Appeals

Question 1

MC: The power to rectify mistakes

Answer 1

MC can vary or set aside a sentence/conviction if it is in the interests of justice to do so. Slip rule - to rectify mistakes in law and procedure.

D can apply or court can make amendment of their own volition. Application will be heard by the same magistrates who convicted the D, but If conviction is set aside, case will be re-tried by a different bench. s142 MCA 1980

Question 2

Which appeal route (MC)?

Answer 2

• Magistrates made an error or fact or mixed fact and law - go to CC.
• Magistrates made an error or law - appeal by case stated HC.
  -Unfairness, procedural irregularity, bias - judicial review HC.

Question 3

What is the procedure on appeal to the crown court?

Answer 3

1. Lodge notice of appeal within 15 business days of SENTENCE (even if appeal against conviction); serve on MC and prosecution.
   Include an application for an extension of time with reasons if more than 15 business days.
2. Appeal will be by re-hearing, will be heard by CC judge and two lay magistrates. (sentence appeal = hearing proceeds like it is the original sentence hearing).

Question 4

How does an appellant abandon their appeal?

Answer 4

Written notice to CC, MC, prosecution. Also, if appellant fails to attend and is not represented, appeal is treated as abandoned.

Permission required from CC to abandon once hearing has started.

(this is for appeals from MC to CC).

Question 5

How does an appeal by way of case stated work?

Answer 5

D applied to MC to state a case for the opinion of HC - takes the form of a question about decisions of law or the procedure which the defendant asserts were wrongly decided. Final ‘case stated’ will be agreed by all parties and include a summary of evidence heard at trial, legal arguments and details of disputed decision itself.

Question 6

Who can appeal by way of case stated?

Answer 6

Both prosecution and defence.

Question 7

What is the deadline for appeal by way of case stated?

Answer 7

21 days from the date of the decision sought to be appealed. (except where sentence is adjourned following conviction - date of decision is deemed to be date of sentence - even when conviction is appealed).

Question 8

What is the impact of appealing by way of case stated?

Answer 8

Lose the right to appeal to the Crown Court.

Question 9

How does the ‘slip rule’ work in the CC?

Answer 9

Judge can vary or rescind a sentence within 56 days of it being made - must be the same judge who passed the sentence and made the variation. Can save time in cases where a recognisable error has been made in the sentence.

Question 10

What is needed to appeal against conviction or sentence from CC to CoA?

Answer 10

Leave is required - appelants from CC need to convince a single judge that their appeal is arguable on the merits before it can proceed to an oral hearing before two judge (sentence) or three judge (conviction).

Question 11

What are the time limits for lodging grounds for CC to CoA appeal?

Answer 11

Serve form NG on the Registrar within 28 days of conviction in conviction appeals, and 28 days of sentence in sentence appeals. Can extend w reasons.

Question 12

What are the duties of counsel when advising on appeal (CC to CoA)?

Answer 12

Advise properly. If there are no grounds, send negative advice to D’s solicitors. If there are grounds, draft these clearly and precisely and send to D’s solicitors. Draft advice with merits and grounds.

Question 13

What happens when transcripts are received? (CC to CoA)

Answer 13

Counsel sent a copy and invited to perfect grounds within 14 days. Perfected grounds should be put in a fresh document. Notify registar if they do not wish to perfect.

Question 14

What can the appellant do if leave is refused by the single judge (CC to CoA)?

Answer 14

Can renew the application for leave to appeal. Serve this on the CoA within 10 business days of the receipt of the notification of the single judge’s decision.

Renewed application for leave will be heard orally by full court of two to three judges. No representation order is available, but counsel may appear privately or on a pro bono bass.

Question 15

When would the Registrar refer a case to the full court, bypassing the single judge and asking full court to consider application for leave?

Answer 15

There is an unlawful sentence that must be amended or a novel point of law.

Question 16

Timeline for appeal from Crown Court to Court of Appeal:

Answer 16

1. Does the trial Judge certify the case as fit for appeal (if yes, no need for leave - this is rare though)
2. If not, notice of appeal must be sent to CC within 28 days of conviction or sentence.
3. On receipt, Registar will send to single judge or refer directly to full CoA. If leave is refused, appellant has 10 business days to renew application.
4. If leave is granted, matter is listed for appeal before a two-judge court for sentence appeals, or a three-judge court for conviction appeals.

Question 17

When does a skeleton need to be served in an appeal?

Answer 17

IF appeal notice doesn’t sufficiently outline the grounds.
Serve 21 days prior to hearing (appellant) and respondent 14 days before the hearing unless otherwise directed.

Question 18

What is the test for an appeal against conviction?

Answer 18

Is the conviction unsafe?

Question 19

What is the test for an appeal against sentence?

Answer 19

Should the defendant have been sentenced differently?

Question 20

What is a loss of time order?

Answer 20

CoA can direct some or all of time prison to not count towards the appelants sentence between during date of lodging appeal and dismissal. This may be considered if application is wholly without merit.

Question 21

When can the court of appeal admit fresh evidence in appeal?

Answer 21

CoA allowed.

May - if it thinks it necessary or expedient in the interests of justice..
Order the production of any document/exhibit/thing connected with proceedings if it considers it necessary for the determination of the case;
Order any witness to attend for examination and
Receive any evidence which was not adduced in the original proceedings.

Question 22

What are the requirements for prosecution appeals against terminatory rulings?

Answer 22

1. Ruling must be made before summing up.
2. Acquittal agreement given by prosecution.
3. Ruling mustn’t be appealable to crown court by other means.

Prosecution has five business days to serve written notice in a non expedited case, or the next business day in an expedited appeal case.