Appeals

Question 1

Can the magistrates vary a sentence or set aside a conviction?

Answer 1

Yes, if it is in the interests of justice. (s142 of the magistrates court act 1980)

Applies to either a guilty plea (rare) or conviction.

Question 2

What is the first step if a defendant is unhappy with a decision of the magistrates court?

Answer 2

Consider whether the magistrates have made an error which they themselves can correct.

Question 3

What is the slip rule?

Answer 3

The power for the magistrates to vary a sentence or set aside a conviction if it is in the interests of justice.

A power to rectify mistakes in law and procedure whether in trial or sentencing.

Question 4

When is the slip rule appropriate?

Answer 4

When all parties agree that a mistake was made.

Question 5

How are amendments under the slip rule made?

Answer 5

Defendant will usually make an application, but the court can make an amendment of their own provision.

Question 6

When might the power to rectify mistakes be used?

Answer 6

For guilt:
- legal advisor provided the magistrates with incorrect legal advice;

• defendant was tried in absence and found guilty. Later gives really good excuse for absence (e.g. in hospital - certificate to show)

For sentences:
often used where sentence needs to be reduced:
- fine higher than statutory maximum

can be increased, e.g. where defendant misled court

Question 7

What are the three ways to challenge a magistrates’ court decision

Answer 7

1) Appeal to the Crown Court by way of re-hearing

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

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

Question 8

When should the defendant appeal to the Crown Court by way of re-hearing?

Answer 8

Where the defendant complains that the magistrates made an error of fact or mixed fact and law.

Most common. Automatic right that does not require leave.

Can appeal if:

• defendant pleaded guilty against sentence; or
• defendant pleaded not guilty against conviction or sentence

Question 9

When should the defendant appeal to the High Court by way of case stated?

Answer 9

Where the defendant complains that the magistrates made an error of law or acted in excess of their jurisdiction.

Question 10

When should the defendant make an application to the High Court for judicial review of the decision?

Answer 10

Where the defendant alleges unfairness, bias or procedural irregularity.

Question 11

When can the prosecution appeal to the Crown Court?

Answer 11

It can’t.

Can appeal by case stated or judicial review.

Question 12

Do you apply to appeal to the crown court?

Answer 12

No it is an automatic right.

Question 13

What is the time limit for notice of appeal?

Answer 13

Notice must be lodged within 15 business days of sentence for either appeal against conviction or sentence.

Question 14

Who is the notice of appeal served on?

Answer 14

The magistrates’ court and the prosecution

Question 15

What does the notice of appeal specify?

Answer 15

• The conviction, sentence, order or decision which the appellant wishes to appeal, including the court and date
• 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 the notice has been served

Question 16

What do you do if notice is served outside the time limit?

Answer 16

If outside 15 business day limit, must be accompanied by an application for an extension of time with reasons for the delay

Question 17

Can you apply for bail pending appeal in the MC?

Answer 17

Yes. If refused can also make an application in the Crown Court.

Question 18

Is there a right to bail pending appeal?

Answer 18

No. There is no right to bail pending appeal.

Question 19

What is abandonment (appeal)?

Answer 19

Appellant may abandon their appeal at any time.

Question 20

What happens if you abandon an appeal?

Answer 20

Once an appeal has been abandoned the Crown Court has no power to vary the magistrates’ decisions.

Question 21

How do you abandon an appeal from the MC?

Answer 21

Appellant should give notice in writing to the magistrates court, crown court and prosecution.

Permission from the Crown Court is required to abandon once the hearing has started.

Question 22

What are the powers of the Crown Court on appeal from the magistrates?

Answer 22

Crown court can:

• confirm, reverse or vary the decision appealed against or any part of it;
• remit the matter with its opinion to the magistrates;
• make any other order which the court thinks is just, so long as they exercise only the power the magistrates could have.

Question 23

What are the CC on a conviction appeal?

Answer 23

CC will hear the evidence and must give reasons for the verdict reached.

Reasons do not involve a formal re-examination of the magistrates decision.

Question 24

What are the CC on a sentence appeal?

Answer 24

The magistrates’ sentence is not formally re-examined. The appeal panel will consider whether, in light of all they have heard, the sentence imposed was correct.

Sentence can be both increased and decreased.

Question 25

How do costs work on appeal?

Answer 25

A successful appellant may be awarded a defence costs order.

An unsuccessful appellant may be required to pay the prosecutions costs.

Question 26

How do costs work if an appeal is abandoned?

Answer 26

Where an appeal is abandoned costs can be awarded against the appellant but in practice this usually occurs only where notice of abandonment is served within 24 hours of the appeal hearing or on the day itself.

Question 27

Who can apply for an appeal by way of case stated>

Answer 27

Both the prosecution and the defence

Question 28

Can you appeal in the crown court if you appeal by way of case stated?

Answer 28

No. If you appeal by way of case stated you lose your right to appeal to the crown court under section 108.

But if you appeal to the crown court, and the crown court upholds magistrates decision you can appeal by way of case stated from the crown court.

Question 29

What are the powers of the divisional court on an appeal by case stated?

Answer 29

May reverse, affirm or amend the magistrates’ court decision; remit the case with an opinion or make any other order as it sees fit.

Question 30

Where do you appeal from the High Court in relation to an appeal by way of case stated?

Answer 30

Direct to the Supreme Court.

Question 31

Who can apply for judicial review?

Answer 31

Both the prosecution and the defence.

Question 32

When must an application for judicial review be lodged?

Answer 32

within 3 months of the ground arising.

Question 33

Who can grant bail to an applicant for judicial review?

Answer 33

Only the High Court

Question 34

What is the time limit for a judge in the crown court to vary or rescind a sentence?

Answer 34

56 days.

Must be the judge who passed the sentence.

Question 35

What is the remit of the slip rule (crown court)?

Answer 35

• amend length of sentence
• correct minor technical errors
• type of sentence or requirements attached to a community based sentence

Question 36

What is required to appeal from the crown court to the court of appeal?

Answer 36

Leave is required. 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) or a 3 judge court (conviction).

If leave is refused by the single judge a party may renew an application for leave orally before the relevant panel.

Question 37

How many judges at an oral hearing for an appeal to the court of appeal on sentence?

Answer 37

2

Question 38

How many judges at an oral hearing for an appeal to the court of appeal on conviction?

Answer 38

3

Question 39

Who must notice of appeal to the court of appeal be served on?

Answer 39

Notice of Appeal (Form NG) must be served on the Registrar of the Criminal Division of the Court of Appeal.

Question 40

When must notice of appeal to the court of appeal be served?

Answer 40

Must be served within 28 days of conviction (conviction appeals) or sentence (sentence appeals).

Time limit can be extended - must be applied for when serving Form NG and give reasons for delay.