
* The High Court, making an application for judicial review if D alleges unfairness, bias or procedural irregularity.

Question 20

What is the scope and application of the power to rectify mistakes in sentencing under the ‘slip rule’?

Answer 20

The Crown Court can rectify mistakes in sentences through its version of the ‘slip rule’, as detailed in Section 385 of the Sentencing Act 2020.

Power granted under Section 385:
- Empowers a judge to vary or rescind a sentence or other order within 56 days of sentencing.
- Only the judge who passed the original sentence can make the variation.

Scope and Purpose:
- Purpose: Saves time and cost by preventing unnecessary appeals for recognisable errors.
- Can be used following a sentence on appeal from the magistrates’ court (without requiring lay magistrates’ attendance at the hearing).
- Cannot be used if an appeal or application for leave to appeal has already been decided by the Court of Appeal.

Applications:
- Not limited to adjusting sentence length or minor errors.
Allows amendments to the type of sentence or requirements in community-based sentences.

Examples:
- If a defendant’s suspended sentence was based on false mitigation, the court may change it to immediate custody.
- A defendant with nightshift employment starting a week after a community order may have a curfew requirement lifted, likely replaced by an alternative requirement.

Question 21

What types of cases does the Court of Appeal Criminal Division have jurisdiction to hear?

Answer 21

The Court of Appeal Criminal Division has jurisdiction to hear several types of cases from the Crown Court. The primary categories include:

Defence Appeals:
- Appeals against conviction on indictment.
- Appeals against sentence passed following conviction on indictment.
- Appeals against sentence passed on committal for sentence.

Attorney-General References:
- References for unduly lenient sentences for offences triable only on indictment and some either-way offences specified by the Home Secretary.
- References for opinions on points of law following an acquittal on indictment.

Additional References and Appeals:
- References by the Criminal Cases Review Commission.
- Prosecution appeals against terminatory rulings.
- Appeals against rulings made at preparatory hearings in serious fraud cases.

In this context, the focus is on the first three categories, which are defence appeals.

Question 22

What are the relevant ways to challenge Crown Court decisions in the context of the criminal courts structure?

Answer 22

The process for challenging Crown Court decisions involves several stages within the criminal courts structure:

Magistrates’ Court:
- All defendants over 18 have their first hearing here.
- A person under 18 appears here only if jointly charged with an adult.
- The court handles summary-only matters and may try either-way matters.

Potential pathways from here:
- Crown Court (trial court): Sentences for indictable-only matters and may try either-way matters.
- Appeals from the Crown Court (trial court) go to the Court of Appeal (Criminal Division).
- The Supreme Court hears appeals on points of law of general public importance.

Crown Court (appeal court): Hears appeals from magistrates’ court and Youth Courts.

The High Court can hear appeals by way of case stated or judicial review from the Crown Court (appeal court).

High Court (Queen’s Bench Division): Hears appeals by way of case stated and judicial review from the magistrates’ court.

Youth Court:
- All defendants under 18 have their first hearing here unless jointly charged with an adult.
- The Youth Court tries all youths unless the case is sent to the Crown Court for trial.

Potential pathways from here:
- Crown Court (appeal court): Hears appeals from the magistrates’ court and Youth Courts.
- The High Court can hear appeals by way of case stated or judicial review from the Crown Court (appeal court).

High Court (Queen’s Bench Division): Hears appeals by way of case stated or judicial review.

Question 23

What are the powers and procedure for appealing against conviction or sentence under the Criminal Appeal Act 1968?

Answer 23

The appeal process against conviction or sentence is governed by specific sections of the Criminal Appeal Act 1968:
- Against conviction: Sections 1 & 2.
- Against sentence following conviction on indictment: Sections 9 & 11.
- Against sentence following committal for sentence: Sections 10 & 11.

Key aspects of the procedure: Leave to appeal is required before an appeal can proceed.
- Appellants must convince a single judge that their appeal is arguable on the merits.
- If leave is granted, the appeal proceeds to an oral hearing before a 2-judge court (for sentence appeals) or a 3-judge court (for conviction appeals).
- If leave is refused by the single judge, the party can renew their application orally before the relevant panel.

The law and procedure for both appeals against conviction and appeals against sentence are largely the same and can be dealt with together.

Question 24

What are the essential steps in the procedure for appealing against conviction or sentence?

Answer 24

The following steps are involved in the appeal process:
- Time limits: Strict deadlines must be met to file an appeal.
- Advising on appeal: Legal counsel guides the appellant through the process.
- Certificate of trial judge: The trial judge’s certificate is required in some cases.
- Transcripts: Trial transcripts are essential for the appeal process.
- Perfecting grounds: The grounds for the appeal must be clearly stated.
- Respondent’s notice: A notice must be filed by the respondent in response to the appeal.
- Consideration of leave to appeal: The single judge assesses whether the appeal is arguable.
- Renewal: If leave is refused, the appellant may renew the application orally before a panel.
- Referral to the full court: The appeal may be referred to a full court for final determination.

Question 25

What are the time limits and procedures for lodging grounds of appeal in the Court of Appeal?

Answer 25

The Notice of Appeal (Form NG) must be served on the Registrar of the Criminal Division of the Court of Appeal.
- For conviction appeals, the notice must be served within 28 days of the conviction.
- For sentence appeals, the notice must be served within 28 days of the sentence.
- Extension of the time limit: An extension can be applied for when serving Form NG by giving reasons for the delay.

Whether an extension is granted is at the Court’s discretion.
- In practice, if the Court finds merit in the appeal grounds, they are likely to allow the extension to prevent injustice.

Question 26

What are the key duties of counsel when advising on an appeal?

Answer 26

• Counsel must advise promptly after conviction/sentence.
• Oral advice should be given immediately after conviction or sentence.
• If there are no grounds for appeal, a negative advice should be prepared and sent to the defendant’s solicitors.
• If there are grounds for appeal, they should be clearly and precisely drafted and sent to the defendant’s solicitors.
• Counsel must draft Advice (on the merits of the appeal) and Grounds (proposed grounds for appeal).
• The Advice and Grounds should be drafted as one document, identifying any necessary transcripts and including a list of authorities if applicable.
• Counsel should only draft reasonable grounds with a real prospect of success to avoid an unmeritorious appeal.

Question 27

What is the process for counsel after drafting Advice and Grounds for an appeal?

Answer 27

Once the Advice and Grounds are drafted, they should be sent to the defendant’s solicitor for approval.

Form NG can be signed by the solicitor on the defendant’s behalf, if they have instructions.

Form NG is then sent to the Registrar along with the Advice and Grounds.

The Crown Court will send relevant papers from their file to the Court of Appeal, which helps the Registrar confirm details such as the sentence and conviction dates.

This process allows the Registrar to provide necessary information to assist the single judge and enables counsel to ‘perfect’ their grounds

Question 28

What is a Certificate of Trial Judge and when is it issued?

Answer 28

• A Certificate of Trial Judge may be issued in exceptional cases where the trial judge certifies the case as ‘fit for appeal’.
• This is unusual, as it would require the judge to acknowledge an error in their decision.
• An example of when a certificate may be granted is when a judge interprets new legislation and sees merit in the losing party’s argument, seeking the Court of Appeal’s guidance.
• If granted, leave is not required for the appeal, but counsel must still follow the usual appeal procedure.

Question 29

How are transcripts used in the appeal process?

Answer 29

• Crown Court proceedings are digitally recorded, and transcripts are ordered by the Registrar if required for the appeal.
• For example, if a Ground of Appeal claims an incorrect ruling on a point of law, counsel should provide the date and time of the ruling in their Advice. The Registrar can then obtain the transcript to clarify what was said.
• In conviction cases, the summing up and proceedings up to the verdict are typically obtained as standard.
• In sentence cases, the sentencing remarks and prosecution opening of facts (where applicable) are obtained, particularly where the sentence follows a guilty plea.

Question 30

What does it mean to ‘perfect’ grounds in an appeal?

Answer 30

Perfecting grounds involves refining or adding to the grounds of appeal once transcripts have been received.

Counsel is sent a copy of the transcripts and invited to perfect the grounds within 14 days, which can include:
- Adding references to the transcripts to support the arguments.
- Reconsidering the grounds, which may lead to amendments, deletions, or the advancement of new grounds in light of the transcripts.

If counsel does not wish to perfect the grounds, they must notify the Registrar.

The perfected grounds should be submitted in a fresh document, clearly marked as perfected.

If counsel decides the appeal is no longer arguable, they should advise the appellant’s solicitors in writing, but this advice is not sent to the Registrar. The Registrar should still be informed.

Question 31

What is a Respondent’s Notice and when is it required?

Answer 31

A Respondent’s Notice (Form RN) may be required if directed by the Registrar to assist the single judge.

The single judge may also order a Respondent’s Notice if it was not initially ordered by the Registrar.

A Respondent’s Notice may be required in cases involving:
- Issues like public interest immunity or criticism of the trial judge.
- Complex cases, such as fraud or serious sexual offences.

This response assists the court in considering the issues raised in the appeal.

Question 32

What is the process for the consideration of leave to appeal by the single judge?

Answer 32

The single judge considers the application, including any bail application, based on the papers alone and without oral argument.

The single judge will assess the merits of the application for leave to appeal and decide whether to:
- Grant the application wholly or in part.
- Refuse the application.
- Refer the application to the full Court of Appeal without granting leave.

The single judge will provide reasons for their decision.

Question 33

What is the process for renewing an application for leave to appeal after refusal by the single judge?

Answer 33

• If leave is refused by the single judge, or granted only on some grounds, the appellant can renew the application for leave to appeal.
• The appellant must serve the relevant form on the Court of Appeal within 10 business days of receiving notification of the single judge’s decision. This time limit can be extended in a similar way to the original application for leave.
• A renewed application for leave to appeal will be considered orally by the full court, consisting of 2 or 3 judges.
• Counsel may appear either privately or pro bono, but must notify the court in writing as soon as possible if they intend to appear.
• Notification of the single judge’s decision is on Form SJ and may indicate that the application was found to be wholly without merit, with the possibility of a ‘loss of time’ order if the application is renewed.

Question 34

When can a case be referred to the full Court of Appeal rather than the single judge?

Answer 34

The Registrar may refer a case to the full Court of Appeal instead of sending it to the single judge.

This power is used when:
- There is an unlawful sentence that must be amended.
- There is a novel point of law.
- The case requires expedition, for example, in the case of a seriously ill or elderly appellant.

The single judge may also refer a case to the full court if they identify an issue that requires the full court’s attention.

Question 35

What is the chronology of an appeal to the Court of Appeal from the Crown Court?

Answer 35

If the trial judge certifies the case as fit for appeal, no leave is required from the Court of Appeal. This certification is rare and occurs only in exceptional cases.

If the case is not certified, a Notice of Appeal must be sent to the Crown Court within 28 days of the conviction or sentence (whichever is being appealed).

Upon receipt, the Registrar will either:
1. Send the case to the single judge.
2. Refer the case directly to the full Court of Appeal.

If leave is refused by either, the appellant has 10 business days to renew the application for leave before the full Court of Appeal.

If leave is granted, the matter will be listed for appeal before:
1. A 2-judge court for sentence appeals.
2. A 3-judge court for conviction appeals.

Question 36

What are some common grounds of appeal against conviction and sentence?

Answer 36

Common grounds of appeal against conviction include, but are not limited to:
- Wrongful admission or exclusion of evidence
- Wrongful rejection of a submission of no case to answer
- Wrongful withdrawal of issues from the jury
- Misdirection on law or facts during the summing up
- Conduct of the trial judge
- Inconsistent jury verdicts
- Fresh evidence
- Defects in the Indictment
- Conduct of lawyers

Common grounds of appeal against sentence include:
- Wrong in law
- Wrong in principle
- Manifestly excessive
- Legitimate expectation
- Judge failing to take account of relevant matters
- Judge taking account of improper considerations
- Unjustified disparity between co-defendants or failure to distinguish between offenders

Question 37

Can a defendant appeal a conviction after pleading guilty, and under what circumstances?

Answer 37

• It is possible for a defendant to appeal a conviction to the Court of Appeal even if they pleaded guilty in the Crown Court.
• The court can rule the plea as a nullity and quash the conviction.
• The most common ground for this is if the guilty plea was entered following a legal ruling by the trial judge that left no option but to plead guilty. If that ruling is later found to be incorrect, the guilty plea will be quashed.
• Appeals can also be based on incorrect legal advice, although it is more common to first apply to the Crown Court to vacate the plea.
• If the legal advice is correct and the plea was entered freely and voluntarily, it is unlikely to be interfered with by either court.
• It is crucial to accurately advise clients about the plea, ensuring they understand it is their choice how to plead and that this is endorsed by a written confirmation.

Question 38

What is the process for representation and preparation of materials for an appeal?

Answer 38

Representation: The Registrar or single judge will usually grant a representation order for junior counsel when leave is granted. If additional work is necessary, the order may be extended to cover a solicitor.

The Registrar will send a brief to counsel.

The respondent is typically not represented at a sentence appeal, but will be represented at a conviction appeal.

A summary to assist the court will be prepared by a Criminal Appeal Office Lawyer.

Skeletons must be served when the appeal notice does not sufficiently outline the grounds. Skeletons are typically needed in cases involving a novel point of law or complex issues requiring additional input from counsel.

Timeline for skeletons:
- Appellant’s skeleton must be served 21 days before the hearing.
- Respondent’s skeleton must be served 14 days before the hearing, unless otherwise directed.

Authorities should be used sparingly and must be justified.

As a general rule, the appellant is entitled to be present at the hearing unless they are in custody, in which case the court’s permission is required (as per s.22 Criminal Appeal Act 1968).

Question 39

What is the test the Court of Appeal applies when considering an appeal against conviction or sentence?

Answer 39

If leave is granted, the court must proceed to consider the merits of the appeal.

In an appeal against conviction:
- The court can allow the appeal only if they think the conviction is unsafe (under s.2 Criminal Appeal Act 1968).

In an appeal against sentence:
- The court can allow the appeal if they think the defendant should have been sentenced differently (under s.11(3) Criminal Appeal Act 1968).

Question 40

What powers does the Court of Appeal have in relation to convictions on appeal?

Answer 40

The Court of Appeal may:
- Quash any sentence or order that is the subject of the appeal.
- Pass a new sentence or make a new order as they think appropriate, but which the court below had the power to pass or make.
- The court must ensure that, taking the case as a whole, the appellant is not more severely dealt with on appeal than in the court below.

Question 41

What is a ‘loss of time’ order and when may it be imposed by the Court of Appeal?

Answer 41

A ‘loss of time’ order allows the Court of Appeal to direct that some or all of the time spent in prison from the date of lodging the appeal to its dismissal does not count towards the appellant’s sentence.

This may be imposed if the application is considered to be wholly without merit.

Although the single judge considering the paper application for leave may make this order, it is uncommon in practice.

It is more likely to be imposed by the full court following refusal of a renewed application for leave, especially if the single judge has marked the appropriate box on Form SJ.

Question 42

What powers does the Court of Appeal have regarding fresh evidence under s.23 of the Criminal Appeal Act 1968?

Answer 42

The Court of Appeal may admit fresh evidence on appeal if necessary or expedient in the interests of justice. This applies to both sentence and conviction appeals, though it is more common in conviction appeals.

Under s.23, the Court may:
- Order the production of documents, exhibits, or items connected with the case if needed for the appeal’s determination.
- Order any witness to attend for examination, regardless of whether they testified in the original proceedings.
- Receive evidence not presented in the original trial.

In deciding to admit fresh evidence, the Court will consider factors such as:
- Whether the evidence appears believable.
- Whether it may support grounds for allowing the appeal.
- Whether it would have been admissible in the original trial on an issue under appeal.
- Whether there is a reasonable explanation for why the evidence was not introduced in the initial proceedings.

This power also enables the Court to compel jurors and legal representatives (with waiver of privilege) to give evidence, and applies to the prosecution, who may introduce new evidence, except to argue a new basis for conviction.

Question 43

Provide a summary of Crown Court decisions 1.

Answer 43

This element explored:

• The slip rule in the Crown Court to vary or rescind a sentence or other order.
• Appeals from the Crown Court to the Court of Appeal (Criminal Division) against conviction or sentence in particular:
• The procedure
• Test on appeal
• Against conviction- the court can allow an appeal only if they think that the conviction is unsafe
• Against sentence- the appeal can be allowed if the court thinks the defendant should have been sentenced differently
• Powers on appeal against conviction and/ or sentence
• Admission of fresh evidence on appeal if the Court of Appeal think it necessary or expedient in the interests of justice.

Question 44

What is the purpose of an Attorney-General’s reference on a point of law following an acquittal, and what impact does it have on the acquittal?

Answer 44

The Attorney-General (AG) may seek the opinion of the Court of Appeal on a point of law if a defendant was acquitted following trial on indictment.
- This process is intended to clarify the law without affecting the acquittal, which stands regardless of the Court of Appeal’s decision.
- The defendant is entitled to be represented at the hearing.
- The Court of Appeal has discretion to refer the matter to the Supreme Court, either on its own initiative or if requested by either party.

Question 45

Under what conditions can the Attorney-General refer a case for review of sentence, and what may happen to the sentence as a result?

Answer 45

The Attorney-General (AG) may refer a case to the Court of Appeal if the AG considers the sentence ‘unduly lenient’.
- This power applies to offences that are triable only on indictment or specified in the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006.
- The AG has 28 days to decide whether to seek leave for a reference.
- If leave is granted, the Court of Appeal will proceed based on the facts before the sentencing judge.
- The sentence may be increased if deemed unduly lenient, with a discount for ‘double jeopardy’ to compensate the defendant for the delay in knowing if the sentence would be increased.

Question 46

What is the role of the Criminal Cases Review Commission (CCRC) in relation to convictions and sentences?

Answer 46

The Criminal Cases Review Commission (CCRC) is an independent body established under the Criminal Appeal Act 1995.

It has the power to refer any conviction on indictment or sentence to:
- The Court of Appeal (for indictable convictions/sentences),
- Or the Crown Court (for summary convictions/sentences).

The CCRC considers whether there is a real possibility that the Court of Appeal will quash the original conviction or sentence.

Generally, the CCRC will only refer a case if there is new information or arguments not available in the original court or appeal, unless there are exceptional circumstances.

Question 47

Under what conditions does the CCRC usually refer a conviction or sentence to the Court of Appeal or Crown Court?

Answer 47

The CCRC typically refers a case if:
- There is a real possibility the Court of Appeal will quash the original conviction or sentence.
- There exists new information or an argument that was not presented in the court of first instance or on appeal.

Exceptions to this may be made only in exceptional circumstances where the CCRC deems it appropriate to refer the case despite the information having been available earlier.

Question 48

What are the requirements for a prosecution appeal against a terminatory ruling under s.58 Criminal Justice Act 2003?

Answer 48

Section 58 of the Criminal Justice Act 2003 allows prosecution appeals against terminatory rulings in Crown Court trials that would otherwise end the case.

Key requirements for such an appeal include:
- The ruling must be made before summing up.
- An acquittal agreement must be provided by the prosecution, assuring the court and defendant that if leave to appeal is refused or the appeal is abandoned, the defendant will be acquitted on the relevant count(s).
- The ruling must not be appealable by other means to the Court of Appeal.

Question 49

What is the procedure for prosecution appeals against terminatory rulings?

Answer 49

Immediate Action: Prosecution counsel should either:
- Notify the judge of their intent to appeal, or
- Request a short adjournment (typically until the next business day) to consult with the CPS lawyer.

Notice of Appeal:
- Written notice of appeal must be served on the court, Registrar, and defendant.
- In non-expedited cases, the prosecution has five business days to serve notice.
- In expedited cases, notice is due the next business day, with the Court of Appeal handling the matter swiftly without discharging the jury.

Alternative Oral Application:
- Prosecution may apply orally to the trial judge for leave to appeal.
- The trial judge will hear the defence’s representations on the same day unless further time is justified.
The judge decides if there is a real prospect of success on appeal.

Second Opportunity: If the trial judge denies leave to appeal, the prosecution may still proceed by lodging notice with the Court of Appeal.

Examples of Appeal-Worthy Rulings Include:
- Staying proceedings as an abuse of process,
- Rulings of no case to answer, or
- Evidential rulings that leave the prosecution with no evidence to present.

Question 50

What is the process for appealing rulings made at Preparatory Hearings?

Answer 50

Purpose of Preparatory Hearings: Held as a form of case management in long, complex, or fraud cases.

Appeal Power: Both the prosecution and defence have the power to appeal rulings made at these hearings to the Court of Appeal.

Practice Point: It is important to be aware that this appeal power exists.

Question 51

How can a decision of the Court of Appeal be appealed to the Supreme Court?

Answer 51

Jurisdiction: The Supreme Court is the UK’s highest court (formerly the House of Lords).

Appeal Requirements:
- Sections 33 and 34 of the Criminal Appeal Act 1968 allow either the prosecution or defence to appeal a Court of Appeal decision to the Supreme Court.
- Certification that the case involves a point of law of general public importance is required from either the Court of Appeal or the Supreme Court.

Procedure:
- Governed by Part 43 of the Criminal Procedure Rules.
- Applications for leave to appeal to the Supreme Court must be filed within 28 days of the Court of Appeal’s decision (or within 14 days in Attorney-General Reference cases).

Question 52

Provide a summary of Crown Court decisions 2.

Answer 52

This element explored additional types of appeal from the Crown Court to the Court of Appeal (Criminal Division):

· References by the Attorney-General for opinions on points of law following acquittal on indictment;
· References by the Attorney-General of unduly lenient sentences, for offences triable only on indictment and some either-way offences specified by the Home Secretary;
· References by the Criminal Cases Review Commission;
· Prosecution appeals against terminatory rulings; and
· Appeals against rulings made at preparatory hearings in serious fraud cases.

This element also explored further appeals to the Supreme Court for cases which involve a point of law of general public importance.