Criminal Procedure (Appeals)

Question 1

What is the Slip Rule?

Answer 1

Magistrates can vary a sentence or set aside a conviction if it is in the interest of justice per s.142 MCA.

This applies to sentences, orders, and convictions, whether by conviction or guilty plea.

Simply, the magistrates can rectify a mistake!

Question 2

Is rectification per s.142 a re-trial?

Answer 2

No, it is not intended to permit a defendant to re-argue that the decision was wrong - that’s an appeal matter.

This is about re-opening a case to rectify errors.

Question 3

What type of errors may be rectified?

Answer 3

A finding of guilty might be set aside where…

• Legal advisers provided the magistrates with incorrect legal advise; or
• The defendant did not attend trial and no explanation for Ds absence was available at the time. However, a valid reason arises such as a medical certificate
• Applications often reduce sentences. However, a sentence can exceptionally be increased (e.g. if the court was misled by the defendant per s.124)

Question 4

What does s.108 MCA provide?

Answer 4

s.108 MCA provides a right of appeal from the Magistrates to the Crown Court.

Question 5

Is appeal to the Crown Court a right?

Answer 5

Yes, it is an automatic right that does not require leave.

Question 6

When can a person appeal to the Crown Court?

Answer 6

A person convicted by a Magistrates Court may appeal to the Crown Court against sentence if they (a) pleaded guilty; or (b) against conviction or sentence if found guilty after a trial.

Question 7

Can the prosecution appeal to the Crown Court?

Answer 7

No, only the defendant can appeal to the Crown Court

The prosecution can only challenge decisions on the basis of case stated or judicial review.

Question 8

What happens to the sentence at appeal in the Crown Court?

Answer 8

The Crown Court sentence is at large.

If conviction is upheld, the court can pass any sentence the magistrates could have passed, even if more severe.

Question 9

What is the procedure for lodging an appeal from the Magistrates Court.

Answer 9

Notice of Appeal must be lodged within 15 business days of sentence.

It includes specifying the conviction, sentence, order, or decision appealed, and issues to be reconsidered.

Question 10

When appealing from the magistrates to the crown court, when does the 15 business days to lodge notice of the appeal run from?

Does it depend on whether you are appealing sentence or conviction?

Answer 10

Within 15 business days of the sentence

Unlike appeals to the Court of Appeal, the time period does not change for sentence/conviction appeals.

Question 11

What is the appeal hearing process in Crown Court?

Answer 11

The appeal is a re-hearing with speeches, witnesses, and submissions. The appeal is heard by one Crown Court judge and two lay magistrates.

Question 12

Can bail be applied for pending appeal?

Answer 12

Bail pending appeal can be applied for in the magistrates court.

If refused, an appellant may apply for bail in the Crown Court, but there is no right to bail pending appeal.

Question 13

What happens if an appeal is abandoned?

Answer 13

The appellant may abandon their appeal at any time. Once abandoned, the Crown Court has no power to vary the magistrates decision.

Question 14

What powers does the Crown Court have on appeal?

Answer 14

The Crown Court can confirm, reverse, vary the decision, remit the matter with its opinion to the magistrates, or make other orders deemed just.

Question 15

Can costs be awarded in a Crown Court appeal?

Answer 15

A successful appellant may be awarded defence costs. An unsuccessful appellant may be required to pay prosecution costs.

Question 16

What is s.111 MCA?

Answer 16

s.111 MCA provides for an appeal to the High Court on the basis that the decision made was wrong in law or in excess of jurisdiction.

This is an appeal by way of Case Stated

Question 17

When will a case be referred to the High Court for an appeal?

Answer 17

Per s.111 for ‘case stated’ appeals. This is where a decision made was wrong in law or in excess of jurisdiction.

This is similar to JR but less stringent grounds.

However, it is quite rare!

For example, it could be used when an offence terms on interpreting/clarifying a statute (e.g. Platt Case - Education Act failed to specify what ‘regular’ attendance means)

Question 18

Who can appeal by way of case stated?

Answer 18

Both the prosecution and defence can appeal by way of case stated.

Question 19

When can an appeal by way of case stated be used?

Answer 19

It can be used only after the final determination of proceedings in the Magistrates Court.

Question 20

What is the deadline for an appeal by way of case stated?

Answer 20

The deadline is 21 days from the decision date, unless sentence is adjourned, then from the date of sentence.

Question 21

Do magistrates have filtering power in case stated appeals?

Answer 21

Yes, a case can be refused if it is considered vexatious.

Question 22

What happens in relation to Crown Court appeal if case stated is used?

Answer 22

If you appeal by way of case stated following the Magistrates hearing, you lose the right to appeal to the Crown Court under s.108.

Question 23

Can case stated appeal follow a Crown Court appeal?

Answer 23

Yes, if the Crown Court upholds the magistrates decision under s.108, you can appeal by way of case stated.

Question 24

What is the further appeal route from the High Court in a case stated appeal?

Answer 24

Appeals from the High Court in case stated appeals go directly to the UKSC, not the CA.

Question 25

What is Judicial Review?

Answer 25

Judicial Review is a High Court process to oversee inferior tribunals and public bodies for legal errors, excess of jurisdiction, and natural justice breaches.

Question 26

Who can apply for Judicial Review?

Answer 26

Both the prosecution and defence can apply for Judicial Review.

Question 27

When can Judicial Review be used?

Answer 27

It should only be used after the proceedings have concluded.

Question 28

What is the deadline for Judicial Review application?

Answer 28

It must be lodged promptly, within three months after grounds for the review arose.

Question 29

Can the High Court grant bail for Judicial Review applicants?

Answer 29

Only the High Court can grant bail for applicants of Judicial Review.

Question 30

Can Crown Court appeal decisions be subject to Judicial Review?

Answer 30

Yes, a decision made by the Crown Court on appeal from the Magistrate Court can be subject to Judicial Review.

Question 31

What is the standard of review in Judicial Review?

Answer 31

The standard of review is Wednesbury Unreasonableness.

Question 32

Further appeal from the High Court in Judicial Review cases goes where?

Answer 32

An appeal from the High Court in Judicial Review cases goes directly to the UKSC.

Question 33

What is the Slip Rule in the Crown Court?

Answer 33

The ‘slip rule’ in the Crown Court applies only to sentences and allows a judge to vary or rescind a sentence within 56 days if they are the judge who passed it.

Question 34

What is the jurisdiction of the Court of Appeal (Criminal Division)?

Answer 34

The Court of Appeal has jurisdiction to hear

(a) appeals against conviction on indictment;

(b) appeals against sentence passed following conviction on indictment; and

(c) appeals against sentence passed on committal for sentence

Question 35

Is leave required to appeal to the Court of Appeal?

Answer 35

Yes, leave is required to appeal to the Court of Appeal.

Question 36

How is leave granted for Court of Appeal?

Answer 36

The appellant must convince a single judge that the appeal is arguable on merits to proceed to an oral hearing before the full court.

This is paper-based

Question 37

What is the deadline for Notice of Appeal to the Court of Appeal?

Answer 37

The Notice of Appeal (Form NG) must be served on the Registrar **within 28 days of conviction **(for conviction appeals) or sentence (for sentence appeals).

Question 38

What is a certificate of Trial Judge?

Answer 38

In exceptional cases, a trial judge may certify a case as ‘fit for appeal,’ indicating they believe there is a point of law worth reconsidering.

Question 39

What is perfecting grounds for Court of Appeal?

Answer 39

When Crown Court transcripts are received, counsel has 14 days to ‘perfect’ grounds with transcript references supporting the arguments.

Question 40

What is a Respondent Notice?

Answer 40

A Respondent Notice is a response from the prosecution to assist the single judge in reviewing an appeal application.

Question 41

What can a single judge do in Court of Appeal consideration?

Answer 41

A single judge can grant the application, refuse it, or refer it to the full Court of Appeal.

Question 42

What can an appellant do if leave is refused by a single judge?

Answer 42

The appellant can renew the application for leave by serving it to the full court within 10 business days.

Question 43

Is there a bypass mechanism in the Court of Appeal?

Answer 43

Yes, the Registrar can refer a case to the full court without single judge consideration if the appeal involves an unlawful sentence or novel legal points.

Question 44

Can appeals follow guilty pleas in the Crown Court?

Answer 44

Yes, appeals can be made to the Crown Court even after a guilty plea, often when incorrect legal advice is alleged.

Question 45

What is the test on appeal in the Court of Appeal?

Answer 45

For conviction appeals, the court allows the appeal if the conviction is unsafe. For sentence appeals, it considers if a different sentence was warranted.

Question 46

What are the powers on conviction appeals?

Answer 46

The Court of Appeal can quash conviction, order a re-trial, substitute a verdict, or amend the sentence.

Question 47

What are the powers on sentence appeals?

Answer 47

The Court of Appeal can quash the sentence, pass a new sentence, or ensure the appellant is not more severely dealt with.

Question 48

Can the Court of Appeal increase the sentence of someone appealing from the Crown Court?

Answer 48

No.

The Crown Court can lower it or keep as is.

However, they cannot give a more severe sentence.

Question 49

What is s.23 CAA 1968?

Answer 49

s.23 CAA 1968 allows the Court of Appeal to admit fresh evidence if necessary in the interest of justice.

Question 50

What is a Loss of Time Order?

Answer 50

The CA may direct that time spent in prison between lodging the appeal and its dismissal does not count toward the sentence.

Question 51

What are the additional routes of appeal handled by the Court of Appeal?

Answer 51

The CA handles additional routes like Attorney-General References, CCRC referrals, prosecution appeals on terminatory rulings, preparatory hearing rulings, and appeals to the UKSC.

Question 52

What is an Attorney-General Reference?

Answer 52

The AG may seek the CA’s opinion on points of law post-acquittal or refer unduly lenient sentences for review if the offence is triable only on indictment or specified in the JCA 1988. **This must be done within 28 days. **

Question 53

What is the Criminal Case Review Commission?

Answer 53

The CCRC is an independent body that refers cases with a real possibility of quashed convictions to the CA or Crown Court.

Question 54

What is a prosecution appeal on a terminatory ruling?

Answer 54

s.58 CJA provides for prosecution appeals against rulings that would otherwise end a trial, like those made before summing up.

The prosecution has 5 business days to serve written notice in non-expedited cases

Question 55

What are preparatory hearing rulings?

Answer 55

This is a case management hearing held in complex and fraud cases. Both prosecution and defence can appeal rulings made at these in the Court of Appeal

Question 56

When can you appeal to the UKSC from the Court of Appeal?

Answer 56

Either side can appeal to the UKSC if there is a point of law of general public importance within 28 days of CA’s reasoning.

Question 57

What are the three main things a Crown Court judge could do that could form the grounds of an appeal to the Court of Appeal on the grounds a conviction is unsafe?

Answer 57

• Crown Court judge materially misdirects a jury as to the law that impacted the outcome
• Judge incorrectly rules on exclusion/admissibility of evidence that impacts the outcome (e.g. incorrect exclusion of confession evidence)
• Judicial Bias

Question 58

When appealing to the crown court for the magistrates court, before whom does the appeal take place and can new evidence be introduced?

Answer 58

One district judge
Two lay magistrates

No restriction for defence or prosecution to the original evidence - new evidence can be adduced

Question 59

What must be submitted when appeaing from the Crown Court to the Court of Appeal?

Answer 59

The defence counsel (or the defendant) must submit an appeal notice together with the grounds for appeal to be considered by the Court of Appeal.

Question 60

When MUST a youth court give a mandatory referral order?

Answer 60

If the youth has not previously been convicted of an offence, and they have pleaded guilty to an imprisonable offence.

Question 62

Who hears an appeal in the crown court?

Answer 62

A circuit judge or recorder (part time judge) and up to four magistrates can hear the appeal (however, normal procedure is for just two magistrates to be present)