Appeals: Crown Court

Question 1

Slip rule

Answer 1

Crown court has power to rectify mistakes but only at sentence.

Purpose is to save time and money where there is a recognisable error.

Can amend length of sentence but also type of sentence or requirements attached to a community based sentence

Question 2

Types of cases court of appeal can hear from the crown court

Answer 2

a) appeals against conviction on indictment
b) appeals against sentence passed following conviction
c) appeals against sentence passed on committal for sentence
d) references by the AG of unduly lenient sentences (indictment only and some either-way)
e) references from AG for opinions on points of law following acquittal on indictment
f) references by the criminal cases review commission
g) Prosecution appeals against terminatory rulings
h) Appeals against rulings made at preparatory hearings in serious fraud cases

Question 3

leave for appeal to court of appeal

Answer 3

Appellants from the CC need to convince a single judge that their appeal is arguable on the merits before it can proceed to an oral hearing before a 2 judge court.
If leave is refused by the single judge a party may renew an application for leave orally before the relevant panel.

Law and procedure is largely the same for both appeals against conviction and sentence.

Question 4

Time limits for appealing to CA

Answer 4

Notice of appeal must be served on the registrar of the criminal division within 28 days of conviction or 28 sentence (sentence appeals).

Time limit can be extended if applied when serving the form. If merits on grounds of appeal CA is likely to grant the application but it is up to their discretion.

Question 5

Advising on appeal to CA

Answer 5

Should advise promptly and give oral advice immediately after conviction/sentence.

No grounds to appeal: a negative advice should be prepared and sent to the defendant’s solicitor’s.

If there are grounds, they should be clearly and precisely drafted and sent to the defendant’s solicitors.

Counsel should draft grounds and advice in one document. and solicitor will fill out form NG.

Question 6

Certificate of trial judge

Answer 6

Trial judge may certify the case as ‘fit for appeal’ (only exceptional cases).

If certificate is granted then leave is not required but counsel do have to comply with usual appeal procedure.

Question 7

Transcripts

Answer 7

Transcripts of the CC case may be ordered by the Registrar if they are required in order to resolve the appeal.

Useful where claiming the judge made an incorrect ruling.

Question 8

Perfecting grounds

Answer 8

When transcripts are received counsel will be sent a copy and invited to ‘perfect; grounds within 14 days.
Means adding references to transcripts to support the arguments advanced or reconsidering the grounds and perhaps amending/deleting or advancing new ones in light of transcripts.

Question 9

Respondent notice

Answer 9

Registrar may direct that the prosecution serve a response to assist the single judge on Form RN.

Single judge may also order that a Respondent’s Notice be obtained if it was not previously ordered by the Registrar.

Question 10

Consideration of appeal

Answer 10

Usually the application, including any bail application will be considered by the CA on the papers alone without oral arguments by one judge sitting alone.

The single judge will consider the merits of the application for leave and come to a decision, giving reasons.
May:
- grant the application wholly or in part
- refuse the application
- refer it to the full Court of Appeal without granting leave

Question 11

Renewal

Answer 11

If leave is refuse, or granted on a few but not all grounds the appellant can renew the application for leave to appeal.
Must serve form within 10 business days of receipt of the notification of the single judge’s decision.

Usually heard orally by 2 or three judges.
2- sentence
3 - conviction

Question 12

Referral to the full court

Answer 12

instead of sending case to single judge. Registrar can refer a case to the full court instead, effectively bypassing the single judge and asking the full court to decide the application.
Used where:
- unlawful sentence which must be amended
- novel point of law

Usually where matter requires expedition.

Single judge may also refer to the full court if the single judge identifies an issue requiring the full court’s attention.

Question 13

Grounds for appeal against conviction

Answer 13

• 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

Question 14

Common grounds for appeal against sentence

Answer 14

• 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

Question 15

Appealing a guilty plea

Answer 15

most common ground was that the guilty plea was entered following a legal ruling by the trial judge which left no option but to plead guilty.

Can also be mounted on basis on incorrect legal advice - although it would be more usual to apply first to teh CC to vacate the plea.

Question 16

Appeal itself

Answer 16

Respondent not usually present at sentence appeal but will be at conviction appeal.

Summary to assist the court will be prepared for by a Criminal Appeal Office Lawyer.

Question 17

Test on appeal: conviction

Answer 17

Court can allow an appeal only if they think that the conviction is unsafe.

Question 18

Test on appeal: sentence

Answer 18

Appeal can be allowed if the court thinks the defendant should have been sentenced differently.

Question 19

Powers on appeal: conviction

Answer 19

• quash conviction
• if in the interests of justice may order a retrial
• May also substitute a guilty verdict for an alternative offence if:
  + the jury would have been able to convict of the alternative offence at trial
  + the jury must have been satisfied of facts which proved him guilty of the offence

Question 20

Powers on appeal: sentence

Answer 20

• Quash any sentence or order which the subject of the appeal; and
• in its place, pass any such sentence or make such order as they think appropriate, but which the court below had power to pass or make; and
• 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

Question 21

Loss of time order

Answer 21

CA can direct the time spent in prison between lodging appeal and date of dismissal be ordered not to count towards appellant’s sentence.

Imposed where application is considered wholly without merit.

Question 22

Fresh evidence

Answer 22

Court is allowed to admit new evidence on appeal.

May if think necessary or expedient in the interests of justice
a) order production of doc, exhibit or thing
b) order any witnesses to attend for examination
c) receive any evidence which was not adduced in the proceedings from which the appeal lies.

Regard to the following when deciding not to hear evidence:
- capable of belief?
- appears evidence may afford any ground for allowing appeal?
- Whether the evidence would have been admissible in the proceedings from which the appeal lies
- Whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings

Question 23

AG references

Answer 23

Point of law following acquittal:
- may ask CA on point of law following acquittal
- does not affect acquittal
- power merely intended to clarify the law
- CA can refer to SC if sees fit

Reference for review of sentence:
- AG may refer to a case to the CA where AG feels sentence was unduly lenient
- Must be triable only on indictment or some specified offences
- 28 time limit
- sentence can be increased

Question 24

Criminal Cases Review Commission

Answer 24

• independent body
• power to refer at any time any conviction on indictment or sentence to the CA or CC (summary)
• Will ask if real possibility that the CA will quash the original conviction or sentence

Question 25

Terminatory rulings

Answer 25

Prosecution can appeal against terminatory rulings (i.e. no case to answer) made in the course of a CC trial

Requirements:
- must be made before summing up
- An acquittal agreement must be given by the prosecution (means prosecution must give assurance to the court and the defendant that if leave to appeal is refused and the appeal abandoned before it is decided by the CA the defendant will be acquitted on that count
- The ruling must not be appealable to the CA by other means

Question 26

Procedure for prosecution appeal against terminatory rulings

Answer 26

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 a 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) Prosecution has five business days to serve written notice in non-expedited cases or next business day in expedited appeal case

Alternatively:
- can apply orally to the trial judge for leave to appeal
- trial judge will hear representations from the defence on the same day as the applicant unless it is in the interests of justice to allow further time
- trial judge will decide if there is a real prospect of success on appeal

Question 27

Preparatory hearing rulings

Answer 27

Power for both prosecution and defence to appeal rulings made at preparatory hearings to the Court of Appeal

Question 28

Appeals to the Supreme Court

Answer 28

• Prosecution or defence can appeal a decision of the court of appeal to the SC
• Not a right
• CA or SC must certify that the case involved a point of law of general public importance

Application to the CA for leave to appeal to the SC must be made no more than 28 days after the court gives reasons for its decision (no more than 14 days after the court’s reasons in an AG Reference case)