Unit 15 - APpeals Flashcards
Before considering formal routes to appeal from Mags decisions, what should you consider?
Whether s142 MCA can apply.
Section 142(2) MCA:
“where a person is convicted by the mags and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may so direct.”
TRUE or FALSE. Section 142 applications can be heard by the same bench that convicted the accused.
TRUE. Can also be a different bench.
When might s142 be used?
Error of law
Defect in procedure
What is the advantage of s142 over appeal?
Saves money and time. No rehearing in CC / challenge in Divisional Court.
Could s142(2) be used where mags proceeded to trial in D’s absence and D had a good reason to be absent?
Yes.
Does s142(2) confer a wide and general power to reopen previous decisions?
No. It is intended to be used where there has been a mistake.
Section 142(1) MCA:
A Mags court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so.
When might s142(1) MCA be used?
Error in relation to facts that were the basis of sentencing decision.
Sentence imposed which the court had no power to impose.
What are the three avenues of appeal from the Mags?
Bonus: what is the fourth?
Appeal to Crown Court;
Appeal to the High Court by way of case stated;
Appeal to the High Court by way of Judicial Review.
BONUS: Criminal Cases Review Commission can refer any summary conviction or associated sentence to the Crown Court.
s108(1) MCA and CrimPR Part 34 govern:
Appeals from Mags to CC.
On what basis can a person convicted by the Mags appeal to the CC?
If he pleaded guilty, he can appeal his sentence.
If he pleaded not guilty, he can appeal his conviction and/or sentence.
TRUE or FALSE. A person convicted in the mags who pleaded guilty can never appeal against his conviction.
FALSE. Can do so in very narrow circumstances, such as where their guilty plea was equivocal.
TRUE or FALSE. Permission is required to appeal to the CC from the Mags.
False. It is a right.
Notice of appeal to go to CC must be given to the relevant mags court officer and every other party not more than…
…21 days after sentence.
Can bail be applied for pending appeal to the CC?
Yes.
Who hears appeals from Mags to CC?
Circuit judge or recorder who sits wth two lay mags who were not involved in the original.
Must decisions of the CC regarding Mags appeals be unanimous?
No, majority. This means the two lay justices can outvote the CJ on matters of fact.
TRUE or FALSE. Lay justices can outvote circuit judge onb matters of law.
FALSE.
TRUE or FALSE. Rehearings in CC proceed just like a trial at the Mags.
TRUE, save for that the information upon which D was convicted cannot be amended.
TRUE or FALSE. During an appeal in CC from Mags, the court has to decide whether the sentence given was the CORRECT one.
TRUE.
What is the maximum sentence that can be imposed in CC on appeal from Mags?
Whatever the Mags could have imposed.
unless CCRC referral, in which case it cannot be increased
Section 111(1) MCA and CrimPR 35 govern:
Appeals to the Divisional Court of the QBD of the High Court by way of case stated.
On what basis can A appeal to HC by way of case stated?
Examples:
WRong in law;
Excess of jurisdiction.
Examples:
- Error of law (no evidence for an element of offence)
- Court wrongly declines jurisdiction for venue/sentence.
TRUE or FALSE. Right to appeal BWOCS only arises where there has been a final determination of the case in the Mags.
TRUE.
TRUE or FALSE. Appeals BWOCS is only open to D.
FALSE. Open to P and D.
Should BWOCS be used where the finding of fact is being challenged?
No - generally use where the Mags got the law wrong.
Applications for appeal BWOCS should be made…
Can it be extended?
…within 21 days after the date of Mags decision (sentence).
It cannot be extended.
The court hearing appeals BWOCS will be made up of how many judges?
At least two, often three.
Appeals BWOCS involves calling evidence.
False. Just hearings submissions and considering the stated case.
TRUE or FALSE. The Divisional Court may ‘reverse, affirm or amend’ the decision of the Mags court or remit the case with its opinion or make any other order as it sees fit (re BWOCS).
TRUE.
Can BWOCS result in quashing an acquittal?
Yes.
Can BWOCS result in an order that the Mags convicts/sentences/substitutes a conviction/sentence?
Yes.
Can BWOCS result in DC ordering a retrial?
Yes.
Can an appeal BWOCS be abandoned without leave?
Yes.
TRUE or FALSE. If A is unsuccessful via BWOCS, can they appeal to CC?
No - they forfeit that right by appealing BWOCS.
If a bench refuses to state a case in relation to appeal BWOCS, can this be challenged by judicial review?
Yes.
Part 54 CPR governs
Appeal to the High Court by way of Judicial Review.
Who is appeal by Jr availabel to?
P and D.
TRUE or FALSE. Acquittals cannot be quashed via JR appeal.
FALSE. They can if the trial was a nullity.
TRUE or FALSE. JR appeal from Mags requires final determination of the case.
FALSE. However, it should ordinarily take place at conclusion of proceedings in Mags.
The grounds for appealing JR in Mags:
give an example for each
Error of law on the face of the records; (convicting D of offence not known to law)
Excess of jurisdiction; (trying D in Mags when they didn’t consent to summary trial)
Breaches of the rules of natural justice
(unreasonable refusal of adjournment requested to prepare a case)
What is the time limit for filing appeal via JR?
3 months after the grounds to make the claim first arose.
How many judges hear JR appeals?
2 or more HC judges in open court.
What are the three remedies available for JR appeal from Mags?
Quashing order;
Mandatory order;
Prohibitory order.
TRUE or FALSE. Granting of judicial review from Mags is always discretionary.
TRUE.
TRUE or FALSE. Appeal from DC via JR goes directly to UKSC and bypasses CoA.
TRUE.
What is a disadvantage of rehearing in CC, re witnesses?
They have been rehearsed so each party is prepared for lines of questioning.
What is preferred between BWOCS and JR?
BWOCS. JR is last resort.
When is JR to be preferred to BWOCS?
Where there has been unfairness/bias.
How long do you have to file notice to appeal to CoA from CC?
28 days after conviction/sentence.
What must be set out in the form to appeal to CoA from CC?
Details
Grounds
- Facts
- Authorities
Sentencing Powers
Relevant applications
Time extension
Transcripts from CC
Can counsel make an appeal to CoA which they don’t think it arguable?
No.
Can you abandon a CoA appeal without leave?
Only before hearing starts.
how many judges will normally hear an appeal in CoA?
3.
If leave to CoA is refused, how must you renew? How long do you have to apply for renewal?
Orally
14 days
When can court make directions for loss of time?
Where appeal has no merit.
On what basis will the Court of Appeal overturn a conviction?
Where they think the conviction is unsafe.
What can CoA do in relation to conviction appeal/
Quash
Order acquittal
Retrial
When can CoA overturn sentence?
Wrong in law
Manisfestly excessive
Wrong in principle
When can the prosecution appeal at CoA?
For points of law (just to clarify, not overturning acquittal);
Against termination ruling;
Exceptions to double jeopardy;
AG references for sentences they believe are unduly lenient.
When can you make an appeal via CCRC?
Where arguments/information was not available to the CC.
When can you appeal to UKSC?
Who gives permission?
Points of law of general public importance.
CoA certificate
CoA or UKSC grants leave.
Time limit for BWOCS from CC?
21 days from decision;
Time limit for Mags to CC appeal?
15 business days from date of sentence?
Time limit for CC to CoA / CoA to UKSC
Not more than 28 days after decision.
When do you need uneven number of judges in appeals from CC?
Conviction, sentence review, appeals against findings of unfitness to plead disabilities application for leave to appeal a NG verdict by reason of insaity; leave for UKSC
What is a common basis for challenging an unequivocal plea of guilty at appeal?
An incorrect ruling on a point of law by a trial judge which allows A no escape from a guilty verdict.
List common errors on appeal from CC re conviction
Wrongful admission or exclusion of evidence;
Erroneous exercise of discretion;
Rejection of submission of NC2A;
Defecst in indictment;
Inconsistent verdicts and jury irregularities;
Conduct of trial judge;
Summing-up errors
Misdirection on law
Wrongful withdrawal of issues from jury
Misdirection on facts
Imrpoper comments on facts, defence, character, failure to testify
Common list of grounds of appeal against sentence (from CC)
Wrong in law
WRong in principle
Manifestly excessive
Judge’s remarks showing that wrong factors used
Sense of grievance (indications of sentence)
Disparity of sentence between co-accused
Failure to distinguish between offenders.
How long does counsel have to perfect grounds of appeal to CoA?
14 days.
Can time limits for appeals to CoA be extended?
Yes, either before or after expiry.
If a single judge grants leave to appeal to CoA on a single ground, but does not mention any others, can they be used?
Yes.
If a single judge refuses leave to appeal to CoA on single ground, but does not mention any others, can they be used?
Need to renew application with them.
What powers does CoA have?
Quash
Order acquittal
Order retrial
What factors must CoA take into account when deciding whether to retrial?
Length of time
Fresh evidence
Strength of case
What are the two categories of appeal by Pros to CoA under s9 CJA?
Appeals against terminating rulings;
Appeals against evidentiary rulings which significantly weaken the prosecution case.
Section 58 allows pros to challegne CC rulings which…
…would otherwise end proceedings.
TRUE or FALSE. Prosecution informing the court that it intends to appeal CC to CoA has to be in the court immediately following ruling.
No. Just soon. Can ask for adjournment while they decide.
If P’s appeal from CC to CoA is refused, what undertaking must P make?
Undertake to offer no evidence against A.
On what basis will CCRC appeal a case?
If there is a real possibility that CoA/CC will quash the conviction/sentence.
Where is setting aside under s142(2) MCA most appropraite?
Where mags made an error of law or a procedural defect.
TRUE or FALSE. Mags can vary/rescind sentencing decisions in interests of justice.
Yes, see s142(1).
Appeals from youth court must be heard by…
Can appeals be limited to one justice?
…judge/recorder of CC with 2 lay justices.
Yes, if the hearing would otherwise be unreasonably delayed.
Notices to appeal to CC should include:
Basis of appeal
Summary of issues/witness
Likely time length
Must appeal notices from Mags to CC be in writing?
No, can be in any form and oral.
The correct test for appealling sentence from Mags in CC is to decide whether…
…the sentence given was CORREct (not whether it was reasonable).
