Criminal Litigation - Appeal (16) Flashcards
What is the process of appeal from magistrates court/youth court?
Appeal to Crown Court: The Defendant may appeal their conviction (following a not guilty plea) or sentence to the Crown Court as of right. The Prosecution has no right of appeal to the Crown Court.
(1) Notice of Appeal: Notice of appeal is filed with either the MC or CC, and the CPS, within 15 working days of the conviction or sentence (as appropriate). Crown Court has discretion to extend.
(2) Directions: Crown Court will fix a date for an appeal hearing. Representation orders may be required, though existing orders will cover pre-hearing advice. Bail is not presumed for custodial sentence appellants (s4 BA).
(3) Hearing: Hearings are sat by a Circuit Judge/Recorder alongside 2 or 4 magistrates.
(3) Sentencing Appeal: Sentencing hearings are a rehearing of the issues to consider the sentence holistically.
Ground: Appeals are successful if a sentence is too excessive.
(4) Conviction Appeal: Conviction hearings are a full rehearing of issues including new evidence and law.
Ground: Appeals are successful if a conviction was made on an error of fact or error of law.
(5) Order: The Crown Court can impose any sentence that the Magistrates’ or Youth Court had power to impose. This includes removing a conviction, reducing a sentence, and even increasing a sentence.
(6) Further Appeal: The Defendant can further appeal to the High Court by way of case stated if the appeal judgment is wrong in law (but cannot appeal from High Court to Crown Court).
What is the process for appealing to the high court?
Appeal to High Court: Both parties can appeal judgment to the Administrative Court King’s Bench Division on a point of law. The appeal is by way of case stated against any decision or order made by the Crown Court following an appeal from the magistrates’ court.
(1) Notice of Appeal: Notice of appeal is filed in writing to the MC within 21 days of decision, outline the point of law clarity is sought on.
(2) Statement of Case: A clerk will prepare a statement of case for the High Court. It will specify the decision, the specific issue, a summary of proceedings, and evidence relied upon at first instance. Parties cooperate here.
(3) Hearing: Hearings are sat by 3 judges in the Administrative Court. They are confined to legal arguments based on the statement of case, no witness evidence is permitted.
(4) Grounds of Appeal: Appeals are successful if the original court was: a) wrong in law; or b) acted outside of jurisdiction (s111 MCA).
(5) Order: The High Court can reverse, vary or affirm a decision, or remit the case for a rehearing.
(6) Further Appeal: Parties can further appeal to the Supreme Court, provided the issue regards: a) a point of law; and is b) certified by the High Court as of ‘general public importance’; and c) permission is granted by HC or SC.
When can judicial review be used?
Judicial Review: Judicial review is a third, but rarely used, route of appeal.
(1) Appeal: Appeal must be sought within 3 months of a decision and promptly to the Administrative Division of the High Court.
(2) Grounds of Appeal: Appeals may be successful if the original court: a) made an ultra vires decision; or b) breached the rules of natural justice through an unfair or biased hearing.
Who can appeal a crown court judgment?
Crown Court Judgment: The Defendant can appeal against sentence or conviction in the Crown Court to the Court of Appeal.
What is the process of obtaining permission for appeal of a crown court judgment?
Permission: Permission is not automatic, and must be sought by one of two methods.
(1) First Instance: Appeal may be sought immediately after judgment from the trial judge. This is rare.
(2) Court of Appeal: The Defendant may serve a notice of appeal and their draft grounds to the Court of Appeal Criminal Division within 28 days of conviction or sentence (as appropriate). A single judge is provided trial evidence and decides on permission. If they cannot, a full panel may decide on permission.
(3) Funding: Legal aid funding is usually granted in respect of these appeals.
What is the procedure for an appeal against conviction from the crown court?
Appeal Against Conviction: Defendants may appeal conviction at a full hearing (must have pleaded not guilty).
[Need permission]
(1) Hearing: A full Court of Appeal comprising 3 judges will hear submissions from both sides, including new evidence that has a credible reason for not being originally adduced (s23 CAA).
(2) Grounds: Appeals are successful if a conviction is unsafe or rendered by an abuse of process.
Unsafe: Decided on unreliable evidence or judicial misdirection, unless the verdict would have been the same (R v Boyle and Ford).
Abuse of Process: Trial was conducted in a manner so ‘unfair and wrong’ that conviction is improper.
>I.e. Misdirection of jury, admissibility issues, poor summing up, improper interventions, new evidence.
(3) Order: The Court of Appeal can acquit, resentence, or remit for rehearing. It cannot increase the original sentence.
Loss of Time: Defendants may lose credit for time spent in custody for ‘baseless’ appeals (s29 CAA).
What is the procedure for appeal against sentence from the crown court?
Appeal Against Sentence: Defendants may appeal against sentence at a full hearing.
[Permission]
(1) Hearing: A court comprising 2 or 3 judges will hear only legal submissions regarding the sentence or sentencing range.
(2) Grounds: Appeals may be successful if manifestly excessive or of unjust disparity, or made through errors of law or principle.
a. Manifestly Excessive: Sentence is far in excess of the seriousness of the offence (overlaps with error).
b. Unjust Disparity: Sentence is disproportionate to the sentence of an equally culpable co-defendant.
c. Error of Law or Principle: Court passed a sentence that was unlawful or did not adhere to proper guidelines, i.e. no reduction, above statutory maximum, no Newton Hearing (overlaps with manifest).
(3) Order: The Court of Appeal can confirm the original sentence, or quash it pending resentencing. It cannot increase it, but can order for loss of time (s11 CAA).
Can a further appeal be made once one appeal has been made by the defendant from the crown court?
Further Appeal: Further appeals can be made to the Supreme Court, provided it regards: a) a point of law; and is b) certified by the Court of Appeal as of ‘general public importance’; and c) permission is granted by CoA or SC.
The Prosecution has no general right to appeal a Crown Court judgment, but there are specific exceptions.
What are the exceptions?
A) Termination Appeal
Termination Appeal: The Prosecution may appeal a ruling made by the judge to prematurely terminate a case before being properly put to the jury. For example, permitting an application to dismiss or a submission of no case to answer (s58 CJA).
B) Unduly Lenient Sentence Appeal
Unduly Lenient Sentence Appeal: The Attorney-General can request the Court of Appeal to reconsider a sentence it considers to be unduly lenient, for specified either-way, or indictable-only offences.
(1) Request: Must be made within 28 days of sentence. The Court of Appeal has discretion to hear the case.
(2) Order: The Court of Appeal can quash and resentence using all the powers of the Crown Court (s36).
C) Retrial Appeal
Retrial Appeal: Very rarely, the Prosecution can request certain offences to be retried following acquittal without breaching the rule of double jeopardy (CJA 2003).
(1) Double Jeopardy: This is a rule preventing individuals from being retried for the same offences or on the same facts. If a retrial appeal is successful, this rule can be lifted once only, and never again, irrespective of new evidence.
(2) Retrialable Offences: The following sentences can be retried: a) murder/attempted murder; b) manslaughter; c) kidnapping; d) specified sexual offences; e) specified Class A drug offences; f) arson (s75).
(3) Grounds: There must be new and compelling evidence of guilt. This means there is new evidence that was not adduced at the original trial, which is reliable, substantial and highly probative (s78).
(4) Order: An acquittal can be quashed in the interests of justice.
Interests of Justice: This accounts for: a) the type of evidence and method of discovery; b) the time elapsed since acquittal; c) the reason for failure to adduce at first instance; and d) the extent to which the prosecution has been expeditious in adducing it since first trial (s79).
>Discovery of a confession in an intercepted private letter to a friend was deemed fair evidence (R v Dunlop).
