Chapter 7: Appeals

Question 1

1 Appeals – Magistrates’ decisions
1.1 The power to rectify mistakes

Answer 1

If the defendant is unhappy with the decision of the magistrates’ court the first step to consider is
whether the magistrates have made an error which they themselves can correct. Section 142 of the Magistrates’ Court Act 1980 gives the magistrates court the power to vary a sentence or set aside a conviction if it is in the interests of justice to do so. This applies to sentence, other orders
and conviction - whether following conviction by the magistrates or after a guilty plea. The latter is understandably rare. It may occur, for example, if the defendant was wrongly advised as to the law, albeit he would have the difficult burden of proving this.

Question 2

1.1 The power to rectify mistakes

Answer 2

The power, commonly known as the ‘slip rule’, is a narrow one and is not intended as an alternative avenue for the defendant to simply re-argue their case. Case law has made it clear that it is a power to rectify mistakes in law and procedure, whether at
trial or sentencing, and is most likely to be appropriate (and to succeed) where all parties agree that a mistake was made. It is not intended to permit a defendant to argue that the magistrates’ decision on their case was
wrong - that is a matter for an appeal.

Question 3

1.1 The power to rectify mistakes

Answer 3

While the defendant will usually make an application, the court can make an amendment under this provision of their own volition. An application can be heard by the same magistrates who
convicted the defendant but if the conviction is set aside the case will be re-tried by a different bench.

Question 4

A finding of guilt might be set aside, for example where the:

Answer 4

legal adviser provided the magistrates with incorrect legal advice; or
* defendant did not attend for trial and no explanation for the defendant’s absence was available at the time. The defendant was therefore tried in their absence and found guilty. A few days later the defendant attends court with a medical certificate stating that an emergency hospital admission on the day of trial was the reason that the defendant was not fit to attend court. In these circumstances it would clearly be in the interests of justice that the conviction is set aside.

Question 5

1.1 The power to rectify mistakes

Answer 5

On applications to vary sentence the power is more properly used where the sentence needs to be reduced, for example where a financial penalty was imposed which was higher than the statutory maximum for the offence. However, exceptionally, a sentence can be increased under s.142, for example, if the court was misled by the defendant

Question 6

1.2 Challenging magistrates’ court decisions

Answer 6

If a defendant feels that the magistrates have reached the wrong decision on the substantive
merits then the appropriate course is to appeal. The three means of challenge open to the defendant are as follows:
(a) Appeal to the Crown Court, by way of re-hearing;
(b) Appeal to the High Court, by way of case stated; or
(c) Application to the High Court for judicial review of the decision.
The choice of either (a), (b) or (c) depends upon the decision that is to be challenged

Question 7

1.2.1 Which appeal route?

Answer 7

Key case: R v Hereford Magistrates’ Court ex p Rowlands [1997] 2 Cr App R 340. The court considered this and advised the following approach:
(a) Where the defendant complains that the magistrates made an error of fact or mixed fact and
law, the defendant should appeal to the Crown Court.
(b) Where the defendant complains that the magistrates made an error of law or acted in excess of their jurisdiction, the defendant should appeal by way of case stated.
(c) Where the defendant alleges unfairness, bias or procedural irregularity the defendant should
apply for judicial review of the decision

Question 8

1.3 Appeals from the magistrates’ court to the Crown Court

Answer 8

Section 108 of the Magistrates’ Court Act 1980 provides a right of appeal from the magistrates’ court to the Crown Court. It is by far the most common route out of the three means of challenge. It is an automatic right that does not require leave. It provides that a person convicted by a
magistrates’ court may appeal to the Crown Court:
* If the defendant pleaded guilty, against sentence; or
* If the defendant pleaded not guilty and was found guilty after a trial, against the conviction or
sentence.

Question 9

1.3 Appeals from the magistrates’ court to the Crown Court

Answer 9

The prosecution cannot appeal via this route. Its options of redress are limited to the other two
means of challenge: case stated or judicial review.
* Even if the defendant appeals against conviction only, once in the Crown Court sentence is ‘at
large’. This means that, if the conviction is upheld, the Crown Court can pass any sentence
that the magistrates’ court could have passed. This includes one that is more severe than the
original sentence.
* If the defendant pleaded guilty, an appeal against sentence is the only option, unless the
defendant can demonstrate that their plea was equivocal.

Question 10

1.3.1 Procedure on appeal to the Crown Court

Answer 10

Notice of appeal must be lodged within 15 business days of sentence, irrespective of whether the
appeal is against conviction or sentence. The notice of appeal must be served on the magistrates’
court and the prosecution. It must specify the following (CrimPR Pt 34.3):
* The conviction, sentence, order or decision which the appellant wishes to appeal, including the
court and date of this.
* Summarise the issues.
* State whether the magistrates’ court has been asked to reconsider its decision (under s.142
MCA 1980) or why this is not applicable.
* List the parties on whom the appeal notice has been served

Question 11

1.3.1 Procedure on appeal to the Crown Court

Answer 11

If the Notice is served outside the 15 business day limit it must be accompanied by an application
for an extension of time, with reasons for the delay (Pt 34.2). Part 34 of the Criminal Procedure Rules sets out the procedural requirements. CPR Pt 34.3 (b - d) go into detail of what must be included, eg the issues at trial / which witnesses are required. You should read and be familiar with this.

Question 12

1.3.2 The hearing

Answer 12

The appeal is by way of a re-hearing. A conviction appeal will proceed in precisely the same way as the original trial, with speeches, witnesses giving live evidence and any relevant submissions. Parties are not limited to the evidence that was called during the trial. Importantly, the information (the written charge on which the appellant was convicted) cannot be amended by the Crown Court.

Question 13

The hearing

Answer 13

The appeal will be heard by a judge of the Crown Court and two lay magistrates. Exceptionally, the court can proceed with just one lay justice if the hearing of the appeal might
otherwise be unreasonably delayed. At a sentence appeal the hearing proceeds as if it is the original sentence hearing, with the facts presented and mitigation heard.

Question 14

1.3.3 Bail

Answer 14

Bail pending appeal can be applied for in the magistrates’ court (s.113 MCA 1980). If refused an appellant may apply for bail from the Crown Court. Under the Bail Act 1976 there is no right to bail pending appeal.

Question 15

1.3.4 Abandonment

Answer 15

The appellant may abandon their appeal at any time. Once an appeal has been abandoned the Crown Court has no power to vary the magistrates’ decisions. In order to abandon an appeal, the appellant should give notice in writing to the magistrates’ court, the Crown Court and the
prosecution (CrimPR 34.9). If the appellant fails to attend and is not represented, the appeal is treated as abandoned. If they fail to attend and they are represented, the appeal will go ahead. Permission from the Crown Court is required to abandon once the hearing has started.

Question 16

1.3.5 Powers on appeal

Answer 16

Section 48(2) of the Senior Courts Act 1981 provides the powers of the Crown Court on appeal from the magistrates’.
It can:
* confirm, reverse or vary the decision appealed against or any part of it;
* remit the matter with its opinion to the magistrates;
* make any other order which the court thinks is just, so long as they exercise only the power the
magistrates could have

Question 17

1.3.6 Conviction appeal

Answer 17

In a conviction appeal, the Crown Court will hear the evidence and must give reasons for the verdict reached.
The reasons do not involve a formal re-examination of the magistrates decision.

Question 18

1.3.7 Sentence appeal

Answer 18

In a sentence appeal, again, the magistrates’ sentence is not formally re-examined. The appeal
panel will consider whether, in light of all they have heard, the sentence imposed by the magistrates was correct. Sentence can be both increased and reduced.

Question 19

Costs

Answer 19

A successful appellant may be awarded a defence costs order. An unsuccessful appellant may be
required to pay the prosecution’s costs (sections 16(3) & 18(1)(b) Prosecution of Offences Act 1985 and CrimPR Pt 45.6). Where an appeal is abandoned costs can be awarded against the appellant but in practice this usually occurs only where the notice of abandonment is served within 24 hours
of the appeal hearing or on the day itself.

Question 20

1.4 Appeal by way of Case Stated

Answer 20

Section 111 Magistrates’ Court Act 1980 provides for an appeal by way of case stated. This a form
of appeal to the High Court on the basis that the decision made was wrong in law or in excess of
jurisdiction. The defendant applies to the magistrates’ court to ‘state a case’ for the opinion of the High Court.
This will take the form of a question (or questions) about decisions of law or procedure which the defendant asserts were wrongly decided.

Question 21

1.4 Appeal by way of Case Stated

Answer 21

An example of a question might be ‘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?’. The example may be extreme but it demonstrates the point!
The final ‘case stated’ will be agreed by all parties and will include a summary of the evidence heard at trial, legal arguments on the disputed decision and the details of the decision itself. For this reason this is not the appropriate route of appeal where a matter of fact is disputed.

Question 22

1.4 Appeal by way of Case Stated

Answer 22

The procedure for the application and stating of the case is dealt with in Crim PR Pt 35. Once the case has been stated by the magistrates it is treated as a civil matter for procedural purposes and regulated by Part 52E of the Civil Procedure Rules. The appeal is heard by the Divisional Court of the Queen’s Bench division of the High Court. The court will comprise at least two judges, usually three. No evidence is heard, it is based on legal submissions by the parties.

Question 23

The main points to note are:

Answer 23

Both the prosecution and defence can appeal by way of case stated.
* It can only be used after the final determination of proceedings in the magistrates’ court. If trial proceedings are adjourned the right cannot be exercised in this period.
* The deadline is 21 days from the date of the decision sought to be appealed, save that: where sentence is adjourned following conviction the date of decision is deemed to be the date of
sentence, even where conviction is being appealed.
* Magistrates can refuse to state a case if it is considered vexatious.

Question 24

The main points to note are:

Answer 24

• Bail pending appeal can be granted by the magistrates or, if refused, the High Court.
• If you appeal by way of case stated you lose your right to appeal to the Crown Court under
  section 108.
• If you appeal to the Crown Court under section 108 and the Crown Court uphold the decision
  of the magistrates, you can appeal by way of case stated from the Crown Court.
• The powers of the Divisional Court are that it may reverse, affirm or amend the magistrates’ court decision; remit the case with an opinion or make any other order as it sees fit.
• An appeal from the High Court in relation to an appeal by way of case stated is direct to the
  Supreme Court.

Question 25

1.5 Application for Judicial Review

Answer 25

Judicial review is the means by which the High Court (again the Divisional Court of the QBD) polices inferior tribunals and public bodies. The principal grounds where a review can be applied for are - error of law on the face of the records (i.e. an error disclosed by the court records),
excess of jurisdiction and a breach of natural justice.

The latter has been widely interpreted and includes matters such as the prosecution failing to disclose a statement of a witness that might assist the defence, the magistrates failing to grant an adjournment to allow a witness to attend and failing to give the defence adequate time to prepare their case.

Question 26

The main points to note are:

Answer 26

Both the prosecution and defence can apply for judicial review.
* The proceedings should have been concluded before an application is made, although a
decision to prosecute can be subject to review.
* Applications for judicial review must be lodged promptly and in any event within three months
after the grounds arose. A failure to lodge promptly can lead to the application being rejected
even when lodged within three months.
* Only the High Court has power to grant bail to an applicant for judicial review.

Question 27

The main points to note are:

Answer 27

• A decision made by the Crown Court on appeal from the magistrates’ court can be subject to judicial review. Where it concerns an error of law it should be by way of case stated
  (Gloucester Crown Court ex party Chester [1998] COD 365).
• Where an exercise of discretion is involved the standard is ‘Wednesbury unreasonableness’
  (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).
• An appeal from the High Court in relation to a judicial review is direct to the Supreme Court.

Question 28

1.6 Case stated or judicial review?

Answer 28

Key case: R (P) v Liverpool City Magistrates (2006) 170 JP 453
The court offered some guidance on which route to pursue:
* The normal route where it is alleged that there has been a misdirection or an error of law is by way of case stated;
* It would be wrong to seek judicial review where case stated was appropriate, merely in order to
avoid the more stringent time-limit;
* However, judicial review is more appropriate where there is an issue of fact to be raised and decided which the justices did not decide themselves;
* Judicial review may also be appropriate where it is alleged that there has been unfairness or
bias in the conduct of the case by the justices.

Question 29

1.7 Summary

Answer 29

This section explored:
* the power to rectify mistakes; and
* appeals against decisions of the magistrates’ court to:
- the Crown Court- if D complains there was an error of fact or fact and law;
- the High Court by way of case stated- if D complains there was an error of law or the magistrates’ acted in excess of jurisdiction; or
- the High Court, making an application for judicial review if D alleges unfairness, bias or procedural irregularity.

Question 30

Appeals – Crown Court decisions
2.1 The power to rectify mistakes at sentence - slip rule

Answer 30

The Crown Court has its own version of the ‘slip rule’ although it only applies to sentences and other orders, such as a driving ban or compensation. Section 385 Sentencing Act 2020 empowers a judge to vary or rescind a sentence (or other order) within 56 days of it being made. The judge who passed sentence must be the judge who makes the variation. It can be used following sentence on an appeal from the magistrates’ court, however, in this instance the lay magistrates do not need to attend the slip rule hearing

Question 31

Purpose of the slip rule is to save time and money

Answer 31

The purpose of the slip rule is to save both time and money in removing the need for either party to appeal in cases where a recognisable error has been made in the sentence. Therefore if an
appeal, or application for leave to appeal, has been decided by the Court of Appeal then the Slip Rule can no longer be used.

Question 32

Not limited to amending the length of the sentence

Answer 32

The use of the slip rule is not limited to amending the length of the sentence or correcting minor technical errors, but permits amending the type of sentence or requirements attached to a community based sentence.

Question 33

Example: Slip rule

Answer 33

For example, if a defendant 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.
On the other hand, a defendant who, a week after receiving a community order, obtains work on a nightshift may have a curfew removed to enable this. It would almost certainly be replaced by
an alternative requirement.

Question 34

2.2 The Court of Appeal

Answer 34

The Court of Appeal Criminal Division has jurisdiction to hear certain types of case from the Crown Court. We are primarily concerned with the following (non-exhaustive) list:
(a) Appeals against conviction on indictment;
(b) Appeals against sentence passed following conviction on indictment;
(c) Appeals against sentence passed on committal for sentence;
(d) 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;

Question 35

The Court of Appeal

Answer 35

(e) References by the Attorney-General for opinions on points of law following acquittal on indictment;
(f) References by the Criminal Cases Review Commission;
(g) Prosecution appeals against terminatory rulings;
(h) Appeals against rulings made at preparatory hearings in serious fraud cases. The first three are necessarily defence appeals.

Question 36

These powers of appeal come from the following sections of the Criminal Appeal Act 1968:

Answer 36

These powers of appeal come from the following sections of the Criminal Appeal Act 1968:
* Against conviction – ss. 1 & 2
* Against sentence following conviction on indictment – ss. 9 & 11
* Against sentence following committal for sentence – ss. 10 & 11

Question 37

Leave is required to appeal

Answer 37

Leave is required to appeal to the Court of Appeal. Appellants from the Crown Court need to convince a single judge that their appeal is arguable on the merits before it can proceed to an
oral hearing before a 2 judge court (sentence appeals) or a 3 judge court (conviction appeals). If leave if refused by the single judge a party may renew an application for leave orally before the relevant panel. The law and procedure is largely the same for both appeals against conviction and sentence so can be dealt with together.

Question 38

2.3.1 Time limits for lodging grounds

Answer 38

The Notice of Appeal (Form NG) must, since October 2018, be served on the Registrar of the Criminal Division of the Court of Appeal. The notice must be served within 28 days of the conviction, in conviction appeals, and within 28 days of sentence, in sentence appeals. This time limit can be extended - the extension must be applied for when serving Form NG, giving reasons
for the delay. Whether to permit this is a matter of the Court’s discretion. In practice, if the Court finds merit in the grounds of appeal they are likely to allow the extension in order to prevent
injustice. The rest of this section will refer to court forms by their abbreviation which makes it easier to describe.

Question 39

2.3.2 Advising on appeal: Duties of Counsel

Answer 39

Counsel should advise promptly.
Oral advice should be given immediately after conviction/sentence.
If there are no grounds a negative advice should be prepared and sent to the defendant’s solicitors. If there are grounds, they should be clearly and precisely drafted and sent to the defendant’s solicitors.

Question 40

Drafting advice

Answer 40

Counsel must draft an Advice, setting out their advice on the merits of an appeal and Grounds, setting out the proposed grounds on which they advise an appeal has merit.

Question 41

Advice and groud drafted as a document

Answer 41

The Advice and Grounds should be drafted as one document. It should identify any transcripts which are necessary. In practice this is done by keeping good notes and keeping track of dates and times of any rulings during the trial. This enables the Registrar to obtain the transcripts to assist the single judge and enable counsel to ‘perfect’ their grounds (see later). Counsel should also provide a list of authorities, if they seek to rely upon any.

Question 42

Draft grounds which are reasonable

Answer 42

Counsel should only draft grounds which are reasonable, have some real prospect of success and that they are prepared to argue before the court. Unmeritorious appeals risk a ‘loss of time’ order (see later) and counsel’s positive advice does not guarantee protection from this

Question 43

Sent to defendant for approval

Answer 43

Once the Advice and Grounds have been received by the solicitor they should be sent to the defendant for approval. Form NG can be signed by the solicitor on the defendant’s behalf, if they have instructions to do so. Form NG will be sent to the Registrar, along 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. This 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 44

2.3.3 Certificate of Trial Judge

Answer 44

In exceptional cases the trial judge may certify the case as ‘fit for appeal’. This is unusual as it would require the judge to consider that they had made an error. It is certainly not a routine
application at the end of a trial that you have lost. An example of where a certificate may be granted is where a judge is required to interpret a new
piece of legislation; they take a view but can equally see the force of the losing party’s argument and it is something on which the Court of Appeal’s guidance is sought.
If a certificate is granted, then leave is not required but counsel do have to comply with the appeal procedure in the usual way

Question 45

2.3.4 Transcripts

Answer 45

All Crown Court proceedings are digitally recorded. Transcripts are ordered by the Registrar if
they are required in order to resolve the appeal. For example, if one of the Grounds of Appeal is that the judge made an incorrect ruling on a
matter of law counsel should, in the Advice, provide the date and time that the judge gave that ruling. The Registrar can then obtain the transcript of the ruling so that the Court of Appeal can determine exactly what was said.

Question 46

2.3.4 Transcripts

Answer 46

In conviction cases the summing up and proceedings up to and including the verdict are usually obtained as a matter of course. In sentence cases, the sentencing remarks are obtained and any prosecution opening of facts where the sentence takes place following a guilty plea.

Question 47

2.3.5 Perfecting grounds

Answer 47

When transcripts are received counsel will be sent a copy and invited to ‘perfect’ grounds within 14 days i.e. adding references to the transcripts to support the arguments advanced or
reconsidering the grounds and perhaps amending / deleting or advancing new ones in light of the transcripts.
If counsel does not wish to perfect, they should notify the Registrar.

Question 48

2.3.5 Perfecting grounds

Answer 48

Perfected grounds should be in a fresh document and clearly marked as such.
If counsel decides that the appeal is no longer arguable, counsel should advise the appellant’s solicitors of this in writing. This advice should not be sent to the Registrar but the Registrar should be informed.

Question 49

2.3.6 Respondent’s Notice

Answer 49

The Registrar may direct that the prosecution serve a response to assist the single judge on Form RN. The single judge may also order that a Respondent’s Notice be obtained if it was not previously ordered by the Registrar.
It may be directed, for example, where there is an issue regarding public interest immunity or where there is criticism of the trial judge. A response may be invited in other cases, such as
complex fraud or serious sexual offences.

Question 50

2.3.7 Consideration of leave to appeal by the single judge

Answer 50

Usually the application, including any bail application, will be considered by the Court of Appeal on the papers alone, without oral argument, by one judge sitting alone. The single judge will consider the merits of the application for leave and come to a decision, giving reasons. The single
judge may:
* grant the application wholly or in part;
* refuse the application;
* refer it to the full Court of Appeal without granting leave

Question 51

2.3.8 Renewal

Answer 51

If leave is refused by the single judge, or granted on some grounds but not others, the appellant can renew the application for leave to appeal. The appellant must serve the form on the Court of Appeal within 10 business days of receipt of the notification of the single judge’s decision. This can
be extended in a similar way to the application for leave. A renewed application for leave to appeal will be heard orally by the full court of 2 or 3 judges

Question 52

Renewal

Answer 52

No representation order is available
but counsel may appear either privately or on a pro bono basis. If they intend to do so they must notify the court in writing as soon as possible. Notification of the single judge’s decision, is on
Form SJ. It may indicate that the single judge found the application to be wholly without merit and that the full court should consider a ‘loss of time order’ if the application is renewed.

Question 53

2.3.9 Referral to the full court

Answer 53

Rather than sending a case to the single judge, the Registrar can refer a case to the full court instead, effectively bypassing the single judge and asking the full court to decide the application
for leave.
This power is used where:
* there is an unlawful sentence which must be amended; or
* there is a novel point of law.
It may also be used where the matter requires expedition e.g. a seriously ill or elderly appellant. The single judge may also refer to the full court if the single judge identifies an issue requiring the full court’s attention

Question 54

2.3.11 Common grounds of appeal

Answer 54

Common grounds for an appeal against conviction include, but are by no means limited to:
* 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 55

Common grounds for an appeal against sentence include:

Answer 55

• 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 56

2.4 Common grounds of appeal

Answer 56

It is perfectly proper for a defendant to appeal a conviction to the Court of Appeal even where the defendant pleaded guilty to the charge in the Crown Court. It is open to the court to rule a plea as a nullity and quash the conviction. The most common such ground is if the 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 57

2.4 Common grounds of appeal

Answer 57

Appeals can be mounted on the basis of incorrect legal advice, although it would be more usual to apply first to the Crown Court to vacate the plea. If the advice is correct and the plea was entered of the defendant’s own free will then it is 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 the decision freely.

Question 58

2.4 Common grounds of appeal

Answer 58

The Registrar or single judge will usually grant a representation order for junior counsel when leave is granted. If work is necessary it may be extended to cover a solicitor. The Registrar will
send a brief to counsel. The respondent is not usually represented at a sentence appeal but will be on a conviction appeal. A summary to assist the court will be prepared by a Criminal Appeal Office Lawyer.

Question 59

2.5 The appeal

Answer 59

A skeleton must be served where the appeal notice does not sufficiently outline the grounds. In practice, a skeleton is most commonly needed in cases involving a novel point of law or complex issues are raised which require additional input from counsel. If skeletons are to be served the
appellant must serve theirs 21 days prior to the hearing and the respondent 14 days before the hearing, unless otherwise directed. Authorities are to be used sparingly and must be justified.

As a general rule, the appellant is entitled to be present, if the appellant wishes, at the hearing of the appeal. There are some exceptions if the appellant is in custody, whereby the court’s permission is required. You will find them at s.22 Criminal Appeal Act 1968 if you are interested.

Question 60

2.6 The test on appeal

Answer 60

If leave is granted (on paper or at an oral hearing) the court must proceed to consider the merits of the appeal.
* In an appeal against conviction the court can allow an appeal only if they think that the conviction is unsafe (s.2 Criminal Appeal Act 1968).
* In an appeal against sentence the appeal can be allowed if the court thinks the defendant should have been sentenced differently (s.11(3) Criminal Appeal Act 1968). The next page shows the powers the Court of Appeal may exercise if they find the appropriate test to be met and allow the appeal.

Question 61

2.7 Powers on appeal
2.7.1 Conviction

Answer 61

• Quash the conviction.
• If it appears to the court that the interests of justice so require they may order the appellant to be retried.
• The court may also substitute a verdict of guilty for an alternative offence if:
• the jury would have been able to convict of the alternative offence at trial; and
• the jury must have been satisfied of facts which proved him guilty of the offence.
• The sentence may need to be amended to reflect this.

Question 62

2.7.2 Sentence

Answer 62

Quash any sentence or order which is the subject of the appeal; and
* In place of it pass any such sentence or make such order as they think appropriate, but which the court below had power to pass or make; and
* They must ensure that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was in the court below.

Question 63

2.8 Loss of time order

Answer 63

The Court of Appeal can direct that some or all of the time spent in prison between the date of lodging the appeal and the date of its dismissal may be ordered not to count towards the
appellant’s sentence. This is known as a ‘loss of time’ order.

Question 64

2.8 Loss of time order

Answer 64

This may be imposed where the application is considered to be wholly without merit. It can be made by the single judge considering the paper application for leave, but this is unusual in practice. It is most likely to be made by the full court following refusal of a renewed application for leave, especially, but not only, where the single judge has marked the appropriate box on Form SJ
(described previously).

Question 65

2.9 Fresh evidence

Answer 65

Section 23 of the Criminal Appeal Act 1968 allows the Court of Appeal to admit evidence on appeal, including evidence which was not called at the original proceedings - this applies to
sentence appeals but is more likely to be used with conviction appeals.
The section states that the Court of Appeal may, if they think it necessary or expedient in the interests of justice:
(a) order the production of any document, exhibit or thing connected with the proceedings if it is
necessary for the determination of the case;
(b) order any witness to attend for examination (regardless of whether they were called in the
original proceedings);
(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.

Question 66

2.9 Fresh evidence

Answer 66

In considering whether to receive any evidence the court will have regard to the following, as per s.23(2). This is not
an exhaustive list:
(a) Whether the evidence appears to be capable of belief;
(b) Whether it appears that the evidence may afford any ground for allowing the appeal;
(c) Whether the evidence would have been admissible in the proceedings from which the appeal lies, on an issue which is the subject of an appeal;
(d) Whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.

Question 67

2.9 Fresh evidence

Answer 67

The provision means that jurors and legal representatives (subject to waiver of privilege) can be compelled to attend and give evidence on appeal. Furthermore, it applies equally to the
respondent (i.e. the prosecution) who can therefore call new evidence, except where its purpose is to argue a new basis for conviction.

Question 68

2.10 References by the Attorney-General

Answer 68

The Attorney-General (AG) may ask for the opinion of the Court of Appeal on a point of law wher the defendant was acquitted following trial on indictment. This does not affect the acquittal – the
acquittal stands whatever the Court of Appeal’s decision. The power is intended to clarify the law. However, the defendant is entitled to be represented a the hearing. The Court of Appeal can refer to the Supreme Court if it sees fit or where either party requests this

Question 69

2.10.2 Reference for review of sentence

Answer 69

The Attorney General (AG) may refer a case to the Court of Appeal where the AG considers the sentence imposed to be ‘unduly lenient’. The AG can only refer cases for offences which are
triable only on indictment or specified in the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006. It is a matter for the AG to consider whether leave should be sought for a reference and the time limit to do so is 28 days. If leave is granted the Court of Appeal will proceed according to the facts
before the sentencing judge.

Question 70

2.10.2 Reference for review of sentence

Answer 70

A sentence can be increased under the reference procedure if it is found to be ‘unduly lenient’. Some discount will, however, be given for ‘double jeopardy’. This means compensating a
defendant for having to wait before knowing if their sentence will be increased.

Question 71

Assessment focus point

Answer 71

You are not expected to know the list of offences specified in the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006 for your assessment.

Question 72

2.12 Prosecution appeals against terminatory rulings

Answer 72

The Criminal Cases Review Commission (CCRC) is an independent body created by the Criminal Appeal Act 1995. It has the power to refer, at any time, any conviction on indictment or sentence to the Court of Appeal or to the Crown Court if the conviction/sentence is a summary one. The question the CCRC asks itself is whether there is a real possibility that the Court of Appeal will quash the original conviction or sentence. If the CCRC chooses to make such a reference it is 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 73

2.12 Prosecution appeals against terminatory rulings

Answer 73

Prior to the implementation of the Criminal Justice Act 2003 it was extremely difficult for the
prosecution to challenge an adverse decision of a judge made at trial. Section 58 CJA 2003
changed the situation by providing for prosecution appeals against any terminatory ruling made
in the course of a Crown Court trial on indictment i.e. those rulings that would otherwise bring the
case to an end. The provision does not apply to rulings to discharge the jury. The appeal is to the
Court of Appeal.

Question 74

Assessment focus point

Answer 74

There are provisions providing a similar appeal in respect of evidentiary rulings which significantly weaken the prosecution case but these are not yet in force and so not required for your assessment.

Question 75

2.12.1 Prosecution appeals against terminatory rulings – requirements

Answer 75

There are three main requirements for such an appeal to take place.
* The ruling must be made before summing up;
* An acquittal agreement must be given by the prosecution;
- This means that the prosecution must give an assurance to the court and the defendant that if leave to appeal is refused and the appeal abandoned before it is decided by the Court of Appeal, the defendant will be acquitted on that count(s).
* The ruling must not be appealable to the Court of Appeal by other means.

Question 76

2.12.2 Prosecution appeals against terminatory rulings – procedure
There are various ways to proceed where an appeal may be appropriate.

Answer 76

(a) Prosecution counsel should notify the judge that they wish to appeal immediately; or
(b) Ask for a short adjournment if they want to speak to the CPS lawyer;
(c) Any adjournment will usually be until the next business day, when notification must be given;
(d) Thereafter, counsel should serve written notice of appeal on the court, Registrar and defendant;
(e) The prosecution has five business days to serve written notice in non-expedited cases or the next business day in an expedited appeal case. Expedited cases will be dealt with by the Court of Appeal in a matter of days without the need for the jury to be discharged.

Question 77

Alternatively, the prosecutor can apply orally to the trial judge for leave to appeal:

Answer 77

• The trial judge will hear representations from the defence on the same day as the application
  unless it is in the interests of justice to allow further time for them to respond;
• The trial judge will decide if there is a real prospect of success on appeal.
  The prosecution has a second chance if their application to the trial judge fails in that they can still lodge notice of appeal and proceed to the Court of Appeal.

Question 78

Example: Appealable rulings

Answer 78

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 79

Example: Appealable rulings

Answer 79

A preparatory hearing is a form of case management hearing held in long, complex or fraud cases.
There is a power for both prosecution and defence to appeal rulings made at these hearings, to the Court of Appeal.
Practice point: it is worth being aware that this power exists.

Question 80

2.14 Appeals to the Supreme Court

Answer 80

The Supreme Court (formerly the House of Lords) is the highest court of the UK. Sections 33 and 34 of the Criminal Appeal Act 1968 allow either the prosecution or defence to appeal a
decision of the Court of Appeal to the Supreme Court, but this is not an appeal as of right.

Question 81

2.14 Appeals to the Supreme Court

Answer 81

• The Court of Appeal or the Supreme Court would need to certify that the case involved a point of law of general public importance.
• Part 43 of the Criminal Procedure Rules governs procedure. An application to the Court of
  Appeal for leave to appeal to the Supreme Court must be made no more than 28 days after the court gives reasons for its decision (and no more than 14 days after the court’s reasons in an AG Reference case).

Question 82

2.15 Summary

Answer 82

This section explored:
* The slip rule in the Crown Court to vary or rescind a sentence or other order.
* Appeals from the Crown Court to the Court of Appeal (Criminal Division) against conviction or sentence in particular:
- the procedure
- test on appeal
◦ against conviction – the court can allow an appeal only if they think that the conviction is unsafe
◦ against sentence – the appeal can be allowed if the court thinks the defendant should have been sentenced differently
- powers on appeal against conviction and/ or sentence
- admission of fresh evidence on appeal if the Court of Appeal think it necessary or expedient in the interests of justice.

Question 83

2.15 Summary

Answer 83

• References by the Attorney-General for opinions on points of law following acquittal on indictment;
• 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;
• References by the Criminal Cases Review Commission;
• Prosecution appeals against terminatory rulings; and
• Appeals against rulings made at preparatory hearings in serious fraud cases.