unit 15 - Appeals (BSB unit 27)

Question 1

s142 MCA 1980, ‘slip rule’

What does the MC have power to do?

– allows a D who was convicted in MC (whether guilty plea or verdict after trial) to ask magistrates to:

Answer 1

(1) set aside the conviction [s142(2)]; or

(2) vary or rescind the sentence [s142(1)]

Question 2

Application can be heard by the same or different bench who convicted the D;

Answer 2

BUT If the conviction is set aside, the case is reheard by different magistrates from those who convicted

Question 3

When is it appropriate for MC to use the slip rule?

Answer 3

• to ‘mop up’ any technical mistakes in law or
  Procedure:

Eg where there is a simple
(1) error of law or
(2) defect in procedure.

Question 4

once a guilty verdict has been pronounced by magistrates, it does not enable a convicted accused to make further submissions with a view to persuading the bench to change its mind and substitute a not guilty verdict

Answer 4

If the magistrates have reached the wrong decision on the merits of submissions which have been made to them, the appropriate course for the accused is to appeal to the Crown Court or by way of case stated to the High Court.

Question 5

The MCA 1980, s. 142(1), allows a magistrates’ court to vary or rescind its decision as to sentence if it is in the interests of justice to do so

Answer 5

Exceptionally/rarely, a sentence could be increased

The magistrates can reopen the case under s. 142 regardless of whether the accused pleaded guilty or was found guilty.

Question 6

Can s. 142 apply where the accused was acquitted?

Answer 6

NO!

Question 7

Guidance on the use of s. 142(1) was given in Holme v Liverpool City Justices

[CASE LAW]

Answer 7

• D pleaded guilty to dangerous driving,
• a pedestrian having sustained serious injuries.
• A community sentence was imposed.
• The magistrates agreed to a request from the CPS to reopen the case under s. 142, on the basis that the original counsel for the prosecution had not addressed the extent of the pedestrian’s injuries and that the difference between the sentence imposed and the custodial sentence that would probably have been imposed had the court known all the facts offended the principles of justice.
• On appeal to the Divisional Court, Collins J (at [30]) said that:

… the power under s. 142 is to be used in a relatively limited situation, namely one which is akin to mistake or, as the court says, the slip rule. But there is no reason, on the face of it, to limit it further. It seems to me that if a court has been misled into imposing a particular sentence, and it is discovered that it has been so misled, then the sentence may properly be said to have been imposed because of a mistake; the mistake being the failure of the court to appreciate a relevant fact. That may well give power to the court to exercise the jurisdiction conferred by s. 142, but it does not indicate that that power should necessarily be used.

It follows that s. 142 can be used to increase sentence only in exceptional circumstances. His lordship went on (at [33]) to say that the sort of case which is appropriate for use of the power under s. 142 is one ‘where the mistake is quickly identified and it is accepted on all sides that a mistake had been made’. At [42]—[43], his lordship said that it was possible to envisage circumstances in which the failure of the court to be aware of factors which would be relevant to sentence could properly mean that it would be appropriate to resort to s.142, but:
… it would only be in very rare circumstances that it would be appropriate to resort to s. 142 to consider an increase in sentence, particularly if that increase … brought the possibility of custody as opposed to another form of disposal.

The facts of the instant case, said the court, did not come anywhere near justifying such a use of s. 142.

Question 8

Challenging MC decisions

A person aggrieved by a decision of the magistrates’ court has three means of challenge to that decision available. They are as follows:

Answer 8

† (a) appeal to the Crown Court;

† (b) appeal to the High Court by way of case stated;

† (c) application to the High Court for judicial review.

Question 9

Any person convicted by a magistrates’ court may appeal against either the conviction and/or sentence

If the offender pleaded guilty in the MC then the offender may also appeal against conviction and sentence to the Crown Court.

Question 10

An appeal to the High Court by way of case stated or an application for judicial review is available to …

Answer 10

either party in the magistrates’ court if they are aggrieved at the outcome of proceedings.

Question 11

Appeals to the Crown Court - an appeal from the youth court must be heard by,,,

Answer 11

a judge or recorder of the Crown Court sitting with two lay justices

{Exceptionally, the Crown Court may include only one justice of the peace and need not include both a man and a woman if the presiding judge decides that the hearing of the appeal will otherwise be unreasonably delayed or one or more of the justices who started hearing the appeal is absent }

Question 12

Procedure on Appeal to the Crown Court

Answer 12

(1) require notice of appeal to be given in writing to the relevant magistrates’ court officer and every other party

(2) within 15 business days of sentence being passed or sentence being deferred.

Question 13

Time limit on Appeal to the Crown Court

Answer 13

The appellant has 15 business days from the date of sentence, even if that is after the date of conviction, to appeal only against conviction.

The time-limit is also 15 business days where the appeal is against an order, or failure to make an order.

Question 14

Appeal to the Crown Court: what must the notice of appeal contain?

Answer 14

a) summarise the issues and in an appeal against conviction

b) must specify the witnesses whom the appellant will want to question and

c) state how long the trial lasted in the magistrates’ court and how long the appeal is likely to take.

Question 15

appeals to CC: In an appeal against a finding that the appellant insulted someone or interrupted proceedings in the magistrates’ court:

Answer 15

MC’s written findings of fact and the appellant’s response to those findings must be attached to the notice.

Question 16

Appeals to the Crown Court: is leave to appeal required?

Answer 16

NO.

as long as a notice is served within time

Question 17

appeals to CC: what if the time limit for the notice has passed?

Answer 17

a) an application for an extension of time must be served with the appeal notice and must explain why the appeal notice is late

b) the Crown Court may shorten or extend (even after it has expired) any time-limit under Part 34.

Question 18

Appeals to the CC: who hears the case?

Answer 18

• heard by a circuit judge or recorder who must normally sit with two lay magistrates who were not involved with the original proceedings
• Prior to the hearing, the defence may request a copy of the clerk’s notes of evidence of the summary trial.

Question 19

Hearing - appeal against conviction

Answer 19

(1) Under s. 79(3), the appeal proceeds by way of complete rehearing

(2) at an appeal against conviction, counsel for the respondent (i.e. the prosecution) makes an opening speech and calls evidence, after which counsel for the appellant may make a submission of no case to answer.

(3) If that fails, defence evidence is called, counsel makes a closing speech, and the court announces its decision.

(4) The parties may call evidence which has only become available to them since the trial, or evidence they decided not to use in the magistrates’ court.

Question 20

What can CC not do on appeal?

Answer 20

• The information on which the appellant was convicted may not be amended by the Crown Court, including date of the alleged offences
• ## the Crown Court cannot strike out an amendment made by the magistrates

Question 21

Hearing - appeal against sentence

Answer 21

1. An appeal against sentence is, in essence, a fresh sentencing hearing.

2.The prosecution open the facts and antecedents of the appellant, and defence counsel then mitigates.

3. The court then decides the sentence to be imposed.
4. When dealing with an appeal against sentence, the Crown Court should not ask itself whether the sentence was within the discretion of the magistrates (as would be the appropriate question in judicial review proceedings) but should consider whether, in the light of all the matters which the Crown Court had heard, the sentence passed by the magistrates was the correct one.

Question 22

Hearing - appeal against sentence

If what the court thinks is the appropriate sentence differs significantly from the sentence imposed by the magistrates, the appeal should be allowed and the sentence of the Crown Court substituted for that of the magistrates

Answer 22

1- The Crown Court is not entitled to increase the sentence on appeal from the magistrates’ court on the basis that the magistrates ought to have committed the offender to the Crown Court for sentence in the first place

2- The Crown Court may, however, increase the sentence to the maximum that could be imposed by the magistrates’ court.

Question 23

Reasons for the decision of the Crown Court should be given by the judge presiding over the hearing.

Answer 23

1. • The reasons should include a statement of the main contentious issues in the case and how the court had resolved them.
2. A refusal to give reasons might amount to a denial of natural justice
3. The duty to provide reasons exists whether the court allows or dismisses the appeal against conviction
4. If reasons are not given the decision of the Crown Court will usually be vitiated, but that is not an unqualified rule. If, for example, the reasons are obvious, the failure to set them out will not necessarily be fatal

Question 24

Appeal to CC: -

In Snaresbrook Crown Court, ex parte Input Management Ltd (1999) ,

the Divisional Court defined the obligation to give reasons, holding that the reasons given by the Crown Court should enable D:

Answer 24

(i) to see the nature of the criminality found to exist by the court; and

(ii) to properly consider whether there are grounds for a further appeal to the Divisional Court by way of case stated.

Question 25

Powers of the Crown Court on Appeal

following an appeal from the magistrates’ court, the Crown Court:

Answer 25

† (a) may confirm, reverse or vary any part of the decision appealed against, including a determination not to impose a separate penalty in respect of an offence; or

† (b) may remit the matter with its opinion thereon to the authority whose decision is appealed against; or

† (c) may make such other order in the matter as the court thinks just, and by such order exercise any power which the said authority might have exercised.

so:

(a) Confirm
o (b) Reverse
o (c) Vary
o Any part of the decision appealed against (including a determination not to impose a separate penalty in respect of an offence)

Question 26

Thus, s. 48 allows the Crown Court to:

Answer 26

† (a) quash the conviction;

† (b) remit the case to the magistrates’ court (e.g., in the case of an equivocal plea);

† (c) vary the sentence imposed by the magistrates (this includes the power to increase the sentence, but not beyond the maximum sentence which the magistrates’ court could have passed: s. 48(4)).

Question 27

the procedure for abandonment of an appeal under the MCA 1980, s. 109.

Answer 27

The appellant may abandon the appeal by giving notice in writing to that effect to the magistrates’ court, to the appropriate officer of the Crown Court and to the prosecution and to any other party to the appeal

The appeal may be abandoned without permission if it is done before the hearing commences. Once the hearing has started, the appeal may be abandoned only with the permission of the Crown Court.

As with a notice of appeal, under r. 34.10(d), the CC may allow the notice of abandonment to be given in a form other than that specified or to be given orally. The CC has a discretion to award costs in an appeal from a magistrates’ court in all cases (even where a timely notice of abandonment has been served).

Question 28

An appeal cannot be abandoned simply by an appellant failing to attend or failing to instruct an advocate

Question 29

Upon the abandonment of an appeal,

Answer 29

• the Crown Court has no power to increase sentence
• the Crown Court has no power to reinstate the appeal unless the abandonment was a nullity

Question 30

Principles of Appeal by Way of Case Stated

Answer 30

The essence of the procedure is an appeal on a point of law which is identified in a document known as the ‘case’.

The case is initially drafted by the justices’ clerk in conjunction with the bench whose decision is being appealed.

Question 31

Appeal by way of case stated

A form of appeal to High Court on basis that decision made was either

Answer 31

(1) wrong in law or

(2) in excess of jurisdiction.

Question 32

Features of the ‘case stated’ process which emerge from s. 111 include:

Answer 32

† (a)†††† The remedy is available to both the prosecution and defence
.
† (b)†††† The remedy operates only in relation to an error of law or a decision taken in excess of jurisdiction. A decision as to a question of fact will ordinarily not give rise to an appeal by way of case stated but may do so if the finding of fact is alleged to be such that no reasonable bench could have properly reached that factual conclusion on the evidence

Question 33

Appeal by Way of Case Stated - how many judges hear the case?

Answer 33

comprised of at least two judges, and often three

If a two-judge court cannot agree, the appeal is unsuccessful

Question 34

Appeal by Way of Case Stated - does evidence need to be called?

Answer 34

No evidence is called at the hearing as all evidence which needs to be referred to will be contained in the stated case

(1) the appeal is conducted by way of submissions from the parties.

(2) If the facts contained within the case give rise to a point of law which was not argued before the magistrates but would have provided the defendant with a defence, the court may consider the point provided no further evidence is necessary

Question 35

Appeal by Way of Case Stated - which party can use this method?

Answer 35

it is open to both defence and prosecution

Question 36

Appeal by Way of Case Stated

Powers of court

Answer 36

1) Reverse

2) Affirm

3) Amend

the decision of the MC; OR

4) remit the case with its opinion

5) make any other order (including an order as to costs) as it sees fit

Question 37

so at Appeal by Way of Case Stated

the Court MAY:

Answer 37

1) quash an acquittal with a direction that the magistrates’ court convicts and sentences

2) simply substitute a conviction for the previous acquittal and proceed to sentence.

3) If the appeal concerns sentence only, the court may substitute the appropriate sentence

Question 38

Abandoning an appeal by way of case stated

Answer 38

Appellant may abandon an appeal by way of case stated, without leave.

Question 39

Appeal by way of case stated

CAN COURT ORDER RE-TRIAL?

Answer 39

YES

The Divisional Court is entitled to order a retrial before the same bench or a different bench where a fair trial is still possible

Question 40

An appeal by way of case stated from the High Court =

Answer 40

is direct to the Supreme Court.

Question 41

The principal grounds upon which judicial review may be sought are:

Answer 41

† (a) error of law on the face of the record — i.e. an error disclosed by the court records;

† (b) excess of jurisdiction;

† (c) breach of natural justice.

Question 42

The concept of breach of natural justice has frequently been litigated and has been widely drawn. It has been held to include:

Answer 42

† (i) failing to give D adequate time to prepare a defence

† (ii) failing to grant an adjournment to allow for the attendance of a witness

† (iii) the prosecution failing to call or disclose the statement of a witness who might assist the defence

† (iv) the prosecution failing to disclose the previous convictions of prosecution witnesses

† (v) making an order as to costs against D without inquiring as to D’s means

Question 43

Choice between judicial review and case stated

Both judicial review and the case stated procedure set aside the decision of the court below, and a choice must be made as to which route to pursue

R (P) v Liverpool City Magistrates, guidance re most appropriate route:

Answer 43

† (a) the normal route for an appeal against a decision of justices where it is alleged there has been an error of law is by way of case stated;

† (b) it would be wrong to seek judicial review where case stated was appropriate, merely in order to avoid the more stringent time-limit;

† (c) however, judicial review is more appropriate where there is an issue of fact to be raised and decided which the justices did not decide themselves;

† (d) judicial review may also be appropriate where it is alleged that there has been unfairness or bias in the conduct of the case by the justices but, where it is alleged that there has been a misdirection or an error of law, case stated is the appropriate remedy.

Question 44

the Divisional Court said that judicial review should be pursued where the inferior court has acted in excess of jurisdiction.

Answer 44

Judicial review is the only remedy available where the defence wish to challenge a committal for sentence, as the case stated procedure is not available where there has not been a final determination of the case.

Question 45

An appeal from the Divisional Court, either in relation to an appeal by way of case stated or a judicial review =

Answer 45

is direct to the Supreme Court

Question 46

Appeal by way of Case Stated: what cannot be challenged?

Answer 46

(1) There can be no challenge on the basis that a decision is against the weight of the evidence.

(2) no appeal by way of case stated is possible in respect of matters relating to trial on indictment (other CC matters are ok)

Question 47

If you elect to state a case from m’ court =

Answer 47

you LOSE your right to appeal to the Crown Court under s108 (if the defendant, prosecution can’t use s108 anyway).

However, not vice versa: if you appeal to Crown Court under s108, and Crown Court uphold decision of magistrates = you can use the case stated procedure from the Crown Court after an unsuccessful s108 appeal.

Question 48

Appeal by way of Case Stated: deadline?

Answer 48

The deadline is 21 DAYS from the date of the DECISION sought to be appealed.

Question 49

Application for Judicial Review: can CC be challenged?

Answer 49

it is possible to challenge a decision of the Crown Court by way of judicial review provided that that decision does not concern a matter relating to trial on indictment.

Question 50

What does the phrase ‘relating to trial on indictment’ mean?

Answer 50

1. covered all decisions relating to the conduct of the trial
2. It has thus been held that the decision to stay any part of an indictment as an abuse of process is a matter relating to trial on indictment

Includes all decisions relating to the conduct of the trial, eg:
- decision to stay any part of an indictment as an abuse of process;
- an order that counts should lie on the file in the usual way;
- a decision as to the order in which indictments are tried;
- decisions as to disclosure
- the decision to hold a trial on the issue of fitness to plead

Does NOT include:
- Forfeiture of a surety
- Forfeiture of property used in the course of an offence belonging to a third
party
- Binding over of an acquitted accused
- Restrictions on the publication of the identity of a convicted youth.

Question 51

bail - pending judicial review of a decision of the Crown Court.

Answer 51

This may be granted

Question 52

If a defendant convicted in the magistrates’ court appeals to the Crown Court

If a defendant convicted in the magistrates’ court appeals to the Crown Court,

Answer 52

and not judicial review