Appeals 1 Flashcards
What right does someone convicted or who pleads guilty in the mags have under s.142 MCA?
To ask mags to set the conviction aside.
Application can be heard by same mags or different bench.
If approved, it will then be reheard by different mags
How should s.142 be construed?
The power to rectify mistakes but only after conviction
What else can s.142 be used for?
Reconsideration and variation of a sentence, but will be an exceptional case which justifies the increase of a sentence, especially if this makes a custodial sentence more likely
What are the three ways of challenging a magistrates court decision
Appeal to crown
Appeal to high by way of case stated
Appeal to High for JR
Who must hear an appeal from the youth court?
A judge or recorder of the crown court, sitting with two lay justices who are authorised to sit in the youth court
When must notice of appeal from the mags be served?
Within 15 business days of sentence being passed or sentence being deferred
This is for an appeal against conviction and/or sentence or an order
Does the crown court have power to change the time period for appeal?
Yes - if late an application to extend time should be served with the notice of appeal
How long does the appellant have to introduce further evidence relating to character, sexual history or hearsay or special measures?
15 business days from service of the appeal notice
Who hears an appeal from the mags?
A circuit judge or recorder sitting with two lay magistrates (who were not involved in the original hearing)
How does the appeal proceed?
A complete re-hearing, either of the whole hearing or just sentence
What is the test for a sentencing hearing?
Whether the sentence was the correct one, given what is before the appeal panel
Note - not whether it was within discretion
Can the crown court exercise crown court powers on appeal?
No
How is a decision reached by the appeal panel?
By majority - but judge must have jurisdiction over matters of law
What powers does the crown court have on appeal from the mags?
Quash
Remit
Vary the sentence
Can an appellant abandon an appeal?
Yes - by issuing written notice.
When is permission required to abandon an appeal?
When the hearing has started
What is an appeal to the high court by way of case stated?
An appeal over a point of law identified by the lay bench or district judge
It is based in an error of law or an excess of jurisdiction
If appeal is progressed to HC under case stated, can an appeal progress to crown court?
No- this right is forfeit by appealing by way of case stated
Can the case stated procedure be used for sentence as well as conviction?
Yes
How is the divisional court constituted for an appeal by way of case stated?
at least 2, often 3 judges
If two judges cannot agree, appeal is unsuccessful
Is evidence called in an appeal by way of case stated?
No
What power does the court have on appeal by way of case stated?
Can reverse, amend or affirm
remit
or make another order
What powers does the high court have under JR?
Mandatory quashing and prohibiting orders
What are the principle grounds by which JR can progress
Error of law
Excess of jurisdiction
breach of natural justice
Can appeal by way of case stated be applied to Crown court decisions?
Yes, but not to matters which are relating to trial by indictment
So can be applied to an appeal which is heard in the crown court from the mags
Can appeal by JR be applied to Crown court decisions?
Yes, but not to matters which are relating to trial by indictment
If D is convicted and appeals to crown court and seeks to challenge in high court, it should be done by way of case stated
How to choose between JR and case stated?
Normal route for error of law = case stated
Wrong to seek JR simply to avoid a more stringent case stated time limit
JR more appropriate to decide an issue of fact that was not before the mags
JR is appropriate where there is an excess of jurisdiction
Case stated is unavailable to challenge committal for sentence
If a decision of the high court is appeal, where is it appealed to?
Supreme court
