Criminal 6: Appeals Flashcards

1
Q

Who can appeal from the MC to CC

A

D against sentence (on basis its excessive) or conviction (on law or fact)

NOT prosecution

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2
Q

Procedure for appealing from MC to CC

A
  1. D file notice of appeal with MC and CPS within 15 business days from sentence
  2. MC clerk will send the notice to the relevant CC who’ll arrange a date for the hearing
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3
Q

If D is appealing from MC to CC, what happens if they are funded via representation order

A

need separate one to cover hearing of appeal but original covers preparing notice of appeal

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4
Q

Is there a presumption for bail when appealing from MC to CC

A

No but can be granted.
If MC doesnt grant bail, D may apply to CC

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5
Q

Powers of CC following appeal from MC

A

Confirm, reverse or vary the decision
Impose any sentence MC could have imposed

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6
Q

Who can appeal from the MC to HC (KBD)

A

Either side on point of law by way of case stated or bc MC exceeded juristiction

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7
Q

Common arguments on appeal from MC to HC

A

magistrates:
(a) misread, misunderstood or misapplied the law;
(b) didnt have the jurisdiction to hear case
(c) made errors in deciding the admissibility or otherwise of evidence; (d)erred in their decision following a submission of no case to answer.

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8
Q

Procedure for appeal from MC to HC

A
  1. apply to MC within 21d decision in writing to MC clerk
  2. Magistrates ‘state a case’ for the opinion of the High Court (clerk preps draft statement of case, sent to parties and sends final version to party appealing who lodges with HC)
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9
Q

Who is the hearing before on appeal from MC to HC

A

Heard by Divisional Court of Kings Bench Division normally by 3 judges

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10
Q

What is a hearing confined to on appeal from MC to HC

A

legal argument on agreed facts in statement of case

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11
Q

What does the HC have the power to do on appeal from the MC

A

□ Reverse/Vary/Affirm MC decision
□ Remit case back to same MC with direction to aquit or convict
□ Remit to different bench of MC if case needs to be reheard

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12
Q

Who can appeal from the HC to SC?

A

Either side by way of case stated on a point of law HC has certified is of general public importance with leave from HC or SC

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13
Q

Who may appeal from the CC to CoA?

A

D against sentence or ‘unsafe’ conviction if CoA grants leave or trial judge grants a certificate that the case is fit for appeal

Prosecution if A-G considers sentence unduly lenient or against termination or evidential rulings

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14
Q

When is the ONLY time an appeal against conviction can be made from the CC to CoA

A

if conviction is unsafe, appeal MUST be dismissed otherwise

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15
Q

Implications of CoA only accepting appeals against ‘unsafe’ convictions

A

-Conviction may be upheld even if error/mistake if CoA considers had mistake not been made, only correct/reasonable verdict would be guilty
-May allow appeal and quash conviction even if D did offence if there was an abuse of process by police/prosecuting authorities (eg. bugging convo with sol)

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16
Q

What are examples of common factors used to argue conviction is unsafe

A

(a) failure by trial judge to direct the jury correctly as to burden or standard of proof/law/that jury nmust determine facts/unamnumous verdict
(b) trial judge wrongfully admitted or excluded evidence
(c) trial judge failed to administer the correct warnings
(d) inappropriate interventions by judge
(e) failure by judge when summing up to deal with essential points/identify pros inconsistencies/summarise ev/say special measures shouldnt prejudice
(f) fresh evidence that would make verdict difference

17
Q

Procedure for appeal against conviction from CC to CoA

A
  1. Within 28d conviction D serve appeal notice +grounds of appeal (separate doc) on Registrar of Criminal Appeals at CoA
  2. Registrar obtains transcript of the evidence given at trial and judge’s summing up to the jury. 3. Registrar puts case papers before single judge who decides whether to grant permission to appeal 4. Hearing before CoA 3 judge panel (inc oral ev from parties)
18
Q

What order may a CoA judge make if an appeal is completely without merit?

A

Direction as to loss of time=time spent in custody awaiting the outcome of the appeal will not count towards the total sentence time (as would normally be the case).

19
Q

When will fresh evidence be heard at an appeal against conviction in the CoA from the CC?

A
  1. it appears to be credible; 2. it would have been admissible at the defendant’s trial 3. theres a reasonable explanation for the failure to adduce it at trial
20
Q

CoA powers following appeal against conviction from CC?

A
  1. quash and acquit (eg. New ev) 2. quash and order retrial (eg trial judge made mistake)
  2. allow part of the appeal and dismiss other parts of the appeal 4. find D guilty of an alternative offence (+re sentence)
  3. dismiss appeal.
21
Q

When may the CoA order a retrial on appeal against sentence from CC?

A

When it considers ‘the interests of justice so require’

22
Q

Procedure for appeal against sentence from CC to CoA

A
  1. Within 28d conviction D serve appeal notice +draft grounds of appeal (separate doc) on Registrar of Criminal Appeals at CoA
  2. Registrar puts case papers before single judge who decides whether to grant permission to appeal 3. Appeal considered by 2-3 judge panel, confined to legal submission on appropriate sentence
23
Q

When will an appeal against sentence from CC to CoA be successful?

A

-most common:Sentence manifestly excessive (beyond upper limit)
-Sentence wrong in law or principle
-Judge adopted wrong approach when sentencing
-Co defendants-unjustified disparity

24
Q

Powers of CoA after appeal against sentence from CC?

A

Conform
Quash
Replace with alternative sentence or order it thinks appropriate CANT increase
Make loss of time direction if thinks appeal is without merit

25
Q

Can the prosecution appeal from the CC to CoA in respect of D who has been acquitted by a jury following a Crown Court trial?

A

No

26
Q

When can the prosecution appeal from the CC to CoA?

A

In respect of rulings before/during trial which: (a) effectively terminate the trial (‘termination rulings’)
(b) significantly weaken the prosecution case (‘evidential rulings’).
OR
If the Attorney General considers the sentence is unduly lenient

27
Q

What can the Attorney General do if they consider a CC sentence is unduly lenient?

A

-refers case to CoA who can increase (must be a sentence that could have been passed by CC)
-ONLY if offence indictable only/a specified either way offence and CoAs given permission

28
Q

What is the rule against double jeopardy and how has it been changed?

A

Prevented D being tried twice for same offence
Now CJA 2003 lists offences for which retrial is possible following acquittal

29
Q

For what offences is retrial possible following acquittal?

A

Murder/attempted murder
Manslaughter
Kidnapping
Some sexual offences inc rape/attempted rape/assualt by penetration
Some class A drug offences
Arson endangering life or property

30
Q

What tests are considered when deciding if an offence can be tried for a second time?

A
  1. Evidential test: Must be ‘new and compelling’ evidence of Ds guilt (Compelling=reliable, substantial and highly probative in case against D)
  2. Interests of justice test: consider: (a) whether existing circumstances make a fair trial unlikely; (b) the length of time since the offence was allegedly committed; (c) whether it is likely that the new evidence would have been adduced in the earlier proceedings, but for the failure of the police or the prosecution to act with due diligence and expedition;
    (d) whether, since the earlier proceedings, the police or prosecutor have failed to act with due diligence or expedition.
31
Q

How may JR be used

A

Not form of appeal
May be made by CPS or D if:
(a) MC has made an order that they had no power to make (ultra vires)
(b) MC breached the rules of natural justice (right to fair hearing/bias)

Applicant will seek an order from the Divisional Court:
a. quashing MC decision
b. compelling MC to act (or not act) in a certain way.