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Criminal Litigation > Appeal A&Q > Flashcards

Appeal A&Q Flashcards

1
Q

How can each party actively assist the court in furthering the overriding objective?

A

This includes:

1) Communication between the prosecutor and the defendant at the first available opportunity and in any event no later than the beginning of the first hearing and after that, communication between the parties and with the court officer until the conclusion of the case.

2) establishing, among other things:

  • Whether D is likely to plead guilty or not guilty
  • What is agreed and what is likely to be disputed
  • What information, or other material, is required by one party of another and why, what is to be done, by whom and when (without or if necessary with a direction)

and

  • reporting on that communication to the court.
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2
Q

What should the ‘initial details’ must at the very least include as set out in the Criminal Procedure Rules, Part 8?

A

1) a summary of the circumstances of the offence

and

2) defendant’s criminal record

*if D is on bail, it will include other document.

*The information supplied must be sufficient at the first hearing to allow the court to take an informed view.

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3
Q

What happens if D pleads guilty for a summary only offence?

A

The court will proceed to sentence. The sentence will often be passed immediately but can be adjourned for further information

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4
Q

What happens if D pleads not guilty to a summary only offence?

A

The court will set a trial date, and do any necessary case management to ensure that the trial is effective on that date.

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5
Q

What necessary case management, should be completed, if D pleads not guilty to a summary only offence?

A

Completing the case progression form ‘Preparation for Effective Trial Form’ (PET).

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6
Q

What information is included in ‘Preparation for Effective Trial Form’ (PET)?

A

1) D’s and legal representative’s contact details

2) names, numbers, types of witness and which party requires their attendance at court

3) the estimated length of trial

4) identification of trial issues

5) advance warning whether any applications are to be made (e.g special measures, bad character and hearsay)

6) whether any prosecution statements can be read

7) whether any special arrangements need to be made for anyone attending the trial and

8) That the defendant advocate has advised D of credit for early guilty plea and that the trial will go ahead in D’s absence if D fails to attend on the trial date.

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7
Q

How can the magistrates court monitor that directions are complied with?

A

MC has a case progression officer to monitor directions made by the court

+

Both CPS and defence advocates must indicate a nominated person in their respective offices who will be responsible for complying with the directions.

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8
Q

What is a pre-trail hearing?

A

Where a case has been set down for summary trial, the court can conduct pre-trial hearings at which pre-trial rulings can be made.

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9
Q

Which matters can a pre-trail ruling cover?

A
  • Admissibility of evidence

and

  • fitness to plead.
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10
Q

who can apply for an application for a pre-trial ruling ?

A

Can be made by application of :

1) the defence

or

2) prosecution

or

3) of the court’s own motion

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11
Q

Is a pre-trial ruling binding?

A

Yes until the case is disposed of by:

1) conviction or acquittal of D

or

2) a prosecution decision not to proceed

or

3) the dismissal of the case

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12
Q

In what circumstances is a pre-ruling not binding?

A

A pre-trail ruling is binding until the case is disposed of by:

1) conviction or acquittal of D

or

2) a prosecution decision not to proceed

or

3) the dismissal of the case

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13
Q

When can the court discharge or vary pre-trial ruling?

A

If it is in the interest of justice to do so and the parties have been given an opportunity to be heard.

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14
Q

Can a court discharge or vary a pre-trail ruling?

A

Yes, if it is in the interest of justice to do so and the parties have been given an opportunity to be heard.

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15
Q

When can a party apply to have a pre-trail ruling varied or discharged?

A

if there has been a material change of circumstances

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16
Q

Can a party apply to have a pre-trail ruling varied or discharged?

A

Yes, if there has been a material change of circumstances

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17
Q

When can a defendant plead guilty by post?

A

In summary only cases where:

1) the matter has been commenced by summons or requisition

and

2) the prosecutor has served a summary of the evidence on which the prosecution case is based

and

3) the prosecutor has served information relevant to sentence

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18
Q

Which offences can D plead guilty by post ?

A

for minor imprisonable offences

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19
Q

What are the standard directions which might be made on a not guilty plea to a summary only offence?

A

1) Bad character evidence

2) hearsay evidence

3) special measures (to protect witness when they are giving evidence)

4) disclosure

5) expert evidence

6) editing transcript of interviews

7) and serving certificates of readiness for trial

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20
Q

Can a defendant not be present at the first hearing in relation to a summary only offence?

A

Yes,

D can plead guilty be post, In summary only cases where:

1) the matter has been commenced by summons or requisition

and

2) the prosecutor has served a summary of the evidence on which the prosecution case is based

and

3) the prosecutor has served information relevant to sentence

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21
Q

Can the defendant appearing for a summary only offence be denied to see the initial details of the prosecution case, if they requested it?

A

No, it must be supplied to the defendant if they request it.

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22
Q

Can the court proceed in the absence of the defendant for minor offences?

A

Yes

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23
Q

When does a plea happen for summary only or an either-way offence?

A

At the first hearing for a summary only or an either-way offence the defendant will be asked to enter their plea to a charge.

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24
Q

Can the court sentence the a defendant if the defendant is absent?

A

Yes

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25
Q

Who serves the initial details?

A

the prosecution is obliged to serve ‘initial details’.

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26
Q

What is the slip rule?

A

The power for the magistrate court to rectify mistake.

Section 142 of the Magistrate Court Act, gives the magistrate court power to vary a sentence or set aside a conviction if it is in the interest of justice to do so

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27
Q

In what circumstances can the power to rectify mistakes be used ?

A
  • Mistakes in Law and Procedure, whether at trial, or sentencing
  • where all parties agree that a mistake was made
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28
Q

When can the magistrate court use their power to vary or set aside a conviction?

A

if it is in the interest of justice to do so.

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29
Q

Can a defendant use the slip rule to reargue their case?

A

No

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30
Q

Who can make an application to rectify a mistake?

A

The defendant

or

the court can make an amendment under this provision of their own violation.

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31
Q

Who can hear an application to rectify a mistake?

A

can be heard by:

  • the same magistrates who convicted the defendant

BUT

  • if the conviction is set aside the case will be re-tried by a different bench
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32
Q

If a conviction is set aside, who can hear an application rectify a mistake?

A

It will be re-tried by a different bench

33
Q

If D feels that the magistrates have reached the wrong decision on the substantive merits, what is the appropriate course of action?

A

To appeal

34
Q

What are means of challenging a magistrates’ court decisions?

A

1) Appeal to the Crown Court, by way of rehearing

2) Appeal to the High Court, by way of case stated

or

3) Application to the High Court for Judicial review of the decision

35
Q

Which case sets out which appeal route a defendant should take when challenging a magistrates’ court decision? and what is the approach?

A

R V Hereford Magistrates’ Court ex p Rowlands

a) Where the defendant complains that the magistrates made an error of fact or mixed fact and law, the defendant should appeal to the Crown Court.

b)Where the defendant complains that the magistrates made an error of law or acted in excess of their jurisdiction, the defendant should appeal by way of case stated. (High Court)

c) Where the defendant alleges unfairness, bias or procedural irregularity the defendant should apply for judicial review of the decision. (High Court)

36
Q

Does an appeals from the magistrates’ court to the Crown Court require leave?

A

No,

It is an automatic right that does not require leave.

37
Q

Which appeal route should D take when, they complain that the magistrates made an error of fact or mixed fact and law?

A

The defendant should appeal to the Crown Court.

38
Q

Which statute provides a right of appeal from the magistrates’ court to the Crown Court?

A

Section 108 of the Magistrates’ Court Act 1980

39
Q

When can a person convicted by a magistrate court appeal to the Crown Court?

A

1) if D pleaded guilty, against a sentence

or

2) if D pleaded not guilty and was found guilty after a trial, against the conviction or sentence.

40
Q

Can prosecution appeal from the magistrate court to the Crown Court?

A

No

41
Q

If a D appeal from the magistrates’ court to the Crown Court, against conviction only, and the court upheld D’s conviction, can the Crown Court sentence a more severe sentence than the original sentence?

A

Yes, if the conviction is upheld, the Crown Court can pass any sentence that the magistrates’ court could have passed. This includes sentencing a more severe sentence than the original sentence.

42
Q

If a D pleaded guilty in the magistrates’ court, can they appeal against conviction in the Crown Court?

A

No, an appeal against sentence is the only option, unless D can demonstrate that their plea was equivocal

43
Q

What can a D appeal against in the Crown Court, if D pleaded guilty in magistrates court?

A

An appeal against sentence is the only option, unless D can demonstrate that their plea was equivocal

44
Q

What is the procedure on appeal to the Crown Court?

A

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

45
Q

When should a notice of appeal be lodged, if the appeal is against conviction in the Crown Court?

A

Within 15 business days of sentence

46
Q

When should a notice of appeal be lodged, if the appeal is against a sentence in the Crown Court?

A

Within 15 business days of sentence

47
Q

Where should the notice of appeal to the Crown Court be served ?

A

Served on the magistrates court and prosecution.

48
Q

What should the notice of appeal specify?

A

Part 34 of the Criminal Procedure Rules state:

1) The conviction, sentence, order or decision which the appellant wishes to appeal, including the court date of this.

2) Summarise the issues

3) State whether the magistrates’ court has been asked to reconsider its decision (Under s. 142 MCA 1980) or why this is not applicable

4) List the parties on whom the appeal notice has been served

49
Q

What is the statute gives the magistrates power to rectify mistakes?

A

Section 142 of the Magistrates’ Court Act 1980

50
Q

What should a D do, if the notice of appeal to the Crown Court, is served outside the 15 day limit ?

A

It must be accompanied by an application for an extension of time with reasons for the delay.

51
Q

Which form does the appeals to the Crown Court take?

A

By way of a re-hearing

52
Q

How will a conviction appeal proceed in the Crown Court?

A

The same as the original trial:

  • Speeches, witnesses giving live evidence and any relevant submission…
53
Q

In a conviction appeal in the Crown Court, are parties limited to the evidence called during the original trial?

A

No, parties are not limited to the evidence called during the original trial

54
Q

Can the Crown Court amend the written charge which the appellant was convicted?

A

No, Written charge which the appellant was convicted cannot be amend by the Crown Court.

55
Q

Who will hear an appeal in the Crown Court?

A

A judge in the Crown Court and 2 lay magistrates.

56
Q

Can the Crown Court proceed with just one lay justice, on appeal?

A

Yes, if the hearing of the appeal might otherwise be unreasonably delayed.

57
Q

How will a sentence appeal proceed in the Crown Court?

A

The hearing proceeds as if it is the original sentence hearing, with the facts presented and mitigation heard.

58
Q

Where can a bail pending appeal be applied for?

A

In the magistrates court

59
Q

What happens if a bail pending appeal is refused?

A

Appellant may apply for bail from the Crown Court

60
Q

Can an appellant apply for bail from the Crown Court, if bail pending appeal is refused?

A

Yes, Appellant may apply for bail from the Crown Court

61
Q

Can an appellant abandon their appeal in the Crown Court?

A

Yes, the appellant may abandon their appeal at any time

62
Q

What is the consequence of an appeal being abandoned in the Crown Court?

A

Crown Court has no power to vary the magistrates decision

63
Q

How can appellant abandon an appeal in the Crown Court?

A

Appellant should give notice in writing to:

1) The magistrates court,

2) The crown court

and

3) The prosecution.

64
Q

What is the consequences if the appellant fails to attend and is not represented for an appeal in the Crown Court?

A

The appeal is treated as abandoned

65
Q

What is the consequences if the appellant fails to attend and is represented for an appeal in the Crown Court?

A

The appeal will go ahead

66
Q

How can an appellant abandon an appeal in the Crown Court, if the hearing has already started?

A

Need permission from the Crown Court, to abandon.

67
Q

What is the Crown Courts powers on appeal from the magistrates court?

A

S. 48 (2) of the Senior Courts Act 1981:

it can:

1) Confirm, reverse or vary the decision appealed against or any part of it

2) Remit the matter with its opinion to the magistrate

3) Make any other order which the court think is just, so long as they exercise only the power the magistrate can have.

68
Q

In a conviction appeal in the Crown Court, when giving reason for the verdict reached, does the court need to formally re-examine the magistrates court decision ?

A

No
The reasons do not involve a formal re-examination of the magistrates decision.

69
Q

In a sentence appeal in the Crown Court, is the magistrates’ sentence formally re-examined?

A

No

The magistrate sentence is not formally re-examine.

70
Q

Can a sentence be increase in a sentence appeal in the Crown Court?

A

Yes

71
Q

Can a sentence be reduce in a sentence appeal in the Crown Court?

A

Yes

72
Q

What will the Crown Court consider in a sentence appeal?

A

Whether, in light of all they have heard, the sentence imposed by the magistrates was correct.

73
Q

If an appeal is abandoned, how is the costs awarded?

A

Cost can be awarded against the appellant

but

in practice this usually occurs only where the notice of abandonment is served within 24 hours of appeal hearing or on the day itself.

74
Q

If the appellant is successful in appeal in the Crown Court, how is the cost awarded?

A

A successful appellant may be awarded a defence costs order.

75
Q

If the appellant is unsuccessful in appeal in the Crown Court, how is the cost awarded?

A

An unsuccessful appellant may be required to pay the prosecution’s costs.

76
Q

Which statute provides for an appeal by way of case stated?

A

Section 111 Magistrate Court Act 1980

77
Q

What is an appeal by way of Case stated?

A

This is a form of appeal to the High Court on the basis that the decision made by the magistrate court was wrong in law or in excess of jurisdiction.

78
Q
A

Criminal Litigation (20 decks)

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