UNIT 6: APPEALS + SENTENCING Flashcards
1
Q
What is the purpose of the new sentencing code?
A
Code has re-written sentencing procedure with modern language and an overriding aim to bring a clear and logical structure to this area of practice
2
Q
- Section 57 of the Sentencing Act 2020 states that a court sentencing an offender aged 18 or over must have regard to the following five purposes of sentencing:
A
- the punishment of offenders;
- the reduction of crime (including its reduction by deterrence);
- the reform and rehabilitation of offenders;
- the protection of the public; and
- the making of reparation by offenders to persons affected by their offence.
* Regard is not needed where sentences are fixed by law or offences subject to a statutory minimum, or if the defendant is classed as a dangerous offender
3
Q
Who prepares and updates the sentencing guidelines
A
Sentencing council
4
Q
Who forms the sentencing council?
A
8 Judicial and 6 Non Judicial Members
5
Q
What must SC consider
A
o current sentencing practice
o the need to promote consistency in sentencing
o the impact of sentencing decisions on victims of crime
o the need to promote public confidence in the criminal justice system
o the cost of different sentences and their effectiveness in reducing re-offending
o the SC’s monitoring of the application of the guidelines
6
Q
Court and SC
A
- Every court has a duty to follow any relevant guidelines unless it is satisfied that it would be contrary to the interests of justice to do so.
7
Q
What is considered for seriousness
A
- the offender’s culpability in committing the offence, and
- any harm which the offence
- caused,
- was intended to cause, or
- might foreseeably have caused
8
Q
Culpability
A
- Guidance identifies four levels of criminal culpability for sentencing purposes – in descending order of seriousness they are where the offender:
1. has the intention to cause harm, with the highest culpability being when an offence is planned. The worse the harm intended, the greater the seriousness;
2. is reckless as to whether harm is caused. This covers situations when the defendant appreciates that some harm would be caused but goes ahead, giving no thought to the consequences even though the extent of the risk would be obvious to most people;
3. has knowledge of the specific risks entailed by their actions, even though the offender does not intend to cause the harm that results;
4. is guilty of negligence.
9
Q
Harm
A
- Harm may be caused either to individuals, or to the community at large.
- The types of harm that may be caused include:
1. physical injury
2. sexual violation
3. financial loss
4. damage to health and
5. psychological distress.
10
Q
Prevalence
A
- In exceptional circumstances, a court in a particular area may treat an offence more seriously than elsewhere
- EG if the particular type of offence is prevalent in the area and the court has before it evidence that these offences are causing harm to the community at large
11
Q
Statutory aggravating factors
A
- Previous convictions
court must have reasonable regard to the nature of the conviction and time that has elapsed since it
ie similar convictions and recency - Offences committed whilst on bail
particularly if D was on bail in respect of another offence at the time of the current offence - Racial or religious aggravation
any racial or religious motive for committing the offence - Hostility based on sexual orientation or disability
any hostility towards the victim of an offence based on that victim’s sexual orientation or any physical or mental disability
12
Q
Aggravating factors
A
- offences that are planned or premeditated;
- offenders operating in groups or gangs;
- the deliberate targeting of vulnerable groups (such as the elderly or disabled victims);
- offences committed whilst under the influence of drink or drugs;
- the use of a weapon;
- deliberate and gratuitous violence or damage to property, beyond that required to carry out the offence;
- offences involving the abuse of a position of trust;
- offences committed against those working in the public sector or providing a service to the public;
- in property offences, the high value (including sentimental value) of property to the victim; and
- failure to respond to previous sentences.
13
Q
Mitigating factors
A
- offences where the defendant has acted on impulse;
- when the defendant has experienced a greater degree of provocation than normally expected;
- defendants who are suffering from mental illness or physical disability;
- if the defendant is particularly young or old (particularly in the case of young offenders who are immature and have been led astray by others);
- the fact that the defendant played only a minor role in the offending;
- defendants who were motivated by genuine fear; and
- defendants who have made attempts to make reparation to their victim
14
Q
Reduction of guilty plea consideration
A
- s 73 SA: court must ‘take into account’ the stage in the proceedings at which D gave their indication of a guilty plea and the circumstances in which it was given
- Applies to ALL defendants aged 18 or over, to ALL cases regardless of the offence(s) at both MC and CC
15
Q
Is the reduction dependent on or affected by the strength of the prosecution case or whether D feels remorse?
A
No
16
Q
When will a full one-third discount on sentence be permitted
A
where a guilty plea is indicated at the ‘first stage of proceedings’
o on a guilty plea at the first hearing in the magistrates’ court;
o on a guilty plea at the first hearing in the magistrates’ court where the case is then committed for sentence to the Crown Court;
o on indication of a guilty plea in the magistrates’ court to an offence triable only on indictment, followed by a guilty plea at the first hearing in the Crown Court.
17
Q
Exception to discount rule
A
exceptions may entitle D to the full third reduction if it would have been unreasonable to expect D to indicate a guilty plea at this first hearing
18
Q
Max discount after this first stage
A
o the one-quarter discount will be awarded where the guilty plea is only first indicated at the PTPH
19
Q
When should the 1/4 discount be decreased to 1/10
A
- Reduction should be decreased from 1/4 to a maximum of 1/10 where a guilty plea is entered on the first day the trial was meant to take place (’at the door of the court’)
o May be reduced further, even to zero, where it is entered during the course of trial
20
Q
If at magistrates’ court, when D’s case was sent to the Crown Court, is a ‘likely guilty plea’ - is a full credit 1/3 reduction possible?
A
NO
where at the magistrates’ court it is not procedurally possible for a defendant to enter a guilty plea, there must be an unequivocal indication of the defendant’s intention to plead guilty. An indication only that he is likely to plead guilty is not enough’.
21
Q
What is the totality principle
A
- The court will take into account both the offence they are being sentenced for and any associated offences
- Associated offence = offence for which D has been convicted in the same proceedings or for which they are to be sentenced at the same time, or an offence which D has asked the court to take into consideration when passing sentence
Neil is convicted of three separate offences of theft in the same proceedings. When Neil is being sentenced, the court will not look at each offence separately, but will rather assess the total extent of Neil’s offending in determining the sentence that Neil will be given. Only if the totality of Neil’s offending passes the appropriate thresholds (see below) may a custodial or community sentence be imposed by the court.
22
Q
Offences taken into consideration
A
- D’s being sentenced for one offence may ask the court to take other offences into consideration (TIC) when considering the sentence
- EG D may have committed several similar types of offence which are yet to be prosecuted, but for which they may subsequently face prosecution
o it is in D’s interests that all matters outstanding (or potentially outstanding) are dealt with at the same time - Common practice: police to present D with a list of additional offences for which they are under investigation and may subsequently be charged
- The offences TIC should be of a similar nature to, or less serious than, the offence(s) for which D has been convicted
- Court’s discretion on how to consider these additional offences, but typically will increase the sentence D receives, but may also add little to nothing
- Advantage:
o for D: ‘wipe the slate clean’ because they will not subsequently be prosecuted for such offences
o for Police: a large number of TICs improves their clear-up rates without the need to commence a fresh prosecution against D
23
Q
STEP 1 – Determining the offence 3 categories?
A
- Category 1 offences reflect both greater harm and enhanced culpability
- Category 2 offences reflect either greater harm or enhanced culpability
- Category 3 offences are those involving lesser harm and a lower level of culpability
* There is an exhaustive list of factors to determine which category will be most appropriate for the relevant offence
24
Q
What happens once the starting point is determined?
A
- Once the category is determined, the court must use the corresponding starting point sentence which will then be further shaped by the remaining steps
- NB. the starting point is UNAFFECTED by previous convictions or how D pleads etc.
25
STEP 2 – Shaping the provisional sentence: starting point and category range
* Refer to aggravating and mitigating factors (above)
* Also must consider the relevant statutory thresholds for custody
26
STEP 3 – Consider any factors which indicate a reduction in sentence, such as assisting the prosecution
* Court can reduce the sentence where the offender has provided assistance to the police, usually in relation to other matters
27
STEP 4 – Reduction in sentence for a guilty plea
* NB. consider at what stage the plea was given
28
STEP 5 – Imposing an extended sentence
circumstances as to when a court will be required to consider imposing an extended sentence
* EG where it is a ‘dangerous offender’
29
30
STEP 6 – Totality principle
* Consider where an offender is being sentenced for multiple offences
31
STEP 7 – Compensation and other ancillary orders
* Court has a duty to consider whether or not to order D to pay compensation and/or make other appropriate ancillary orders, eg confiscation, destruction, and forfeiture orders
32
STEP 8 - Giving reasons
court must give reasons for the sentence it is imposing
* Includes explaining to D the effect of
o the sentence that has been passed, and
o non-compliance with the sentence, and
o identify the definitive sentencing guidelines that have been followed, including an explanation of why the court has imposed a lesser sentence than recommended in the guidelines if that is the case
33
R v Arie Ali
sentencing judge erred in imposing a sentence of immediate custody for an offence of assaulting an emergency worker. The Court of Appeal reasoned that when the courts are considering sentencing an offence that crosses the threshold for a short custodial sentence, judges and magistrates can elect to suspend the sentence or impose a community order instead
courts can take into account the impact of the current prison population levels when making that decision as an exceptional factor to justify suspending a custodial sentence
34
Concurrent vs consecutive sentence
* Relevant where the court is sentencing a D to a custodial sentence for 2 or more offences
* Separate sentences of imprisonment may be expressed by the sentencing court to be either concurrent or consecutive
* Concurrent sentence = the custodial terms are deemed to be served at the same time
* Consecutive sentence = one custodial sentence will start after the other one has finished
o generally not imposed where matters of fact arise out of the same incident
eg [in the below example] if wounding and theft occurred at the same time in relation to the same victim, concurrent sentences would be more likely
o does not need to be offences arising from the same incident, ie through application of the totality principle
35
Totality guideline
when sentencing for more than one offence, overriding principle of totality is that the overall sentence should:
1. Reflect all of the offending behaviour with reference to overall harm + culpability w/ aggravating and mitigating factors relating to the offences and those personal to the offender;
2. And be just and proportionate
36
Structuring a consecutive sentence
usually impossible to arrive at just + proportionate sentence by adding together notional single sentences – some downward adjustment ordinarily required.
37
Structuring a concurrent sentence
2. Concurrent: notional sentence on any single offence will not adequately reflect overall offending. Upward adjustment required + may go outside category range appropriate for a single offence.
38
Fourfold approach to concurrent/consecutive sentencing?
The Sentencing Council recommends that the general approach should be fourfold:
*
Consider the sentence for each individual offence, referring to the relevant sentencing
guidelines.
*
Determine whether the case calls for concurrent or consecutive sentences. When
sentencing three or more offences, a combination of concurrent and consecutive
sentences may be appropriate.
*
Test the overall sentence against the requirement that the total sentence is just and
proportionate to the offending as a whole.
*
Consider and explain how the sentence is structured in a way that will be best understood
by all concerned.
39
Concurrent sentence guidance
Concurrent sentences will ordinarily be appropriate where:
*
offences arise out of the same incident or facts;
*
there is a series of offences of the same or similar kind, especially when committed
against the same person.
Examples include:
*
a single incident of dangerous driving resulting in injuries to multiple victims
*
robbery with a weapon where the weapon has been taken into account in categorising
the robbery
*
separate counts of supplying different types of drugs of the same class as part of the
same transaction
*
repetitive small thefts from an employer.
40
Consecutive sentence guidance
Consecutive sentences will ordinarily be appropriate where:
*
offences arise out of unrelated facts or incidents;
*
offences committed in the same incident are distinct, involving an aggravating element
that requires separate recognition;
*
offences are of the same or similar kind but the overall criminality will not sufficiently be
reflected by concurrent sentences.
Examples include:
*
where the offender commits a theft on one occasion and a common assault against a
different victim on a separate occasion
*
an attempt to pervert the course of justice in respect of another offence also charged
*
where one of the offences is a Bail Act offence such as failing to surrender
*
where the offender is convicted of threats to kill towards a complainant in the context of
an indecent assault on the same occasion, the threats to kill could be distinguished as a
separate element
*
where offences of domestic abuse or sexual offences are committed against the same
individual.
41
When will a pre-sentencing report be produced?
Where an adult D pleads guilty and sentencing is likely to be at MC, their legal representative can ask the Probation Service to prepare a pre-sentence report before the first hearing
o If the report is produced, the court will decide whether to use it to sentence D
42
When would the legal representative ask the Probation Service to prepare the report?
o D’s legal rep will only ask the Probation Service to prepare the report if D will:
plead guilty to all offences charged on the full prosecution facts; and
agree to co-operate with the Probation Service to prepare a report.
43
What must the legal be satisfied about before asking the PS to prepare the report
D is likely to be sentenced in the magistrates’ court;
the offence(s) is serious enough for a community order and a pre-sentence report is likely to be necessary; and
D understands that:
a pre-sentence report before plea provides no indication of any sentence and that all sentencing options remain open to the court;
the court will decide whether to consider the pre-sentence report before plea, if the Probation Service produces one; and
the court may proceed to sentence without a pre-sentence report if the court considers a report unnecessary
44
When must the sentencing court obtain the report
the sentencing court must obtain and consider a pre-sentence report before forming an opinion on:
whether the custody threshold has been passed and, if it has, how long the custodial sentence should be; and
whether the threshold for imposing a community sentence has been passed and, if it has, the requirements that should be imposed on the defendant under a generic community order.
45
Is the court required to obtain a report?
o Court is not required to obtain a report if ‘in the circumstances, court considers it unnecessary’
EG where a custodial sentence is inevitable because of the seriousness of the offence or where the court already has a recent pre-sentence report for that offender
SO, s 30 requirement is not obligatory
s 30(4): if a court imposes either a custodial or community sentence before first obtaining or considering such a report, this will not invalidate any resulting sentence
46
What is a plea by mitigation
* Opportunity to present mitigation to the court = penultimate stage in the sentencing process
* Every D is entitled to this (r 25.16(6) CrimPR)
* One of the most frequent and important functions of defence advocates
* Plea in mitigation usually involves a speech by defence advocate, but can include calling character witnesses on behalf of D or introducing character letters to speak of D’s generally good character
47
48
Objective of mitigation
persuade the court to impose the most lenient sentence which it could reasonably be expected to give
49
Step 1 - likely sentence
o D’s solicitor may begin to identify the likely sentence, ie the starting point, to ultimately persuade the court to give a less severe sentence than this
50
The offence
o D’s solicitor then addresses the circumstances of the offence:
minimising the impact of aggravating factors (ie which could increase the sentence beyond the starting point)
stressing the importance of mitigating factors
51
The offender
defendant may have
o Factors may include:
Age of D
especially where D is young; court more likely to be sympathetic
Health of D
Drug addict or alcoholic (under the influence during the offence) - ie suggest that the sentence should help D overcome this addiction (eg may be more apt to give a generic community order incorporating drug rehabilitation or an alcohol treatment requirement)
Long-term illness or injury may warrant court’s sympathy, mental illness at the time of the offence was committed
Cooperation with the police/early guilty plea
Depends on at what stage D cooperates/gives a guilty plea
Max 1/3 reduction down to 1/10
D’s solicitor can tell the court if D has positively assisted the police in their enquires, eg by naming other criminals or revealing location of stolen property
A prompt confession when questioned by police is very mitigating
Voluntary compensation
D who voluntarily makes good the damage they caused, or compensated their victim, is likely to receive credit
Particularly the case if D is of limited means
Remorse
Evidence of true remorse is effective mitigation
Mere apology is insignificant, but the court considers positive steps D has made to tackle the problems which led them to commit the offence
EG credit to D who has committed thefts to fund a drug habit, who has voluntarily sought treatment for their addiction
Character
D’s solicitor should distinguish the facts of previous convictions from the current offence and ‘explain’ the circumstances of previous offences - ie mitigate aggravating
52
R v Seed
– absence of previous convictions
the Court of Appeal held that the absence of previous convictions was important mitigation that might make a custodial sentence inappropriate, even if the custody threshold had been crossed (see 11.7.1).
Family circumstances
Pre-sentence report reveals D’s personal background and family circumstances to be revealed in the plea in mitigation
EG if D has a regular home and job, and family who will be supportive of their attempts to not re-offend in the future
EG trouble family background could also mitigate, particularly if D is young – broken home, physical abuse, and sexual abuse could all mitigate sentence; or if family was addicted to drugs while D was young
Effective mitigation if D’s solicitor evidences that D made a genuine attempt to overcome such a background
Low risk of re-offending
Pre-sentence report addresses the risk of re-offending
Low risk should be mentioned to say it was a one-off
53
4. The suggested sentence
o Plea in mitigation should conclude by suggesting to the court the sentence that the defence think should be imposed
o Suggestion must be realistic, ie on the lower end of possible sentences which the court will be considering
o If the sentence suggested by defence is the same sentence as recommended in the pre-sentence report, the solicitor should emphasise this point
54
Custodial sentence general rule
* Usually court has discretion as to whether a custodial sentence should be imposed and the length of the sentence
o Some exceptions: mandatory sentence or mandatory minimum term (eg murder)
55
What is the custody threshold test
* Custody threshold: Where the court has a discretion whether or not to pass a custodial sentence, it must apply the threshold test set out in s 230 of the Sentencing Act 2020:
“The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”
56
What happens if the threshold is passed?
* Only if this threshold is passed may the court impose a custodial sentence; though does not automatically need to be imposed
o eg a guilty plea or very strong personal mitigation might make it inappropriate for a custodial sentence
57
What if the offender fails to express willingness to take part in community service order?
custody threshold test does not apply - ie does not need to be met - where an offender fails to express a willingness to take part in a community sentence
58
How does the court determine the length of the sentence?
* To determine the length of the sentence, the court must apply s 231(2), that a custodial sentence:
“must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more other offences associated with it.”
* In determining length, judge will have regard to guidelines issued by the SC and the guidelines considered by the Court of Appeal, collectively ‘Guideline Judgments Case Compendium’
59
Max Mags sentence?
* MC maximum: 6 months
o but 12 months for two or more either-way offences imposed in consecutive periods
60
Young Adult Offender?
* Where an adult offender is aged between 19–21 years, any custodial sentence they receive will not be served in prison, but in a young offender institution (YOI)
61
Dangerous offender sentences
* If D is a ‘dangerous’ offender, the sentencing court must impose one of the following sentences:
1. automatic life imprisonment;
2. discretionary life imprisonment; or
3. an extended sentence of imprisonment
62
Early release
* Adult defendants who receive a custodial sentence of up to 2 years (for offences after 1 February 2015) will be automatically released at the halfway point and then be on licence in the community to the end of the sentence
o Released on post-sentence supervision for 12 months beginning on the day they leave custody
* Offences over 2 years usually released halfway and serve the remainder on licence in the community
63
Early release exception
o unless classified as an ‘offender of particular concern’
eg terrorism or child sex offences
Can apply for parole and may be released at any time after halfway on licence subject to supervision
64
When will a suspended sentence be imposed?
* A custodial sentence of at least 14 days but no more than two years
* The period during which the sentence is suspended is known as the ‘operational period’
* Only imposed if court initially decides the custody threshold, but then considers that particular circumstances exist which justify suspension
65
Requirements which the court may impose under a suspended sentence
* Court will likely order D to comply during a specified period (’supervision period’) with one or more requirements falling within s 287 SA
* Supervision period must end no later than the operational period
* These are the same requirements which the court may require D to comply with when imposing a generic community order
66
What counts as a breach of suspended sentence
* Sentence takes effect if D fails to comply with requirements imposed or, during the operational period, D commits a further offence and the court sentencing D for the ‘new’ offence effects the original sentence
67
Who can deal with the breach
* If D is in breach and suspended sentence was imposed by MC, they may be dealt with for the breach either by MC or CC
* If D is in breach and suspended sentence was imposed by CC, breaches must be dealt at only at CC
68
What must the court do if D breaches suspended sentence
1. order the custodial sentence originally suspended to take effect unaltered;
2. order the custodial sentence to take effect, but for a shorter period of time, and/or substitute a lesser custodial period;
3. amend the original order by imposing more onerous community requirements on the defendant; or
4. amend the original order by extending the operational period, or by extending the supervision period.
[must pick one]
69
What should the court first consider to do if D breaches suspended sentence
* Court must make an order (a) or (b) (custodial sentence ones) unless it considered it would be unjust in the circumstances
o EG if D is coming to the end of the supervision period having not been in breach or if, a new offence committed is a minor matter or is a completely different type of offence
* If order is made under (a) or (b), the term of imprisonment for the original offence will be consecutive to the sentence imposed for any new offence
generally, the court will activate a suspended sentence and order it to run consecutively with any additional sentence imposed for the new offence.
70
Can the court fine a D for breaching suspended sentence
* Court can also impose a fine up to £2,500 for breaching the suspended sentence if not immediately giving a custodial sentence
71
Threshold for community order
* s 204(2) SA sets threshold which must be reached before a court can impose such an order:
“The court must not make a community order unless it is of the opinion that—
1. the offence, or
2. the combination of the offence and one or more offences associated with it,
was serious enough to warrant the making of such an order.”
72
73
Contents of the generic community order
* Court may choose various options appropriate for the case
74
2. Activity requirement
o requires D to take part in specified activities which may be designed to help D overcome problems (eg finding work) or make reparations to the victim (eg repairing damage caused)
75
1. Unpaid work requirement
o between 40 and 300 hours
o must be completed within 12-month period
o most common requirement attached to a GCO
76
3. Programme requirement
o D takes part in one or more courses to address offending behaviour
o eg anger management or substance misuse
77
4. Prohibited activity requirement
refraining
78
5. Curfew requirement
o remain at a particular location, usually residence, during specified times
o D will be electronically monitored, aka ‘tagging’
79
6. Exclusion requirement
o prohibits D from entering a place or places for a period not exceeding 2 years
o tagged
80
7. Residence requirement
o live at a particular place
81
8. Mental health treatment requirement
o D to agree to treatment from a mental health practitioner for a specified period of time
82
9. Drug rehabilitation requirement
o D to agree to treatment to reduce or eliminate their dependency on drugs, and to submit to providing samples to determine whether they have drugs in their body
o For a period specified by the court
83
10. Alcohol treatment requirement
o D to agree, during a time specified, to treatment to reduce or eliminate alcohol dependency
84
11. Supervision requirement
o D to attend appointments with a member of the Probation Service
o Purpose: promote D’s rehabilitation, confront D’s offending behaviour, discuss how D might ‘manage’ their life, and monitor D’s progress
o May be imposed for up to 3 years
85
12. Attendance centre requirement
o D to attend an attendance centre for a total of between 12 and 36 hours
o Can only be imposed on Ds who are under 25 years of age
86
13. Foreign travel prohibition
o court can impose a prohibition on foreign travel
o outside the British Isles (UK, the Channel Islands, and the Isle of Man)
87
Guidance from the Sentencing Council
* Three sentencing ranges (low, medium, high) within the community sentence band
* A court considering to impose the sentence must decide which band the offence falls into
88
What happens if D breaches a community order?
* First, D in breach without reasonable excuse will receive a warning from the Probation Service supervising D’s compliance
* If, within the following 12 months, D again fails without reasonable excuse to comply:
o the officer will report it to the court which imposed the order and
o D will have to appear before the court
89
What should the court do if satisfied that D has, without reasonable excuse, failed to comply with the requirements
1. amend the order so as to impose requirements on the defendant which are more onerous (for example, by increasing the amount of unpaid work the defendant is required to complete); or
2. revoke the order completely and re-sentence the defendant for the offence, but without taking into account the usual custody threshold; or
3. where the defendant has wilfully and persistently failed to comply with the order, the court may revoke the order and impose a custodial sentence. This can be done even if the original offence was not punishable by way of a custodial sentence.
90
Further offences committed during a generic community order
* MC may either allow the original GCO to continue, or, if in the interests of justice having regard to the circumstances in which the original order was made, they may:
1. revoke the order (this will be done if the magistrates are imposing a custodial sentence for the ‘new’ offence, since an offender in prison cannot comply with a community sentence); or
2. revoke the order and re-sentence the defendant for the original offence as if they have just been convicted of it. If this is done, the court must have regard to the extent to which the defendant has complied with the original order.
91
When will a Newton hearing be held?
* D may plead guilty to the charge but dispute the specific factual version of events put forward by the CPS
* If the dispute of facts may affect the sentence imposed, the court must either accept D’s version of events or allow both CPS and D to call evidence so that court can determine the true factual circumstances (Newton hearing)
92
What is the basis of plea
prosecution and defence will seek to agree on a version of events to sentence D
93
What is a basis of plea document?
* Basis of plea document sets out D’s factual version which they accept they are guilty of
* Purpose: remove various aggravating factors of the case which D does not accept are an accurate reflection of what actually happened
94
* If the basis of plea is accepted by prosecution and sentencing judge?
the sentence proceeds on the version put forward by the defence
95
* If basis of plea is rejected by the prosecution and the judge thinks the version put by the prosecution is sufficiently more serious than D’s version?
then there will be a Newton hearing
96
Patently absurd plea?
* Sentencing judge is entitled to reject a basis of plea which they consider patently absurd
o Judge can then take the prosecution version of events without a Newton hearing taking place
o Sentencing is final arbiter on whether or not the basis of plea is accepted and is entitled to reject a basis even if accepted by the prosecution
97
When can D appeal to the Crown Court from the Magistrates' Court?
1. if they pleaded guilty, they may appeal against the sentence they received;
G: sentence
2. if they pleaded not guilty, they may appeal against any resulting conviction and/or the sentence they received.
NG: conviction and/or sentence
98
Who hears the appeal in the Crown Court?
o Appeal usually heard by a recorder or circuit judge who will sit with an even number of magistrates, normally 2 but up to 4
99
Does the prosecution have a right to appeal to the Crown Court?
o Prosecution has no rights of appeal to CC against acquittal of D, or the sentence imposed by MC
100
Who can appeal to the High Court?
Defence AND Prosecution can appeal to High Court on a point of law by way of case stated
101
Appeals against conviction?
o D may make an appeal on the basis that the magistrates made errors of fact and/or law
o Appeal is a full rehearing of the case (ie another trial)
o CPS and D will need to call all witnesses whose evidence they seek to rely on
o New witnesses may be called, and new or different points of law may be relied on
102
Appeals against sentence?
o D may appeal on the basis that the sentence is excessive
o CC should carry out a full rehearing of the issues and take an independent view of what the correct sentence should be
103
Procedure for appeal against conviction and or sentence
o D must file notice of appeal with both MC and the CPS no more than 15 business days from the MC passing the sentence
o Clerk at MC will send the notice to the relevant CC and CC will then arrange a date for the hearing
104
What if D files the notice outside the 15 business days?
CC judge has the discretionary power to extend the time limit
105
What if D's case at MC was pubicly funded by a representation order?
a separate representation order will be required to cover the hearing of the appeal at CC
Advice and assistance given to D will be covered by this order
106
Is bail possible?
o If D is appealing a custodial sentence, MC may grant bail to D pending appeal to the CC
BUT no presumption in favour of bail because s 4 Bail Act does not apply to D’s appealing against conviction or sentence
If MC does not grant bail, D may apply to CC for bail pending the appeal hearing
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Appeal from Crown Court decision to High Court Q/KB
o Both CPS and D can then appeal to High Court by way of case stated against any decision or order made by CC following an appeal from MC
This appeal must be based on
a point of law, or
on an argument
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Appeal to the High Court from MAGS by way of case stated
* Either CPS or D may appeal from a decision of MC to the Queen’s Bench Division of the High Court IF:
1. the decision which has been made by the magistrates is wrong in law; or
2. the magistrates have acted outside their jurisdiction (Magistrates’ Courts Act 1980, s 111
* Arguments often raised in appeal by way of case stated are that:
1. the magistrates misread, misunderstood or misapplied the law;
2. the magistrates decided to hear a case when they did not have the jurisdiction to hear it;
3. the magistrates made errors in deciding the admissibility or otherwise of evidence;
4. the magistrates erred in their decision following a submission of no case to answer.
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MC to HC appeal - procedure?
D Must apply to MC within 21 days of the decision being made by MC
o normally done by writing to the clerk at MC
o application must identify the question of law at issue
o MC must then ‘state a case’ for the opinion of the HC
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What will the MC clerk prepare after application
* MC clerk will prepare a draft ‘statement of case’ that will:
1. specify the decision in issue;
2. specify the question(s) of law or jurisdiction on which the opinion of the High Court will be asked;
3. include a succinct summary of:
1. the nature and history of the proceedings
2. the court’s relevant findings of fact and
3. the relevant contentions of the parties
4. if a question is whether there was sufficient evidence on which the court reasonably could reach a finding of fact:
1. specify that finding and
2. include a summary of the evidence on which the court reached that finding.
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After preparing draft SOC?
clerk sends it to CPS and D’s solicitor to enable them to suggest any necessary amendments
* Final agreed version is sent to the party making the appeal
* Party appealing then lodges the SOC with the HC and gives notice to the other party that this has been done
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HC hearing formed of?
* Appeal is heard by the Divisional Court of the Queen’s Bench Division, normally by 3 judges
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HC - how is evidence presented? Are witnesses present?
* No evidence is given by witnesses and the hearing will be confined the legal argument based on the agreed facts set out in the SOC
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What does the divisional court have the power to do
* Division Court has the power to reverse, vary, or affirm the decision made by MC
o may also remit the case back to the same MC with a direction to acquit or convict D, or to remit the case to a different bench of magistrates
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Appealing the High Court's decision?
* Both CPS and D can appeal to Supreme Court in respect of any decision or order made by HC following an appeal to HC by way of case stated
o Appeal must be on a point of law
o Only the HC must certify it to be a point of law of general public importance
o either HC or SC must grant leave to appeal
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Advising a client on HC appeal?
* This is the only avenue of appeal for CPS
* D can appeal straight to CC against both conviction and/or sentence
much speedier and more effective way to challenge a decision by the defendant that resulted in a conviction in the magistrates’ court was to simply appeal against the conviction to the Crown Court. Leveson LJ observed that even if a case stated application succeeded it was still quite likely that the case would return to the magistrates’ court for a retrial and a considerable amount of time will have elapsed, and he did not believe that such delay would ever be in the defendant’s best interests
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Judicial review?
* Not a form of appeal, but is an alternative method of challenging a decision made by MC
* An application for judicial review may be made either by CPS or D IF:
1. the magistrates’ court has made an order that they had no power to make (and so have acted ‘ultra vires’, or beyond their powers); or
2. the magistrates’ court has breached the rules of natural justice (either by contravening a party’s right to a fair hearing, or by appearing to be biased).
* Applicant will seek an order from the Divisional Court either quashing the decision made by MC or compelling MC to act [or not act] in a certain way
* Not a usual route for the defence or even CPS to take
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D who is convicted in the Crown Court wants to appeal against the conviction to the Criminal Division of the Court of Appeal?
1. Appeal against conviction (Criminal Appeal Act (CAA) 1968, s 1(1)). D may appeal against their conviction if either the Court of Appeal grants leave to appeal, or the trial judge grants a certificate that the case is fit for appeal;
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'' appeal against sentence?
2. Appeal against sentence (CAA 1968, s 9). The defendant may appeal against the sentence they received if either the Court of Appeal grants leave to appeal, or the judge who passes sentence has granted a certificate that the case is fit for appeal against sentence.
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When must the Court of Appeal allow the appeal?
* If the Court of Appeal considers a conviction to be ‘unsafe’, it must allow the appeal
o In all other cases, CofA must dismiss the appeal
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Error or mistake in D's CC trial?
* SO conviction may be upheld if there was an error or mistake at D’s trial in CC if CofA considers that the correct and reasonable verdict, but for that mistake, would have still been guilty
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Quashing a conviction?
* CofA may allow an appeal and quash a conviction if the court is satisfied that D did commit the offence for which they were convicted
o likely where there was an abuse of process by the police or prosecuting authorities (eg ‘bugging’ a privileged conversation)
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Fresh evidence?
. Fresh evidence will not in itself render a conviction unsafe. The issue for the Court of Appeal is whether the fresh evidence is such that, had it been placed before the jury, the verdict might have been different.
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What happens at the end of the trial?
* At the end of the trial, D counsel normally prepare a written advice on the merits of the appeal which should be in accordance with the instructions contained in the brief
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Procedure for making an appeal against conviction
1. Within 28 days of the conviction (not sentence), the defendant must serve their appeal notice, together with the draft grounds of appeal, on the Registrar of Criminal Appeals at the Court of Appeal. The grounds are a separate document prepared by defence counsel, setting out the detailed arguments as to why the conviction is unsafe.
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Next step by Registrar?
2. On receipt of these documents, the Registrar will obtain a transcript of the evidence that was given at trial and of the judge’s summing up to the jury. The Registrar will then put the case papers before a single judge, who will determine whether permission to appeal ought to be granted. This is a filtering stage, designed to weed out appeals that have no chance of success. If permission is granted, the single judge will also grant the defendant public funding for the hearing of the appeal.
In appeals that are without merit, the single judge may make a direction in dismissal as to loss of time – ie time spent by D in custody awaiting the outcome of the appeal will not count to their actual sentence
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Court of Appeal hearing?
hearing of the appeal will then take place before the full Court of Appeal, which will comprise a three-judge panel. The court will hear oral arguments from the parties, and may also hear fresh evidence if that evidence:
1. appears to be credible;
2. would have been admissible at the defendant’s trial; and
3. there is a reasonable explanation for the failure to adduce this evidence at the defendant’s trial (CAA 1968, s 23).
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Powers of the Court of Appeal at an appeal against conviction
1. quash the conviction and acquit the defendant – if, for example, new evidence has come to light which the court considers would have led to the defendant’s acquittal had such evidence been available at the defendant’s trial;
2. quash the conviction and order that a retrial take place – if, for example, the conviction is unsafe because the judge failed to direct the jury properly when summing up the case;
3. allow part of the appeal and dismiss other parts of the appeal (if the defendant was appealing against conviction for more than one offence). In such a case the court will probably then re-sentence the defendant in respect of the offences for which his conviction was upheld;
4. find the defendant guilty of an alternative offence (in which case the court will probably re-sentence the defendant); or
5. dismiss the appeal
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What if the conviction is unsafe? Possibility of retrial?
* If the conviction is unsafe, court must decide whether to order a retrial
o can order a retrial where the court allows an appeal against conviction AND where it appears to the court that ‘the interests of justice so require’
o If court thinks D would have been acquitted at trial (ie had new evidence been available at the time), court will not order a retrial
o In all other cases, court normally orders a retrial unless it would be unfair to D or in some other way inappropriate
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Appeal against sentence procedure?
* Essentially same as against conviction, with D requiring either
o a certificate from the sentencing judge that the case is fit for appeal, or
o permission from the CofA to proceed
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If D seeks permission to appeal from CofA?
* Formalities: If D seeks permission from CofA, notice of application for permission AND a draft grounds of appeal must be sent to Registrar of Criminal Appeals at the CofA within 28 days of the sentence (NOT the conviction)
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What will the draft grounds of appeal state?
* Draft grounds of appeal will state why it considers the sentence passed is either wrong or excessive
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If leave to appeal is granted by a single judge?
the appeal will then be considered by a 2 or 3 panel of judges
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What will the appeal be confined to
* Appeal is usually confined to legal submissions on what the appropriate sentence or sentence range is in the particular case
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When will an appeal be successful?
1. the sentence passed by the trial judge is wrong in law (if, for example, the trial judge were to pass a sentence that they did not have the power to pass);
2. the sentence passed by the trial judge is wrong in principle (if, for example, the trial judge passes a custodial sentence when the offence was not serious enough to merit such a sentence);
3. the judge adopted the wrong approach when sentencing. Examples of a judge adopting the wrong approach when sentencing are:
1. if the judge increased the sentence because the defendant had pleaded not guilty (since the guidelines issued by the Sentencing Council start from the assumption that the defendant is convicted following a not guilty plea);
2. if the judge failed to give the defendant an appropriate discount for entering a guilty plea;
3. if the judge should have held a Newton hearing before determining the facts of the offence upon which the sentence was to be based;
4. if the judge failed to take into account (or failed to give sufficient credit for) any relevant offence or offender mitigation put forward by the defendant;
4. in the case of co-defendants, there is an unjustified disparity in the sentence each defendant receives, particularly where both defendants appear to have been equally culpable; or
5. the sentence passed is manifestly excessive. This is the most common ground of appeal in practice. A Crown Court judge sentencing a defendant will impose a sentence within a range of possible sentences which may be appropriate for the offence. The Court of Appeal will interfere only if the sentencing judge has gone beyond the upper limit of this range. The Court of Appeal will not reduce a sentence simply because it would have imposed a lower sentence within the appropriate range
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Manifestly excessive sentence?
This is the most common ground of appeal in practice. A Crown Court judge sentencing a defendant will impose a sentence within a range of possible sentences which may be appropriate for the offence. The Court of Appeal will interfere only if the sentencing judge has gone beyond the upper limit of this range. The Court of Appeal will not reduce a sentence simply because it would have imposed a lower sentence within the appropriate range.
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After D sentenced
* After D is sentenced, defence council normally provides a written advice on the prospects of a successful appeal against sentence in accordance with the instructions contained in the brief to counsel
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Powers of the Court of Appeal
* May confirm the sentence passed by CC
* May quash the sentence and replace it with an alternative sentence or order as it thinks appropriate
* CofA CANNOT **increase the sentence imposed by the judge in CC
* A loss of time direction may also be made if D makes an appeal against sentence that is deemed to be without merit
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Termination and evidential rulings (CrimPR, Part 38)
* CPS has no right of appeal in respect of D who has been acquitted by a jury following a CC trial
* CPS has a right of appeal to CofA in respect of rulings made by a trial judge either before or during the trial which:
o either effectively terminate the trial (‘termination rulings’); or
o significantly weaken the prosecution case (‘evidential rulings’)
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Powers of the Attorney-General (CrimPR, Part 41)
* CPS has a right of appeal to CofA if the A-G considers that the CC has passed a sentence which is ‘unduly lenient’
* A-G can refer the case to the CofA, which has the power to increase the sentence
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For what type of offences can the AG appeal to CofA?
* A-G may refer the case if the offence:
o is an offence triable on indictment or
o is a specified either-way offence and the CofA has given permission
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If AG referral succeeds?
* If referral succeeds, CofA will quash the sentence passed in CC and pass the sentence it considers appropriate
* Any sentence imposed by CofA must be one which could have been passed by CC powers
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Applications for a retrial by the CPS
The rule against double jeopardy
* Prior to the enactment of the CJA 2003, a defendant could never be tried twice for the same offence (aka ‘double jeopardy’).
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offences for which a retrial is possible following the acquittal of D
1. murder and attempted murder;
2. manslaughter;
3. kidnapping;
4. a number of sexual offences under the Sexual Offences Acts of 1956 and 2003, including rape, attempted rape and assault by penetration;
5. various offences in relation to Class A drugs, such as unlawful importation and production; and
6. arson endangering life or property
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When will CofA quash an earlier conviction and order a retrial
where CPS can satisfy a two-fold test:
1. The evidential test
o set out in s 78 CJA
o Requires there to be a ‘new and compelling’ evidence of D’s guilt
o ‘New’ evidence = not adduced when D was acquitted
o ‘Compelling’ = must be reliable, substantial, and highly probative of the case against D
AND INTERESTS OF JJUSTICE
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Part2 interests of justice test
CofA should have particular (but not exclusive) regard to the following factors:
1. whether existing circumstances make a fair trial unlikely;
2. the length of time since the offence was allegedly committed;
3. whether it is likely that the new evidence would have been adduced in the earlier proceedings, but for the failure of the police or the prosecution to act with due diligence and expedition; and
4. whether, since the earlier proceedings, the police or prosecutor have failed to act with due diligence or expedition.
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