Appeals II

Question 1

Does the Crown have the same slip rule as the magistrates’?

Answer 1

Has own version - only applies to sentences and other orders e.g. driving ban, compensation

Question 2

When can a judge vary/rescind a sentence (or other order) using the slip rule? What judge must this be?

Answer 2

• Within 56 days of it being made
• Must be the same judge who passed the sentence

Question 3

Can the slip rule be used following appeal from magistrates’?

Answer 3

Yes!

Lay magistrates need not attend slip rule hearing

Question 4

What is the purpose of the Crown’s slip rule?

Answer 4

Save time and money in removing need for either party to appeal in cases where a recognisable error has been made in sentence

Question 5

What does the slip rule extend to beyond amending length of sentence/correcting technical errors?

Answer 5

Amending type of sentence or requirements attached to a community based sentence

E.g. if a D presented mitigation that they were the sole carer for a sick relative and on this basis a sentence of imprisonment was suspended, the Court can amend this to impose immediate custody if they discover that the mitigation was false.

Question 6

What are the 8 types of cases from the Crown Court that the Court of Appeal Criminal Division has jurisdiction to hear?

Answer 6

1. Appeals against conviction on indictment
2. Appeals against sentence passed following conviction on indictment
3. Appeals against sentence passed on commital for sentence
4. References by the Attorney-General of unduly lenient sentences, for offences triable only on indictment and some either-way offences specified by the Home Secretary;
5. References by the Attorney-General for opinions on points of law following acquittal on indictment;
6. References by the Criminal Cases Review Commission;
7. Prosecution appeals against terminatory rulings;
8. Appeals against rulings made at preparatory hearings in serious fraud cases.

The first three are necessarily defence appeals

Question 7

Is leave required to appeal to the Court of Appeal?

Answer 7

Yes

Question 8

Who does an appellant from the Crown Court need to convince and of what when obtaining leave to appeal?

Answer 8

Need to convince a single judge that their appeal is arguable on the merits

Question 9

If an appellant from Crown convinces a single judge that their appeal is arguable on the merits, what will it proceed to?

Answer 9

An oral hearing before a 2 judge court (sentence appeal) or 3 judge court (conviction appeal)

Question 10

Where a Crown appellant is refused by the single judge, what can a party do?

Answer 10

Renew an application for leave orally before the relevant panel

Question 11

NB The law and procedure is largely the same for both appeals against conviction and sentence so can be dealt with together

Question 12

What is the time limit for serving a notice of appeal and on whom must it be served?

(This is part of the convincing single judge thing, not on to renewals yet!)

Answer 12

28 days of sentence (in sentence appeals) or conviction (in conviction appeals) on the Registrar of the Criminal Division of the Court of Appeal

Question 13

What is a notice of appeal form called?

Answer 13

Form NG

Question 14

How is the 28 day time limit be extended? What happens in practice?

Answer 14

• At the court’s discretion when reasons are given for delay
• In practice: if Court finds merit in grounds of appeal they are likely to allow the extension to prevent injustice

Question 15

After conviction/sentence, what are the duties of counsel?

Answer 15

Oral advice to be given by counsel regarding grounds (and draft to follow…)

Question 16

What is the difference in what counsel must do if there are no grounds v if there are grounds?

Answer 16

• No grounds = negative advice prepared and sent to D’s solicitors
• Are grounds = clearly and precisely drafted and sent to D’s solicitors

Question 17

If there are grounds, what must counsel draft?

Answer 17

• Advice - setting out advice on merits of appeal
• Grounds - setting out proposed grounds on which they advise an appeal has merit

Drafted as one document

Question 18

As part of the single document drafted by Counsel, what should be identified and why?

Answer 18

Any transcripts - so Registrar can obtain transcripts to assist single judge (see exactly what was said) and enable counsel to ‘perfect’ their grounds

Transcripts identified in practice done by keeping good notes and keeping track of dates and times of any rulings during the trial.

Question 19

In conviction and sentence cases, what transcripts are usually obtained as a matter of course?

Answer 19

• Conviction - summing up and proceedings up to and including verdict
• Sentence - sentencing remarks and prosecution opening of facts where sentence takes place following guilty plea

Question 20

What are the only grounds Counsel should draft? What do unmeritorious appeals risk?

Answer 20

Those that are:

• Reasonable
• Have some real prospects of success
• Are prepared to argue before the court

Unmeritorious grounds risk a loss of time order (see later)

Counsel’s positive advice does not guarantee protection from loss of time order

Question 21

Once Advice and Grounds received by solicitor and sent to D for approval, must Form NG be signed by the D before sent to Registrar? What will form NG be sent to Registrar with?

Answer 21

• Can be signed on D’s behalf if they have instructions to do so
• Sent to Registrar with counsel’s advice and grounds

The Crown Court will send the relevant papers from their file to the Court of Appeal along with the defence appeal documents - enables the Registrar to confirm what happened at the lower court e.g. what sentence has been recorded and when the appellant was convicted.

Question 22

What does it mean for a trial judge to certify the case as ‘fit for appeal’?

Answer 22

Means leave is not required but counsel have to comply with appeal procedure in usual way

Unusual - would require the judge to consider that they had made an error e.g. interpreting new piece of legislation and can equally see losing side’s argument; require CoA’s guidance

Question 23

What is involved in ‘perfecting grounds’?

Answer 23

Transcripts are received and counsel invited to ‘perfect grounds’ within 14 days; adding references to transcripts or reconsidering grounds (amending/deleting in light of transcripts)

Question 24

What should counsel do if…

• Does not wish to perfect
• Do wish and have perfeced
• Decides appeal no longer arguable

Answer 24

• Does not wish to perfect = notify Registrar
• Do wish and have perfeced = prepare fresh document
• Decides appeal no longer arguable = advise appellant’s solicitors in writing (and inform Registrar)

Question 25

Why would the Registrar direct that the prosecution serve a response?

Answer 25

To assist the single judge (where there is an issue regarding public interest immunity or where there is criticism of the trial judge)

Question 26

How is the application to appeal considered by the Court of Appeal?

Answer 26

On the papers alone (no oral) by a single judge

Question 27

What are the 3 options to the single judge considering the application?

Answer 27

1. Grant the application (in whole or part)
2. Refuse the application
3. Refer it to the full Court of Appeal without granting leave

Question 28

If leave is refused by the single judge (or granted on some grounds but not others) what can the appellant do? What does the appellant have to do to effect this?

Answer 28

• Can renew the application for leave to appeal
• Must serve relevant form on CoA within 10 business days of receipt of single judge’s decision

Question 29

How is a renewed application for leave to appeal heard?

Answer 29

Orally by full court of 2 or 3 judges

No representation order is available but counsel may appear either privately or on a pro bono basis (must notify the court in writing ASAP)

Question 30

Why would D consider not renewing the application?

Answer 30

The single judge may have found the application to be wholly without merit and has indicated the court should consider a loss of time order if renewed

Question 31

Where will the Registrar use its power to refer a case to the full court (bypassing the single judge and asking full court to decide application for leave)?

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

Answer 31

Where…

• There is an unlawful sentence which must be amended
• There is a novel point of law
• Where the matter requires expedition (seriously ill/elderly applicant)

Question 32

Summary of chronology of appeal to the CoA from the Crown

Answer 32

0. Leave no needed if judge certifies case as fit for appeal (rare), if not…
1. Notice of appeal sent to Crown Court within 28 days (of conviction or sentence)
2. Registrar will either send to single judge or refer directly to full CoA - if refused appellant has 10 business days to renew application for full leave
3. If leave is granted the matter is listed for appeal before 2 judges (sentence appeal) or 3 judges (conviction appeal)

Question 33

What are the common grounds for appeal against conviction?

Answer 33

• 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 34

What are the common grounds for appeal against sentence?

Answer 34

• 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 35

Can a D appeal a conviction to the CoA where they have pleaded guilty?

Answer 35

Yes - open to the court to rule plea a nullity and quash conviction

Question 36

What is the most common such ground where the court will rule a guilty plea as a nullity and quash the conviction?

Answer 36

I guilty plea was entered following a legal ruling by the trial judge which left no option but to plead guilty - if that ruling is itself appealed and held to be incorrect the resultant guilty plea will be quashed.

Question 37

Can an appeal be mounted on the basis of incorrect legal advice? What if the advice was correct?

Answer 37

• Yes - but more usual to apply first to the Crown Court to vacate plea
• If advice is correct and the plea was entered of D’s own free will = unlikely to be interfered with by either court

This highlights the importance of advising a client accurately on plea, ensuring that they know it is their choice how to plead and getting an endorsement that the client has been so advised and makes decision freely.

Question 38

What representation order will the registrar/single judge grant when leave is granted? Will the respondent be represented?

Answer 38

• A representation for junior counsel (extended to solicitor if work is necessary)
• Respondent represented at conviction appeal but not usually at sentence appeal

Question 39

In what circumstances should a skeleton be served? When are they most commonly needed?

Answer 39

• Where appeal notice does not sufficiently outline the grounds
• Most commonly needed in cases involving novel point of law/complex issues

Question 40

If skeletons are to be served, when should they be?

Answer 40

• Appellant = 21 days prior to hearing
• Respondent = 14 days prior to hearing

Question 41

Is an appellant entitled to be present at hearing of appeal?

Answer 41

Yes (unless in custody in which case court’s permission required)

Question 42

If leave is granted (on paper or at oral hearing), what are the tests for an appeal against conviction and appeal against sentence?

Answer 42

• Appeal against conviction = court can only allow appeal if they think conviction is unsafe
• Appeal against sentence = court can allow appeal if court thinks D should have been sentenced differently

Question 43

What are the CoA’s powers on appeal against conviction?

Answer 43

• Quash conviction
• Order appellant to be retried
• Substitute a verdict of guilty for an alternative offence

Sentence may need to be amended to reflect these

Question 44

On an appeal against conviction, what are the 2 conditions where the court substitutes a verdict of guilty for an alternative offence?

Answer 44

• Jury were able to convict of the alternative offence at trial; and
• Jury were satisfied of facts which proved guilt

Question 45

What are the CoA’s powers on appeal against sentence?

Answer 45

• Quash sentence
• In place of sentence pass any such sentence/order as appropriate which court below had power to pass or make

Question 46

What must the CoA ensure when using their powers in an appeal against sentence?

Answer 46

That the appellant is not more severely dealt with on appeal than they were in court below

Question 47

What is a loss of time order? Why would it be imposed?

Answer 47

• CoA directs that some/all time spent in prison between date of lodging appeal and date of dismissal not count towards appellant’s sentence
• May be imposed where application is considered to be wholly without merit

Question 48

When can a loss of time order be made?

Answer 48

• Most commonly by full court following refusal of a renewed application for leave (esp where single judge has indicated)
• Less commonly by single judge considering paper application for leave

Question 49

Is the Court of Appeal limited to evidence called in original proceedings?

Answer 49

No - can admit evidence which was not called at original proceedings

Question 50

Can prosecution also call new evidence?

Answer 50

Yes - except where purpose is to argue a new basis for conviction

Question 51

What 3 things may the CoA with regards to evidence if they think it necessary/expedient in the interests of justice?

Answer 51

1. Order production of any document, exhibit or thing connected with proceedings if necessary for determination of the case
2. Order any witness to attend for examination (regardless of whether they were called in original proceedings)
3. Receive evidence which was not adduced in proceedings from which appeal lies

The provision means that jurors and legal representatives (subject to waiver of privilege) can be compelled to attend and give evidence on appeal.

Question 52

What factors does the court have regard to when considering whether to receive any evidence?

Answer 52

• Whether evidence appears capable of belief
• Whether the evidence may afford ground for allowing appeal
• Whether evidence would have been admissible in proceedings from which appeal lies
• Whether there is a reasonable explanation for failure to adduce in original proceedings

Question 53

Will a reference by Attorney-General on point of law following acquittal following trial on indictment have effect on acquittal?

Answer 53

No - acquittal will stand either way; power is intended to clarify law

D entitled to be represented

Question 54

Where Attorney-General references for a review of sentence, what are the only cases that can be referred and when can a sentence be increased?

Answer 54

• Can only refer cases which are triable only on indictment
• Sentence can be increased if it is found to be unduly lenient

Some discount will, however, be given for ‘double jeopardy’; compensating a defendant for having to wait before knowing if their sentence will be increased

Question 55

What can the Criminal Cases Review Commission (CCRC) do? What question will it ask itself in doing so?

Answer 55

• Refer any conviction on indictment or sentence to CoA or to Crown Court if conviction/sentence is summary
• Q: Is there a real possibility that CoA will quash original conviction/sentence?

If the CCRC chooses to make such a reference = usually only in respect of an argument or information not available in the court of first instance or on appeal, save for where exceptional circumstances exist.

Question 56

What does it mean for a prosecution to appeal against terminatory rulings? To which court is the appeal?

Answer 56

Prosecution appeals against rulings that would otherwise bring the case to an end (terminatory ruling) - appeal is to the CoA

I.e. where prosecution wants to challenge an adverse decision of the judge made at trial

Some examples of rulings which would be appealable under this section are:
* Staying proceedings as an abuse of the court’s process;
* Rulings of no case to answer;
* Evidential ruling which leaves the prosecution with no evidence to offer.

Question 57

What are the 3 requirements for prosecution appeals against terminatory rulings?

Answer 57

1. Ruling made before summing up
2. Acquittal agreement must be given by prosecution
3. Ruling must not be appealable to CoA by other means

Question 58

What is an acquittal agreement (as 2nd requirement for prosecution appeals against terminatory rulings)?

Answer 58

An assurance to the court and D that if leave to appeal is refused and the appeal abandoned efore it is decided by CoA, the D will be acquitted on that count(s)

Question 59

Where the prosecution wants to proceed with an appeal against terminatory ruling, how could it do this?

Answer 59

• Notify judge they wish to appeal immediately / ask for short adjournment to speak to CPS lawyer (will be until next business day)
• After, counsel should serve written notice of appeal on court, Registrar and D
• Prosecution then has 5 business days to serve written notice in non-expedited cases or next business day in expedited appeal case

Question 60

Can the prosecution apply for leave (against terminatory ruling) orally?

Answer 60

Yes - trial judges will hear representations from defence on same day as application unless in interests of justice to allow further time to respond

Trial judge will decide if there is a real prospect of success on appeal.

Question 61

If an application to the trial judge fails, what can the prosecution still do?

Answer 61

Lodge notice of appeal and proceed to the Court of Appeal

Question 62

What is a preparatory hearing? Who can appeal rulings made at these hearings and where to?

Answer 62

• Preparatory hearing = a form of case management hearing held in long, complex or fraud cases
• Both prosecution and defence can appeal rulings made at these hearings to the CoA

Question 63

If the prosecution or defence wanted to appeal a decision of the CoA to the Supreme Court, what would either court need to certify?

Answer 63

That case involved a point of law on general public importance

Question 64

When must an application to the CoA for leave to appeal to the Supreme Court be made?

Answer 64

No more than 28 days after court gives reasons for its decision (and no more than 14 days after the court gives reasons in an AG Reference case)