Unit 15 - APpeals

Question 1

Before considering formal routes to appeal from Mags decisions, what should you consider?

Answer 1

Whether s142 MCA can apply.

Question 2

Section 142(2) MCA:

Answer 2

“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.”

Question 3

TRUE or FALSE. Section 142 applications can be heard by the same bench that convicted the accused.

Answer 3

TRUE. Can also be a different bench.

Question 4

When might s142 be used?

Answer 4

Error of law

Defect in procedure

Question 5

What is the advantage of s142 over appeal?

Answer 5

Saves money and time. No rehearing in CC / challenge in Divisional Court.

Question 6

Could s142(2) be used where mags proceeded to trial in D’s absence and D had a good reason to be absent?

Answer 6

Yes.

Question 7

Does s142(2) confer a wide and general power to reopen previous decisions?

Answer 7

No. It is intended to be used where there has been a mistake.

Question 8

Section 142(1) MCA:

Answer 8

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.

Question 9

When might s142(1) MCA be used?

Answer 9

Error in relation to facts that were the basis of sentencing decision.

Sentence imposed which the court had no power to impose.

Question 10

What are the three avenues of appeal from the Mags?

Bonus: what is the fourth?

Answer 10

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.

Question 11

s108(1) MCA and CrimPR Part 34 govern:

Answer 11

Appeals from Mags to CC.

Question 12

On what basis can a person convicted by the Mags appeal to the CC?

Answer 12

If he pleaded guilty, he can appeal his sentence.

If he pleaded not guilty, he can appeal his conviction and/or sentence.

Question 13

TRUE or FALSE. A person convicted in the mags who pleaded guilty can never appeal against his conviction.

Answer 13

FALSE. Can do so in very narrow circumstances, such as where their guilty plea was equivocal.

Question 14

TRUE or FALSE. Permission is required to appeal to the CC from the Mags.

Answer 14

False. It is a right.

Question 15

Notice of appeal to go to CC must be given to the relevant mags court officer and every other party not more than…

Answer 15

…21 days after sentence.

Question 16

Can bail be applied for pending appeal to the CC?

Answer 16

Yes.

Question 17

Who hears appeals from Mags to CC?

Answer 17

Circuit judge or recorder who sits wth two lay mags who were not involved in the original.

Question 18

Must decisions of the CC regarding Mags appeals be unanimous?

Answer 18

No, majority. This means the two lay justices can outvote the CJ on matters of fact.

Question 19

TRUE or FALSE. Lay justices can outvote circuit judge onb matters of law.

Answer 19

FALSE.

Question 20

TRUE or FALSE. Rehearings in CC proceed just like a trial at the Mags.

Answer 20

TRUE, save for that the information upon which D was convicted cannot be amended.

Question 21

TRUE or FALSE. During an appeal in CC from Mags, the court has to decide whether the sentence given was the CORRECT one.

Answer 21

TRUE.

Question 22

What is the maximum sentence that can be imposed in CC on appeal from Mags?

Answer 22

Whatever the Mags could have imposed.

unless CCRC referral, in which case it cannot be increased

Question 23

Section 111(1) MCA and CrimPR 35 govern:

Answer 23

Appeals to the Divisional Court of the QBD of the High Court by way of case stated.

Question 24

On what basis can A appeal to HC by way of case stated?

Examples:

Answer 24

WRong in law;

Excess of jurisdiction.

Examples:

• Error of law (no evidence for an element of offence)
• Court wrongly declines jurisdiction for venue/sentence.

Question 25

TRUE or FALSE. Right to appeal BWOCS only arises where there has been a final determination of the case in the Mags.

Answer 25

TRUE.

Question 26

TRUE or FALSE. Appeals BWOCS is only open to D.

Answer 26

FALSE. Open to P and D.

Question 27

Should BWOCS be used where the finding of fact is being challenged?

Answer 27

No - generally use where the Mags got the law wrong.

Question 28

Applications for appeal BWOCS should be made... Can it be extended?

Answer 28

...within 21 days after the date of Mags decision (sentence). It cannot be extended.

Question 29

The court hearing appeals BWOCS will be made up of how many judges?

Answer 29

At least two, often three.

Question 30

Appeals BWOCS involves calling evidence.

Answer 30

False. Just hearings submissions and considering the stated case.

Question 31

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).

Answer 31

TRUE.

Question 32

Can BWOCS result in quashing an acquittal?

Answer 32

Yes.

Question 33

Can BWOCS result in an order that the Mags convicts/sentences/substitutes a conviction/sentence?

Answer 33

Yes.

Question 34

Can BWOCS result in DC ordering a retrial?

Answer 34

Yes.

Question 35

Can an appeal BWOCS be abandoned without leave?

Answer 35

Yes.

Question 36

TRUE or FALSE. If A is unsuccessful via BWOCS, can they appeal to CC?

Answer 36

No - they forfeit that right by appealing BWOCS.

Question 37

If a bench refuses to state a case in relation to appeal BWOCS, can this be challenged by judicial review?

Answer 37

Yes.

Question 38

Part 54 CPR governs

Answer 38

Appeal to the High Court by way of Judicial Review.

Question 39

Who is appeal by Jr availabel to?

Answer 39

P and D.

Question 40

TRUE or FALSE. Acquittals cannot be quashed via JR appeal.

Answer 40

FALSE. They can if the trial was a nullity.

Question 41

TRUE or FALSE. JR appeal from Mags requires final determination of the case.

Answer 41

FALSE. However, it should ordinarily take place at conclusion of proceedings in Mags.

Question 42

The grounds for appealing JR in Mags: give an example for each

Answer 42

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)

Question 43

What is the time limit for filing appeal via JR?

Answer 43

3 months after the grounds to make the claim first arose.

Question 44

How many judges hear JR appeals?

Answer 44

2 or more HC judges in open court.

Question 45

What are the three remedies available for JR appeal from Mags?

Answer 45

Quashing order; Mandatory order; Prohibitory order.

Question 46

TRUE or FALSE. Granting of judicial review from Mags is always discretionary.

Answer 46

TRUE.

Question 47

TRUE or FALSE. Appeal from DC via JR goes directly to UKSC and bypasses CoA.

Answer 47

TRUE.

Question 48

What is a disadvantage of rehearing in CC, re witnesses?

Answer 48

They have been rehearsed so each party is prepared for lines of questioning.

Question 49

What is preferred between BWOCS and JR?

Answer 49

BWOCS. JR is last resort.

Question 50

When is JR to be preferred to BWOCS?

Answer 50

Where there has been unfairness/bias.

Question 51

How long do you have to file notice to appeal to CoA from CC?

Answer 51

28 days after conviction/sentence.

Question 52

What must be set out in the form to appeal to CoA from CC?

Answer 52

Details Grounds - Facts - Authorities Sentencing Powers Relevant applications Time extension Transcripts from CC

Question 53

Can counsel make an appeal to CoA which they don't think it arguable?

Answer 53

No.

Question 54

Can you abandon a CoA appeal without leave?

Answer 54

Only before hearing starts.

Question 55

how many judges will normally hear an appeal in CoA?

Answer 55

3.

Question 56

If leave to CoA is refused, how must you renew? How long do you have to apply for renewal?

Answer 56

Orally 14 days

Question 57

When can court make directions for loss of time?

Answer 57

Where appeal has no merit.

Question 58

On what basis will the Court of Appeal overturn a conviction?

Answer 58

Where they think the conviction is unsafe.

Question 59

What can CoA do in relation to conviction appeal/

Answer 59

Quash Order acquittal Retrial

Question 60

When can CoA overturn sentence?

Answer 60

Wrong in law Manisfestly excessive Wrong in principle

Question 61

When can the prosecution appeal at CoA?

Answer 61

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.

Question 62

When can you make an appeal via CCRC?

Answer 62

Where arguments/information was not available to the CC.

Question 63

When can you appeal to UKSC? Who gives permission?

Answer 63

Points of law of general public importance. CoA certificate CoA or UKSC grants leave.

Question 64

Time limit for BWOCS from CC?

Answer 64

21 days from decision;

Question 65

Time limit for Mags to CC appeal?

Answer 65

15 business days from date of sentence?

Question 66

Time limit for CC to CoA / CoA to UKSC

Answer 66

Not more than 28 days after decision.

Question 67

When do you need uneven number of judges in appeals from CC?

Answer 67

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

Question 68

What is a common basis for challenging an unequivocal plea of guilty at appeal?

Answer 68

An incorrect ruling on a point of law by a trial judge which allows A no escape from a guilty verdict.

Question 69

List common errors on appeal from CC re conviction

Answer 69

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

Question 70

Common list of grounds of appeal against sentence (from CC)

Answer 70

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.

Question 71

How long does counsel have to perfect grounds of appeal to CoA?

Answer 71

14 days.

Question 72

Can time limits for appeals to CoA be extended?

Answer 72

Yes, either before or after expiry.

Question 73

If a single judge grants leave to appeal to CoA on a single ground, but does not mention any others, can they be used?

Answer 73

Yes.

Question 74

If a single judge refuses leave to appeal to CoA on single ground, but does not mention any others, can they be used?

Answer 74

Need to renew application with them.

Question 75

What powers does CoA have?

Answer 75

Quash Order acquittal Order retrial

Question 76

What factors must CoA take into account when deciding whether to retrial?

Answer 76

Length of time Fresh evidence Strength of case

Question 77

What are the two categories of appeal by Pros to CoA under s9 CJA?

Answer 77

Appeals against terminating rulings; Appeals against evidentiary rulings which significantly weaken the prosecution case.

Question 78

Section 58 allows pros to challegne CC rulings which...

Answer 78

...would otherwise end proceedings.

Question 79

TRUE or FALSE. Prosecution informing the court that it intends to appeal CC to CoA has to be in the court immediately following ruling.

Answer 79

No. Just soon. Can ask for adjournment while they decide.

Question 80

If P's appeal from CC to CoA is refused, what undertaking must P make?

Answer 80

Undertake to offer no evidence against A.

Question 81

On what basis will CCRC appeal a case?

Answer 81

If there is a real possibility that CoA/CC will quash the conviction/sentence.

Question 82

Where is setting aside under s142(2) MCA most appropraite?

Answer 82

Where mags made an error of law or a procedural defect.

Question 83

TRUE or FALSE. Mags can vary/rescind sentencing decisions in interests of justice.

Answer 83

Yes, see s142(1).

Question 84

Appeals from youth court must be heard by... Can appeals be limited to one justice?

Answer 84

...judge/recorder of CC with 2 lay justices. Yes, if the hearing would otherwise be unreasonably delayed.

Question 85

Notices to appeal to CC should include:

Answer 85

Basis of appeal Summary of issues/witness Likely time length

Question 86

Must appeal notices from Mags to CC be in writing?

Answer 86

No, can be in any form and oral.

Question 87

The correct test for appealling sentence from Mags in CC is to decide whether...

Answer 87

...the sentence given was CORREct (not whether it was reasonable).