Appeals from the mags and CC in appellate capacity (W18)

Question 1

D22.73 - Setting aside a conviction for rehearing before a differently constituted bench

Answer 1

• MCA 1980 s.142(2) enables an accused convicted in a magistrates court (whether on guilty plea or a finding of guilty after trial) to ask the magistrates to set the conviction aside. This application can be considered by the same magistrates or by a different bench.
• If the conviction is set aside, the case is reheard by different magistrates from those who convicted.
• Such an application may be appropriate if the magistrates made an error of law or there was some defect in the procedure which led to conviction.
• It has been described as the ‘power to rectify mistakes’ and is generally regarded as the ‘slip rule.’
• Limited scope: used only for mistakes and not for re-opening a previous decision in the interests of justice.
• If the magistrates have reached the wrong decision on the merits of submissions which have been made to them, the appropriate course is for the accused to appeal to the Crown Court or by way of case stated to the High Court.

Question 2

D23.23 - Variation of sentence under the MCA 1980, s.142

Answer 2

• allows a magistrates’ court to vary or rescind its decisions as to sentence if it is in the interests of justice to do so.
• magistrates can reopen the case regardless of whether the accused pleaded or was found guilty.

Question 3

D23.24 - Guidance on the variation of sentence by the magistrates

Answer 3

Holme v Liverpool City Justices:

• to be used in a relatively limited situation, namely one which is akin to mistake or the slip rule
• can be used to increase sentence only in exceptional circumstances, especially if that increase would change the nature of the disposal.
• type of case suitable is one ‘where the mistake is quickly identified and it is accepted on all sides that a mistake had been made.’

Question 4

D29.1 - Routes of challenge of decisions of magistrates’ courts

Answer 4

(a) appeal to the Crown Court
(b) appeal to the High Court by way of case stated
(c) appeal to the High Court for judicial review.

• appeal may be against conviction and/or sentence.
• if the offender pleaded guilty, they can still appeal against conviction (in limited circumstances).
• an appeal by way of case stated or application for judicial review is heard by a Divisional Court of the Queen’s Bench Division of the High Court.

Question 5

D29.3 - Appeals against conviction and sentence

Answer 5

• Appeals to the Crown Court are governed by the MCA 1980 s.108 and CrimPR 34.
• Covers applications about case management, introduction of further evidence, any other question of procedure, or the introduction or admissibility of evidence, or any other question of law that has not been determined before the hearing of the appeal begins.
• Generally, an appeal from the youth court must be heard by a judge or recorder of the Crown Court sitting with two lay justices (one man and one woman) who are authorised to sit in the youth court.
• Exceptionally, the Crown Court may include only one justice of the peace and need not include both a man and a woman if the presiding judge decides that the appeal will otherwise be unreasonably delayed.

Question 6

D29.6 - Procedure on appeal to the Crown Court

Answer 6

• Notice of appeal must be given in writing to the relevant magistrates court officer and every other party within 15 business days of sentence being passed or sentence being deferred. This applies even if the appeal is against conviction only and not sentence.
• Time limit is also 15 business days where the appeal is against an order or a failure to make an order.
• The notice should state whether the appeal is against conviction, sentence, order or failure to make an order.
• It must also summarise the issues and in an appeal against conviction, specify the witnesses whom the appellant will want to question and state how long the trial lasted in the mags and how long the appeal is likely to take.
• In an appeal against a finding that the appellant insulted someone or interrupted proceedings in the mags, the mags’ written findings of fact and the appellant’s response to those findings must be attached to the notice.
• Any notice must also stipulate whether the appellant has asked the mags to reconsider the case and identify all those upon whom notice is served.
• the Crown Court may allow an appeal notice to be in a form other than the specified form, or to be presented orally.
• If a notice is served in time, no leave to appeal is required.
• An application for an extension of time must be served with the appeal notice and must explain why the notice is late.
• the Crown Court may shorten or extend (even after it has expired) any time limit.
• Where a party wants to introduce further evidence relating to bad character or previous sexual history, or hearsay evidence or evidence involving the use of special measures, notice of an application to introduce such evidence must be made not more than 14 days after service of the appeal notice.
• An appeal is heard by a Circuit Judge or recorder who must normally sit with two lay magistrates who were not involved in the original proceedings.
• Prior to the hearing, the defence may request a copy of the clerk’s notes of evidence of the summary trial.

Question 7

D29.7 - Hearing of appeal to the Crown Court

Answer 7

• The appeal proceeds by way of complete rehearing.
• Parties may call evidence which has only become available to them since the trial, or evidence they decided not to use in the mags.
• The information on which the appellant was convicted may not be amended.
• An appeal against sentence is a fresh sentencing hearing. The court should consider whether, in light of all the matters they have heard, the sentence passed by the mags was the correct one. They are not entitled to increase the sentence on appeal on the basis that the mags should have committed the offender to the Crown Court in the first place.
• They may increase the sentence to the max that could be imposed by the mags.

Question 8

D29.10 - Powers of the Crown Court on appeal

Answer 8

• Decision may be a majority decision. The lay justices can out-vote the judge. However, the lay justices must accept any decisions on questions of law made by the judge.
• Following an appeal from the magistrates, the Crown Court may:
  (a) confirm, reverse or vary any part of the decision appealed against, including a determination not to impose a separate penalty in respect of an offence.
  (b) remit the matter with its opinion on the authority whose decision is appealed against
  (c) make such other order as it thinks just, and exercise any power which the said authority could have exercised.
• this is to be construed on sentence as including the award of any punishment, whether more or less severe than that given by the mags, if it is a punishment which the mags could have awarded.

so effectively the Crown Court can:

(a) quash the conviction
(b) remit the case to the mags
(c) vary the sentence imposed

Question 9

D29.13 - Abandonment of an appeal

Answer 9

• The appellant may abandon the appeal by giving notice in writing to the magistrates court, the appropriate officer of the Crown Court and the prosecution and any other party to the appeal.
• The appeal may be abandoned without permission at any point prior to the start of the hearing.
• Once the hearing has started, the appeal may be abandoned only with permission of the Crown Court.
• Crown Court has a discretion to award costs in an appeal from a magistrates court in all cases.
• An appeal cannot be abandoned simply by an appellant failing to attend or to instruct an advocate.
• Once the appeal has been abandoned, the Crown Court has no power to reinstate the appeal.

Question 10

D29.25 - Application for judicial review

Answer 10

• Decisions of the mags and those of the Crown Court not related to trial on indictment are susceptible to judicial review in the High Court.
• The High Court does so by means of prerogative orders, e.g. quashing orders, mandatory orders and prohibiting orders.
• The application for judicial review is dealt with by a Divisional Court of the QBD of the High Court.
• The granting of prerogative orders is discretionary and the Divisional Court will sometimes withhold relief despite it being open to the court to grant it, where fairness demands so.
• Principal factors to be taken into account in considering whether delay should lead to a refusal of relief:
  (a) seriousness of the offence
  (b) nature of evidence in the case
  (c) extent of any contribution by the defendant to error of the mags court
  (d) extent of any contribution by the defendant to any delay in the review process
  (e) extent to which the complainant would be justifiably aggrieved by the abandonment of proceedings
  (f) extent to which defendant would be justifiably aggrieved by the continuation of proceedings.

Question 11

D29.27 - Principal grounds upon which judicial review may be sought

Answer 11

(a) error of law on the face of the record i.e. an error disclosed by court records
(b) excess of jurisdiction
(c) breach of natural justice

Question 12

D29.7 - Breach of natural justice

Answer 12

• failing to give the accused adequate time to prepare a defence
• failing to grant an adjournment to allow for the attendance of a witness
• prosecution failing to call or disclose the statement of a witness who might assist the defence
• prosecution failing to disclose the previous convictions of prosecution witnesses
• making an order as to costs against a defendant without inquiring as to the defendant’s means

Question 13

D29.42 - Choice between judicial review and case stated

Answer 13

• Both judicial review and appeal by way of case stated set aside the decision of the court below and a choice must be made which route to pursue.
• (a) the normal route for an appeal against a decision of justices where it is alleged there has been an error of law is by way of case stated;
• (b) it would be wrong to seek judicial review where case stated was appropriate, merely in order to avoid the stringent time limit
• (c) judicial review is more appropriate where there is an issue of fact to be raised and decided which the justices did not decide themselves
• (d) judicial review may also be appropriate where it is alleged there has been unfairness or bias in the conduct of the case by the justices but, where it is alleged that there has been a misdirection or error of law, case stated is more appropriate.
• Judicial review should be pursued where the inferior court has acted in excess of jurisdiction.
• Judicial review is the only remedy available where the defence wish to challenge a committal for sentence.

Question 14

D29.44 - Appeal from the Divisional Court

Answer 14

Any appeal from the High Court in a criminal case is direct to the Supreme Court.

Question 15

D29.38 - Appeal by way of case stated

Answer 15

• An application to appeal by way of case stated from the Crown Court may be made in respect of an error of law or where it is alleged that the Crown Court acted in excess of jurisdiction. There can be no challenge on the basis that a decision is against the weight of the evidence.
• No appeal by way of case stated is possible in respect of matters relating to trial on indictment i.e. it is only available if it has already been appealed to the Crown Court
• The procedure to be followed upon an application to the Crown Court to state a case is governed by CrimPR Part 35.
• The application must be made in writing no more than 21 days after the decision sought to be appealed and must be served on each party and the court officer.
• An extension to the 21 days can be made at the time of the application.
• The application must specify the decision in issue as well as the proposed questions of law or jurisdiction on which the opinion of the High Court will be sought. It must also indicate the proposed grounds for appeal and include any application for bail pending appeal and the suspension of any disqualification pending appeal.
• A party wishing to make representations on the application must serve them on the court officer and any other parties within 10 days of service of the application for a case to be stated.
• The court may determine the application without a hearing.
• If the court refuses to state a case, it must serve notice of the decision on each party.
• If the applicant asks for written reasons, those written reasons must be served on each party no more than 15 business days after the request.

Question 16

D29.40 - Application for judicial review

Answer 16

• It possible to challenge a decision of the Crown Court by way of judicial review provided that the decision does not concern a matter relating to trial on indictment.
• Bail may be granted pending judicial review of a decision of the Crown Court.
• If a defendant convicted in the mags appeals to the Crown Court, any further appeal to the High Court on a point of law should be by way of case stated and not judicial review.