Appeals

Question 1

Magistrates Slip Rule: Setting aside a conviction

Answer 1

• The accused can ask for the magistrates to set the conviction aside when convicted in the magistrates court
• The application can be considered by the same magistrates, or by a different bench
• If the conviction is set aside, then the case is referred by a new bench of magistrates
• This is an appropriate situation to be used when the magistrates have made an error of law and needs to be corrected
• This is known as the slip rule
• Where a simple mistake has just happened. It’s enables the magistrates court to rectify it, and if necessary by directing the case to be referred by different magistrates.
• Once a guilty verdict has been handed down by the magistrates, the defence cannot simply make new submissions to change their mind and substitute to a not guilty verdict. If the magistrates have reached the wrong decision on the merits of submissions, which I’ve been back to you, then the appropriate course of action for the accused is to appeal to the Crown court, or by way of case stated to the high court.

Question 2

Magistrates Slip Rule: Sentence

Answer 2

• Magistrates can vary or rescind the decision of the sentence if it is in the interests of justice to do so
• They can reopen the case, regardless of whether the accused had a guilty or was found guilty, but when the accused has been acquitted, that is the end of the matter, the slip road cannot be used
• Slip rule can be used to increase the sentence only in exceptional circumstances such as with a mistake is quickly identified and it is accepted on all sides. That mistake has been made them a slip role may be used.

Question 3

routes to challenge decision made in magistrates court

Answer 3

This can be done by
o Appeal to the crown court
o Appeal to the high court by way of case stated
o Appeal to the high court by way pf judicial review

Question 4

Appeal to the Crown from the Magistrates, what will the bench look like?

Answer 4

Appeal to the Crown Court, from the magistrates will consist of one judge and to lay justices overall making a panel of three. The same applies to youth courts. However, all members of the panel must be entitled and be able to practice on the youth court.

Question 5

Procedure on appeal from Magistrates to the Crown Court

Answer 5

• Notice of appeal is required and it is to be given in writing to the relevant magistrates court officer and every other party within 15 business days of sentence being passed or sentence being deferred
• Appellant has 15 business days from the date of sentence, even if that is after the date of conviction to apply only against conviction
• The 15 business days also applies to the appeal against an order, or the failure to make an order
• The notice should specify what the appeal purpose is, i.e. an appeal against conviction
• Issues and in an appeal against conviction will specify the witnesses whom the appellant will want to question and state how long the trial lasted in the magistrates court how long the appeal is likely to take
• The crown court may specify what form the notice has to be served, or if they wish the notice to be presented orally
• If the notice is served within time, no leave to appeal is required
• If an extension is required, this must be served within the period of 15 days and specify within that notice X and explanation as to why the appeal notice is late
• The crown court can alter the fight period if need be.
• The appeal is to be heard by a circuit judge or recorder. They will normally sit with two other magistrates who were not involved in the original proceedings.

Question 6

when must appellant serve notice to appeal from the mags to the crown?

Answer 6

15 business days from the date of sentence, irrespective if they are appealing conviction or sentence.

Question 7

Where the defendant complains that the magistrates made an error of fact or mixed fact and law, the defendant should appeal to…

Answer 7

…the Crown Court.

Question 8

Where the defendant complains that the magistrates made an error of law or acted in excess of their jurisdiction, the defendant should appeal to…

Answer 8

… The High Court by way of case stated.

Question 9

Where the defendant alleges the Magsitrates’ unfairness, bias or procedural irregularity the defendant should…

Answer 9

…apply to the High Court for judicial review of the decision.

Question 10

Appeal to Crown court from Magistrates: Hearing

Answer 10

• The hearing will take form in the normal procedure as if it was a trial
• An appeal against sentence is a fresh sentencing hearing
• The crown court may increase the sentence to the maximum that could be imposed by the magistrates court

Question 11

powers of Crown Court on Appeal

Answer 11

(a) may confirm, reverse or vary [any part of the decision appealed against, including a determination not to impose a separate penalty in respect of an offence]1; or
(b) may remit the matter with its opinion thereon to the authority whose decision is appealed against; or
(c) may make such other order in the matter as the court thinks just, and by such order exercise any power which the said authority might have exercised.

Question 12

Crown Court on appeal: majority decisions

Answer 12

May be a majority decision, this means that the late justices can outvote the judge. The Lay justices must, however, accept any decisions on questions of law made by that judge.

Question 13

Appeal to Crown Court: appellant abandoning appeal

Answer 13

• The appellant can abandon the appeal by giving notice in writing to that effect in the magistrates court to the appropriate officer of the crown court, and to the prosecution, and any other party to the appeal
• Permission from the crown court is required if the appeal is wanted to be abandoned once the hearing has commenced
• It can be done so without permission, if it is done before the hearing commences
• The abandonment of the appeal cannot be done by simply not turning up
• Once the appeal has been abandoned. The Crown Court has no power to increase the sentence, and it has no power to reinstate the appeal, unless the abandonment is nullified.

Question 14

who is an appeal by way of case stated available to?

Answer 14

Prosecution; and
Defence

Question 15

types of errors Case stated is used for

Answer 15

• The remedy operates only in relation to an error of law or a decision taken in excess of jurisdiction. A decision as to a question of fact will ordinarily not give rise to an appeal by way of case stated but may do so if the finding of fact is alleged to be such that no reasonable bench could have properly reached that factual conclusion on the evidence.
• The remedy is available in respect of errors made in relation to sentence as well as conviction. Such appeals have often been successfully established by the prosecution where the court has wrongly held that there were ‘special reasons’ for not disqualifying a driver or if a sentence was too harsh.

Question 16

when is case stated available?

Answer 16

The remedy is available only after the final determination of proceedings in the magistrates’ court. If trial proceedings are adjourned the procedure cannot be employed during the period of adjournment.

Question 17

Case stated: determination by the Divisional Court

Answer 17

• The panel of judges will comprise of at least two judges after they will be three
• If I to judge court cannot agree, the appeal is unsuccessful
• The police conducted by submissions from parties. No evidence is given only the evidence which is contained in the stated case
• The court can reverse affirm or amend the decision of the magistrates court, or remit the case with its opinion, or to make any other order that it seems fit
• The divisional court can order a retrial before the same bench or a different bench
• The divisional court may quash an acquittal with the direction that the magistrates court convicts and sentences. Alternatively, the court may simply substitute a conviction for the previous acquittal and proceeds to sentence. Similarly, if the appeal concerns sentence only the court may substitute the appropriate sentence.

Question 18

Appeal from Mags for Judicial Review: Prerogative orders

Answer 18

Prerogative orders are those which include quashing, orders, mandatory orders and prohibiting orders

Question 19

Appeal from Mags for Judicial Review: Grounds

Answer 19

(a)error of law on the face of the record — i.e. an error disclosed by the court records;
(b)excess of jurisdiction;
(c)breach of natural justice.

Question 20

Appeal from Mags for Judicial Review: Breach of natural justice

Answer 20

(i)failing to give D adequate time to prepare a defence.
(ii)failing to grant an adjournment to allow for the attendance of a witness.
(iii)the prosecution failing to call or disclose the statement of a witness who might assist the defence;
(iv)the prosecution failing to disclose the previous convictions of prosecution witnesses
(v)making an order as to costs against D without inquiring as to D’s means.

Question 21

Appeal From Magistrates: Judicial review or Case stated?

Answer 21

• (a)the normal route for an appeal against a decision of justices where it is alleged there has been an error of law is by way of case stated;
• (b)it would be wrong to seek judicial review where case stated was appropriate, merely in order to avoid the more stringent time-limit;
• (c)however, judicial review is more appropriate where there is an issue of fact to be raised and decided which the justices did not decide themselves;
• (d)judicial review may also be appropriate where it is alleged that there has been unfairness or bias in the conduct of the case by the justices but, where it is alleged that there has been a misdirection or an error of law, case stated is the appropriate remedy.

Question 22

Appeal From Mags: what can only be appealed by way of JR?

Answer 22

Judicial review is the only remedy available where the defence wish to challenge a committal for sentence, as the case stated procedure is not available where there has not been a final determination of the case.

Question 23

Appeal From the Divisional Court

Answer 23

Where the appeal to the high court is wanted to be appealed further, it goes straight to the supreme court

Question 24

Case stated from the Crown Court acting in its appellate capacity

Answer 24

• An application to appeal by way of case stated from the crown court may be made in respect of an error of law or where it is alleged that the crown court is acted in excess of jurisdiction
• There could be no challenge on the basis that the decision is against the weight of the evidence
• No appeal by way of case stated is possible in respect of matters relating to trial on indictment. The means of challenge is plainly available in respect of any decision of the Crown Court relating to an appeal against conviction or sentence from the magistrates court.

Question 25

Judicial Review of the Crown Court after Appeal From Magistrates

Answer 25

• Magistrates Court appeals to the Crown court any further appeal to the High Court on a point of law should be by way of case dated and not judicial review
• Judicial review of the Crown Court cannot concern a matter relating to trial on indictment

Question 26

Appeals From the Crown Court: Variation of Sentence

Answer 26

• A sentence imposed or the or another order made by the Crown Court when dealing with an offender may be varied or rescinded within 56 days of being passed or made
• The judge who makes a variation must be the judge who originally passed the sentence and where it was an appeal from the magistrates court. The lay justices need not be present.
• If there has been an appeal against it, then the variation of the sentence cannot happen
• The court may use the power to impose either a more punitive or more lenient sentence, and to correct a sentence that is on reflection, considered to have been wrong in principle

Question 27

Court of Appeal: Full Court (Full Panel of Judges)

Answer 27

This is where an uneven number of judges, no less than three, are required

The follwoing require a full court:
o Appeal against conviction
o A review of a sentence under the CJA, 1988
o An appeal against a finding under the criminal procedure, (insanity) act, 1964
o An application for leave to appeal, the verdict of not guilty by reason of insanity
o An application for leave to appeal to Supreme Court

Normally it will be three judges however, when a case is of high importance, five, or even seven judges will sit

Question 28

Court of Appeal: Matters for when 2 judges are needed

Answer 28

Any other matter that has not been referred to the need for a full court can be dealt with by a to judge court

Question 29

Crown Court to Court of Appeal: Appeal against Conviction

Answer 29

An appellate can we do this where:
o They have leave from the court appeal; or
o Within 28 days of the date of conviction, the judge of the court of trial grants a certificate that the case is fit for appeal

The certificate to be gained from the trial judge should be an initial attempt for an appeal

Question 30

CC to CoA: appeal against conviction with leave

Answer 30

• Written grounds of appeal must be submitted within 28 days of the conviction
• The initial decision, either to grant or refuse leave is usually taken on the papers by the single judge, but sometimes this may be by to judge court or full court at the discretion of the registrar of criminal appeals
• If leave is refused by the single judge, the applicant is entitled to renew the application before a two-judge or full court

Question 31

CC to CoA: Appeal against conviction following guilty plea

Answer 31

• Despite the defendant pleaded guilty, they are still entitled to an appeal
• The most common basis on which it can be changed is where there has been an incorrect ruling on a point of law by the trial judge, which allows the appellant no escape from a guilty verdict
• If the appellant was simply influenced to enter a guilty plea than the prospects of acquittal or less likely
• CoA may also quash conviction arising from a guilty plea, following the admission of fresh evidence on appeal
• Appeal against a guilty verdict can be allowed where it has flowed from an appropriate legal advice
• This can be seen where a defence was likely to succeed, which will allow the appeal

Question 32

CC to CoA: common occurring errors on appeal

Answer 32

• Wrongful admission or exclusion of evidence
• Erroneous exercise of discretion
• Conduct of lawyers

Question 33

CC to CoA: appeal of No Case to Answer

Answer 33

Rejection of no case to answer. This does not apply to the advocates submissions

Question 34

CC to CoA: Defects on the indictment

Answer 34

o Where in indictment is duplicitous conviction may be crushed if the duplicity results in a conviction being unsafe
o Where the counts are improperly joined, and this can give rise to an appeal

Question 35

CC to CoA: Inconsistent verdicts and jury irregularities

Answer 35

o Conviction based on an apparently inconsistent verdict. Only if the verdict has been reached that no reasonable jury applying its mind to the evidence could’ve reached a conclusion tghat it did
o Where the verdict are sought, and that they are so inconsistent that it demands interference on appeal
o We are members of the jury have performed misconduct that can also give rise to an appeal

Question 36

CC to CoA: Conduct of Trial Judge

Answer 36

Where the judge interferes a number of times which can interfere with the witness giving evidence

Question 37

CC to CoA: Commonly occurring errors in a judge’s summing up

Answer 37

• Misdirection of law
• Wrongful withdrawal of issues from the jury
• Misdirection of facts
• Improper comment on facts or defence case
• Comment on failure of accused to testify
• Comment on accused’s character

Question 38

CC to CoA: common occurring grounds on appealing sentence

Answer 38

• Sentence wrong in law
• Sentence wrong in principle or manifestly excessive
• Judges remarks on sentencing: Where their remarks have revealed that a sentence has been raised or altered by factors which are not allowed, such as D pleading not guilty
• Procedural errors
• Sense of grievance: Where judge sends D to prison despite the overwhelming info on a PSR; Where a judge indicates that they can make no promises regarding the confirmation of a sentence, then the ground will not succeed
• Disparity in sentence: Where there are co-accused and the disparity in sentence between the two is unjustified and manifestly wide
• Failure to distinguish between the offenders: Tarring with the same brush

Question 39

CC to CoA: Notice of Appeal and notice of application for leave to appeal

Answer 39

• Notice pf appeal (if granted by the trial judge) or notice for application for leave to appeal must be lodged within 28 days of either conviction or sentence, depending on which is being appealed
• The grounds for appeal must be made and written and sent to the solicitors

Question 40

CC to CoA: Drafted contents of the grounds

Answer 40

Grounds of appeal should be clearly drafted to allow the registrar to see what the basis of that ground of appeal is

Question 41

CC to CoA: Advice with Grounds of appeal

Answer 41

• The relevant grounds of appeal set out and the relevant facts which go with. Allows a single judge to look at it and see what the issues are
• Also should not be separate to advice

Question 42

CC to CoA: Perfection and variation of grounds

Answer 42

• Once grounds are lodged, advocate has 14 days to vary them and perfect them
• If the advocate sees that the appeal no longer has merit, they should tell the solicitors and registrar and abandon the appeal

Question 43

CC to CoA: duty of counsel with regards to grounds of appeal

Answer 43

• Advocates should not settle or sign grounds, unless they consider that they are properly arguable
• Council should not settle grounds that they are unable to support because they are just instructed to do so by a client
• If the Court of Appeal sees the grounds as improper, they will criticise counsel for those grounds of appeal

Question 44

CC to CoA: procedure for obtaining leave to appeal

Answer 44

Ordinarily, once the grounds have been perfected, the case is referred to a single judge, for the consideration of whether leave to appeal should be granted.

Question 45

CC to CoA: extension of time for leave to appeal

Answer 45

Although the time period for lodging, the notice of application for leave to appeal is 28 days that period may be extended either before or after its expiry

Question 46

CC to CoA: Procedure of submitting notices

Answer 46

o The registrar is to give as much notice as reasonably practicable of the date on which the court will hear any appeal or application
o The notice must be served on the parties, any parties custodian, and any other party the court requires to be notified
o The respondent will submit a respondents notice, setting out a reply to the applicants grounds of appeal
o Where it is an appeal against conviction and the respondent is invariably represented
o Advocates must ensure that the court and any other party has a single document containing all of the points that are to be argued
o Be served appeal notice does not sufficiently outline the grounds of appeal, particularly where a complex or normal point of law is to be raised

Question 47

CC to CoA: Skeleton Arguments

Answer 47

• Skeleton Arguments, maybe helpful and complex issues when it is an appeal. Against sentence.
• The appellant skeleton argument must be served no later than 21 days before the hearing date, and the respondents skeleton argument must be no later than 14 days before the hearing date, unless otherwise directed
• authority is to be cited in support of the arguments, skeleton argument must briefly state why

Question 48

CC to CoA: Renewal of application before full court after refusal by single judge

Answer 48

• Single judge by granting leave for appeal, my specify which grounds on which that appeal maybe heard
• If the judge does not decide on some of the grounds, then the appellant is free to raise those grounds in the appeal hearing
• If the judge tells the party to disregard certain grounds, then that party must reapply to have those grounds be heard in the hearing

Question 49

CC to CoA: Loss of Time Direction

Answer 49

• The Court of Appeal may direct that all or part of the time an applicant believed to appeal has spent in custody since the commencement of the appeal proceedings shall not count. In relation to the sentence the applicant is required to serve.
• Appeals may have directions to remove the loss of time and frivolous or vexatious appeals

Question 50

CC to CoA: Fresh Evidence

Answer 50

• Court of appeal may admit any evidence it deems to be relevant ands to be heard in order to decide the appeal
• Evidence which was not heard before the jury cannot be used to advance conviction
• Evidence may be used by respondent in rebuttal of fresh evidence by the appellant
• New evidence may be used when there has been advancements in science

Question 51

CC to CoA: Appeal On Conviction - test

Answer 51

an appeal shall be allowed where the conviction is deemed unsafe

Question 52

CC to CoA: Effect on successful appeal of conviction

Answer 52

Quash of conviction

They can order a retrial. Defendant may be retried on:
o Convictions that D was originally tried for
o Conviction D could have been tried for
o Convictions which was tried in the alternative

Question 53

CC to CoA: Factors which will help on decision on retrial

Answer 53

• Length pf time which has elapsed since the conviction and the fresh evidence which has been heard
• Prejudicial publicity can also be a factor

Question 54

CC to CoA: partially successful appeal - substituting verdict

Answer 54

Court of Appeal may substitute a verdict of guilty for an offence other than that of which the appellant was convicted if it appears to the Court that:
- (a)the jury could on the indictment have found the appellant guilty of the substituted offence, the allegation of which was expressly or impliedly included in the allegation in the particular count in the indictment, and
- (b)the jury must have been satisfied of facts which proved the appellant guilty of the substituted offence

Question 55

CC to CoA: AG - Reference for review of sentence

Answer 55

The Attorney General (AG) may refer a case to the Court of Appeal where the AG considers the sentence imposed to be ‘unduly lenient’. The AG can only refer cases for offences which are triable only on indictment or specified in the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006.
It is a matter for the AG to consider whether leave should be sought for a reference and the time limit to do so is 28 days. If leave is granted the Court of Appeal will proceed according to the facts before the sentencing judge.
A sentence can be increased under the reference procedure if it is found to be ‘unduly lenient’. Some discount will, however, be given for ‘double jeopardy’. This means compensating a defendant for having to wait before knowing if their sentence will be increased.

Question 56

CC to CoA: AG - Reference on a point of law following acquittal

Answer 56

The Attorney-General (AG) may ask for the opinion of the Court of Appeal on a point of law where the defendant was acquitted following trial on indictment. This does not affect the acquittal – the acquittal stands whatever the Court of Appeal’s decision.
The power is intended to clarify the law. However, the defendant is entitled to be represented at the hearing.
The Court of Appeal can refer to the Supreme Court if it sees fit or where either party requests this.

Question 57

CC to CoA: Prosecution appeals against terminatory rulings

Answer 57

prosecution appeals against any terminatory ruling made in the course of a Crown Court trial on indictment ie those rulings that would otherwise bring the case to an end. The provision does not apply to rulings to discharge the jury. The appeal is to the Court of Appeal.
There are provisions providing a similar appeal in respect of evidentiary rulings which significantly weaken the prosecution case but these are not yet in force and so not required for your assessment.

Question 58

CC to CoA: Prosecution appeals against terminatory rulings (3 Main Requirements)

Answer 58

• The ruling must be made before summing up;
• An acquittal agreement must be given by the prosecution; This means that the prosecution must give an assurance to the court and the defendant that if leave to appeal is refused and the appeal abandoned before it is decided by the Court of Appeal, the defendant will be acquitted on that count(s).
• The ruling must not be appealable to the Court of Appeal by other means.

Question 59

CC to CoA: Prosecution appeals against terminatory rulings (Procedure)

Answer 59

There are various ways to proceed where an appeal may be appropriate.
a) Prosecution counsel should notify the judge that they wish to appeal immediately; or
b) Ask for a short adjournment if they want to speak to the CPS lawyer;
c) Any adjournment will usually be until the next business day, when notification must be given;
d) Thereafter, counsel should serve written notice of appeal on the court, Registrar and defendant;
e) The prosecution has five business days to serve written notice in non-expedited cases or the next business day in an expedited appeal case. Expedited cases will be dealt with by the Court of Appeal in a matter of days without the need for the jury to be discharged.

Alternatively, the prosecutor can apply orally to the trial judge for leave to appeal

Question 60

CC to CoA: Prosecution appeals against terminatory rulings (other way for obtaining leave)

Answer 60

Alternatively, the prosecutor can apply orally to the trial judge for leave to appeal:
* The trial judge will hear representations from the defence on the same day as the application unless it is in the interests of justice to allow further time for them to respond;
* The trial judge will decide if there is a real prospect of success on appeal.
The prosecution has a second chance if their application to the trial judge fails in that they can still lodge notice of appeal and proceed to the Court of Appeal.

Question 61

CC to CoA: Prosecution appeals against terminatory rulings (availability)

Answer 61

Some examples of rulings which would be appealable are:
* Staying proceedings as an abuse of the court’s process;
* Rulings of no case to answer;
* Evidential ruling which leaves the prosecution with no evidence to offer.

Question 62

CC to CoA: Appeals against rulings at Preparatory Hearings

Answer 62

A preparatory hearing is a form of case management hearing held in long, complex or fraud cases.
There is a power for both prosecution and defence to appeal rulings made at these hearings, to the Court of Appeal.

Question 63

CC to CoA: Criminal Cases Review Commission

Answer 63

The Criminal Cases Review Commission (CCRC) is an independent body created by the Criminal Appeal Act 1995. It has the power to refer, at any time, any conviction on indictment or sentence to the Court of Appeal or to the Crown Court if the conviction/sentence is a summary one. The question the CCRC asks itself is whether there is a real possibility that the Court of Appeal will quash the original conviction or sentence. If the CCRC chooses to make such a reference it is usually only in respect of an argument or information not available in the court of first instance or on appeal, save for where exceptional circumstances exist.

Question 64

Appeals to Supreme Court - Application Procedure

Answer 64

An application to the Court of Appeal for leave to appeal to the Supreme Court must be made no more than 28 days after the court gives reasons for its decision (and no more than 14 days after the court gives reasons in an AG Reference case).

Question 65

Appeals to the Supreme Court - requirement

Answer 65

allow either the prosecution or defence to appeal a decision of the Court of Appeal to the Supreme Court, but this is not an appeal as of right.

The Court of Appeal or the Supreme Court would need to certify that the case involved a point of law of general public importance.