Appeals from Mags Flashcards
what power do the magistrates have to rectify mistakes made (slip rule)? how wide is the scope?
set aside and re-trial by different bench.
error of law leading to conviction
limited scope - not to pursuade changing of minds
agreed by all parties and quickly identified
what power do mags have to alter sentence?
vary or rescind, if in interests of justice (not where acquitted) and re-open case
in what circumstances could mags increase sentence?
exceptional circs -e.g where court has been misled on facts that would impact sentencing
could not justify increase to custodial sentence
what 3 main routes to appeal (conviction or sentence ) does a party have from Mags?
- appeal to CC (re-hearing)
- appeal to HC (case stated_
- Application to HC for JR
what provisions govern appeals to CC?
MCA 1980, s108 AND CrimPR Part 34
what is time limit for notice of appeal to be filed in mags?
15 business days after sentence passed/deferred (so even if after conviction and appealing conviction)
what should be included in notice of appeal from mags?
what appeal is against
summarise issues
specify witnesses appellant wants to Q
How long appeal is likely to take
applicaiton for extension if necessary
Who hears appeals?
Circuit Judge or recorder with 2 lay mags not involved in original proceedings.
what is the structure of an appeal at mags?
Conviction - complete rehearing
may call evidence that has become available since trial/unused evidence
P cannot amend key details such as date of alleged offence
Sentence - fresh sentencing hearing
under s48 SCA - what powers to CC have on appeal from mags
confirm, reverse or vary any part of decision appealed against
remit the matter with opinion
any such order as sees fit
where appeal is against sentence - may award any punishment - more or less severe (within Mags court power)
how can an appeal be abandoned?
without permission by serving notice on all parties prior to commencement of hearing
with permission only by application in court once hearing commences
what may CC do on abandoment?
award costs according to timeliness
NOT increase sentence
NOT reinstate appeal unless abandonment null
what are the key features of an appeal by way of case stated?
- P or D may use
- to appeal error of law or excess of jurisdiction only
- only available after final determination
- can be used for errors in sentencing - harsh and oppressive
when may error of fact be considered in an appeal by way of case stated to the divisional court?
where finding of fact is alleged to be such that no reasonable bench could have properly reached that factual conclusion on the evidence
who will hear an appeal by way of case stated
2 judge bench , sometime 3 - if 2 cannot agree then appeal fails
how is appeal by way of case stated heard
based on stated facts - no new evidence called, only submissions made
what may divisional court do on conclusion?
reverse, affirm or amend, remit or any other order
quash, substitute conviction for previous acquittal, substitute approp sentence
can an appeal by way of case stated be abandoned?
yes without leave
where a fair trial is still possible, what may div court order on appeal by way of case stated
retrial before same bench
what is JR used for?
for the High Court to police decision making of inferior public bodies
what are the principle grounds for JR ?
error of law
excess of jurisdiction
breach of natural justice-
what are examples of a breach of natural justice?
failing to give D adequate time to prepare Defence
failure to grant an adjournment to allow witness to attend
P failing to call/disclose a witness who may assist D
P failing to disclose previous cons of P witness
making an order as to costs against D without conducting means enquiry
how do you decide whether to appeal by way of case stated or JR?
where simple error of law and case stated appropriate - go for case stated
JR when unfairness/bias in conduct of justices - or an issue of fact to be raised and decided which justices did not decide themselves - appealing commital for sentence
where does an appeal from High Court go?
supreme court
when may appeal by way of case stated be av from CC?
only where acting in their appellate capacity from a appeal on conviction or sentence from Mags
when may appeal by JR be av from CC?
where not concerning a matter relating to trial on indictment
is bail available pending JR of decision of CC?
yes
if D is convicted in mags and appeal to CC 0 what form should further appeal on point of law take?
case stated to high court NOT JR
