unit 15 - Appeals CC (BSB unit 28) Flashcards
Variation of sentence
A sentence imposed or other order made by the Crown Court when dealing with an offender may be varied or rescinded within
56 days of being passed or made.
Variation of sentence - can it be a different judge??
NO!
MUST BE THE SAME JUDGE who originally passed sentence
if, however, the judge was accompanied by justices on the first occasion (i.e. on an appeal from the magistrates’ court), they need not be present for the variation
The power to rectify mistakes is extinguished if an appeal against it, or application for leave to appeal against it, has been determined,
i.e. if you proceed with an application for leave to appeal to CA and it is determined by the single judge or by the court = then the power is extinguished because a superior court has determined the matter.
Extent of the Power to Vary
The power in the SA 2020, s. 385, may be used to replace one form of sentence with a quite different form. This was illustrated in:
[CASE LAW]
† (a) Sodhi (1978), where the Crown Court, upon learning that D had been diagnosed by psychiatrists as suffering from paranoid psychosis and was dangerous, substituted for a six-month prison sentence a hospital order plus restriction order without time-limit; and
† (b) Iqbal (1985) in which an unlawful sentence of 30 months’ youth custody passed on a 16-year-old was replaced by an equivalent term of detention under what is now the SA 2020, s. 250.
so
The word ‘varied’ has a wide meaning, not restricted to changing the length of a sentence, Can be used to replace one form of sentence with a quite different form,
eg:
g:
o Replace a six-month prison sentence with a hospital order plus restriction order without time-limit;
o Replace an unlawful sentence of 30 months’ youth custody passed on a juvenile, with an equivalent term of detention.
The vast majority of appeals against conviction and sentence are disposed of by the Court of Appeal (Criminal Division) under its statutory jurisdiction. Section 15(2) of the Senior Courts Act 1981 enables the exercise of the statutory powers conferred under the following legislative provisions, amongst others:
[THE LAW]
Jurisdiction to determine appeals against conviction on indictment.
Jurisdiction to determine appeals against sentence passed following conviction on indictment.
Jurisdiction to determine appeals against sentence passed on a committal for sentence.
Jurisdiction to give an opinion on a point of law referred to the court by the A-G following an acquittal on indictment. Jurisdiction to determine appeals against rulings made at preparatory hearings in serious fraud cases.
Jurisdiction to increase sentence on a reference by the A-G following an unduly lenient sentence for an offence triable only on indictment.
Jurisdiction to determine appeals on a reference by the CCRC.
COA (Criminal Division) hearing an appeal against a refusal to make a football banning order
There is no power for the COA to do so!!
Appeal to the COA
Matters Dealt with by the Full Court
A CA of an uneven number of judges, no fewer than 3, is required to determine:
(a) an appeal against conviction;
(b) a review of sentence under AG’s references for unduly lenient sentence, Part IV CJA 1988
(c) an appeal against a finding of unfitness to plead (s4 Crim Procedure (Insanity) Act 1964)
(d) an application for leave to appeal a verdict of not guilty by reason of insanity or a finding under s4 19864 Act which has not previously been refused by a single judge
(e) application for leave to appeal to Supreme Court.
Appeal to the COA
Normally, will be 3 judges: exceptionally, 5 or even 7 judges, when:
o the matter is v important and would benefit from the authority of such a court;
o or where there have been conflicting decisions of the CA on the same point.
APPEALS TO THE COA
Matters dealt with by a 2-judge cour:
- a 2 judge court may deal with any matter other than those above.
- Including: appeal against sentence (not by way of AG’s reference for unduly lenient sentence).
Appeal against conviction (NB, only accused can appeal, not prosecution)
* S1 CAA 1968: a person convicted of an offence on indictment may appeal to the CA against his conviction, IF:
(a) with leave of the CA; OR
(b) trial judge, within 28 days of conviction, grants a certificate that case is fit for appeal (exceptional circumstances).
Do you need leave to appeal to the COA?
YES
unless trial judge has exceptionally granted certificate of fitness for appeal
What is the certificate of fitness for appeal?
(1) Such a certificate of fitness to appeal against conviction or sentence should be issued only in exceptional circumstances.
(2) The certificate removes the need for leave to appeal to be granted by the Court of Appeal but it does not commence the appeal; advocates still need to follow the procedure under CrimPR Part 39
Appeal against Conviction to the COA
Written grounds of appeal must be submitted within …
28 days of the conviction.
Granting leave to appeal against conviction to the COA.
- The initial decision either to grant or refuse leave is usually taken on the papers by the single judge
- but sometimes the decision as to leave may be made by a two-judge or full court at the discretion of the Registrar of Criminal Appeals
- The need for expedition is sometimes a reason for holding such a leave hearing. Such a hearing will also often take place when an unlawful sentence has been passed and the sentence will inevitably need adjusting
What if the granting of leave to appeal against conviction to the COA is refused by the single judge?
the applicant is entitled to renew the application before a two-judge or full court under s. 31(3).
Conviction following a Plea of Guilty to the COA: can be this done?
YES
Conviction following a Plea of Guilty to the COA:
If the conviction is found to be unsafe, despite the guilty plea =
conviction will be quashed, court can rule the plea a nullity.
Appeal of conviction following a Plea of Guilty to the COA:
Court’s consideration if the conviction is safe
it will be highly relevant to the consideration of whether the conviction is safe, that:
a. the appellant was fit to plead;
b. had received expert advice;
c. had been aware of what he was doing; and
d. had intended to plead guilty.
Most common basis upon which an unequivocal plea of guilty is challenged
= where there has been an incorrect ruling on a point of law by trial judge which allows
the appellant no escape from a guilty verdict.
Appeal to COA: can the court consider fresh evidence on appeal?
The Court of Appeal may also quash a conviction arising from a guilty plea following the admission of fresh evidence on appeal under the Criminal Appeal Act 1968, s. 23
Appeal to COA
conviction not normally held unsafe if an appellant has simply been influenced
to enter a plea of guilty because of a decision to admit evidence which meant his
prospects of acquittal were hopeless.
Highly unlikely an appeal would be entertained where a D pleaded guilty
following a decision to admit evidence of bad character
A conviction may also be held unsafe where the guilty plea flowed from inappropriate legal advice
o Eg, where D was not advised as to a possible defence = if the conviction is
regarded as unsafe, but is an exceptional course; only where the CA believes the overlooked defence would quite probably have succeeded, or that there was a reasonable prospect of the defence succeeding.
The wrongful exclusion of admissible evidence or wrongful inclusion of inadmissible evidence will lead to the =
quashing of a conviction if the error means that the conviction is unsafe
- Even if the appellant’s advocate failed to object to the admission of the evidence when it was adduced.
- But the fact that the advocate did not object will be a factor in determining whether its admission rendered the conviction unsafe.