Appeals 2 Flashcards
How long after the crown court passes sentence can it vary the sentence passed?
56 days
Who can vary a sentence?
The judge who passed it
Can the Crown court vary a sentence awarded when considering an appeal from the mags?
Yes - judge can sit alone to do so
What is the power to vary used for?
To correct a sentence that was wrong in principle
What matters must be dealt with by a full court of appeal (i.e. an odd number of at least 3 judges)
a) an appeal against conviction
b) a review of sentence on an A-Gs reference
c) an appeal against a finding of unfitness to plead
d) an application for leave to appeal a verdict of not guilty by reason of insanity
e) an application for leave to appeal to the supreme court
When can a matter be dealt with by 2 judges?
When it is not one of the times it needs to be a full court
What must happen before a case from CC can go for appeal?
Permission must be granted by CoA
or
within 28 days of the conviction, the judge must grant a certificate that the case is fit for appeal
What is the timeline for written grounds of appeal to be submitted, either as a notice of appeal or application for leave to appeal?
28 days after conviction or sentence, depending on which is being appealed
How is an application for leave to appeal reviewed?
By a single judge on the papers, unless a larger panel is directed to hear it by the registrar
if refused by a single judge, a applicant can renew the application before a two-judge or full court
Does the fact that someone has plead guilty mean that a conviction cannot be appealed?
No
What are the three categories where an appeal after an unequivocal guilty plea are said to be appropriate? (can be more)
When the conviction is vitiated by poor legal advice
where there has been an abuse of process
where it was established that D had not committed the offence
What can ground a successful appeal against conviction (among others)
Wrongful admission or exclusion of evidence
Erroneous exercise of discretion
Wrongful rejection of the submission of no case to answer
Defects in the indictment
Inconsistent verdict (test is reasonable jury)
Jury misconduct that prejudices D
Conduct of the judge
Misdirection on the law
Errors in summing up
Wrongful withdrawal of issues from the jury
Misdirection on facts
What can ground a successful appeal against sentence (amongst others)
Sentence wrong in law (cannot lawfully be given)
Wrong in principle or manifestly excessive
Judge’s remarks when sentencing (indicating irrelevant factors being given weight)
Procedural errors (though will have to be significant)
A sense of grievance (i.e. relied on an indication of non-custodial sentence)
Comparison between co-accused. Can be where there is a disparity between sentences which is unaccounted for, or where accused have not be differentiated and should have been
What power does the court have to deal with vexatious appeals?
It can direct that the time since a vexatious or frivolous appeal started does not count toward sentence
What is the test for an appeal against conviction?
CoA shall allow an appeal against a conviction which is unsafe & dismiss others
What is the effect of a successful appeal against conviction?
The conviction should be quashed
On quashing they may order a retrial if in the interests of justice. otherwise it is a direction to enter a verdict of acquittal
What will the court of appeal have regard to when considering whether to order a retrial?
Length of time since conviction
fresh evidence
Adverse publicity to D (which renders a trial likely to be unfair)
What is the effect of a partially successful appeal?
The CoA can substitute a finding of guilt to an alternative offence where they find the conviction was unsafe which is being appealed
They must be convinced that the jury could have found them guilty of the substituted offence (i.e. it was impliedly or expressly included in the indictment) and they were satisfied of facts which proved that offence
Can an applicant for appeal perfect (i.e. improve) their grounds of appeal after submission?
Yes.
Likely to be the case for conviction appeals (on the release of relevant transcripts)
Unlikely for sentence
Usually perfection must be done in 14 days
How is the application for leave to appeal judged?
By a judge on the papers
Can the time period for lodging an appeal be extended?
Yes - a matter of discretion for the registrar or a single judge
What is the procedure for hearing an appeal that has been granted leave or certificated?
Registrar should give as much notice as reasonably practicable
Notice will be served on the parties, the party’s custodian and any other party the court considers should be notified
A skeleton argument should be submitted if the grounds of appeal are not detailed enough. But it should be succinct.
Only that which is necessary should be included in the bundle and the skeleton argument
What evidence can be admitted to an appeal against conviction?
Anything which is relevant
Note Respondent cannot adduce new evidence which goes to conviction and was not argued below, but an adduce evidence to counteract Applicants new evidence
When can the A-G refer a point of law to the CoA?
Following acquittal.
