Appeals from the Crown Court (W18)

Question 1

D20.95 - Variation of sentence

Answer 1

• A sentence imposed or other order made by the Crown Court may be varied or rescinded within 56 days of being passed or made.
• The judge who makes the variation must be the judge who originally passed sentence, but justices who were there on the first occasion do not need to be there.
• The power to vary may not be exercised in relation to any sentence or order if an appeal against it has already been determined.

Question 2

D20.96 - Extent of the power to vary

Answer 2

• Power to vary may be used to replace one form of sentence with another form.
• It can also be used to add an extra order to a sentence already passed.
• Can be used to make a correction to the period which the court has allowed for time spent in custody on remand.
• May use the power to impose either a more lenient or more punitive sentence that is on reflection wrong in principle.

Question 3

D26.1 - Statutory bases for appeal to the Court of Appeal (Criminal Division)

Answer 3

ss. 1 and 2 Criminal Appeal Act - determine appeals against conviction on indictment
ss. 9 and 11 - determine appeals against sentence following conviction on indictment
ss. 10 and 11 - determine appeals against sentence passed on a committal for sentence

CJA 1972, s.36 - give an opinion on a point of law referred to the court by the A-G following an acquittal on indictment

CJA 1987, s.9 - determine appeals against rulings made at preparatory hearings in serious fraud cases

CJA 1988, ss.35 and 36 - increase sentence on a reference by the A-G following an unduly lenient sentence for an offence triable only on indictment

Criminal Appeal Act s.9 - determine appeals on a reference by the CCRC

• There is no power for the CoA to hear an appeal against a refusal to make a football banning order.

Question 4

D26.3 - Matters dealt with by the full court

Answer 4

• A court consisting of an uneven number of judges no fewer than 3 is required to determine (a) an appeal against conviction, (b) a review of a sentence, (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 finding which has not previously been refused by a single judge, and (e) an application for leave to appeal to the Supreme Court.
• Ordinarily, a court sitting to deal with any of the above will comprise of just three judges.
• Exceptionally, 5 or 7 judges will sit when the matter to be decided is very important and would benefit from the authority of such a court or where there have been conflicting decisions of the CoA on the same point.

Question 5

D26.4 - Matters dealt with by a two-judge court

Answer 5

• A court comprised of two judges may deal with any matter other than those at 26.3

Question 6

D26. 7 - Statutory basis of appeal against conviction

Answer 6

s.1 Criminal Appeal Act 1968
A person convicted of an offence on indictment may appeal to the CoA against his conviction.
An appeal under this section lies only:
(a) with the leave of the CoA; or
(b) if, within 28 days of conviction, the judge of the court of trial grants a certificate that the case is fit for appeal.

Question 7

D26.8 - Appeal against conviction with leave

Answer 7

• Unless the trial judge has granted a certificate that the case is fit for appeal, any would-be appellant needs leave for appeal.
• Written grounds of appeal must be submitted within 28 days of the conviction.
• The initial decision either to grant or refuse leave is usually taken on the papers by the single judge but sometimes it may be taken by a two judge or full court at the discretion of the Registrar for Criminal Appeals. The need for expedition is sometimes a reason for holding such a leave hearing.
• Such a hearing will also often take place when an unlawful sentence has been passed and the sentence will inevitably need adjusting.
• If leave is refused by a single judge, the applicant is entitled to renew the application before a two judge or full court.

Question 8

D26.9 - Appeal against conviction following a plea of guilty

Answer 8

• The fact that a plea of guilty has been entered does not preclude an appeal against the resultant conviction, if the conviction is found to be unsafe despite the plea.
• However, the fact the appellant was fit to plead, had received expert advice, had been aware of what he or she was doing and had intended to plead guilty would be highly relevant to the consideration of the safety of the conviction.
• The most common basis on which unequivocal pleas of guilty are challenged is where there has been an incorrect ruling on a point of law by the trial judge which allows the appellant no escape from a guilty verdict.
• If an appellant has simply been influenced to enter a plea of guilty because of a decision to admit evidence which meant that the prospects of acquittal were hopeless, the conviction would not normally be held to be unsafe.
• It is highly unlikely that an appeal would be entertained where a defendant pleaded guilty following a decision to admit evidence of bad character.
• CoA may also quash a conviction arising from a guilty plea following the admission of fresh evidence on appeal.
• Conviction may also be held to be unsafe when the guilty plea which led to it flowed from inappropriate legal advice.

Question 9

D26.21 to 23 - Commonly occurring errors raised on appeal

Answer 9

• Wrongful admission or exclusion of evidence
• Erroneous exercise of discretion in very limited circumstances. It is more likely to succeed if there has been a failure to exercise the discretion or take into account the factors.

Question 10

D26.26 - Rejection of submission of no case to answer

Answer 10

• The wrongful rejection of a submission of no case to answer at the close of the prosecution case will lead to the conclusion that a conviction is unsafe.
• This can be even when the appellant has given evidence and admitted guilt in cross-exam.
• The Court will not ordinarily interfere if a submission would have succeeded but was not made, and evidence of guilt emerged later in the trial.

Question 11

D26.27 - Defects in the indictment

Answer 11

• Where the indictment charges an offence not known to law
• Where the indictment is preferred and signed without jurisdiction
• Where an indictment is duplicitous
• When counts are improperly joined or included in an indictment, the conviction may be quashed.

Question 12

D26.28 - Inconsistent verdicts and jury irregularities

Answer 12

• CoA will quash a conviction based on apparently inconsistent verdicts only if those verdicts are such that no reasonable jury applying its mind to the evidence could have reached the conclusions that it did.
• Misconduct by jurors

Question 13

D26.29 - Conduct of the trial judge

Answer 13

• Excessive judicial intervention during the course of the evidence of the accused has sometimes led to the quashing of a conviction.
• Conduct other than interruption which prevents justice being done to the defence case can also give rise to a successful ground of appeal.

Question 14

D26.30-36 - Approach of CoA to commonly occurring errors in summing up

Answer 14

• Errors in the summing up may found a successful appeal against conviction if the error leads to the conclusion that the conviction is unsafe.
• Misdirection on law
• Wrongful withdrawal of issues from the jury - a conviction can only be upheld where there has been no miscarriage of justice i.e. if the question had been left to the jury, they must necessarily have come to the conclusion of guilty.
• Misdirection on facts - may lead to quashing if the fact was of such importance that if it had been correctly stated, the jury may not have reached the same verdict.
• Improper comments on facts or defence case - rare to be successful, only when the judge exhibits blatant unfairness and pro-prosecution bias that the conviction will be imperilled.
• Comment on failure of accused to testify - important and may well lead to quashing.
• Comment on the accused’s character - an inappropriate direction may well lead to quashing.

Question 15

D26.50-58 - Commonly occurring grounds of appeal against sentence

Answer 15

• Sentence wrong in law - when the sentence could not legally be passed e.g. a youth convicted summarily sentenced to 3 years detention when the max is 12 months youth custody
• Sentence wrong in principle or manifestly excessive - will only succeed if the sentence was excessive in the sense of being outside the range for the offence and offender in question, as opposed to merely being more than the CoA would have imposed.
• Judge’s remarks when sentencing - if they reveal that irrelevant factors have been taken into account
• Procedural errors
• Sense of grievance - CoA will intervene where the appellant has a justifiable sense of grievance following events preceding sentence, e.g. where a judge orders a PSR and indicates that if the reports are satisfactory a non-custodial sentence will be passed, but then passes a custodial sentence anyway. If an indication of a non-custodial sentence is made to an advocate, any subsequent judge will be bound by this indication of a first judge.
• Disparity of sentence - disparity of sentences between co-accused can never in itself be a sufficient ground of appeal. Instead, the question is whether the sentence was manifestly excessive or wrong in principle.
• Failure to distinguish between offenders - e.g. where one has powerful mitigation and the other does not, can give rise to a successful ground of appeal.

Question 16

D27.2 - Notice of appeal and notice of application for leave to appeal

Answer 16

Criminal Appeal Act 1968, s.18

(1) A person who wishes to appeal or to obtain leave to appeal shall give notice of appeal or notice of application for leave to appeal in such manner as may be directed by the rules of the court.
(2) Notice of appeal or of application for leave to appeal must be given within 28 days of the conviction, verdict or finding appealed against, or in the case of appeal against sentence, from the date on which the sentence was passed or in the case of an order from the date of making the order.
(3) The time for giving notice may be extended, either before or after it expires, by the CoA

Question 17

D27.3 - Notice of appeal or notice of application for leave to appeal

Answer 17

• Notice of appeal if the trial judge has granted a certificate that the case is fit for appeal.
• Notice of application for leave to appeal in all other cases.
• An applicant must serve the Form NG, signed grounds of appeal and accompanying forms directly on the Registrar of Criminal Appeals.
• Prompt action is encouraged on the part of counsel and solicitors in the event of a conviction. Immediately following the conclusion of the case, the defendant and advocates should orally express their final view as to the prospects of appeal against conviction and/or sentence. If there are reasonable grounds of appeal, they should be drafted, signed and sent to instructing solicitors as soon as possible. The solicitors should immediately send a copy to the accused.

Question 18

D27.5 - Drafting and contents of grounds of appeal

Answer 18

• Should be sufficiently detailed to enable the Registrar and the CoA to identify clearly the matters relied on.
• A separate list of authorities must be provided which should contain the appellant’s name and refer to the relevant paragraph numbers in each authority.

Question 19

D27.6 - Advice with grounds

Answer 19

• CoA requires the grounds of appeal and relevant facts to be set out in one document. Counsel should not submit separate grounds and advice.
• The purpose of the document is to enable the single judge to easily identify the facts and issues in the case.

Question 20

D27.7 - Perfection and variation

Answer 20

• The grounds of appeal first lodged may be varied or amplified within such time as the CoA will allow.
• When grounds are lodged, it is necessary to identify any transcripts which are needed to perfect the grounds. If the Registrar agrees, the transcripts are sent to counsel.
• When the Registrar sends the transcripts, counsel has 14 days within which to perfect the grounds. In the absence of response from counsel, the grounds are placed before the judge.
• If counsel does not wish to perfect the grounds, the transcript should be returned with a note to that effect.
• The perfected grounds should comprise a separate document which includes references to the appropriate parts of the transcript.
• If, having read the transcript, the advocate forms the opinion that the appeal is no longer arguable, solicitors should be informed. The Registrar should also be informed.
• If the advocate advises abandonment and the applicant continues with the appeal, the applicant is at risk of a direction that time served does not count.
• An applicant may be at risk of a loss of time order or costs even when advised by lawyers that grounds are arguable.

Question 21

D27.8 - Duty of counsel with regards to grounds of appeal

Answer 21

Advocates should not settle or sign grounds unless they consider that they are properly arguable.

Question 22

D27.10 - Procedure for obtaining leave to appeal

Answer 22

• Ordinarily, once the grounds have been perfected, the case is referred to a single judge for the consideration of whether leave of appeal should be granted.
• In determining whether or not to grant leave, the judge may be assisted by having the prosecution’s response to the grounds. They may direct that the prosecution or Registrar respond to the grounds within Form RN. The Registrar may direct a response within Form RN where the grounds advanced concern issues of public interest immunity, allegations of jury irregularity, critcism of the conduct of the judge and complex frauds.
• Sometimes, the judge or Registrar may refer the case to a full court to determine issues of leave and the prosecution will be asked to attend. If the full court grants leave, they may proceed straight away to a substantive hearing of the appeal.
• The far more usual case is for a single judge to consider the issue of leave on the papers. If it is refused, the applicant has 10 business days to notify the intention to renew the application.
• The time may be extended either before or after that period has expired upon application by the applicant, but they must have good reason for not being able to comply with the deadline.
• The reason cannot be to do with the merits of the case. If the applicant has received misleading advice as to the need to notify renewal from prison, that is capable of being sufficient.

Question 23

D27.12 - Extension of time for leave to appeal

Answer 23

Although the time period for lodging the notice of application to appeal is 28 days, that period may be extended either before or after its expiry.

Question 24

D27.22 - Hearing of an appeal

Answer 24

• The Registrar must give as much notice as reasonably practicable of the date on which the Court will hear any appeal or application. The notice must be served on (a) the parties, (b) any party’s custodian, and (c) any other party the Court requires to be notified.
• Notice should not normally be given of public interest immunity hearings.
• If a representation order is to be granted for an appellant, it is normally granted by the Registrar or the single judge. It is usually limited to an advocate, but can sometimes be extended to a solicitor.
• The Registrar will forward the necessary papers to counsel and will try to agree a date for the hearing with counsel’s clerk.
• Traditionally, the respondent was not usually present at the hearing but this is becoming increasingly common. The respondent will often submit a Respondent’s Notice setting out a reply to the applicant’s grounds.
• Advocates must ensure that the Court and any other party has a single document containing all of the points that are to be argued. On an appeal against conviction, a skeleton argument must be served if the appeal notice ‘does not sufficiently outline the grounds…particularly where a complex or novel point of law has been raised.’ On a sentencing appeal, a skeleton may be helpful if it is a complex issue.
• Skeleton must be served no later than 21 days before the hearing date, and the respondent’s skeleton no later than 14 days before the hearing date, unless otherwise directed.

Question 25

D27.11 - Refusal of leave

Answer 25

• If the single judge grants leave on a particular ground without deciding the issue of leave on others, the appellant is free to argue the other grounds at the substantive hearing.
• If the single judge grants leave on one ground but refuses it on the others, the appellant must renew the application for leave in relation to those other grounds, having previously informed the respondents and the Registrar of that intention, before they are allowed to argue them at the substantive hearing.
• A renewed application for leave is heard by the Court, comprised of at least two judges, and usually three.
• The applicant has no right to attend, so if they are in custody they will not be present.
• Even though legal aid is not available for representation at such hearings, counsel will often provide their services free of charge.
• If counsel is to appear on behalf of the applicant at a renewed application for leave, whether on a privately paid or pro bono basis, the CoA office should be informed of that in writing as soon as possible.
• Where counsel do not appear, renewed applications are often placed in a ‘non-counsel list.’

Question 26

D26.12 - Directions concerning loss of time and frivolous and vexatious appeals

Answer 26

• s.29 Criminal Appeals Act enables the CoA to direct that all or part of the time an applicant for leave to appeal has spent in custody since the commencement of the appeal shall not count in relation to the sentence the applicant is required to serve.
• The fact that counsel or solicitors have associated themselves with such an application for leave will be relevant, but will not necessarily avoid an order if there was no justification for continuing the case.
• A single judge refusing permission is now asked to identify on Form SJ cases without merit where the court should consider using their power under s.29 is the application is renewed before the full court.

Question 27

D27.25 - Receipt of evidence by the CoA

Answer 27

• CoA may admit evidence which is relevant.
• However, it will not be admitted where its purpose is to advance a basis for/against conviction not argued previously and not put before the jury.
• The Court will admit evidence if it is necessary or expedient in the interests of justice.

Question 28

D26.15 - Statutory basis of determination of appeal

Answer 28

CoA should allow an appeal against conviction if they think that the conviction is unsafe (s.2 Criminal Appeal Act)

Question 29

D26.37 - Effect of successful appeal against conviction

Answer 29

• If they allow the appeal, court should quash the conviction.
• A judgment and verdict of acquittal shall be entered in place of the conviction.
• Where it appears to the court to be in the interests of justice, they may order a retrial.
• A person shall not be ordered to be retried for any offence other than (a) the offence of which he was convicted at the original trial, (b) an offence which he could have been convicted at the original trial, or (c) an offence charged in an alternative count of the indictment in respect of which no verdict was given.

Question 30

D26.38 - Decision to order a retrial

Answer 30

• Factors which will be taken into account: length of time which has elapsed between the appellant’s original conviction and the successful appeal, and the extent to which any fresh evidence received undermines the strength of the case against the appellant.
• Occasionally, a retrial will not be ordered because of considerable publicity surrounding the alleged offences which is adverse to the defendant, however, an application for this will only be allowed if it is satisfied on the balance of probabilities that as a result of the publicity, the verdicts returned by a jury would be unsafe.
• The Court can seek to minimise the effect of publicity by a change of trial venue and suitable questions to the jury.

Question 31

D26.40 - Partially successful appeal: substituting verdict

Answer 31

• Applies where the appellant could have been convicted of an offence to which he did not plead guilty and the jury could on indictment have found him guilty of some other offence, and on the finding of the jury it appears to the CoA that the jury must have been satisfied of the facts which proved him guilty of the other offence.
• Court may substitute for the verdict a verdict of guilty of the other offence, and pass such sentence in substitution as may be authorised by law for the other offence, not being a sentence of greater severity.

Question 32

D28.4 - Reference for review of sentence

Answer 32

• It is for the A-G to consider whether leave should be sought on the basis that the sentence was unduly lenient.
• If leave is granted, the reference proceeds according to the facts before the sentencing judge, and the CoA will not alter the sentence on the grounds of new material which was not before that judge.
• However, if the Court concludes that it was unduly lenient, it may receive fresh material in reaching its conclusion as to the correct new sentence.

Question 33

D16.73 - Appeals by the prosecution against adverse rulings

Answer 33

• Provision for appeals by the prosecution against rulings of the Crown Court in relation to trial on indictment. These can be divided into two categories:
  (a) appeals against terminating rulings
  (b) appeals against evidentiary rulings which significantly weaken the prosecution case.

Question 34

D16.75 - Rulings adverse to the prosecution

Answer 34

• the prosecution can challenge rulings of the Crown Court which would otherwise bring proceedings to an end, in such a way that if the ruling was found to have been in error, it would be possible for the proceedings to continue.
• can also appeal to other rulings made during the course of the trial.
• such an appeal requires leave either from the trial judge or the CoA
• e.g. appeal against the refusal of an adjournment to secure the attendance of a principal witness
• e.g. appeal against a ruling as to the admissibility of evidence
• e.g. appeal against the exclusion of evidence which is less determinative of the prosecution case

Question 35

D16.77 - Adjournment

Answer 35

• The first step taken in relation to such an appeal is for the prosecution either to inform the court that it intends to appeal or to request an adjournment to consider whether or not to appeal.
• For an adjournment, the prosecution must make a request to the judge immediately following the relevant ruling.
• There is no requirement for the intention to appeal to be stated orally in court. It can be done by email.
• Any such email would have to go to the parties and the court.
• The court must grant the adjournment which will usually be until the next business day.
• However, there will be cases where a longer adjournment is required.

Question 36

D16.78 - Announcing the decision to appeal

Answer 36

• Following any adjournment or imemdiately after the ruling, the prosecutor must inform the judge whether there is an intention to appeal. This can be done by email.
• The prosecutor must serve a notice of appeal on the court, the Registrar and the accused (which must take place either by the next day if the appeal is expedited or within five days) or apply orally or by email
• Judge must hear representations from the defence before deciding whether to grant leave, but must make the decision on the same day as the oral application for leave is made unless it is in the interests of justice to take longer.

Question 37

D16.79 - Prosecutor’s undertaking

Answer 37

• The prosecution must undertake to offer no evidence against the accused in the event that the appeal is either abandoned or refused.
• The giving of this undertaking is an essential prerequisite of any appeal.
• A ruling subject to appeal ceases to have effect once notice has been given.

Question 38

D28.9 - Reference by the Criminal Cases Review Commission

Answer 38

• The CCRC may at any time refer a conviction on indictment or any sentence imposed in relation to that conviction (unless it is a sentence fixed by law) to the CoA.
• They may also refer any conviction or associated sentence on a summary offence.
• For the CCRC to refer a case, there must be a real possibility that the CoA or Crown Court will quash the original conviction or sentence. The reference will ordinarily only be made in respect of an argument or information not available to the court of first instance or on appeal.
• Where a reference is made, the Registrar must serve the reference on the appellant and must treat it as the notice of appeal. The reference or notice must then be served on the respondent. The respondent may then serve the respondent’s notice and must do so if it wishes to make representations or is directed to do so by the court or registrar.
• the CCRC may require any public body to provide any document or information. The Crown Court, on an application by the CCRC order any person to give access to any material in the person’s possession or control if it thinks that the document or other material may assist the CCRC in the exercise of any of its functions.

Question 39

D30.1 and 3 - Appeal to the Supreme Court

Answer 39

• Either the prosecution or defence can appeal a decision of the CoA to the Supreme Court, but only if the CoA or Supreme Court itself considers that the appeal involves a point of law of general public importance which should be considered by the SC.
• the CoA must certify that the appeal involves a question concerning a point of law of general public importance.
• Application to the CoA for leave to appeal to the SC must be made by the party seeking to appeal no more than 28 days after the decision or the date on which the court gives reasons for its decision. Time begins running on the day of the decision.
• Form SC must be served on the Registrar and all parties.
• application for representation orders should be made to the CoA.
• Where CoA decides no point of law of public importance arises, it may decide so on the papers. This cannot be appealed.
• It is not open to the CoS to certify a question when the applicant had been refused appeal to the CoA.