Appeals

Question 1

which court can D appeal to if he is currently being tried at the magistrates court?

Answer 1

Either:
- Crown court (appeal by defendant only)
- High court (Kings Bench Division) by way of case stated

Question 2

If a defendant is convicted in the magistrates court (including youth court) - they may appeal to the crown court in which 2 circumstances?

Answer 2

1. If they pleaded guilty = can appeal against the sentence they received
2. If they pleaded NOT guilty = can appeal against conviction AND/OR resulting sentence they received

Question 3

What are the grounds for appeal against conviction (Mags -> CC) if its against the conviction?

Answer 3

D can appeal on the basis that the magistrates made errors in either/both:
- Fact
- Law

Question 4

What happens when an appeal against conviction is made (from mags&raquo_space; crown court)?

Answer 4

• Effectively another trial
• CPS and defendant need to call all those witnesses whose evidence they seek to rely on
• New witnesses may be called and new or different points of law may be relied upon

Question 5

Appeal against sentence from Mags to Crown Court - on what ground can appeal be made?

Answer 5

on the basis that the sentence imposed by the magistrates is EXCESSIVE

Question 6

How does it work - an appeal of sentence from mags to crown court?

Answer 6

Crown court should carry out a full rehearing of the issues and then take an independent view of what the correct sentence should be (instead of just reviewing the Mags sentence)

Question 7

What powers do the crown court have in relation to appeal of conviction? (what might they do)

Answer 7

May confirm, reverse or vary the decision

Question 8

What powers do Crown court have in relation to appeal of sentence? (and whats the risk for defendant?)

Answer 8

CC has the power to impose on the defendant any sentence - as long as it is a sentence which the magistrates court had the power to impose
Risk = can have increased sentence if CC takes a more serious view of the case

Question 9

What options do CPS and Defendant have after Defendant has appealed to Crown Court?

Answer 9

CPS and D are able to appeal to High Court

Question 10

Appeal from Mags straight to High Court by way of case stated - what are the grounds it can be made under?

Answer 10

Either:
- On a point of law = the decision which has been made by the magistrates is wrong in law; or
- On the argument that the magistrates have acted outside their jurisdiction

Question 11

What arguments are often raised (by either CPS or defendant)?

Answer 11

1) The magistrates misread/ misunderstood/ misapplied the law
2) The magistrates decided to hear a case when they did not have the JURISDICTION to hear it
3) Mags made error in deciding the ADMISSIBILITY (or otherwise) of EVIDENCE
4) The mags made incorrect decision following a submission of no case to answer

Question 12

Procedure: Appeal from Mags -> Crown Court

Answer 12

1. Defendant files a notice of appeal - with both Mags court and CPS
   - WHEN? not more than 15 days from the mags passing sentence or the date sentence was deferred to)
   - CC has discretion to extend if D files outside period
2. Clerk of Mags court will send notice of appeal to the crown court
3. Then CC will arrange date for the hearing to take place

Question 13

What Bail issues are there when appealing against custodial sentence to CC?

Answer 13

• There’s no presumption in favour of bail (because it doesn’t apply if D is appealing against conviction or sentence)
• SO Mags may not grant bail pending the appeal to the Crown Court
• If mags don’t grant bail then D can apply to Crown Court for bail pending the hearing of appeal

Question 14

What issue of legal costs could D face when appealing to crown court?

Answer 14

If Ds case before Mags Court was publicly funded by Representation Order&raquo_space; then a separate representation order will be required to cover Crown court hearing

What is covered by the OG representation order? = Any advice or assistance given to D in preparing the notice of appeal

Question 15

Where can D appeal to if they were originally tried in the Crown Court? and What ‘rights of appeal’ does D have?

Answer 15

The criminal division of the court of appeal only with leave
- Court of appeal grants leave to appeal OR trial judge grants certificate that the case is fit for appeal)

Question 16

What can the defendant appeal against at court of appeal crim division?

Answer 16

• Sentence or
• conviction

Question 17

When will an appeal be allowed to proceed by Court of appeal?

Answer 17

• If the CA considers a conviction to be unsafe it MUST allow the appeal
• In all other cases - must dismiss the appeal
  (so a conviction may be upheld even if there was an error or mistake at the crown court if CA thinks despite the mistake the only reasonable verdict would have been a guilty one)

Question 18

What are the most common factors raised by defendants to argue that their convictions are unsafe (Court of appeal)

Answer 18

1. Failure by trial judge to direct jury correctly on:
   - Burden and standard of proof
   - Substantive law
   - jury supposed to determine facts/ no unanimous verdict
   - jury has power to convict of lesser offence if there’s evidence
2. The trial judge wrongfully admitted or excluded evidence - e.g.: admitted disputed confession or previous convictions / excluded hearsay evidence which would have assisted the defendants case
3. Trial judge failed to administer the correct warnings to the jury - e.g., turnbull or corroboration warning / adverse inferences from silence/ relevance of previous convictions
4. inappropriate interventions by trial judge (e.g. constantly interrupted defence counsel during cross-exam)
5. Failure by trial judge when summing up the case (essential points of defence case, identify inconsistencies in CPS case, summarise evidence on which jury may properly rely on to convict D)
6. Fresh evidence comes to light that casts doubt on defendants guilt

Question 19

Powers of the court of appeal at an appeal against conviction

Answer 19

• Quash conviction or acquit defendant
  e.g., (when new evidence which would have led to Ds acquittal in OG trial comes to light)
• Quash conviction and order a retrial to take place (when judge failed on procedure or point of law)
• Allow part of the appeal and dismiss other parts
  e.g. if defendant was appealing against conviction for more than one offence, court will probs resentence the defendant
• OR DISMISS the appeal

Question 20

Appeals against sentence in Court of Appeal - When will it be successful?

Answer 20

a) Sentence by trial judge is wrong in law (didn’t have power to pass a sentence)
b) Wrong in principle (e.g custodial sentence when offence was not serious enough)
c) Judge adopted wrong approach when sentencing - Examples:
- increased sentence bc D pleaded not guilty
- failed to give appropriate discount for guilty plea
- Should have held a Newton hearing before determining the facts of the offence (on which sentence is based on)
- Didn’t take into account or give enough credit for mitigation put forward by D

d) Co-defendants = if there’s a big disparity when they seem equally culpable

e) Last but not least - the sentence passed is manifestly excessive (most common)
- Aka when CC has gone beyond their upper limit of sentence range

Question 21

Powers of court of appeal on sentence

Answer 21

• May confirm / quash/ replace it with an alternative sentence or order as it thinks appropriate
• CANNOT INCREASE the sentence imposed by the judge in CC
• A LOSS OF TIME direction may also be made if the defendant flops and appeal is considered without merit :( </3

Question 22

Can prosecution make appeal to court of appeal?

Answer 22

• not on conviction (if D is acquitted by jury)
• can appeal against sentence if the Attorney General considers that CC has passed a sentence which is unduly lenient