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Criminal Law and Practice > Appeals > Flashcards

Appeals Flashcards

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1
Q

When may the slip rule be used by magistrates?

A

Where there has been a mistake in law or procedure whether at trial or sentencing that needs corrected

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2
Q

What power do magistrates have under the slip rule?

A

They can vary a sentence or set aside a conviction when it is in the interests of justice to do so

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3
Q

Can parties use the slip rule to revisit the case on the basis that the magistrates’ decision was wrong?

A

No - that is for appeal

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4
Q

Who can apply for the magistrates to correct a mistake by the slip rule?

A
  • the defendant but
  • the magistrates can use the rule on their own volition
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5
Q

When will the magistrates likely set aside a finding of guilty under the slip rule?

A
  • the legal adviser provided the magistrates with incorrect legal advice
  • D did not attend trial with no explanation at the time but subsequently prevent proof that it was due to medical emergency
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6
Q

What are the three ways of challenging a magistrates’ court decision by appeal?

A
  • appeal to the Crown Court by way of re-hearing
  • appeal to the High Court by way of case stated
  • application to the High Court for judicial review of the decision
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7
Q

How should it be decided what appeal route from the magistrates court is appropriate?

A
  • where D complains that the magistrates made an error of fact or mixed fact and law, D should appeal to the Crown Court
  • where D complains that the magistrates made an error of law or acted in excess of their jurisdiction, D should appeal by way of case stated
  • where D alleges unfairness, bias or procedural irregularity then D should apply for judicial review of the decision
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8
Q

Must permission be granted for appeal from the magistrates’ court to the Crown Court?

A

No - it is an automatic right

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9
Q

What can D appeal to the Crown Court against?

A
  • if D pleaded guilty then against sentence
  • if D pleaded not guilty and was found guilty after a trial, then against conviction or sentence
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10
Q

Can the prosecution appeal for rehearing at the Crown court?

A

No

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11
Q

Why might D not want to appeal by way of rehearing to Crown court?

A

As the Crown court can pass any sentence the magistrates’ court could have passed, including one more severe than the original sentence

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12
Q

If D pleas guilty, can they still appeal to the Crown court from the magistrates for rehearing?

A

No unless D can demonstrate their plea was unequivocal

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13
Q

How long do the defence have for lodging notice of appeal by way of re-hearing to the Crown court?

A

They have 15 business days from sentence, irrespective of whether appeal is against conviction or sentence

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14
Q

Who must notice of appeal from magistrates court by defence be served upon?

A
  • the magistrates’ court and
  • the prosecution
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15
Q

What must notice of appeal from magistrates court by defence specify?

A
  • the conviction, sentence, order or decision which the appellant wishes to appeal, including court and date of this
  • summarise the issue
  • state whether the magistrates’ court has been asked to reconsider its decision or why this is not applicable
  • list the parties on whom the appeal notice has been served
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16
Q

What happens if notice of appeal from magistrates court by defence is served outside the 15 business days limit?

A

Must be accompanied by an application for an extension of time with reasons for delay

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17
Q

What happens at an appeal from magistrates court to the Crown court by way of re-hearing?

A

Appeal will proceed in precisely the same way as original trial

Parties can call additional evidence not used at trial

In essence hearing proceeds as if it were the original sentence hearing

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18
Q

Who hears an appeal from magistrates court to the Crown court by way of re-hearing?

A

Normally by Judge of Crown court and two lay magistrates

Exceptionally, just one lay justice if hearing would otherwise be unreasonably delayed

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19
Q

Is there a right to bail pending appeal?

A

No

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20
Q

What is the process for appealing bail?

A

Can appeal to magistrates court and if refused can appeal to crown court

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21
Q

When will the appeal be treated as abandoned?

A

When the appellant fails to attend court and is not represented

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22
Q

What is required to abandon appeal to crown court by way of rehearing?

A

If hearing has started, permission from crown court

If hearing has not started, appellant should give notice of abandonment to magistrates’ court, crown court and the prosecution

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23
Q

What powers does the Crown Court have on appeal from the magistrates?

A
  • can confirm, reverse or vary decision appealed against or any part of it
  • can remit the matter with its opinion to the magistrates
  • can make any other order which the court think is just so long as they exercise only the power the magistrates could have
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24
Q

What is an appeal by way of case stated?

A

Appeal from the magistrates court to High Court on basis that the decision made was wrong in law or in excess of jurisdiction

The final case stated will be agreed by all the parties

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25
Q

When will appeal by case stated not be appropriate?

A

Where a matter of fact is disputed between the parties

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26
Q

Where is appeal by way of case stated heard and by whom?

A

The Divisional Court of the King’s Bench of the High Court and by at least two, usually three judges

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27
Q

Is any evidence heard for appeal by case stated?

A

No - just submissions by the parties

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28
Q

Who can appeal by way of case stated?

A

Either prosecution or defence

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29
Q

When must an appeal by way of case stated be made?

A

Within 21 days from date of the decision sought to be appealed

If conviction is being appeal but sentence is adjourned following conviction, then it is from date of sentence

30
Q

What powers do the divisional court on hearing appeal by way of case stated?

A
  • can confirm, reverse or vary decision appealed against or any part of it
  • can remit the matter with its opinion to the magistrates
  • can make any other order which the court sees fit
31
Q

If a party wishes to appeal an appeal decision in relation to case stated, what court hears it?

A

The UKSC

32
Q

What are the main grounds for appeal by way of judicial review?

A
  • error of law on the face of the records
  • excess of jurisdiction
  • breach of natural justice
33
Q

What might merit appeal on grounds of judicial review by way of breach of natural justice?

A
  • prosecution failing to disclose statement of a witness that might assist the defence
  • magistrates failing to grant an adjournment to allow a witness to attend
  • magistrates failing to give defence adequate time to prepare their case
34
Q

Who can appeal by way of judicial review?

A

Either prosecution or defence

35
Q

What is the time limit for bringing an appeal by way of judicial review?

A

Review should be brought promptly and within 3 months of grounds arising

36
Q

If a party wishes to appeal an appeal decision in relation to judicial review, what court hears it?

A

UKSC

37
Q

What guidance did R (P) v Liverpool City Magistrates offer in relation to deciding whether to appeal by way of case stated or judicial review?

A
  • the normal route where it is alleged that there has been a misdirection or an error of law is by way of case stated
  • it would be wrong to seek judicial review where case stated was appropriated merely to avoid the more-stringent time-limit
  • judicial review is more appropriate where there is an issue of fact to be raised and decided which the justices did not decided themselves
  • judicial review may also be appropriate where it is alleged that there has been unfairness bias in the conduct of the case by the justices
38
Q

What can the Crown Court rectify using its slip rule?

A

Sentences and other orders such as driving ban or compensation

39
Q

What powers do Crown court judges have under the slip rule?

A
  • they can vary or rescind a sentence or other order within 56 days of it being made
40
Q

What judge must exercise the slip rule in the Crown court?

A
  • the judge who passed sentencing must pass the variation
41
Q

Can the slip rule in the Crown court be used following sentence on an appeal from the magistrates’ court?

A

Yes

42
Q

If an appeal, or application for leave to appeal has been decided by the Court of Appeal can the slip rule be used in the Crown court?

A

No

43
Q

Which court would likely hear any appeal from the Crown Court?

A

The court of Appeal Criminal division

44
Q

If D wishes to appeal against conviction or sentence from the Crown Court, what must the do?

A

They must get leave to appeal to the Court of Appeal

They need to convince a single judge that their appeal is arguable on the merits before it can proceed

If leave is refused by single judge, party may renew application for leave orally before the relevant panel in the court of appeal

45
Q

Who will hear an appeal against conviction or sentence in the court of appeal?

A
  • sentence appeal - 2 judge court
  • conviction appeal - 3 judge court
46
Q

What is the time limit for lodging notice of appeal?

A
  • 28 days of conviction for conviction appeals and 28 days of sentence for sentence appeals
  • can be extended if extension applied and granted at court’s discretion
47
Q

Who must notice of appeal be served on?

A

Registrar of the Criminal Division of the Court of Appeal

48
Q

What are the duties of counsel in advising on appeal from crown court to court of appeal?

A
  • should advise promptly
  • give oral advice immediately after conviction/sentence
  • if grounds or no grounds, should send these to D’s solicitors
  • should draft Advice on merits of appeal and grounds
  • counsel should only draft grounds which are reasonable, have some real prospect of success and that they are prepared to argue before court
49
Q

What is certificate of trial judge?

A

Trial judge may certify that the case is fit for appeal meaning leave is not required

50
Q

What is the process of perfecting grounds?

A

When transcripts of Crown court decision is received, counsel will be sent copy and given 14 days to perfect grounds ie find evidence supporting arguments or reconsider arguments in light of transcripts perhaps by amending or dropping them

51
Q

How will leave of appeal to the Court of Appeal be decided?

A

One court of appeal judge will consider merits of application on paper and come to decision with reasons

52
Q

What decisions may the court of appeal judge deciding leave for appeal come to?

A
  • grant application wholly or in part
  • refuse the application
  • refer it to the full Court of Appeal without granting leave
53
Q

What happens if leave of appeal to Court of Appeal is not granted on all or some grounds?

A

The appellant can renew decision by serving form on Court of Appeal within 10 business days of receipt of notification of leave decision (can be extended)

Renewed application of leave will be heard by 2-3 judges

54
Q

What other way aside from the single judge method, can leave of appeal be decided at court of appeal? When will such method be used?

A

By referral to full court

Method will be used when:

  • there is an unlawful sentence which must be amended or
  • novel point of law
  • where matter needs to be dealt with expeditiously eg appellant is seriously ill or old
55
Q

What are common grounds of appeal against conviction?

A
  • Wrongful admission / exclusion of evidence;
  • Wrongful rejection of a submission of no case to answer;
  • Wrongful withdrawal of issues from the jury;
  • Misdirection on law / facts in the course of summing up;
  • Conduct of the trial judge;
  • Inconsistent jury verdicts;
  • Fresh evidence;
  • Defects in the Indictment;
  • Conduct of lawyers.
56
Q

What are common grounds of appeal against sentence?

A
  • Wrong in law;
  • Wrong in principle;
  • Manifestly excessive;
  • Legitimate expectation;
  • Judge fails to take account of relevant matters;
  • Judge takes account of improper considerations;
  • Unjustified disparity between co-defendants or a failure to distinguish between offenders.
57
Q

What is the test on appeal against conviction?

A
  • court can only allow appeal if they think that the conviction is unsafe
58
Q

What is the test on appeal against sentence?

A

Court can only allow appeal where they think D should have been sentenced differently

59
Q

What powers do the court have on successful appeal against conviction?

A
  • Quash the conviction.
  • If it appears to the court that the interests of justice so require they may order the appellant to be retried.
  • The court may also substitute a verdict of guilty for an alternative offence if:
  • the jury would have been able to convict of the alternative offence at trial; and
  • the jury must have been satisfied of facts which proved him guilty of the offence.
  • The sentence may need to be amended to reflect this.
60
Q

What powers do the court have on successful appeal against sentence?

A
  • Quash any sentence or order which is the subject of the appeal; and
  • In place of it pass any such sentence or make such order as they think appropriate, but which the court below had power to pass or make; and
  • They must ensure that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was in the court below.
61
Q

What is a loss of time order? When might it be imposed?

A

Where court directs that some or all of the time D spent in prison between date of lodging appeal and date of dismissal is not to count towards their sentence

Will likely be made where D’s application is considered to be wholly without merit

62
Q

When will fresh evidence be admitted on appeal to the Court of Appeal?

A

Where the court thinks it is necessary or expedient in the interest of justice:

(a) order the production of any document, exhibit or thing connected with the proceedings if it is necessary for the determination of the case;

(b) order any witness to attend for examination (regardless of whether they were called in the original proceedings);

(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.

63
Q

What will the court of appeal have regard to in deciding whether to allow fresh evidence to be admitted where the court thinks it is necessary or expedient in the interest of justice?

A

(a) Whether the evidence appears to be capable of belief;

(b) Whether it appears that the evidence may afford any ground for allowing the appeal;

(c) Whether the evidence would have been admissible in the proceedings from which the appeal lies, on an issue which is the subject of an appeal;

(d) Whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.

64
Q

When will a reference by the Attorney General be made to the Court of Appeal on acquittal?

A

Where a point of law is in need of clarification

65
Q

When will a reference by the Attorney General be made to the Court of Appeal for review of sentence?

A

Where the AG considers the sentence to be unduly lenient.

Only where offence was triable only on indictment or specified in statute

They have 28 days to do so

66
Q

What effect will a reference by the Attorney General to the Court of Appeal for review of sentence potentially have?

A

Sentence can be increased if it is found to be unduly lenient

Some discount will be made on account of defendant having to wait before knowing if their sentence will be increased

67
Q

What power does the Criminal Cases Review Commission have?

A

Power to refer at any time, any conviction on indictment or sentence to Court of Appeal or Crown Court if conviction/sentence is summary one.

Test of referral is where real possibility that original conviction or sentence may be quashed

Usually reference made because new evidence will have come to light

68
Q

What three requirements are there for the prosecution challenging a terminator ruling (rulings that would otherwise bring the case to an end)?

A
  • ruling must be made before summing up
  • 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
  • the ruling must not be appealable to the court of appeal by other means
69
Q

What is the potential ways the prosecution can proceed where they wish to appeal a terminatory ruling?

A

(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:

  • 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.

70
Q

Can the prosecution or defence appeal any rulings made at Preparatory Hearings?

A

Yes can appeal to Court of Appeal

71
Q

How is an appeal made to the UKSC?

A

Prosecution or defence can apply to appeal court of appeal decision to UKSC

Appellant would need UKSC or Court of Appeal to certify that the case involved a point of law of general public important

Leave must be granted no more than 28 days after Court of Appeal gives reasons for its decisions (and no more than 14 days after the court give reasons in AG reference case)

Criminal Law and Practice (20 decks)

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