unit 15 - Appeals CC (BSB unit 28)

Question 1

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A sentence imposed or other order made by the Crown Court when dealing with an offender may be varied or rescinded within

Answer 1

56 days of being passed or made.

Question 2

Variation of sentence - can it be a different judge??

Answer 2

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

Question 3

The power to rectify mistakes is extinguished if an appeal against it, or application for leave to appeal against it, has been determined,

Answer 3

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.

Question 4

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]

Answer 4

† (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.

Question 5

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.

Question 6

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]

Answer 6

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.

Question 7

COA (Criminal Division) hearing an appeal against a refusal to make a football banning order

Answer 7

There is no power for the COA to do so!!

Question 8

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:

Answer 8

(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.

Question 9

Appeal to the COA

Normally, will be 3 judges: exceptionally, 5 or even 7 judges, when:

Answer 9

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.

Question 10

APPEALS TO THE COA

Matters dealt with by a 2-judge cour:

Answer 10

• 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).

Question 11

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:

Answer 11

(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).

Question 12

Do you need leave to appeal to the COA?

Answer 12

YES

unless trial judge has exceptionally granted certificate of fitness for appeal

Question 13

What is the certificate of fitness for appeal?

Answer 13

(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

Question 14

Appeal against Conviction to the COA

Written grounds of appeal must be submitted within …

Answer 14

28 days of the conviction.

Question 15

Granting leave to appeal against conviction to the COA.

Answer 15

1. The initial decision either to grant or refuse leave is usually taken on the papers by the single judge
2. 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
3. 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

Question 16

What if the granting of leave to appeal against conviction to the COA is refused by the single judge?

Answer 16

the applicant is entitled to renew the application before a two-judge or full court under s. 31(3).

Question 17

Conviction following a Plea of Guilty to the COA: can be this done?

Answer 17

YES

Question 18

Conviction following a Plea of Guilty to the COA:

If the conviction is found to be unsafe, despite the guilty plea =

Answer 18

conviction will be quashed, court can rule the plea a nullity.

Question 19

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:

Answer 19

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.

Question 20

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.

Question 21

Appeal to COA: can the court consider fresh evidence on appeal?

Answer 21

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

Question 22

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.

Answer 22

Highly unlikely an appeal would be entertained where a D pleaded guilty
following a decision to admit evidence of bad character

Question 23

A conviction may also be held unsafe where the guilty plea flowed from inappropriate legal advice

Answer 23

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.

Question 24

The wrongful exclusion of admissible evidence or wrongful inclusion of inadmissible evidence will lead to the =

Answer 24

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.

Question 25

Erroneous Exercise of Discretion

CA has often said it will not interfere to quash a conviction on basis of an erroneous exercise of discretion except in very limited circumstances.

Answer 25

Appeal might succeed if there has been:
a. a failure to exercise the discretion, or

b. a failure to take relevant factors into account, or

c. judge took irrelevant factors into account in exercising discretion.

The review is not limited to cases in which a trial judge had erred in principle, or where there was no material on which the decision he reached could properly have been arrived at.

 If necessary, court could examine afresh the relevant facts & circumstances in order to exercise a discretion by way of review where the judge’s ruling may have resulted in injustice to the appellants.

Question 26

Rejection of Submission of No Case to Answer

The wrongful rejection of a submission of no case to answer at the close of the prosecution case will lead to the conclusion that a conviction is unsafe

That can be so even when the appellant has given evidence and admitted guilt in cross-examination

Answer 26

1- The failure of an experienced advocate to make a submission of no case will not preclude the quashing of a conviction on the basis that there was in fact no case to answer,

2- the Court of Appeal will presume that the advocate had reason to not make the submission and will look at the whole of the evidence in making its decision. The Court will not ordinarily interfere if a submission would have succeeded but was not made, and evidence of guilt emerged later in the trial

Question 27

Defects in the Indictment

Where the indictment charges an offence not known to law, the conviction will be quashed

Answer 27

That will be the case even if the accused pleads guilty or no point is taken at trial

Question 28

Defects in the Indictment

Where the indictment is preferred and signed without jurisdiction, the proceedings will be a nullity

Answer 28

A bill of indictment must be duly signed by the proper officer of the court for it to be a valid indictment.

Without such an indictment, there could be no valid trial on indictment

J [2018]
- where trials proceeded on indictments that had been uploaded to the Crown Court Digital Case System but had not been formally amended and the defendants had not been arraigned on them.
- COA dismissed the appeals against conviction, observing that although the proper course would have been for the original indictments to have been amended and for the defendants to have been re-arraigned, those procedural errors had not resulted in any unfairness to the defendants, nor had they otherwise called into question the safety of their convictions.

Question 29

Defects in the Indictment

Where an indictment is duplicitous, a conviction may be quashed if the duplicity results in the conviction being unsafe

Answer 29

That is so whether objection was taken at trial or not

Question 30

Defects in the Indictment

When counts are improperly joined or included in an indictment contrary to CrimPR 3.29(4)

Answer 30

the conviction may be quashed

Question 31

Defects in the Indictment

If the joinder of counts falls foul of s. 2(2) of the 1933 Act,

Answer 31

the conviction will be quashed subject to the caveat that application must be made at trial to quash the indictment.

Case:
In Morry [1946],
- D had been unrepresented at trial but the trial judge raised the point and that was held to be sufficient.

In Nisbet [1972]
- the COA expressed the obiter view that it had inherent jurisdiction to quash added or substituted counts if they might result in injustice even though they were founded on the committal papers and no objection was taken at trial.
- If counts are improperly joined contrary to CrimPR 10.2 or s. 40, the conviction in relation to the wrongly joined count will be quashed

Question 32

Inconsistent jury verdicts and jury irregularities

A conviction based on apparently inconsistent verdicts =

Answer 32

COA will quashed conviction

ONLY IF those verdicts are such that no reasonable jury applying its mind to the evidence could have reached the conclusions that it did.

Question 33

Court should consider the following when considering Inconsistent jury verdicts and jury irregularities =

Answer 33

• it is necessary on appeal to demonstrate the verdicts were not merely inconsistent but were so inconsistent as to demand interference on appeal.
• Important of scrutinising the facts of a case in applying this rule.
• It is for applicant to show a logical inconsistency between the verdicts criticised, and then to demonstrate that it is not possible to postulate a legitimate chain of reasoning which could explain the apparent
  inconsistency

-

Question 34

COA when considering Inconsistent jury verdicts and jury irregularities =

Where verdicts were reached on some counts whilst a jury failed to agree
on others

Answer 34

it is possible an appeal could succeed, where it is logically inexplicable as to how a jury could not reach a verdict on one count when
set against a verdict of guilt on another count; but will be a rare case where
it is ‘logically inexplicable’.

The verdicts must not merely be inconsistent, but so inconsistent as to demand interference on appeal.

Question 35

Misconduct by jurors in various forms can lead to the quashing of a conviction by the Court of Appeal.

Answer 35

For example, in Young [1995]
- a number of jurors consulted a Ouija board whilst in retirement.
- The Court of Appeal quashed the conviction, taking the view that there was a real danger that some jurors may have been influenced by it and that D was thereby prejudiced

Also includes downloading by jurors of information from the internet (which is now a
criminal offence).
eg In Karakaya [2005] a juror had downloaded material from the internet which prejudiced D and concerned matters to which the prosecution would not have been able to refer. The COA quashed the conviction.

Question 36

Conduct of the Trial Judge

Excessive judicial intervention during the course of the evidence of the accused has sometimes led to the quashing of a conviction.

[CASE LAW]

Answer 36

Lawton LJ summed up the principle underlying such appeals:

It is a fundamental principle of an English trial that, if an accused gives evidence, he must be allowed to do so without being badgered and interrupted. Judges should remember that most people go into the witness-box, whether they be witnesses for the Crown or the defence, in a state of nervousness. They are anxious to do their best. They expect to receive a courteous hearing, and when they find, almost as soon as they get into the witness-box and are starting to tell their story, that the judge of all people is intervening in a hostile way, then, human nature being what it is, they are liable to become confused and not to do as well as they would have done had they not been badgered and interrupted.

Question 37

Conduct of the Trial Judge

Excessive judicial intervention during the course of the evidence of the accused has sometimes led to the quashing of a conviction.

examples:

Answer 37

1, dismissive remarks about the prospects of acquittal, albeit in the absence of the jury, when D was in the course of giving evidence, would have the same inhibiting effect on D as interruption, and quashed the conviction

2. the Court expressed the view that exchanges between the judge and counsel betrayed a rudeness and discourtesy on the judge’s part of which he should be ashamed. The judge had also delayed a change of clothes for D after he had withdrawn his bail. The Court observed that the safety of a conviction does not simply depend on the strength of evidence the jury hears, but also on the observance of due process. It was an inescapable effect of the judge’s conduct that D must have been inhibited in the course of his defence

3.the Court quashed a conviction for dangerous driving when the trial judge had not only made inappropriate interventions, but had treated defence counsel’s questions and submissions with hostility

Question 38

Errors in summing up = quashed conviction if conviction unsafe.

Question 39

A misdirection as to law will lead to the quashing of a conviction only if that misdirection causes the conviction to be unsafe

Answer 39

1. Eg, where judge failed to direct jury as to the standard and/or burden of proof, but ONLY IF causes conviction to be unsafe.
2. Eg, for robbery, if judge fails to direct jury that it was necessary for the force used to be for the purpose of stealing, which was crucial
   to distinguish between robbery and theft.

Question 40

Wrongful withdrawal of issues from jury

• If a judge fails to direct a jury as to an issue of fact going to an element of the offence = conviction may be quashed if unsafe.

Answer 40

1- Where the evidence on a particular issue is agreed, it can be appropriate for a judge to direct a jury that they may draw an adverse inference against D on that issue.

2- if the judge removes all issues of fact and law from the jury so that they are effectively directed to convict, the conviction is highly likely to be quashed

Question 41

Misdirection on Facts

A misstatement or omission of a fact in the course of the summing-up may lead to the quashing of a conviction if the fact was of such importance that, if it had been correctly stated, the jury may not have reached the same verdict

Answer 41

1 - COA quashed the conviction where the judge told the jury that D had first mentioned his defence when the trial had commenced. The Court took the view that it was at least ‘on the cards’ that the jury would have acquitted if the facts had been correctly stated to them.

2 - no quashing if the misdirection on facts was not sufficiently central/significant

Question 42

Improper Comment on Facts or Defence Case

A judge is entitled to comment on the facts and express an opinion as to those facts, so it is rare that an appeal will be successful when it is based on such judicial comments

When is it an issue?

Answer 42

It is only when a judge exhibits blatant unfairness and pro-prosecution bias that the conviction will be imperilled.

eg the conviction was quashed when the judge repeatedly described the defence case as absurd

eg the conviction was quashed when the judge described allegations put by the defence to a prosecution witness as ‘really monstrous’ and ‘wicked’

Question 43

Comment on Failure of Accused to Testify

Answer 43

A direction on the failure of an accused to testify is an important one and an error as to that direction may give rise to an arguable ground of appeal

Question 44

Comment on the Accused’s Character

An inappropriate direction may lead to the quashing of a conviction

Answer 44

eg COA observed that, where an accused is entitled to a good character direction and the judge fails to give it in proper form, the conviction will not be quashed as a matter of course.

An appellate court should interfere only if, on the facts, it was not properly open to the judge to reach the conclusions he or she did.

Question 45

Common grounds for appeal against sentence

Sentence Wrong in Law

Answer 45

COA will intervene when the sentence imposed on an appellant could not legally be passed

EG
- case
- in which a youth convicted summarily was sentenced to three years’ detention, ostensibly in accordance with s. 53(3) of the CYPA 1933 but following committal for sentence.

• As s. 53(3) detention could be imposed only following conviction on indictment, the Court of Appeal was forced to substitute the maximum available sentence in the youth court of 12 months’ youth custody, despite observing that a sentence of three years was richly deserved

Question 46

Common grounds for appeal against sentence

Sentence Wrong in Principle or Manifestly Excessive

Answer 46

COA will interfere with a sentence if it is of the view that it was outside the broad range of appropriate penalties.

The fact that a sentence is merely severe will not be sufficient.

COA = ‘This court will … be reluctant to interfere with sentences which do not seem to it to be wrong in principle, though they may appear heavy to individual judges’.

Question 47

Common grounds for appeal against sentence

Sentence Wrong in Principle or Manifestly Excessive

WRONG IN PRINCIPLE EXAMPLE

Answer 47

= If a sentence is not of the appropriate form (e.g., because an offender was not eligible for the custodial sentence imposed),

= an inappropriate combination of sentences can be most appropriately described as ‘wrong in principle’

Question 48

Common grounds for appeal against sentence

‘manifestly excessive’

Answer 48

An appeal will succeed only if the sentence was excessive in the sense of being outside the appropriate range for the offence and offender in question, as opposed to being merely more than the Court of Appeal itself would have passed

EG CASE LAW
- the principal submission was that a sentence of nine months’ imprisonment for stealing £1,000 from employers was too long by three months.
- The Court held that a sentence of six months would not have been wrong, but to reduce the sentence by such a small amount would have been ‘tinkering’ with the judge’s decision and the appeal was dismissed.
- Although the sentence was ‘excessive’ in one sense, it was not so excessive as to be outside the appropriate range.

Question 49

Common grounds for appeal against sentence

‘manifestly excessive’

Answer 49

Where a sentence was not manifestly excessive at the time it was passed, CA will not interfere with the level of sentence just because the ‘tariff’ for that offence is reduced after the sentence is passed, or legislation alters the level of sentence.

Question 50

Common grounds for appeal against sentence

Judge’s Remarks when Sentencing

If the judge’s sentencing remarks tend to reveal that irrelevant factors have been taken into account in deciding the appropriate sentence to impose on the appellant, the COA may allow the appeal and substitute a different sentence.

Answer 50

But if the Court takes the view that the sentence was appropriate despite the flaws in the decision-making by the judge, it may nonetheless uphold the sentence.

Question 51

Common grounds for appeal against sentence

Examples of circumstances in which the judge’s sentencing remarks might lead to a reduction in sentence include:

Answer 51

where the judge implies that the sentence has been increased because the offender elected trial on indictment, pleaded not guilty, or made attacks on the character of prosecution witnesses

Question 52

Procedural Errors

The failure of a judge to follow the correct procedure may lead to a variation in the sentence by the Court of Appeal

Answer 52

1 - But that is by no means necessarily the case.

Question 53

Procedural errors

The failure of a sentencing judge to secure a pre-sentence report before passing sentence in circumstances where one was required will not necessarily lead to a reduction in sentence,

Answer 53

the CA will itself secure such a report before dealing with the appeal +

the Court may either reduce the sentence or maintain it as the correct sentence in all the circumstances

Question 54

Procedural errors

The failure of the judge to hold a Newton hearing when asked to do so is more likely to result in a reduction in sentence, as the sentencing judge may well have proceeded on a basis adverse to D

Question 55

Sense of grievance (eg legitimate expectation raised re sentence)

The Court of Appeal will intervene when the appellant has a justifiable sense of grievance at the sentence imposed following events preceding sentence.

Answer 55

eg when a sentencing judge orders pre-sentence reports and indicates that, if the reports are satisfactory, a non-custodial sentence will be passed, but then proceeds to send the offender into custody despite positive reports

Question 56

Sense of grievance (eg legitimate expectation raised re sentence)

,f an indication of a non-custodial sentence is given privately to an advocate and a guilty plea follows, any subsequent judge will be bound by the indication of the first judge

Answer 56

But if a judge indicates that the fact of ordering reports should not be taken as any indication that a non-custodial sentence would eventually be passed, or indicates that he or she is ‘making no promises’, then the Court will not be moved to vary the sentence imposed if a custodial sentence follows, as the appellant’s hopes could not be said to have been legitimately raised

Question 57

Disparity of sentence between co-accused

There has been some inconsistency in the approach taken by the COA in this matter

Answer 57

Scarman LJ stated that disparity can never in itself be a sufficient ground of appeal.

Instead, the question for the COA
= is simply whether the sentence received by the appellant was wrong in principle or manifestly excessive

IF NOT = APPEAL SHOULD BE DISMISSED

Question 58

Disparity of sentence between co-accused

Fawcett: Question is: would right-thinking members of public, will full knowledge of relevant facts & circumstances, learning of this sentence consider that something had gone wrong with the administration of justice?

Answer 58

The fact that offenders who are sentenced at roughly the same time as an appellant in the same Crown Court have received more lenient sentences for comparable offences can never be relied on as a ground of appeal. The Court will not allow such comparisons to be made.

Question 59

Failure to Distinguish between Offenders

Answer 59

The failure of the court of sentence to distinguish between offenders when one has powerful mitigation and the other does not can give rise to a successful ground of appeal against sentence.

Question 60

The procedure for appealing to the COA

Notice of appeal (if the trial judge has granted a certificate that the case is fit for appeal) or notice of application for leave to appeal (required in all other cases) must be lodged in the prescribed manner

Answer 60

requires an applicant to serve the Form NG, signed grounds of appeal and accompanying forms directly on the Registrar of Criminal Appeals

• should not be uploaded to the Digital Case System

-

Question 61

Applying for leave: CA - time limits:

Answer 61

1. the notice must be lodged within 28 days of either conviction or sentence, depending on which is being appealed

By virtue of s. 18A, the same rule applies in respect of cases of contempt of court. If a conviction is the subject of appeal, then time runs from the date of conviction and not sentence

Question 62

Drafting and Contents of Grounds of Appeal (file with the notice of application)

Answer 62

Grounds of appeal should be sufficiently detailed to enable the Registrar and CA to
identify clearly the matters relied on

Any doc mentioned in the grounds should be clearly identified by exhibit number or otherwise.

Question 63

Advice with Grounds

Counsel’s Advice and Grounds of Appeal should:

Answer 63

i. be drafted as one document;

ii. identify any transcripts which are necessary;

iii. provide a list of authorities.

Question 64

The grounds of appeal first lodged may be varied or amplified within such time as the Court of Appeal will allow

Answer 64

The grounds of appeal will identify any transcripts needed to perfect the grounds of appeal. If Registrar agrees, the transcripts are secured and sent to Counsel.

• Counsel will be sent a copy of transcripts and be invited to ‘perfect’ grounds within 14 days of receipt of transcripts:

o i.e. adding helpful references to the transcripts to support the arguments
advance; or

o reconsidering the grounds and perhaps amending/deleting or advancing new
ones in light of the transcripts.

(If counsel is not able to perfect the grounds within 14 days, it is advisable to contact the office of the Registrar as soon as possible. )

Question 65

Purpose of perfection of grounds:

{transcripts}

Answer 65

(1) to save judicial time by enabling court to identify the relevant parts of the transcript;

(2) to enable counsel to reconsider his grounds in light of the transcripts.

Question 66

Perfected grounds should be in a fresh document, and clearly marked as such; and
should include references to the appropriate part of the transcript by letter number and letter

If counsel decides the appeal is no longer arguable = he should inform his solicitors of that in appropriate advice.

1. The Registrar should also be informed but not sent a copy of the advice.

Answer 66

2. If the advocate advises abandonment and the applicant for leave continues with the appeal, the applicant is at risk of a direction that time served does not count
3. It should be noted that an applicant maybe at risk of a loss of time order or costs even when advised by lawyers that the grounds of appeal are arguable (

Question 67

Duty of Counsel with Regards to Grounds of Appeal

Answer 67

1. ‘Advocates should not settle or sign grounds unless they consider that they are properly arguable’
2. Counsel should not settle grounds he or she is unable to support just because ‘instructed’ to do so by a lay client.
3. It is not unknown for counsel to be criticised for grounds of appeal that the Court of Appeal considers improper.
4. In Morson (1976), grounds of appeal drafted by counsel suggested that the summing-up was unfair and amounted to a direction to convict. Scarman LJ said that the description of the summing-up was a travesty and that the Court deplored the fact that that ground of appeal was advanced

Question 68

Procedure for Obtaining Leave to Appeal

Answer 68

1. once the grounds have been perfected, the case is referred to a single judge for the consideration of whether leave to appeal should be granted.

Question 69

Procedure for Obtaining Leave to Appeal

Extension of Time for Leave to Appeal

Answer 69

Although the time period for lodging the notice of application for leave to appeal is 28 days, that period may be extended either before or after its expiry

Question 70

Procedure for Obtaining Leave to Appeal

Practice in Usual Case

requires the Registrar to give as much notice as reasonably practicable of the date on which the Court will hear any appeal or application.

Answer 70

The notice must be served on
(a) the parties,
(b) any party’s custodian, and
(c) any other party the Court requires to be notified.

Question 71

Procedure for Obtaining Leave to Appeal -

public interest immunity hearings.

Answer 71

notice should not ordinarily be given of public interest immunity hearings.

Question 72

Appeal to the COA

Where leave is granted: representation order

Answer 72

If a representation order is to be granted for an appellant for any hearing, it is normally granted either by the Registrar or by the single judge at the same time as leave to appeal is given.

In most cases, a representation order will be granted only if the single judge grants leave.

The representation order is usually limited to an advocate, but if necessary it will be extended to provide for the services of a solicitor.

The Registrar will forward the necessary papers to counsel and will try to agree a date for the hearing with counsel’s clerk. It is usual for various dates to be offered to counsel’s clerk.

Question 73

Appeal to the COA

Traditionally, the respondent was not usually represented at an appeal against sentence.

Answer 73

However, it is increasingly common for the respondent to be present.

At an appeal against conviction, the respondent is invariably represented

Question 74

Appeal to the COA

Moreover, the respondent will frequently submit a ‘Respon-dent’s Notice’ setting out a reply to the applicant’s grounds of appeal.

Question 75

Appeal to the COA

At an appeal against conviction, the respondent is invariably represented

Question 76

Appeal to the COA

On an appeal against conviction, a skeleton argument must be served if the appeal notice ‘does not sufficiently outline the grounds of the appeal, particularly where a complex or novel point of law has been raised’. On a sentencing appeal, a skeleton argument ‘may be helpful if a complex issue is raised’.

On an appeal against sentence, a skeleton may be helpful if complex issue is
raised

Answer 76

Skeletons should contain a numbered list of the points the advocate intends to argue and be as succinct as possible.

Question 77

Appeal to the COA: skeleton time-limits

Answer 77

If skeletons are to be served = the appellant must serve 21 days prior to hearing, and the respondent 14 days before the hearing, unless directed otherwise.

Question 78

Appeal to the COA

OTHER NOTES

Answer 78

Erskine: if it is not necessary to refer to an authority, it is necessary not to refer to it. If it is not necessary to include an authority, it is necessary to exclude it.

o On appeal against conviction: advocate must be prepared to justify the citation of each authority relied on in the bundle. Court will probably not look at an authority which does no more than illustrate or restate an
established proposition.

o Is good practice for advocates to agree a list of authorities and prepare a joint bundle.

o For appeals against sentence: advocate must justify citation of any authority.

o If a definitive sentencing guideline is available, there will rarely be any advantage in citing an authority which pre-dates the guideline. Likewise, authorities which post-date the guideline, but do not refer to it, will rarely be of assistance.

o Where an authority involves no more than the court upholding a sentence imposed at Crown Court, advocate must be prepared to justify how it can assist the Court in deciding whether a sentence is wrong in principle or
manifestly excessive.

o Registrar guidelines on citation of authorities by advocates:
o All advocates are required to provide a list of authorities upon which they wish to rely in their written or oral submissions. Should be annexed to (but not form part of) the grounds of appeal or appeal notice or respondent’s
notice.

o If, exceptionally, the list is not annexed, it should be annexed to any skeleton argument.

o If the list need be amended, a complete new list should be created so that only one definitive list exists.

Question 79

Procedure for Obtaining Leave to Appeal )COA

If the single judge grants leave on a particular ground without deciding the issue of leave in respect of the other grounds, the appellant is free to argue the other grounds at the substantive hearing of the appeal. But

Answer 79

if the single judge grants leave on one ground but refuses leave on others, the appellant must renew the application for leave in relation to those other grounds, having previously informed the respondents and the Registrar’s office of that intention, before the appellant is allowed to argue them at the substantive hearing (Cox [1999] 2 Cr App R 6).

Question 80

{APPEAL TO COA}

A renewed application for leave to appeal is heard by the Court.

• The Court will be comprised of at least two judges and usually three.

Answer 80

1. The applicant has no right to attend, so if in custody the applicant will not be present.
2. Even though legal aid is not available for representation at such hearings, it is common for counsel to provide their services free of charge (and for applications to be fully argued) and for counsel to submit written skeleton arguments for renewed applications for leave to appeal.
3. If counsel is to appear on behalf of an applicant at a renewed application for leave, whether on a privately paid or pro bono basis, the Court of Appeal Office should be informed of that in writing as soon as possible (para. A15-3 of the Guide).
4. Where counsel does not appear, renewed applications for leave to appeal are often placed in a ‘non-counsel list’. Such hearings then simply involve the calling on of the case followed by one member of the Court giving judgment in the case.

Question 81

Directions Concerning Loss of Time and Frivolous and Vexatious Appeals

COA CAN DIRECT:

that all or part of the time an applicant for leave to appeal has spent in custody since the commencement of the appeal proceedings shall not count in relation to the sentence the applicant is required to serve

Answer 81

1 - it may order that time be lost even where counsel has advised that there are good grounds for appeal

2. CASE LAW: ordered that six weeks of the time spent by D in custody should not count towards his sentence after he had renewed his application for leave to appeal against conviction following the refusal of leave by the single judge.
   - It was emphasised that the fact that counsel or solicitors have associated themselves with such a renewal will be relevant, but it will not necessarily avoid such an order if there was no justification for continuing the case.
3. single judges refusing permission of leave to appeal are asked to identify on Form SJ, cases which are without merit, where the court should consider making a loss of time order if the refused application be renewed to the full court.
4. Form SJ also has a box where the applicant can indicate why a loss of time
   order should not be made, whether or not an indication has been given by the
   single.

Question 82

Fresh evidence (admission of evidence under s23 CAA 1968)

Answer 82

CA may admit evidence which is relevant to an appeal against conviction, including issuing a witness order to anyone who may give relevant evidence, even if the witness was not

Question 83

CA may (discretionary), if thinks necessary or expedient in the interests of justice, order:

Answer 83

a) The production of any evidence (document, exhibit or thing connected with the proceedings) if it appears necessary for the determination of the case;

If appropriate, evidence may be introduced in the interests of justice at the request of the respondents and is not limited to rebuttal of fresh evidence adduced by the appellant.

However, no fresh evidence requested by respondent where its purpose is to advance a basis for conviction not argued previously
and not put before jury.

b) Order any witness to attend for examination (regardless of whether they
appeared at first instance or were compellable at first instance);

So eg, both jurors and legal representatives (subject to waiver of privilege) can be compelled to appear at an appeal hearing.

c) Receive any evidence which was not adduced in the proceedings at first instance

Question 84

Fresh evidence

In considering whether or not to make such an order for evidence, CA has a broad discretion, will have regard to (s23(2), though not actually in Blackstone):

Answer 84

a) Whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of an appeal

b) Whether there is a reasonable explanation for the failure to adduce the evidence in the original proceedings.

c) Whether the evidence appears to be capable of belief

d) Whether it appears that the evidence may afford any ground for allowing the appeal

it is not permissible to advance one defence at trial, and then, after conviction, an alternative defence on appeal.

Question 85

The role of expert evidence on appeal:

Answer 85

It is for the defence to call their expert
evidence at trial, and it is not the function of CA to permit expert evidence to be re-litigated on appeal.

o But could be justified: eg CA quashed a conviction on the basis of the impact advances in the science of gunshot residue detection might have had on the trial judge’s summing-up; or occasionally reconsidering DNA evidence by adducing a new report may be justified.

Question 86

CA against the growing tendency of convicted defendants to dismiss their original counsel and bring in new counsel to criticise their predecessors