Unit 27 Appeals from the Magistrates Court and from the CC in its appellate capacity Flashcards
What is the ‘slip rule’ and how does it operate?
What it is: the Mags have a limited power to rectify their own mistakes (may be the same or a different bench in the mags) if it’s in the interests of justice to do so.
How it works:
- It’s appropriate to use where there has been: (1) an error or law; or (2) a defect in procedure
- Can ONLY be used to either (1) set aside a conviction or (2) vary/rescind sentence (i.e. cannot be used if A was found NG or to vary a pre-trial ruling)
- This is NOT a general power to re-open cases in the interests of justice (only to be used to rectify errors)
- To be used exceptionally and only where the mistake can be easily identified/is agreed by all
- If Mags have reached ‘wrong’ decision on substantive merits of submissions, should instead appeal to CC or HC by way of case stated
What are the routes of challenge of a decision of the Mags?
Total of 3
(1) Appeal to CC by way of rehearing –> If Mags made error of fact or mixed fact + law
(2) Appeal to HC by way of case stated –> If Mags made error of law
(3) Appeal to HC for JR of the decision –> Unfairness, bias or procedural irregularity
Appeal can be made against either conviction and/or sentence
What rules govern the right of appeal from the mags to the CC?
- Leave is NOT required –> the right to appeal is automatic
- If A pleaded G –> can appeal sentence
- If A pleaded NG/G plea was equivocal or given under duress –> can appeal conviction and/or sentence
- P cannot appeal to CC, ONLY D has this right
- Appeals to CC can also include applications:
(1) about CM
(2) Q of procedure
(3) intro/admissibility of evidence
(4) any other Q of law not determined before hearing
What is the composition of the CC in an appeal from the youth court?
- Must be heard by judge/recorder of CC with two lay justices (one man and one woman) authorised to sit in the YC)
- However, if trial would otherwise be unreasonably delayed or one or more judges absent:
(1) May include only one justice of the peace
(2) Need not include both a man and a woman
What is the procedure for appealing from the mags to the CC?
(1) Notice
- Given written notice within 15 business days of sentence being passed (even if you’re appealing conviction it’s 15 days from the sentence)
- Notice should state what is being appealed (conviction, sentence, failure to make an order)
- Notice must summarise the issues
- If the appeal is against conviction the notice must specify the witnesses whom the appellant will want to question and state how long the trial lasted in the mags and how long the appeal is likely to take
- Any notice must also stipulate whether the appellant has asked the magistrates’ court to reconsider the case and identify all those upon whom the notice has been served
- CC can allow notice to be in a different form or for notice to be served orally
- A can apply for an extension of the time limit by serving this application with the appeal notice and explaining why the notice is late
(2) Format of the appeal
- An appeal is heard by a circuit judge or recorder who must normally sit with two lay magistrates who were not involved with the original proceedings
- Appeals are complete rehearings (i.e. of conviction or sentence)
- Rehearing of conviction: new evidence can be introduced, but info cannot be amended (e.g. P cannot change date on which the offence allegedly occurred)
- Test for appeal of sentence: NOT whether the sentence was within the discretion of the magistrates (as would be the appropriate question in judicial review proceedings) but whether, in the light of all the matters which the Crown Court had heard, the sentence passed by the magistrates was the correct one (if CC’s view of correct sentence differs significantly from that taken by the Mags the appeal should be allowed)
- CC can only increase sentence within the powers available to the mags when sentencing (i.e. cannot say ‘you ought to have committed them for sentence so now we’ll sentence according to the powers we would have had’)
What are the powers of the CC on appeal? Does the CC’s decision have to be unanimous?
Decision may be majority decision
- Lay justices can out-vote judge
- But lay justices must accept judge’s decisions on Qs of law
Powers of CC:
- (1) confirm, reverse, or vary any part of the decision (NB: includes power to increase sentence)
- (2) may remit matter with its opinion back to Mags
- (3) make such other order as court thinks just, exercising Mags power
Can an appellant abandon an appeal from the mags to the CC? If so, how?
- Yes, by notice in writing (unless CC allows oral notice).
- Notice must be given to: (1) Mags; (2) CC and (3) any other party
Timing:
- Before hearing starts → no permission needed
- During hearing → only w/ permission of CC
After abandonment
- CC still has power to → award costs
- CC has no power to → (1) increase sentence, (2) reinstate the appeal unless abandonment was a nullity
When is an appeal to the HC from the Mags by case stated available?
- It’s an appeal on a point of law - appeals on factual matters are exceptionally available via this route if the decision is one that no reasonable bench could have reached
- Only available after the final determination of proceedings in the Mags
- It’s available for errors made in relation to sentence and those relating to conviction (for sentencing error = procedure is available if the bench has passed a sentence which is so far beyond the usual level of sentence for such an offence that it is ‘harsh and oppressive’)
- Available to P and D
What is the format of an appeal by way of case stated in the HC?
(1) Comprised of at least 2 judges, often 3 (If 2-judge court cannot agree, appeal is unsuccessful)
(2) Appeal conducted by submissions from the parties
(3) No evidence is called → decision based on legal submission
What happens to A’s right to appeal to the CC from the Mags if A chooses to appeal to the HC by way of case stated?
A thereby forfeits the right to appeal to CC
What are the HC’s powers on appeal from the Mags by way of case stated?
(1) reverse, affirm or amend Mags decision
(2) remit case with opinion
(3) make any other order (incl. costs) as it sees fit
(4) Order a retrial before same/different bench where fair trial still possible
Can an appellant abandon an appeal to the HC by way of case stated?
Yes - even without leave
Which kinds of decisions are potentially subject to judicial review by the HC?
All Mags and CC decisions not concerned w/ matters relating to trial on indictment
What are the principal grounds on which judicial review may be sought?
(a) error of law on face of record (i.e. error disclosed by court records)
(b) excess of jurisdiction
(c) breach of natural justice, which includes
- (i) failing to give D adequate time to prepare a defence
- (ii) failing to grant adjournment to allow a W to attend
- (iii) P failing to call or disclose a W statement which might assist D
- (iv) P failing to disclose previous convictions of P Ws
- (v) making a costs order against D w/o inquiring as to his means.
How do you know whether to appeal to the HC by way of case stated or via judicial review?
Case stated
- Misdirection or error of law
- When can use both, use case stated
JR
- (1) Unfairness or bias
- (2) Issue of fact to be raised + decided which justices did not decide
- (3) Excess of jurisdiction
- (4) Challenges to committal for sentence (b/c case stated only available after final determination)
- (5) Should not be sought just for extended time limit (3m v 21 days)
