Appeals Flashcards
Magistartes decisions?
The power to rectify mistakes
- If defendant is unhappy first step is to consider whether the magistrates have made an error which they themselves can correct. S142 Magistrates court act 1980 gives power to vary a sentence or set aside a conviction if in interest of justice to do so.
- This power is a narrow once.
- Case law has made it clear its only to rectify a mistake
- Not intended to permit a defendant to argue that the magistrate’s decision on their case was wrong – that is a matter for appeal.
- Defendant usually makes an application, court can make an amendment under their own volition,
A finding of guilt may be set aside were the
- Legal adviser provides the magistrates with incorrect legal advice
- Defendant did not attend for trial and no explanation for defendant absence was available at the time. Later it becomes clear there was a medical emergency.
Challenging magsiatrtes court decisions?
3 ways of challenging
Appeal to crown court, by way of re-hearing
Appeal to high court by way so case stated
Application to high court for judicial review of the decision
Which appeal route?
v Hereford Magistrates court 1997 –
- Where defendant complains the magistrates made an error or fact or mixed fact and law the defendant should appeal to crown court
- Where defendant complains that the magistrate made an error of law or acted in excess of judication defendant should appeal by way so case stated
- Where defendant alleges unfairness, vias or procedural irregularity the defendant should apply for judicial review of the decision.
Appeals from magsiatrtes court to crown court - re hearing?
- S108 of Magistrates court act 1980 provides a right to appeal. Most common route. It’s an automatic right that does not require leave.
- If defendant pleaded guilty, against sentence
- If defendant pleaded not guilty and was found guilty, against the conviction or sentence
PROSECUTION CANNOT APPEAL VIA THIS ROUTE.
CAN RESULT IN HARSHER SNETNCE
Procedure on appeal to crown court?
Procedure on appeal to crown court
- Must be logged within 15 business days of sentence must specify the following CrimPR pt 34.3
- The convictions, sentence, order or decision which the appellant wishes to appeal.
- Summarise the issues
- State whether the magistrates court has been asked to reconsider its decision or why this is not applicable
- List the parties on whom appeal notice has been served.
If outside of 15 days must be accompanied by application for an extension of time with reasons for delay
Part 34 CrimPR – procedural rules
The hearing
- By way of a re-hearing. A condition appeal will proceed in precisely the same way as original trial, with speeches, witnesses, giving live evidence and any relevant submissions. – NOT LIMITED TO EVIDENCE THAT WAS CALLED AT TRIAL. Appeal will be heard by a judge of the crown court and two lay magistrates.
Bail
- Can be applied for in magistrate’s court
- No right to bail pending appeal
Abandonment
- Appellant may abandon appeal at any tie. Once abandoned, crown court has no power to vary decision.
- In order to do, need to give notice in writing to magistrate court. If appealing fails to attend and is not represented the appeal is treated as abandoned.
Powers on appeal
- Confirm, reverse, vary a decision
- Remit the matter with its opinion to magistrates
- Make any other order with the court thinks is just
Appeal by way of case stated?
- S111 – form of appeal to high court on basis that the decision made was wrong in law or in excess of jurisdiction.
- Defendant applies to magistrate court state a case for opinion of high court
- The final case stated will be agreed by all parties and will include a summary of the evidence heard at trial.
- Deal with CrimPR Part 35- once the case has been stated by magistrate it is treated as a civil matter and regulated by PART 52E CPR
- Appeal heard by division court of queen’s bench division of high court. Comprise of at least 2 judges, usually 3. No evidence is heard, based on legal submissions by the parties.
- BOTH PROSECUTION AND DEFENCE CAN APPEAL
- ONLY SUED AFTER FINAL DETERMINATION OF PROCEEDINGS IN MAGSIATRTES COURT
- DEADLINE IS 21DAYS FROM DATE OF DECISION SOUGHT TO BE APPEALED.
Appeals crown court decisions?
Power to rectify mistakes at sentence – slip rule
- Own version of the slip rule
- S385 sentencing act 2020 – empowers a judge to vary, rescind a sentence within 56 days of it being made
Court of appeal?
The court of appeal
- Criminal division has jurisdiction to hear certain types of cases from the crown court.
Appeal against conviction or sentences
- Criminal appeal act 1968
- Against conviction ss1 and 2
- Against sentence following conviction on indictment ss9 and 11
- Against sentence following committal for sentence s10 and 11
- Leave is required to appeal to crown court of appeal. Appellants need to convince a single judge that their appeal is arguable on the merits before it can proceed to an oral hearing before a 2-judge court (sentence appeals)
or a 3 judge courts (conviction appeals)
Time limits for lodging grounds
- Notice of appeal must be sent to registrar of the criminal division of the court of appeal. Must be within 28 days of the conviction in conviction appeals and within 28 days of sentence in sentence appeals. Can be extended by need to apply, and it’s a matter for courts discretion.
Advising on appeal?
- Duties of counsel
- Counsel should advice promptly
- Setting out their advice on merits of an appeal and grounds setting out propose grounds on which they advise on merits of appeal and grounds. Drafted in one document. Identify any transcripts which are necessary.
- Should only draft grounds which are reasonable – un merits appeals risk a loss of time order.
- The NG needs to be signed either by defendant or by solicitor on their behalf.
- Application for leave - Sent to a single judge who grants leave to appeal, or denies it.
certificate of trial judge?
- In exceptional cases the trial judge may certify the case as fit for appeal – but this is unusual as requires judge to consider that they have made an error.
- If certificate is granted then leave is not required.
Transcripts - All crown court proceedings are recorded, transcripts are ordered by the registrars – if required for appeal
Perfecting grounds - When transcripts are received counsel will be sent a copy and invited to perfect grounds within 14 days.
- If counsel does not wish to perfect, they should notify registrar
- Perfect grounds should be in fresh document and clearly marked
Respondents notice - Registrar may direct that prosecution serve a response to assist the single judge
Consideration of leave to appeal by the single judge - usually, the application will be considered by court of appeal on the papers alone without oral argument by one judge sitting alone, will consider merits for application for leave and come to a decision.
- Judge may grant application or refuse or refer it to the full court of appeal without granting leave
Renewal after refual from single judge?
- If leave is refused or granted on some grounds but not others, the appellant can renew the application for leave to appeal. Appellant must serve the form on court of appeal within 10 business days of receipt of single judge’s decision. This will be heard orally by full court of 2 or 3 judges.
- RISK OF LOSS OF TIME ORDER
Referral to the full court - Rather than sending a case to single judge, registrar can refer a case to full court instead, effectively bypassing the single judge and asking the full court to decide the application for leave. Used were
- There is an unlawful sentence which must be amended
- There is a novel point of law
Commong grounds?
- Wrongful admission/exclusion of evidence
- Wrongful rejection of a submission of a no case to answer
- Wrongful withdrawal of issues form jury
- Fresh evidence
- Misdirection of law
- Conduct of law
- Lawyers conduct
- Interference with jury
Common grounds for an appeal against sentence include
- Wrong in law
- Manifestly excessive
Perfectly proper for a defendant to appeal on a conviction to court of appeal even where they pleaded guilty. Open to the court to rule a plea as a nullity and quash a conviction.
The appeal?
The appeal
- The registrar or single judge will usually grant a representation order for junior counsel when leave is granted. Registrar will send a brief to counsel.
- Respondent is not usually represented at a sentence appeal but will be on a conviction appeal
- A summary to assist court will be prepared by a criminal appeal officer lawyer.
- A skeleton must be served where the appeal notice does not sufficiently outline the grounds in practice.
- If skeletons are too served must be within 21 days prior to hearing and the respondent 14 days before the hearing.
The test on appeal
- If leave is granted – the court must proceed to consider the merits of the appeal
- If an appeal against conviction the court can allow an appeal only if they think that the conviction is unsafe. High bar – not often overturning convictions.
- If an appeal against sentence the appeal an be allowed if the court thinks the defendant should have been sentenced differently
Powers on appeal
- Conviction
- Quash the conviction
- In interests of justice may order the appellant to be retired
- Court may also substitute a verdict of guilty for an alternative offence
Sentences
- Quash any sentence
- In its please pass any such sentence they think is appropriate
Loss of time order?
- Court can direct that some or all of the time spend in prison between the date of lodging the appeal and date of its dismissal may be ordered not to count towards the appellant’s sentence. KNOWN AS LOSS OF TIME ORDER.
- WHERE the appeal is without merit.
