Unit 28 Appeals from the Crown Court Flashcards
Within what time frame can the CC vary/rescind mistakes as to sentence?
Within 56 days of sentence being passed
What kinds of changes to a sentence can the CC in exercising its power to rectify sentencing mistakes?
(1) Vary term (both ways)
(2) Replace form (e.g. prison to hospital order; youth custody to ‘detention’)
(3) Add extra order
(4) Correct period which court has allowed for time spent in custody on remand
What is the basis of the CA’s jurisdiction to hear appeals against conviction and sentence?
Largely statutory
I doubt we’ll be asked about all the details - basically appeals in cases involving trial on indictment seem to go to the CA (remember: the HC does not have jurisdiction in these cases)
How many justices must hear an appeal in the CA?
There’s a list of appeals for which at least a 3-judge court is required (occasionally even more judges may sit on the case - but always an uneven number). This list seems to include appeals against conviction
It does NOT include appeals against sentence. Apparently these can be dealt with by a 2-judge court.
So all we need to remember:
- 2 judges (sentence appeals) or
- 3 judges (conviction appeals)
When is permission to appeal to the CA from the CA itself required?
In all cases, except when the trial judge has certified that the case is fit for appeal (this should only happen exceptionally).
The certificate removes the need to obtain leave from the CA, but does not start the appeal.
What is the procedure for obtaining leave to appeal from the CA?
- Written grounds of appeal must be submitted to CA within 28 days of the conviction
- Initial decision either to grant or refuse leave is usually taken on the papers by the single judge
- If leave is refused by the single judge, the applicant is entitled to renew the application before a two-judge or full court
Can you appeal a conviction to the CA after you pleaded guilty?
Yes and the conviction will be quashed if it is found to have been unsafe.
BUT obviously this is quite unlikely to work. The most common basis upon which an unequivocal plea of guilty is challenged is where there has been an incorrect ruling on a point of law by the trial judge which allows the appellant no escape from a guilty verdict. But if an appellant has simply been influenced to enter a plea of guilty because of a decision to admit evidence which meant that the prospects of acquittal were hopeless, the conviction would not normally be held to be unsafe.
Other times this might work:
- Guilty plea after inappropriate legal advice
- Admission of fresh evidence on appeal
What are some common grounds that can found a successful appeal against conviction?
(1) Wrongful Admission or Exclusion of Evidence
- Will lead to quashing of conviction if the conviction is unsafe, even if D’s advocate failed to raise the issue at the time
(2) Erroneous Exercise of Discretion
- Will only work in very limited circumstances where it’s just about exercise of judgment
- Much more likely to work if the judge failed to exercise the discretion at all or failed to take into account relevant factors/took into account irrelevant factors
(3) 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
- Again, failure by D’s advocate to raise this at the time will not preclude quashing if the conviction is unsafe
(4) Defects in the indictment
- Indictments can be defective for all sorts of reasons (e.g. charges the accused with an offence that doesn’t actually exist; counts are improperly joined) - if the defect results in the conviction being unsafe, it will be quashed
(5) Inconsistent verdicts and jury irregularities
- The CA will quash a conviction based on apparently inconsistent verdicts only if those verdicts are such that no reasonable jury applying its mind to the evidence could have reached the conclusions that it did
- Will also quash if the majority of the jurors was insufficient (e.g. 9-2 majority, when 10-1 is needed where there are only 11 jurors)
- Other example: jurors downloading info online. This is a criminal offence and where it prejudices A, the conviction is unsafe and will be quashed.
(6) Conduct of the Trial Judge
- Sometimes this can result in quashing (e.g. if judge interrupts too much/badgers the accused when they are giving evidence)
- Basically if the judge acts in a way that might well result in prejudice to the accused
(7) Errors in judge’s summing up
- Can lead to quashing. Common examples that do so include:
- (1) Misdirection on law
- (2) Wrongful withdrawal of issues from the jury
- (3) Misdirection on facts
- (4) Improper comment on facts or defence case
- (5) Comment on failure of accused to testify
- (6) Comment on the accused’s character
Basically, the overarching point is that if anything happens which renders the conviction unsafe (i.e. had it not happened there is a good chance that the case would have been decided differently), then the CA may well quash the conviction. Obviously, the more the issue was an exercise of discretion, the less likely the CA is to interfere.
What are some common grounds that can found a successful appeal against sentence?
(1) Sentence Wrong in Law
(2) Sentence wrong in principle or manifestly excessive - not sufficient that sentence is more than what CA would have given O
(3) Judge’s remarks when sentencing - e.g. if they reveal that the judge took irrelevant considerations into account
(4) Procedural Errors - can but do not necessarily lead to successful appeal
(5) Sense of grievance - CA will intervene when the appellant has a justifiable sense of grievance at the sentence imposed following events preceding sentence. In practice, this principle applies most often 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. Basically this is about false promises that were made.
(6) Disparity of sentence - sometimes disparity between sentences given to co-As can lead to successful appeal (if right-thinking members of the public would think that there is something wrong about it on the facts of that case)
(7) Failure to Distinguish between offenders - failure to distinguish when one A has powerful mitigating circumstances and the other doesn’t
What is the test for leave to appeal to the CA?
- Remember: leave for appeal to CoA required unless trial judge certifies case is fit for appeal
- D must convince single judge that appeal arguable on the merits
- Test for leave = case is arguable on the merits
What is the procedure for starting an appeal to the CA?
Lodging a notice:
- You have to lodge a notice with CA.
- Type of notice will depend on whether the trial judge has granted a certificate of fitness to appeal (i.e. leave no longer required)
If certificate -> notice of appeal
If no certificate -> notice of application for leave to appeal
Time limits:
- 28 days from either conviction or sentencing, depending on which is being appealed (unlike CC where it’s always from sentence)
- time limit may be extended before/after expiry
Grounds of appeal:
- The grounds of appeal must be included in the notice
- Obviously these may not be perfect yet at the time when the notice is lodged with the CA
- For this reason, counsel can perfect and vary the grounds after lodging them within the time permitted by the CA for this (but must already make sure before lodging that they are properly arguable)
- Perfecting the grounds may necessitate access to transcripts -> it is counsel’s responsibility to identify the transcripts needed
- They will then be sent to counsel and counsel will have 14 days from being sent them to perfect the grounds
- If counsel does nothing within 14 days after receiving them, the grounds are sent to the judge as they are. If counsel does not wish to perfect after receiving the transcripts, should return the transcripts stating this. If counsel needs more than 14 days should inform the registrar asap
- If after receiving the transcripts, counsel no longer thinks that the appeal is arguable, counsel must send appropriate advice to the solicitors and inform the registrar of the CA (but not send advice to registrar)
Skeleton arguments:
- 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’.
- The ‘appellant’s skeleton argument, if any, must be served no later than 21 days before the hearing date, and the respondent’s skeleton argument, if any, no later than 14 days before the hearing date’, unless otherwise directed.
Can you renew an application for leave to appeal to the CA if your original application was refused?
Yes
- If leave was granted on one point and judge left others open, leave for the others can be sought at the substantive hearing of the one that was granted.
- If points were rejected (rather than left open) a new application must be made
- Renewed application will be herd by least 2 judges and usually 3; applicant has no right to attend; no legal aid; if counsel attends CoA should be informed as soon as possible in writing
What is a ‘loss of time direction’?
CoA may direct that all / part of time applicant has spent in custody since commencement of appeal proceedings shall not count in relation to sentence.
Basically it’s something used where O has continued the case vexatiously (it’s used to discourage this practice). May even be made where O was encouraged to continue case by legal advice.
What are the rules for hearing fresh evidence in the CoA?
We’re not really set any reading on fresh evidence in appeals against sentence, so this is all about appeals against conviction
(1) CoA has discretion to admit evidence relevant to appeal if necessary or expedient in the interests of justice
(2) May issue a W order to anyone thought may be able to give relevant evidence (NB: need not have been ‘compellable’ in prior proceedings – e.g. jurors and, subject to waiver of privilege, legal representatives)
(3) Respondent
- Evidence may also be introduced in the interests of justice
- Not limited to rebuttal of fresh evidence from appellant
- But not where purpose is to advance basis for conviction not argued previously and not put before jury
(4) Role of expert evidence
- General rule = expert evidence should not be re-litigated on appeal
- May be justified in situations e.g. where an advance in DNA science has occurred
NB: D should not dismiss original counsel and bring in new counsel on appeal to circumvent fresh evidence restriction
What are the tests for whether an appeal against sentence/conviction will be successful?
Appeal against conviction → can only allow if conviction is UNSAFE
Appeal against sentence → should D have been SENTENCED DIFFERENTLY
