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(FLK2) Criminal Litigation > Appeals > Flashcards

Appeals Flashcards

1
Q

Can a Magistrates’ Bench revisit its Decision?

A

Yes. A Bench can Vary a Sentence or Quash a Conviction if it is in the Interests of Justice.

This is called the ‘Magistrate Slip Rule’.

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2
Q

What is the Scope of the Magistrate Slip Rule?

A

To rectify Mistakes in Law or Procedure, not to provide an avenue for Appeal.

Appropriate cases include:

  • All Parties agreeing a Mistake was made.
  • The Defendant being wrongly Tried in Absence.
  • The Authorised Court Officer giving incorrect Advice.
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3
Q

What is the Procedure for Using the Magistrate Slip Rule?

A

Initiation:

  • Usually, the Defendant submits an Application, but the Court may act of its own volition.

Hearing:

  • The Application may be Heard by the same Bench.

Decision:

  • Usually, only the Sentence will be varied, with Quashings reserved for more serious instances of Mistake.
  • If the Conviction is Quashed by the same Bench, the Case will be Retried by a different Bench.
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4
Q

How can a Magistrates’ Court Decision be Challenged at First Instance?

A

To the Magistrates’ Court for Retrial:

  • For Errors of Fact or of Fact and Law.

To the Crown Court for Appeal:

  • For Errors of Fact or of Fact and Law.

To the High Court for Appeal by Case Stated:

  • For Errors of Law or Excess of Jurisdiction.

To the High Court for Judicial Review:

  • For Instances of Unfairness or Procedural Irregularity.
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5
Q

How can a Magistrates’ Court Decision be Challenged after the First Instance?

A

From the Crown Court, as a Trial Court:

  • To the Court of Appeal (Criminal Division) on Appeal; then
  • To the Supreme Court on Appeal.

From the Crown Court, as an Appellate Court:

  • To the High Court (King’s Bench Division) on Judicial Review or Appeal by Case Stated.
  • To the Supreme Court on Appeal by Case Stated regarding points of Law of general public importance.
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6
Q

How can a Youth Court Decision be Challenged at the First Instance?

A

To the Crown Court for Appeal:

  • For Errors of Fact or of Fact and Law.

To the High Court for Appeal by Case Stated:

  • For Errors of Law or Excess of Jurisdiction.

To the High Court for Judicial Review:

  • For Instances of Unfairness or Procedural Irregularity.
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7
Q

What can be Appealed when Appealing to the Crown Court from the Magistrates’ Court?

A

Defendant Pleaded Guilty:

  • Only the Sentence can be Appealed, unless the Plea was Equivocal.

Defendant Pleaded Not Guilty and Was Convicted:

  • Both the Conviction and the Sentence can be Appealed.
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8
Q

What are the Limitations to Appealing to the Crown Court from the Magistrates’ Court?

A
  • The Prosecution cannot Appeal through this route.
  • Even if Appealing solely against the Conviction, the Crown Court can impose any Sentence a Magistrate could have.
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9
Q

What is the Procedure for Appealing to the Crown Court from the Magistrates’ Court?

A

Notice of Appeal:

  • The Defendant must Serve Notice on the Prosecution and Magistrates’ Court within 15 Business Days of Conviction or Sentencing, whichever is later.
  • The Defendant may apply for an Extension, but must explain the delay.

Appeal Hearing:

  • The Case is Reheard and New Evidence is admissible.
  • The Court is comprised of a Crown Court Judge and two Lay Magistrates.
    • One Lay Justice may be settled for to avoid unreasonable delay.

Outcome:

  • Confirmation, Reversal, or Variation of the Lower Court’s Decision.
  • Remittance of the Case to the Magistrates’ Court with a Judicial Opinion.
  • The making of any Orders within the Magistrates’ original powers.

Bail follows the same Procedure as is ordinary.

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10
Q

What is the Procedure for Abandoning an Appeal to the Crown Court from the Magistrates’ Court?

A

By Way of Notice:

  • The Appellant may Abandon at any time by Notifying the Court and the Prosecution.
  • If the Hearing has already started, permission is required.

By Way of Failing to Unrepresented:

  • The Appellant may Abandon by failing to attend while being Unrepresented.
  • If the Appellant is absent but a Representative is present, the Hearing may proceed.
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11
Q

What are the Legal Cost Implictions of Appealing to the Crown Court from the Magistrates’ Court?

A

Successful Appeal:

  • The Appellant may be awarded a Defence Costs Order.

Unsuccessful Appeal:

  • The Appellant may be Ordered to pay the Prosecution’s Costs.

Abandoned Appeal:

  • The Appellant may be Ordered to pay the Prosecution’s Costs, particularly if Abandonment is near the Hearing.
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12
Q

What is the Procedure for Appealing to the Crown Court by way of Case Stated from the Magistrates’ Court?

A

Application to State a Case:

  • The Prosecution or Defendant must Apply to the Magistrates’ Court to State a Case within 21 days of the Decision or Sentencing, whichever is later.
  • The Application must contain specific legal questions concerning the Decision or Sentence.
  • The Case Stated must be agreed upon by all Parties.

Appeal Hearing:

  • The Case Stated is Heard by the Divisional Court of the King’s Bench Division. No New Evidence is admitted
  • The Court is comprised of at least two Crown Court Judges, usually three.

Outcome:

  • Confirmation, Reversal, or Variation of the Lower Court’s Decision.
  • Remittance of the Case to the Magistrates’ Court with a Judicial Opinion.
  • The making of any Orders within the Magistrates’ original powers.
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13
Q

What are the Limitations to Appealing to the Crown Court by way of Case Stated from the Magistrates’ Court?

A
  • It can only be made once the Magistrates’ Court has made a Final Determination.
  • The Appellant can no longer Appeal to the Crown or High Court, but can still Apply for Judicial Review.
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14
Q

What are the Grounds for Appealing to the High Court for Judicial Review?

A
  • Excess of Jurisdiction.
  • Breach of Natural Justice.
  • Error of Law on the Face of the Record.
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15
Q

What is the Deadline for Appealing to the High Court for Judicial Review from the Magistrates’ Court?

A
  • The Prosecution or Defence must Apply within 3 months of the Ground arising.
  • Unnecessary delay may result in rejection.

Only the High Court can grant Bail in the interim.

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16
Q

Can a Crown Court Judge revisit its Decision?

A
  • Yes. A Judge can Vary or Rescind a Sentence or any Order within 56 days of Issuance.
  • This allows a change of the type of Sentence or the requirements attaching thereto.

This is also called the ‘Crown Slip Rule’.

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17
Q

What are the Limitations of the Crown Court Slip Rule?

A
  • The same Judge must make the Variation.
  • If used for an Appeal from the Magistrates’ Court, Lay Magistrates need not attend.
  • It cannot be used once the Court of Appeal has decided an Appeal or Application to Appeal.
18
Q

On what Grounds may the Defense Appeal to the Court of Appeal?

A
  • Appeal against Conviction on Indictment.
  • Appeal against Sentence on Committal for Sentence.
  • Appeal against Sentence following Conviction on Indictment.
  • Reference by the Attorney-General:
  • Reference by the Criminal Cases Review Commission (“CCRC”).
  • Prosecution Appeal against a Terminatory Ruling.
  • Appeal against a Ruling made at a Preparatory Hearing in a Serious Fraud Case.
19
Q

What are the Requirements to Gain Permission to Appeal Against Conviction or Sentence in the Court of Appeal?

A
  • The Appellant must convince a single Judge that the Appeal is arguable on the merits.
  • If Permission is denied, the Appellant may renew the Application before the Full Court.
20
Q

What is the Procedure for Gaining Permission to Appeal Against Conviction or Sentence in the Court of Appeal?

A

Deadline:

  • The Appellant must Serve Notice of Appeal on the Registrar of the Criminal Division of the Court of Appeal within 28 days of Conviction or Sentence.
  • The Appellant may apply for an Extension, but must explain the delay.

Advice from Counsel:

  • Counsel should advise immediatley after Conviction or Sentence, drafting an Advice and Grounds Statement.
    • If there are no Grounds, a Negative Advice Statement should be prepared.
  • The Statement must be sent to the Appellant and its Solicitors for approval.

Transcripts:

  • The necessary Court Transcripts are obtained from Crown Court Registrar.

Perfecting Grounds:

  • Upon receiving Transcripts, Counsel may Perfect the Grounds within 14 days.
  • This may entail amending, deleting, or adding new Grounds, but if no Perfection is needed, Counsel should notify the Registrar.
  • If it becoms clear there are no Grounds, a Negative Advice Statement should be prepared.

Respondent’s Notice:

  • The Court may direct the Prosecution to Serve a Respondent’s Notice to assist the Single Judge.
21
Q

What are the Possible Outcomes of an Applicaiton to Appeal Against Conviction or Sentence in the Court of Appeal?

A
  • Denial of Permission.
  • Granting of Permission to Appeal wholly or partly.
  • Referral to a Full Hearing without Permission to Appeal.

The single Judge must provides reasons.

22
Q

What is the Procedure for Gaining Permission to Appeal Against Conviction or Sentence in the Court of Appeal after it has been Denied or Referred for a Full Hearing?

A

Deadline (Denial Only):

  • The Appellant must Renew the Application within 10 business days of Denial.

Renewal Hearing (Denial and Referral):

  • The Application is Heard Orally by the Full Court, which comprises:
    • Two Judges for Sentence Appeals; or
    • Three Judges for Conviction Appeals.
  • Counsel may appear privately or pro bono, and must notify the Court of it intends to do so.

Loss of Time Order (Denial Only):

  • If the single Judge’s reasoning indicates the Appeal was meritless, the Court may issue a Loss of Time Order.
  • This excludes days spent in Custody awaiting Appeal from counting toward the Appellate’s Sentence.

This also applies if the Appeal has been Partly Granted.

23
Q

What is the Procedure for Gaining Permission to Appeal Against Conviction or Sentence in the Court of Appeal by Direct Referral?

A
  • Upon Application, the Registrar sends the Case to the Full Court directly.
  • This usually only occurs if:
    • A Novel Point of Law has arisen.
    • There is reason for expeditiousness.
    • An Unlawful Sentence needs correction.
24
Q

Regarding an Appeal Against Conviction or Sentence in the Crown Court, what is a Certificate of Trial Judge?

A
  • Certification that the given Case is fit for Appeal, obviating the need for Permission.
  • This is usually only given if the Judge recognises a significant legal question that needs consideration.
25
Q

What are the Grounds for Appealing Against Conviction in the Court of Appeal?

A
  • Fresh Evidence.
  • Defects in the Indictment.
  • Conduct of the Trial Judge.
  • Inconsistent Jury Verdicts.
  • Ineffective Assistance of Counsel.
  • Wrongful Admission or Exclusion of Evidence.
  • Incorrect Legal Rulings, which includes:
    • Misdirections during Summing Up.
    • Rejection of a No Case to Answer Submission.
26
Q

What are the Grounds for Appealing Against Sentence in the Court of Appeal?

A
  • Manifest Excessiveness.
  • Error in Law or Principle.
  • Disparity Between Co-Defendants.
  • Consideration of Improper Factors.
  • Failure to Consider Relevant Factors.
27
Q

What are the Grounds for Appealing a Guilty Plea in the Court of Appeal?

A

The Plea was:

  • Not made freely and voluntarily.
  • Made after an Incorrect Legal Ruling.
28
Q

In an Appeal Hearing at the Court of Appeal, how are Representations handled?

A
  • The Prosecution usually barred from making Representations in Sentence Appeals.
  • If the Appellant qualifies for Legal Aid, a Representation Order is made after Premission is granted.
29
Q

What is the Deadlne for submitting Skeleton Arguments for an Appeal at the Court of Appeal?

A

For the Appellant:

  • 21 days before the Hearing.

For the Respondent:

  • 14 days before the Hearing.
30
Q

Must the Appellant be Present during an Appeal Hearing at the Court of Appeal?

A
  • The Appellant does not have an automatic Right to Presence; but
  • The Court may compel its Presence if it believes it is necessary.
31
Q

What is the Test on Appeal at the Court of Appeal?

A

For Appeals of Conviction:

  • The Conviction is unsafe.

For Appeals of Sentence:

  • The Court believes the Sentence is wrong in Law or manifestly excessive.
32
Q

What are the Powers of the Court of Appeal?

A

On Conviction Appeals:

  • Quash the Conviction.
  • Order a Retrial if it serves the Interests of Justice.
  • Substitute a Verdict for a Lesser or Alternative Offence, but only if appropriate and permissible.

On Sentence Appeals:

  • Quash the Order or Sentence.
  • Impose a Different Sentence within the Lower Court’s power, so long as it is not more severe than the Original.
33
Q

When will the Court of Appeal allow the Admission of New Evidence?

A

When it is necessary or expedient in the Interests of Justice, subject to the following considerations:

  • Believability.
  • Relevance to Grounds.
  • Admissibility in the Original Trial.
  • Explanation for Omission in the Original Trial.

The requisite of necessity or expedience also applies to the production of Documents or Witnesses from the Original Trial.

34
Q

When will the Attorney General Refer to the Court of Appeal?

A
  • To have the Court reconsider an unduly lenient Sentence.
  • To seek the Court’s Opinion on a Point of Law following Acquittal.
35
Q

What is the Effect of an Attorney General’s Reference to the Court of Appeal on a Point of Law following Acquittal?

A

Effect on Acquittal:

  • The Acquittal will remain intact regardless of the Court of Appeal’s decision.
  • The Defendant is entitled to make representations at the Hearing.

Further Appeal:

  • The Court of Appeal can escalate the Case to the Supreme Court if needed or upon either Party’s request.
36
Q

What is the Effect of an Attorney General’s Reference to Review an Unduly Lenient Sentence?

A

Scope:

  • Only a Sentence an Indictable-Only Offence or specific Either-Way Offences may be referred.
  • The Attorney General must make a Reference within 28 days of Sentencing.

Procedure:

  • The Court of Appeal reviews the Sentence on the facts.

Outcome:

  • The Sentence can be increased if found unduly lenient, i.e. outside the reasonable range of Sentences.
  • The Court may award a discount for Double Jeopardy, recognising the Defendant’s uncertainty in the interim.
37
Q

What is the Effect of a Referral by the Criminal Cases Review Commission?

A

Powers:

  • The Commission can refer any Conviction or Sentence to the Court of Appeal (Indictable) or the Crown Court (Summary) at any time.

Criteria for Referral:

  • Whether there is a real possibility of a Quashing, particularly based on new arguments or information that were unavailable at Trial.
  • Exceptional circumstances may warrant Referral even without new material.
38
Q

What is a Terminatory Ruling?

A

A Ruling that Ends a Case, but not by way of Discharging the Jury.

39
Q

What is the Prerquisites for a Prosecution Appeal against a Terminatory Ruling?

A
  • The Ruling must have been made before Summing Up.
  • The Ruling must not be Appealable through other means.
  • The Prosecution must assure that Denial or Abandonment of Appeal would result in the Defendant’s Acquittal.
40
Q

What is the Procedure for a Prosecution Appeal against a Terminatory Ruling?

A

Notice of Intention to Appeal:

  • Prosecution Counsel must immediately Notify the Lower Court Judge of its intention to Appeal or request an Adjournment.
  • Adjournment is usually for one business day, after which, formal Notice of Intention must be given.

Notice of Appeal:

  • Notice must be Served on the Court, Defendant, or the Court of Appeal’s Registrar.
  • For Expedited cases, the deadline is one business day from Notice of Intention.
  • For Non-Expedited cases, the deadline is five business days from Notice of Intention.
41
Q

What is the Alternative Procedure for a Prosecution Appeal against a Terminatory Ruling?

A

Oral Application:

  • The Prosecution Applies Orally to the Tiral Judge for Permission to Appeal.

Representations and Decision:

  • Both Partis make Representations and the Judge decides whether an Appeal has a real prospect of success.

Second Chance:

  • If the Trial Judge Denies, the Prosecution can still with the Standard Procedure from the Notice of Appeal stage.
42
Q

What are the Procedure for Appealing to the Supreme Court?

A

Deadline:

  • Application must be within 28 days of the Court of Appeal’s Ratio.
  • In Attorney-General Reference cases, within 14 days of the Court’s Ratio.

Certification of Importance:

  • Either the Court of Appeal (First Instance) or Supreme Court (Second Instance) Certify that the Case involves a Point of Law of General Public Importance.

Permission to Appeal:

  • Either the Court of Appeal (First Instance) or Supreme Court (Second Instance) must grant Permission to Appeal.

(FLK2) Criminal Litigation (9 decks)

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