Criminal Practice W6 - Appeals procedure

Question 1

If a defendant who was sentenced in the magistrates court pleaded not guilty what appeal rights do they have?

Answer 1

1) May appeal against any resulting conviction
* On the basis that the magistrates made errors of facts and or law

AND/OR

2) Sentence they received
* On the basis that sentence imposed by the magistrates court is excessive

Question 2

If a defendant who was sentenced in the magistrates court pleaded guilty what appeal rights do they have?

Answer 2

May appeal against sentence they received

Question 3

When a defendant appeals the magistrates sentence decision, who do they appeal to?

Answer 3

Crown court judge.

Supported by at least two and no more than four magistrates

It is a complete rehearing meaning new evidence can be called.

Question 4

How will an appeal hearing to the Crown Court be conducted?

Answer 4

Complete independent re-hearing of the whole case or sentence hearing.

Conviction
* CC is free to make it’s own decision
* CPS and defendant will need to call all those witnesses whose evidence they seek to rely on, new witnesses can be called
* New or different points of law may be relied upon

Sentence
* When deciding what sentence to pass down, CC does not refer to magistrates sentence
* However, its sentencing powers are limited by those available in the magistrates court but within these bounds, it may give a sentence more or less severe than the original sentence

Question 5

Within what time must a defendant lodge a written notice of appeal of conviction or sentence from the Magistrate’s court to the crown court?

Answer 5

Written notice of appeal to both magistrates court and CPS
* 15 business days from magistrates court passing sentence
or date sentence was deferred to

If outside 15 days, Crown Court judge
* discretionary power to extend this time limit

Question 6

What is the procedure for appeal against sentence from magistrates court to crown court?

Answer 6

1) D serves notice of appeal within 15 days to MC and CPS
2) Clerk in MC will send notice of appeal to relevant CC
3) CC will arrange a date for hearing of appeal to take place

Question 7

What happens if the defendant’s original case before the magistrates court was funded by way of representation order?

Answer 7

A separate representation order will be required to cover the hearing of the appeal by the crown court.

NOTE: Any advice and assistance given to D in preparing the notice of appeal will be covered by the original representation order

Question 8

What is the presumption of bail for appeals?

Answer 8

Presumption of bail does not apply and if they wish to obtain it, D may apply to CC for bail pending hearing of trial.

Magistrates may still grant bail to D pending appeal to the Crown court

Question 9

Why does the defendant not have to set out the basis for an appeal to the crown court?

Answer 9

As the court has no power to decline jurisdiction

Question 10

What can the crown court do to a decision made by the magistrates court?

Answer 10

Crown court may
1. Confirm
2. Reverse
3. Vary the decision

• As long as it is a sentence that MC has the power to impose (e.g. only up to 6 or 12 months).
• Can impose a longer sentence if it takes a more serious view of the case

Question 11

Who can appeal to the Kings Bench Division of High Court by way of case stated?

i.e. Following any decision or order made by the Crown Court (following an appeal of the magistrates court)

Answer 11

Both CPS and Defendant

Question 12

On what grounds can a decision be appealed by way of case stated?

Answer 12

Appeal must be based on
1) Decision made by magistrates is wrong law
2) Exceeds the jurisdiction of the magistrates court

Examples: MC misread, misunderstood, misapplied, heard a case they do not have jurisidction to hear, errors deciding admissibility of evidence, MC erred in their decision following a submission of a no case to answer

Question 13

What is the procedure for appeal by way of case stated to the High Court?

Answer 13

1) Written applicaton must be made to the magistrates court to
* state the case within 21 days from the original decision or sentence
* application must identify the question of law in which the party wants the High Court to review

2) Magistrates will prepare a ‘statement of case’ that will include a succint summary, specify the decision in issue and send to CPS & D for review

3) Final version of ‘statement of case’ MC clerk will send this to the party making the appeal and they must lodge this to the High Court and give notice to the other party confirming that it has been done

2) If magistrates’ court rejects application, issue a certificate of refusal (subject to judicial review)
3) If accepted, court officer must serve a draft statement of case on all parties within 15 business days following court’s decision to state the case

Question 14

Where is the appeal to the High Court heard?

Answer 14

Divisional court of the Kings Bench Division of High Court.

Question 15

What happens at the High Court hearing?

Answer 15

No evidence is given by witneses and hearing will be confined to
* Legal argument
* On agreed facts set out in statement of case

Question 16

What powers does the Divisional court of the Kings Bench Division have?

Answer 16

Power to
1. Reverse
2. Vary
3. Affirm
Decision made by the magistrates court

May also
* Remit the case back to magistrates court with a direction to acquit or convict the defendant
* Remit case to a different bench of magistrates (if the case needs to be reheard)

Question 17

Following the High Court decision, can the CPS and Defendant appeal further?

Answer 17

Yes to the Supreme Court in respect of any decision made by the High Court following an appeal to the High Court by way of case stated.

Question 18

What must the appeal to the Supreme Court be on?

Answer 18

• On point of law of general public importance only
• High Court must certify this

Question 19

What is meant by the High Court or Supreme Court must grant leave to appeal?

Answer 19

Must first give permission from that court to appeal.

Question 20

On what grounds can the Magistrates court refuse to state a case to the High Court?

Answer 20

Where the application is considered to be frivolous
means - futile, misconceived, hopeless or academic

Question 21

Why is the use of appeal by way of case stated discouraged?

Answer 21

As it is much quicker and more effective to challenge a decision to the Crown Court.

As it is likely that the High Court will be remitted back to the magistrates court for a retrial.

Question 22

When can an application for judicial review be made on the basis of challenging a decision of the magistrates court?

Answer 22

Can be made by both CPS or Defendant if
* Magistrates court has made an order it has no power to make (and acted ultra vires beyond its powers)
* Magistrates court has breached the rules of natural justice (either by contravening a party’s right to fair hearing or by appearing to be biased)

Applicant for judicial review will
1. Seek an order from Divisional Court either quashing decision made in magistrates or
2. Compelling magistrates court to act / not act in a certain way

Not a usual route for defence or CPS to take really

Question 23

What are the rights of appeal of a defendant who is convicted in the Crown Court?

Appeal against sentence / conviction

Answer 23

Appeal against conviction
* D may appeal against their conviction if court of appeal give it permission (grants leave) to appeal OR
* Trial judge grants certificate that case is fit for appeal

Appeal against sentence
- D may appeal against the sentence they received if either the court of appeal gives it permission (grants leave) OR
- Judge who passes sentence granted a certificate that the case is fit for appeal against sentence

Question 24

Where is the appeal of a decision of the crown court heard?

Answer 24

Criminal Division of the Court of Appeal.

Question 25

On what basis can a defendant appeal to the Court of Appeal (Criminal Dvision) against their conviction?

Answer 25

If the conviction is unsafe

Original conviction may be upheld even if there was an error or mistake at the defendant’s trial in the crown court.

Upheld = accepts the lower courts decision, so agrees with the CC

Question 26

When might the Court of Appeal allow an appeal and quash a conviction even if the court is satisfied that the defendant did commit the offence for which they were convicted?

Answer 26

Abusive process committed by the police or prosecuting authorities

• ‘Bugging’ of a privileged conversation between defendant and solicitor

Question 27

What are considered to be ‘unsafe convictions’ in the CC?

Answer 27

1. Failed to direct jury correctly
2. Evidence wrongly admitted or excluded (e.g. confessions, hearsay evidence)
3. Failed to administer the correct warnings (e.g. Turbull warning)
4. Direction wrongly given or omitted
5. Trial judge conduct showed bias (jury rather than judge to determine what facts of the case are)
   5.Errors in summing up case to jury (essential points of defence case, identify any problems with the prosecution case)
6. Problems with the jury

Question 28

When can the defendant argue that his conviction is unsafe (even if the trial has been conducted properly)?

Answer 28

If fresh evidence comes to light which casts doubt upon his guilt.

E.g. new witness comes forward to substantitate an alibi which was disbelieved by the jury, flawed expert evidence shown by the prosecution

Note, fresh evidence will not in itself render a conviction unsafe, the issue before the Court of Appeal is whether the fresh evidence is such that had it been placed before the jury, the verdict might have been different.

Question 29

What is the procedure of making an appeal against conviction or sentence made by the crown court to the Court of Appeal?

Answer 29

Permission for leave is from either Court of Appeal directly or trial judge at the end of trial by means of a certificate

Leave = granted only if conviction is unsafe

1. Defendant serves an appeal notice , draft grounds of appeal on Registrate within 28 days from either conviction/sentence date
2. Registrar will obtain a transcript of the evidence that was given at trial and judge’s summing up to the jury and put the case before a single judge
3. Single judge will conside application
4. If granted then full hearing is scheduled before a full court (3 judges)

Grounds of appeal - prepared by defence counsel setting out the detailed arguments as to why the conviction is unsafe

Question 30

What may the judge at the court of appeal do if the case is completely without merit when determing whether permission to appeal should be granted?

Answer 30

When dismissing the appeal, the single judge may make a direction as to loss of time under s29 CAA 1968

• Any time spent by the defendant in custody awaiting outcome of the appeal will not count towards the total time the defendant must serve for their sentence
• Designed to deter defendants from pursuing appeals that are without merit

Defendant can avoid this by agreeing with the single judge and deciding not to pursue his appeal if the judge says it is assessed to be completely without merit

Question 31

What happens at the hearing of appeal at the Court of Appeal?

Answer 31

Court will hear oral arguments from the parties and fresh evidence if that evidence
* Appears to be credible
* Would have been admissible at the defendant’s trial
* There is a reasonable explanation for the failure to adduce this evidence at the defendant’s trial

Question 32

What are the powers of the court of appeal against conviction?

Answer 32

Section 2 of CAA 1968 permits the Court of Appeal to do any of the following:
1. Quash the conviction and acquit the defendant (new evidence has come to light which court considers would have led to D’s aquittal)
2. Quash the conviction and order that a retrial take place (e.g. conviction is unsafe)
3. Allow part of the appeal and dismiss other parts of the appeal (e.g. appeal against conviction for more than one offence)
4. Find the guilty of an alternative offence (court will resentence the defendant)
5. Dismiss the appeal

Question 33

When must the Court of Appeal dismiss the appeal?

Answer 33

If it is NOT considered unsafe.

Question 34

On what four basis can a defendant appeal a Crown Court’s sentence?

Answer 34

1. Wrong in law (trial judge passed a sentence they did not have the power to pass)
2. Wrong in principle (trial judge passes a custodial sentence when offence was not serious enough to merit such a sentence)
3. Wrong approach (failed to give 1/3 discount for guilty plea etc, didn’t hold a newton hearing, consider mitigation put forward by D)
   4.Manifestly excessive (most common)

Question 35

What is meant by a sentence passed is ‘manifestly excessive’?

Answer 35

A court of appeal judge will challenge the sentencing if the crown court judge went beyond the range of possible sentence which may be appropriate for the offence.

Question 36

What are the powers of the court of appeal in terms of sentencing made by the Crown Court?

Answer 36

1. Confirm a sentence passed by crown court judge
2. Quash the sentence and replace itwith an alternative sentence or order as it thinks appropriate.
3. Loss of time direction for an appeal against a sentenced that is deemed to be without merit

Court of Appeal cannot increase the sentence imposed by the judge in the Crown Court.

Question 37

Termination and evidential rulings

Does the prosecution have a right of appeal in respect of a defendant who has been aquitted by a jury following a crown court trial?

Answer 37

General rule - No.

Exception - Section 58-63 of CJA 2003
* Give CPS right of appeal of the Court of Appeal in respect of rulings made by a trial judge either before or during the trial which
1) Either effectively terminate the trial or signifcantly weaken the prosecution case
2) Retrial for serious offences - e.g. murder, attempted murder, manslaughter, aggravated arson

Grounds only arise when there is ‘new and compelling’ evidence

Question 38

In what situation can the Attorney General refer a case to the Court of Appeal?

Answer 38

• They feel the sentence was unduly lenient
• If the offence is triable only on indictment or specified either-way offence and
• Court of Appeal itself grants permission

Court of appeal has power to in turn increase the sentence.

Jakov has been sentenced by a judge in the Crown Court to four years’ imprisonment for an offence of s 18 GBH which was assessed by the judge as being a Category 1 offence
(see Chapter 11 ). The sentencing range for such an offence is between 9 to 16 years with a starting point sentence of 12 years. The offence is an offence that can only be tried on
indictment and the CPS are therefore quite likely to make an Attorney- General’s reference to challenge this sentence on the basis that it is unduly lenient. If the Court of Appeal agrees, it is likely to increase the sentence.

Question 39

Which offences are possible for a re-trial following the acquittal of a defendant?

Answer 39

1. Murder
2. Manslaughter
3. Kidnapping
4. Sexual offences under Sexual Offences Act (rape, attempted rape, assault by penetration)
5. Various offences in relation to Class A drugs (unlawful importation and production)
6. Arson endangering life or property

Question 40

The Court of Appeal will only quash an earlier conviction and order a retrial where the CPS can satisfy a two-fold test. What is this test?

Answer 40

1. Evidential test
2. Intrests of justice test

Question 41

Two fold test - CPS quashing conviction and retrial for serious offences

What is meant by the ‘evential test’?

Answer 41

• Must be new and compelling evidence of defendant’s guilt
• New evidence = not adduced when D was acquitted
• Compelling = evidence must be reliable, substantial and highly probative of the case against the defendant (e.g. scientific evidence)

An example of a case involving the powers of retrial is the case of Gary Dobson who, together with David Norris, was convicted of the murder of Stephen Lawrence in January 2012.

Dobson had been acquitted in 1996 of the murder charge. In October 2010, the Director of Public Prosecutions made an application to the Court of Appeal for the acquittal to be set aside. This application was primarily based on new scientific evidence (at the trial it was established that this included tiny specks of blood on the defendant’s clothes). In May 2011, the Court of Appeal set aside the acquittal, having found that the new evidence was compelling, and that a prosecution was in the public interest and the interests of justice.

Question 42

Two fold test - CPS quashing conviction and retrial for serious offences

What is meant by the ‘interests of justice’?

S79 of CJA 2003

Answer 42

Provides that the Court of Appeal should have particular (not not exclusive) regard to the following factors
1. Whether existing cirumstances make a fair trial unlikely
2. The length of time since the offence was allegedly committed
3. 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
4. Since earlier proceedings, police or prosecutor have failed to act with due diligence or expedition

In R v Dunlop [2006] EWCA Crim 1534, the defendant was acquitted of the murder of his lover in 1991. After his acquittal, and whilst in prison for other matters, he confessed to another prison inmate that he had committed the murder.

He subsequently wrote letters to
other people in which he admitted to the murder. When the reforms made by the CJA 2003 came into force, the CPS applied to the Court of Appeal for the defendant’s acquittal on the murder charge to be quashed and for the defendant to be retried for this offence. The defendant argued that it would not be in the interests of justice for the court
to quash his acquittal and order a retrial, because his later confession to the murder was made in the belief that he could not and would not be tried again for this crime. The
Court of Appeal refused to accept these arguments, stating that the evidence of the confession was both new and compelling, and that it was clearly in the interests of justice
for the acquittal to be quashed and a retrial ordered. At his retrial, the defendant entered a guilty plea to the murder charge.

Question 43

How are costs awarded where a defendant loses their appeal in the court of appeal or high court?

Answer 43

Loser covers the other party’s costs.

Question 44

Where a defendant seeks leave to appeal on two grounds, and a single judge only grants leave in part can the defendant appeal the part refusal?

Answer 44

Yes, but procedure is slightly different.
* Entitled to renew application for leave at his appeal hearing, may be granted there and then

Question 45

What is a consequence of appealing directly to the High Court by way of case stated?

Answer 45

Defendant loses their right to a re-hearing/appeal in the Crown Court

Question 46

When does the 28-day timeclock to seek leave from the Court of Appeal start?

Answer 46

If the defendant is appealing against a conviction - date of conviction

If a defendant is appealing against sentence - date of sentence

Question 47

When is the date of conviction?

Answer 47

Date defendant is legally declared guilty

Question 48

When is the date of sentence?

Answer 48

When the court imposes the punishment for offence?

Question 49

What is the difference between an appeal by way of case stated and judicial review?

Answer 49

Judicial review = appropriate if bias and unfairness is alleged in handling of case by magistrates

Case stated = lower threshold, mere misdirection or error of law suffices

Question 50

Beyond the prosecution and defence, who can exercise a right of appeal?

Answer 50

Attorney General has the power to appeal to Court of Appeal.

Question 51

What is the timeframe to appeal to the Supreme Court?

Answer 51

28 days following the Court of Appeal’s decision.