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FLK2 - Criminal Practice > Appeals > Flashcards

Appeals Flashcards

1
Q

give a summary of the appeal route in the MC

A

Option 1:
1. Trial in MC
2. D appeals conviction/sentence to CC
3. P or D appealed CC decision to HC by way of case stated
4. HC decision appealed to SC court

Option 2:
1. Trial in MC
2. P or D appealed CC decision to HC by way of case stated
3. HC decision (re: point of law only) appealed to SC

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2
Q

give a summary of the appeal route in the CC

A
  1. Trial in CC
  2. D appeals to CoA (with leave of the court) or AG’s reference procedure
  3. CoA decision (re: point of law only) appealed to SC
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3
Q

re: appeals from MC to CC

what can D appeal against?

A

D convicted in MC (inc. youth court) can appeal as follows:
o G plea  appeal against sentence
o NG plea  appeal against conviction and/or sentence

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4
Q

re: appeals from MC to CC

what is the basis of the appeal against conviction? What happens at the CC hearing?

A
  • Basis of appeal against conviction  error of fact and/or law
    o Rehearing of the case in the CC. Old Ws to be called. New Ws and points of law can be relied upon.
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5
Q

re: appeals from MC to CC

what is the basis of the appeal against sentence? What happens at the CC hearing?

A
  • Basis of appeal against sentence  it is excessive
    o Rehearing of case in the CC and take independent view of correct sentence
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6
Q

re: appeals from MC to CC

who hears the appeal?

A
  • Appeal heard by recorder or circuit judge with an even number of Mags
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7
Q

re: appeals from MC to CC

what is the position regarding an appeal from P?

A
  • P has no right of appeal to the CC (only HC by way of case stated)
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8
Q

re: appeals from MC to CC

what is the procedure?

A
  • D must file and serve notice of appeal (NOA) within 15 business days of the Mags passing sentence (NB: date of sentence, not date of conviction)
    o If filed outside this time the CC can extend this time limit
  • MC will send the notice to the CC and who will arrange a hearing date
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9
Q

re: appeals from MC to CC

what is the deadline to file an NOA? can this be extended?

A
  • D must file and serve notice of appeal (NOA) within 15 business days of the Mags passing sentence (NB: date of sentence, not date of conviction)

o If filed outside this time the CC can extend this time limit

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10
Q

re: appeals from MC to CC

what is the position regarding any representation order?

A
  • If D’s case was funded by an RO, the original RO will cover advice and assistance in preparing the NOA, but a new RO will need to be obtained for the appeal hearing
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11
Q

re: appeals from MC to CC

what is the position regarding bail?

A
  • If D is appealing a custodial sentence MC can grant bail, but there is no presumption in favour of bail. If refused, D can apply to CC for bail.
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12
Q

re: appeals from MC to CC

what power does the CC have?

A
  • CC has the power to confirm, reverse or vary the decision
  • CC can impose any sentence the MC could have imposed (i.e. they can impose a more serious sentence, but only up to max. limits of MC)
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13
Q

re: appeals from MC to CC

who can appeal CC’s decision and how?

A
  • D and P can appeal the outcome to the HC by way of case stated
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14
Q

re: appeals to HC by way of case stated

what are common arguments?

A

o Court misread, misunderstood or misapplied the law;
o Court heard a case it did not have jurisdiction to;
o Court made errors re admissibility or otherwise of evidence;
o Court erred in their decision following a submission of no case to answer

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15
Q

re: appeals to HC by way of case stated

who can appeal to HC and on what basis?

A

P or D can appeal a MC or CC appeal decision to HC by way of case stated if:
o The decision is wrong in law; or
o The court has acted outside its jurisdiction

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16
Q

re: appeals to HC by way of case stated

explain ‘wrong’

A

court reached a decision no reasonable court would have come to on the material before it.

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17
Q

if D wants to appeal an MC decision, what is the best route for them?

A

whilst D can appeal to HC by way of case stated, often better to appeal to CC as quicker. Even if appeal to HC is successful, case will likely be sent back to MC for trial.

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18
Q

re: appeals to HC by way of case stated

what is the procedure?

A
  1. Must apply within 21 days of the date of the decision. Party will write to MC’s/CC’s clerk inc. an explanation of issue for review.
    o this time limit cannot be extended for MC decisions, but can in the CC
  2. If the application to state the case is granted, the MC (or application if it is a CC decision) draft a statement of case (SOC) which is sent to P & D for comment. This inc.:
    o Decision in issue and question of law / jurisdiction for HC review
    o Summary of: proceedings history; court’s findings of relevant facts; relevant contentions if parties
    o If the issue is about whether there was sufficient evidence to reach a finding of fact, then details of the finding and summary of evidence used
  3. Final version is sent to the application to lodge with the HC and give notice to the other party when this has been done
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19
Q

re: appeals to HC by way of case stated

what is the deadline for the application?

A

Must apply within 21 days of the date of the decision

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20
Q

re: appeals to HC by way of case stated

what information is included in the statement of case?

A

o Decision in issue and question of law / jurisdiction for HC review
o Summary of: proceedings history; court’s findings of relevant facts; relevant contentions if parties
o If the issue is about whether there was sufficient evidence to reach a finding of fact, then details of the finding and summary of evidence used

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21
Q

re: appeals to HC by way of case stated

where is this case usually heard?

A
  • Usually heard by Divisional Court of KBD
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22
Q

re: appeals to HC by way of case stated

what will happen at this hearing?

A
  • No witness evidence and confined to legal argument based on SOC
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23
Q

re: appeals to HC by way of case stated

what power does the court have?

A

The court can:
- reverse;
- vary;
- affirm;
- or remit back to the lower court with a direction to acquit, convict or be reheard (often inc. direction to remedy issue i.e. HC say previous inadmissible evidence is admissible in retrial)

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24
Q

re: appeals to HC by way of case stated

can this decision be appealed and how?

A

The decision can be appealed by P or D to the Supreme Court, but:
o Either the HC or SC will need to grant leave to appeal;
o The appeal can be on a point of law only; and
o The HC must certify it is a point of law of general public importance

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25
Q

re: CC appeals by D

what can D appeal and who to?

A
  • D can appeal against sentence or conviction to the court of appeal
26
Q

re: CC appeals by D

what is the first stage?

A

D will need permission to appeal

27
Q

re: CC appeals by D

how does D get permission?

A

either from trial/sentencing judge by giving certificate case is fit for appeal (rare) or permission to appeal from CoA

28
Q

re: CC appeals by D

explain the procedure to obtain permission from the COA

A
  1. D must serve their NOA & draft grounds of appeal on the Registrar of Criminal Appeals at the CoA (R) within:
    * 28 days of conviction, if appealing conviction
    * 28 days of sentence, if appealing sentence
  2. R will obtain transcript of evidence & judge’s summing up.
  3. Judge will grant permission on papers. If given, they will grant public funding.
  4. Hearing is before the CoA.
29
Q

re: CC appeals by D

what are the time limits to serve the NOA and draft grounds on the COA

A
  • 28 days of conviction, if appealing conviction
  • 28 days of sentence, if appealing sentence
30
Q

re: CC appeals by D

when considering permission on papers, if refused, what might the court do? explain this.

A

If the appeal is completely without merit, the judge can make a direction for loss of time.

This would be relevant where leave is refused and a direction for loss of time is given. If D renews the application and the CoA agrees with the single judge, any time D has spent in custody awaiting outcome of appeal will not count towards the time they must serve for their sentence.

31
Q

re: CC appeals by D

if D is appealing the conviction, what will happen at the hearing?

A

CoA will oral and new evidence which is credible; would’ve been admissible at D’s trial and if there is a reasonable excuse for the failure to adduce the evidence at trial

32
Q

re: CC appeals by D

if D is appealing the sentence, what will happen at the hearing?

A

appealed confined to legal submissions on appropriate sentence

33
Q

re: CC appeals by D

what power does the court have in relation to conviction and sentence cases?

A
  • Full court also has the power to give a loss of time direction if it determines the appeal is without merit and frivolous/vexatious
34
Q

re: CC appeals by D - conviction

when is an appeal allowed?

A
  • Appeal is allowed where the conviction is ‘unsafe’.
35
Q

re: CC appeals by D - conviction

what are the possible outcomes if the appeal is ‘unsafe’?

A

o Quash conviction
o Allow part of the appeal and dismiss others
o Substitute guilty verdict for another offence
o Order a retrial

36
Q

re: CC appeals by D - conviction

when will a re-trial be ordered and what factors are considered?

A

if it is in the interests of justice.

Factors considered:
- time that has elapsed,
- if new evidence means D would now be acquitted

37
Q

re: CC appeals by D - conviction

when must an appeal be dismissed? explain this.

A

The court must dismiss the appeal unless the conviction is unsafe

i.e. a conviction can be upheld even if there was a mistake/error so long as there would be the same conviction if the mistake/error didn’t happen e.g. judge misdirected jury about inferences. CoA held this didn’t render the conviction unsafe as there was other compelling evidence against them

Possible rare situation where the court is satisfied D did commit the offence, but the conviction must be quashed as it is unsafe i.e. abuse of process such as bugging a privileged conversation between D and lawyer

38
Q

re: CC appeals by D - conviction

what are common arguments the conviction is unsafe?

A

o Judge failed to correctly direct jury (i.e. BOP, SOP, jury’s role (not judge’s) to determine facts, jury should try to return unanimous verdict, jury’s power to convict of a lesser offence of which there is evidence)
o Judge wrongfully admitted or excluded evidence
o Judge failed to administer correct warnings to the jury (i.e. Turnbull warning, direction about inferences or relevance of pre-cons)
o Inappropriate interventions by the trial judge
o A failure by the trail judge when summing up the case
o Fresh evidence i.e. new evidence has come to light. This doesn’t render the conviction unsafe but the CoA will need to consider whether the outcome would have been different if it had the evidence been before the jury

39
Q

re: CC appeals by D - sentence

when will an appeal be successful?

A
  • Appeal will be successful where the sentence is wrong or excessive,
40
Q

re: CC appeals by D - sentence

give an example of a sentence being wrong in law

A

o Wrong in law i.e. judge didn’t have power to pass it;

41
Q

re: CC appeals by D - sentence

give an example of a sentence being wrong in principle

A

i.e. not commensurate with the seriousness of offence

42
Q

re: CC appeals by D - sentence

give an example of a sentence being wrong in principle

A
43
Q

re: CC appeals by D - sentence

give an example where the judge adopted the wrong approach to sentencing

A

i.e. increased for NG plea, failed to discount for G plea, should have held a NG, failed to give appropriate weight to mitigation

44
Q

re: CC appeals by D - sentence

give an example of a sentence is manifestly excessive

A

above upper limit of sentencing range

45
Q

re: CC appeals by D - sentence

when might a sentence be wrong or excessive?

A

o Wrong in law
o Wrong in principle
o The judge adopted the wrong approach to sentencing
o Disparity of sentence between D and co-D
o Sentence manifestly excessive

46
Q

re: CC appeals by D - sentence

what can the judge do?

A
  • The judge can confirm, quash or replace the sentence

NB: any new sentence/order cannot be higher than the original imposed by the CC

47
Q

re: CC appeals by D - sentence

how is the judge’s sentencing power limited?

A

NB: any new sentence/order cannot be higher than the original imposed by the CC

48
Q

re: CC appeals by P

what appeals can P make?

A

Appeal of Termination and Evidential Rulings
Appeal by Attorney-General (AG)
Applications for Retrial

49
Q

re: CC appeals by P

explain Appeal of Termination and Evidential Rulings

A

P has a right of appeal to CoA in respect of rulings made by the judge before or during a trial (but before summing up) which:
o Effectively terminate the trial (‘termination rulings’); or
o Significantly weaken P’s case (‘evidential rulings’)

50
Q

re: CC appeals by P

when might an Appeal of Termination and Evidential Rulings be made?

A
  • i.e. a ruling of no case to answer was made
51
Q

re: CC appeals by P

when must P lodge an Appeal of Termination and Evidential Ruling?

A
  • P must inform the court immediately after the ruling if it intends to appeal
52
Q

re: CC appeals by P

explain Appeal by Attorney-General (AG)

A
  • AG can appeal cases to the CoA where the CC’s sentence is ‘unduly lenient’
  • AG can also refer points of law for clarification to the CoA, but this does not affect acquittal

o CoA must give permission

53
Q

re: CC appeals by P - Appeal by Attorney-General (AG)

what does this apply to?

A

o Only applicable to indictable-only and specified either-way offences

54
Q

re: CC appeals by P - Appeal by Attorney-General (AG)

what is the effect if successful?

A

o If successful, CoA will quash sentence and pass appropriate sentence (must be a sentence the CC would have passed)

55
Q

re: CC appeals by P

when can P apply for a retrial?

A
  • P can apply to CoA for a retrial of a D who has been acquitted of:
    o Murder; attempted murder; manslaughter; kidnap; sexual offences; various class A drug offences; arson endangering life or property
56
Q

re: CC appeals by P - re-trial

what must P satisfy?

A

The CoA will only quash the conviction and order a re-trail where P satisfies:
1. Evidential test
2. Interest of justice test

57
Q

re: CC appeals by P - re-trial

explain the evidential test

A

new and compelling evidence of D’s guilt

58
Q

re: CC appeals by P - re-trial

explain the interest of justice test

A

have (but not exclusive) regard to:
o Whether existing circumstances make a fair trial unlikely;
o Length of time since alleged offence;
o If the new evidence could have been adduced at the earlier proceedings but for the failure of the police to act with due diligence
o Whether the police/P have failed to act with due diligence or expedition

59
Q

explain an appeal from CoA/HC to the SC?

A
  • P or D can appeal points of law to the SC
  • CoA/HC must certify it is a point of law of public important
  • Permission of CoA/HC or SC must grant leave to appeal
60
Q

Explain judicial review

A

Uncommon, but P or D can apply for JR where the MC or CC has:
o Acted ultra vires (i.e. made an order it had no power to make); or
o Breached the rules of natural justice (i.e. contravening a right to a fair trail or appearing biased)

Asking court to either quash decision or compel court to act

FLK2 - Criminal Practice (11 decks)

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