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Criminal Law and Practice > Appeals I > Flashcards

Appeals I Flashcards

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1
Q

What is the slip rule in the magistrates’?

A

The power magistrates’ has to vary a sentence/set aside conviction if in interests of justice to do so

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2
Q

Can the slip rule only be used after a conviction by the magistrates’?

A

No, can be used after guilty plea (whether for sentence, other order or conviction)

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3
Q

What is the slip rule power for and when will it be most appropriate?

A
  • To rectify mistakes in law/procedure whether at trial or sentencing
  • Most appropriate where all parties agree mistake was made

E.g. legal adviser provided incorrect advice, D had emergency hospital admission on day of trial and absence resulted in conviction

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4
Q

Can the slip rule be used by the D to argue that magistrates’ decision was wrong?

A

No - this is a matter for appeal

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5
Q

Who will make an application for the slip rule?

A

D, but court can make amendment of own volition

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6
Q

Will application and everything after be heard by the same magistrates?

A
  • Application can be heard by same magistrates
  • If conviction is set aside, the case will be retried by a different bench
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7
Q

Will the slip rule be used to reduce or increase a sentence?

A

Either!

  • More properly used to reduce e.g. financial penalty imposed was higher than maximum
  • But exceptionally used to increase e.g. court was misled by D
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8
Q

If D feels the magistrates have reached the wrong decision, what is the appropriate course of action?

A

Appeal!

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9
Q

What are the 3 means of challenge open to the D?

A
  1. Appeal to Crown Court by way of rehearing
  2. Appeal to High Court by way of case stated
  3. Application to the High Court for judicial review of the decision
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10
Q

Why would each of the 3 appeal routes be used?

A
  1. Magistrates made error of fact or mixed fact and law = appeal to Crown
  2. Magistrates made error of law or acted in excess of jurisdiction = appeal to High Court by way of case stated
  3. D alleges unfairness, bias or procedural irregularity = apply to High Court for judicial review
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11
Q

APPEALS FROM MAGISTRATES’ TO CROWN

Why would D appeal to Crown?

A

Magistrates has made an error of fact or mixed fact and law

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12
Q

APPEALS FROM MAGISTRATES’ TO CROWN

Does an appeal to Crown require leave from the court?

A

No

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13
Q

APPEALS FROM MAGISTRATES’ TO CROWN

Can a D always appeal against conviction and sentence?

A
  • D pleaded guilty = can appeal sentence
  • D pleaded not guilty and was found guilty at trial = can appeal conviction or sentence
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14
Q

APPEALS FROM MAGISTRATES’ TO CROWN

Will D ever be able to appeal against conviction if they pleaded not guilty?

A

No, unless they can demonstrate that plea was equivocal

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15
Q

APPEALS FROM MAGISTRATES’ TO CROWN

Can the prosecution appeal via this route?

A

No! Prosecution routes limited to other two (case stated and judicial review)

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16
Q

APPEALS FROM MAGISTRATES’ TO CROWN

What does it mean that a sentence is ‘at large’ once an appeal against conviction is in the Crown Court?

A

If the conviction is upheld, the Crown can pass any sentence that magistrates’ could have passed (maybe more severe than original)

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17
Q

APPEALS FROM MAGISTRATES’ TO CROWN

When must an appeal of notice be lodged? Is this different based on whether conviction or sentence? What happens if served outside this time?

A
  • Must be lodged within 15 business days of sentence
  • Same for appeals against conviction or sentence
  • If served outside this time = must be accompanied by application for exension with reasons for delay
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18
Q

APPEALS FROM MAGISTRATES’ TO CROWN

On whom should a notice be served and what must it specify?

A

Should be served on prosecution and magistrates’ and specify: conviction/setence/order being appealed, a summary of the issues, whether magistrates’ has been asked to reconsider, the parties on whom appeal notice has been served

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19
Q

APPEALS FROM MAGISTRATES’ TO CROWN

Following an appeal, how will a re-hearing proceed?

A
  • Sentence appeal = as if it is the original sentence hearing (facts presented and mitigation heard)
  • Conviction appeal = same way as original trial did (speeches, witnesses giving live evidence, relevant submissions)
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20
Q

APPEALS FROM MAGISTRATES’ TO CROWN

What evidence are the parties limited to? Who will hear the appeal?

A
  • Parties not limited (to evidence called during trial)
  • Heard by judge of Crown Court and 2 lay magistrates
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21
Q

APPEALS FROM MAGISTRATES’ TO CROWN

What cannot be amended by Crown court?

A

The written charge on which appellant was convicted

22
Q

APPEALS FROM MAGISTRATES’ TO CROWN

Is there right to bail pending appeal?

A

No, but D can apply for bail in magistrates’, then from Crown if refused

23
Q

APPEALS FROM MAGISTRATES’ TO CROWN

If a D wants to abandon their appeal, what should they do? What can the Crown not do after this?

A
  • Give notice in writing to magistrates’, Crown and prosecution
  • Once abandoned = Crown has no power to vary magistrates’
24
Q

APPEALS FROM MAGISTRATES’ TO CROWN

If the appellant fails to attend (no notice of abandonment served), does the appeal go ahead or is it treated as abandoned?

A
  • Not represented = treated as abandoned
  • Represented = appeal will go ahead
25
Q

APPEALS FROM MAGISTRATES’ TO CROWN

Once hearing has started, can an appeal be abandoned?

A

Only with permission from the Crown Crown

26
Q

APPEALS FROM MAGISTRATES’ TO CROWN

What 3 powers does the Crown have on appeal from the magistrates’?

A
  • Confirm, reverse or vary decision appealed against or any part of it
  • Remit the matter with its opinion to the magistrates’
  • Make any order the court thinks is just
27
Q

APPEALS FROM MAGISTRATES’ TO CROWN

When making an order which the court thinks is just, what is the Crown limited to?

A

The powers the magistrates could have

28
Q

APPEALS FROM MAGISTRATES’ TO CROWN

On a conviction appeal, will reasons for verdict involve a formal re-examination of magistrates’ decision?

A

No!

29
Q

APPEALS FROM MAGISTRATES’ TO CROWN

On a sentence appeal, can a sentence only be reduced or kept the same?

A

No, can be increased too!

30
Q

APPEALS FROM MAGISTRATES’ TO CROWN

What are the costs implications for a successful and unsuccessful applicant? What happens where appeal is abandoned?

A
  • Successful appellant awarded defence costs order
  • Unsuccessful appellant required to pay prosecution’s costs
  • Abandoned = costs can be awarded against appellant but usually only where notice served within 24 hours of appeal hearing/day itself
31
Q

APPEAL TO HIGH COURT BY WAY OF CASE STATED

Why would a D appeal to High Court by way of case stated?

A

Where decision was wrong in law/in excess of jurisdiction

32
Q

APPEAL TO HIGH COURT BY WAY OF CASE STATED

Can only D make appeal by way of case stated?

A

No - prosecution can too!

33
Q

APPEAL TO HIGH COURT BY WAY OF CASE STATED

What does it mean to ‘state a case’?

A

Question(s) about decisions of law or procedure which D asserts are wrongly decided is put to the High Court

“were the magistrates correct to find that the police officer was acting in the execution of duty when striking the appellant ten times with a baton?”

34
Q

APPEAL TO HIGH COURT BY WAY OF CASE STATED

What will the final case stated be and include? When will it not be the appropriate route of appeal?

A
  • Will be agreed by all parties (rmb only question of law/jurisdiction being asked, other parties have nothing to dispute)
  • Will include summary of evidence heard at trial, legal arguments on disputed decision, and details of decision itself

Not appropriate route where a matter of fact is disputed (as it must be agreed!)

35
Q

APPEAL TO HIGH COURT BY WAY OF CASE STATED

Once the case has been stated by the magistrates, how is it treated? By who will it be heard and what will be heard?

A
  • Treated like a civil matter
  • Heard by Divisional Court of QBD of High Court
  • Heard by at least 2 judges but usually 3
36
Q

APPEAL TO HIGH COURT BY WAY OF CASE STATED

Is evidence heard?

A

No - based only on legal submissions by the parties

37
Q

APPEAL TO HIGH COURT BY WAY OF CASE STATED

What is the only point at which a case can be stated? What is the deadline?

A
  • Only after final determination of magistrates’ proceedings (i.e. if proceedings adjourned, right cannot be exercised)
  • Deadline = 21 days after date of decision sought to be appealed (unless sentence adjourned after conviction - in which case date of decision is deemed to be date of sentence)
38
Q

APPEAL TO HIGH COURT BY WAY OF CASE STATED

When can magistrates’ refuse to state a case? Can bail be granted?

A
  • If a case is considered vexatious, magistrates can refuse to state a case
  • Bail pending appeal can be granted by magistrates or on refusal by High Court
39
Q

APPEAL TO HIGH COURT BY WAY OF CASE STATED

If a D appeals by way of case stated, what right is lost? Is this true the other way around?

A
  • The right to appeal to the Crown Court is lost
  • If appeal to Crown and they uphold magistrates’ decision, can still appeal by way of case stated from Crown
40
Q

APPEAL TO HIGH COURT BY WAY OF CASE STATED

What are the powers of the Divisional Court when a case is stated?

A
  • Reverse, affirm, or amend magistrates’ court decision
  • Remit the case with an opinion
  • Make any other order as it sees fit
41
Q

APPEAL TO HIGH COURT BY WAY OF CASE STATED

Where will an appeal from High Court in relation to appeal by way of case stated be directed?

A

To Supreme Court

42
Q

APPEAL TO HIGH COURT FOR JUDICIAL REVIEW

What are the 3 principal grounds on which judicial review can be applied for?

A
  1. Error of law on face of the records (error disclosed by court records)
  2. Excess of jurisdiction
  3. Breach of natural justice
43
Q

APPEAL TO HIGH COURT FOR JUDICIAL REVIEW

What does a ‘breach of natural justice’ include?

A

Matters like…

  • Prosecution failing to disclose statement of a witness that might assist defence
  • Magistrates failing to grant adjournment to allow witness to attend
  • Failing to give defence adequate time to prepare case
44
Q

APPEAL TO HIGH COURT FOR JUDICIAL REVIEW

Can only D apply for judicial review?

A

No - prosecution can also

45
Q

APPEAL TO HIGH COURT FOR JUDICIAL REVIEW

Where should the proceedings be at before application is made? Is this always the case?

A

Proceedings should have been concluded before application made - but decision to prosecute can be subject to review

46
Q

APPEAL TO HIGH COURT FOR JUDICIAL REVIEW

When should application for judicial review be lodged? What will a failure to lodge result in?

A
  • Promptly and in any event within 3 months after grounds arose
  • Failure to lodge = application can be rejected (even if lodged within 3 months)

NOTE that even if lodged within 3 months, can still be rejected!

47
Q

APPEAL TO HIGH COURT FOR JUDICIAL REVIEW

What is the only court with the power to g rant bail to applicant for judicial review?

A

High Court

48
Q

APPEAL TO HIGH COURT FOR JUDICIAL REVIEW

What else - other than a decision of the magistrates’ - can be subject to judicial review?

A

A decision made by the Crown Court on appeal from the magistrates’

49
Q

When would case stated be more appropriate and when would judicial review be more appropriate?

A
  • Way of case stated = misdirection or an error of law
  • Judicial review = issue of fact to be raised and decided which judges did not decide themselves / has been unfairness or bias in conduct

Would be wrong to seek judicial review where case stated was appropriate merely to avoid more stringent time-limit

50
Q

APPEAL TO HIGH COURT FOR JUDICIAL REVIEW

What are the powers of judicial review?

A
  • Quashing order
  • Declaration
  • Vary sentence
  • Remit
  • Damages (rare)
51
Q

What are the risks to the appellant for each of the 3 routes of appeal?

A
  • To Crown = increased sentence, costs
  • Case stated = lose right of appeal to CC
  • JR = costs and delay

Criminal Law and Practice (21 decks)

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