Criminal Appeals

Question 1

In what circumstances can a defendant convicted in the Magistrates’ Court appeal?

Answer 1

If they pleaded guilty, they may appeal against the sentence.

If they pleaded not guilty they may appeal against conviction and/or sentencing.

Question 2

Who usually hears appeals from the Magistrates’ Court

Answer 2

The appeal will usually be heard by a recorder or a circuit judge who will sit with an even number of magistrates.

Question 3

Can the prosecution appeal a decision from the Magistrates’ Court?

Answer 3

The prosecution can only appeal to the High Court on a point of law by way of case stated.

Question 4

On what basis can a defendant appeal against conviction from the Magistrates?

Answer 4

The magistrates made errors of fact and/or law?

Question 5

How is an appeal against conviction in the Crown Court conducted?

Answer 5

It is a full rehearing of the case, except new witnesses may be called, and new or different points of law may be relied upon.

Question 6

On what basis can a defendant appeal against sentencing from the Magistrates?

Answer 6

The sentence imposed by the magistrates is excessive.

Question 7

How is an appeal against sentencing in the Crown Court conducted?

Answer 7

The Crown Court should carry out a full rehearing of the issues and take an independent view of what
the correct sentence should be, rather than simply reviewing the sentence passed by the
magistrates’ court.

Question 8

When must a defendant file a notice of appeal from the Magistrates’ Court?

Answer 8

The defendant must file a notice of appeal with both the Magistrates’ Court and the CPS, not more than 15 business days from the magistrate’s passing sentence.

Question 9

What happens on appeal if the defendant’s case before the Magistrates’ Court was publicly funded?

Answer 9

A separate representation order will be required to cover the hearing of the appeal by the Crown Court.

Any advice and assistance given to the defendant preparing the notice of appeal will be covered by the original representation order.

Question 10

Is there a presumption of bail for defendants who are appealing?

Answer 10

No

Question 11

What powers do the Crown Court have on appeal?

Answer 11

The Crown Court may confirm, reverse, or vary the decision. They may impose on the defendant any sentence, as long as it is a sentence that the magistrates’ court had the power to impose.

Question 12

On what basis may the parties appeal the High Court by way of case stated?

Answer 12

When the decision which has been made by the magistrates is wrong in law or the magistrates have acted outside their jurisdiction.

Question 13

What are common arguments raised in High Court appeals?

Answer 13

The magistrates misread, misunderstood or misapplied the law;

The magistrates decided to hear a case when they did not have the jurisdiction to hear it

The magistrates made errors in deciding the admissibility or otherwise of evidence;

The magistrates erred in their decision following a submission of no case to answer.

Question 14

When must a party apply for an appeal to the High Court?

Answer 14

The party must apply to the Magistrates’ Court within 21 days of the relevant decision made by the court.

The application must identify the question of law on which the party seeks the view of the High Court.

Question 15

What is the role of the magistrates in the application to appeal to the High Court

Answer 15

The clerk to the magistrates will prepare a statement of case that will:

specify the decision on issue

specify the question of law or jurisdiction.

Include a summary of the nature and history of proceedings, the court’s relevant findings of fact and the relevant contentions of the parties.

Any disputed findings by the court and the evidence used to reach that finding.

The statement of case will be agreed upon by the parties and then lodged with the High Court by the appealing party.

Question 16

How is an appeal in the High Court conducted?

Answer 16

Heard by three judges.

No evidence is given by witnesses and the hearing will be confined to legal argument based on the agreed facts set out in the statement of case.

Question 17

What powers do the High Court have on appeal?

Answer 17

the High Court has the power to reverse, vary or affirm the decision made by the
magistrates’ court. It may also remit the case back to the same magistrates’ court with a
direction to acquit or convict the defendant, or to remit the case to a different bench of
magistrates (if the case needs to be reheard).

Question 18

Is appealing to the Crown Court or the High Court better for defendants?

Answer 18

The Crown Court is usually the best approach because it is a much speedier and more effective avenue of appeal.

Question 19

When can an application for judicial review be made by a defendant or the CPS?

Answer 19

When the magistrates’ court has made an order that they had no power to make (ultra vires) or the magistrates’ court has breached the rules of natural justice.

Question 20

What are the rights of appeal for a defendant who has been convicted in the Crown Court?

Answer 20

An appeal against conviction if the CoA grants leave to appeal or the trial judge grants a certificate that the case is fit for appeal.

An appeal against sentence if the CoA grants leave to appeal or the trial judge grants a certificate that the case is fit for appeal.

Question 21

When will an appeal against conviction from the Crown Court be allowed?

Answer 21

When the conviction is unsafe

Question 22

Can a conviction be upheld on appeal even if there was an error or mistake a the Crown Court trial?

Answer 22

Yes, If the CoA considers that even had the mistake not been made, the correct and only reasonable verdict would have been one of guilty.

Question 23

Can an appeal be allowed even if the court is satisfied that the defendant did commit the offence for which they were convicted?

Answer 23

Yes, when there has been an abuse of process committed by the police or the prosecuting authorities

Question 24

What are the common factors for arguing that convictions are unsafe?

Answer 24

A failure by the trial judge to direct the jury correctly

The trial judge wrongfully admitted or excluded evidence.

The trial judge failed to administer the correct warnings to the jury.

Inappropriate interventions by the trial judge.

A failure by the trial judge to sum up the case to the jury properly.

Fresh evidence

Question 25

When can fresh evidence render a conviction unsafe?

Answer 25

The CoA must be satisfied that if the evidence had been placed before a jury, the verdict might have been different.

Question 26

When must the defendant serve their appeal notice against conviction or sentence by the Crown Court?

Answer 26

Within 28 days of conviction the defendant must serve their appeal notice, together with draft grounds of appeal on the Registrar of Criminal Appeals

Question 27

What will the Registrar of Criminal Appeals do once they receive the appeal notice?

Answer 27

The Registrar will obtain a transcript of the evidence that
was given at trial and of the judge’s summing up to the jury. The Registrar will then put
the case papers before a single judge, who will determine whether permission to appeal
ought to be granted.

Question 28

What happens when an appeal is made without merit to the CoA?

Answer 28

The single judge may, when dismissing the appeal, make a direction as to loss of time under s.29 of the CAA 1968. This means
that any time spent by the defendant in custody awaiting the outcome of the appeal will
not count towards the total time the defendant must serve for their sentence.

Question 29

What are the powers of the CoA at an appeal against conviction?

Answer 29

The CoA may:

Quash the conviction and acquit the defendant.

Quash the conviction and order that a retrial take place.

Allow part of the appeal and dismiss other parts of the appeal.

Find the defendant guilty of an alternative offence.

Dismiss the appeal

Question 30

When will an appeal against sentence to the CoA be successful?

Answer 30

The sentence passed by the trial judge is wrong in law.

The sentence passed by the trial judge is wrong in principle.

The judge adopted the wrong approach when sentencing.

Unjustified disparity amongst co-defendants.

The sentence passed is manifestly excessive, where the sentencing judge has gone beyond the upper limit of the sentencing range.

Question 31

What are the powers of the CoA at an appeal against sentence?

Answer 31

The CoA may confirm a sentence or quash a sentence and replace it with an alternative sentence.

The CoA cannot increase a sentence imposed by the Crown Court.

Question 32

What are the powers of the Attorney-General to appeal on behalf of the prosecution?

Answer 32

The CPS has a right of appeal to the Court of Appeal if the Attorney- General considers that
the Crown Court has passed a sentence which is ‘unduly lenient’

The Attorney- General may refer a case to the Court of Appeal
only if the offence is an offence triable only on indictment or is a specified either- way offence
and the Court of Appeal has given permission.

Question 33

What are the powers of the CoA where the Attorney-General appeals?

Answer 33

The CoA may increase the sentence but can only give a sentence that could have been passed in the Crown Court.

Question 34

For which offences can there be a retrial following the acquittal of a defendant?

Answer 34

Murder and attempted murder

Manslaughter

Kidnapping

Sexual offences

Offences in relation to Class A drugs

Arson endangering life or porperty

Question 35

What is the two-fold test the CPS must satisfy for the CoA to order a retrial?

Answer 35

The evidential test and the interest of justice test

Question 36

What is the evidential test for retrial?

Answer 36

There must be ‘new and
compelling’ evidence of the defendant’s guilt.

‘New’ evidence means evidence not adduced
when the defendant was acquitted.

To be ‘compelling’, this evidence must be reliable,
substantial and highly probative of the case against the defendant.

Question 37

What is the interests of justice test for retrial?

Answer 37

The CoA should have regard to the following factors:

Whether existing circumstances make a fair trial unlikely

The length of time since the offence was allegedly committed

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

Whether, since the earlier proceedings, the police or prosecutor have failed to act with
due diligence or expedition.