Unit 6 - Sentencing and Appeals Procedure

Question 1

A man has been charged with an offence of robbery. When interviewed, he denied
his involvement and later instructed his solicitor that he would plead not guilty. At his
first appearance in the magistrates’ court, the man’s solicitor was given access to the prosecution evidence, which appeared to be compelling. Despite advice from his solicitor, the man was not prepared to indicate a guilty plea at this stage. The man’s case was immediately sent to the Crown Court and a date for the plea and trial preparation hearing (PTPH) was set. At this hearing, the man changed his mind about the plea and entered a guilty plea at the PTPH. However, he made it clear he did not show any remorse for his offending behaviour.

What level of discount will the man be entitled to as a result of his guilty plea?

A) Somewhere between zero and one-tenth discount on his sentence since he has shown no remorse for his offending behaviour.
B) A one-tenth discount on his sentence since the evidence against him was overwhelming.
C) A one-quarter discount on his sentence since he only indicated his guilty plea after the first stage of the proceedings.
D) A one-third discount on his sentence since he indicated his guilty plea at his first appearance in the Crown Court.
E) The man will not be entitled to any discount on his sentence since he has shown no remorse for his offending behaviour and the evidence against him was overwhelming.

Answer 1

CORRECT ANSWER C - Under the ‘Reduction in Sentence for a Guilty Plea’ Definitive Guideline, where a guilty plea is indicated after this first stage of the proceedings, the maximum level of the reduction is only one quarter, and not the full reduction of one third. For this reason, option C is correct and option D is wrong because the first stage of the proceedings was when the man appeared in the magistrates’ court and could reasonably have been expected to indicate a guilty plea at that stage.
Options A, B and E are all wrong because a reduction in discount to one-tenth or even to zero should only apply where a guilty plea is entered on the first day a trial is meant to take place (one-tenth discount) or it may be reduced further, even to zero, where the guilty plea is entered during the course of the trial. Not showing remorse or the strength of the prosecution case are not factors that will affect the level of discount.

Question 2

A man was sentenced six months ago in the magistrates’ court for an offence of assault occasioning actual bodily harm. He received a suspended sentence order of three months’ custody. The operational period of the suspended sentence is for 12 months. A requirement to complete 100 hours of unpaid work was attached to the suspended sentence order
and the man has completed the unpaid work. The man has now pleaded guilty in the magistrates’ court to an offence of affray.

Which of the following best describes the likely sentence the man will now receive?

A) The man will receive a custodial sentence for the present offence of affray and the suspended sentence of three months will be activated to run fully and concurrently with this sentence.
B) The man will receive a custodial sentence for the present offence of affray and the suspended sentence of three months will be activated but will be reduced to take into account the unpaid work the man has completed.
C) The man will receive a custodial sentence for the present offence of affray and the suspended sentence of three months will be activated to run fully and consecutively with this sentence.
D) The man will receive a custodial sentence for the present offence of affray and the suspended sentence of three months will be further suspended for another period of 12 months.
E) The man will receive a community order for the present offence of affray and the suspended sentence of three months will be further suspended for another period of 12 months.

Answer 2

CORRECT ANSWER C - The general rule where a suspended sentence order is imposed and a further offence is committed during the operational period of the order is for a custodial sentence to be imposed for the present offence (assuming it is imprisonable, which affray is) and the suspended sentence will be activated to run fully
and consecutively with this sentence. However, the sentencing court does have some discretion to impose other sentences. For example, if the present offence is not very serious and/or is
very different in nature to the earlier offence, or the earlier sentence is very near the end of its operational period, the court may not activate the original sentence and further suspend it, or not activate it to run for the full period, or activate it to run concurrently with the present sentence as opposed to running consecutively with it.

Question 3

A woman is sentenced in the Crown Court for a number of dishonesty offences. For two unrelated offences of theft, she is sentenced to six months’ imprisonment for each, which are ordered to run consecutively. For an offence of fraud, which is linked to the second offence of theft, she is sentenced to four months’ imprisonment and this is ordered to run concurrently.

When should the woman be released from prison?

A) After serving four months in custody.
B) After serving six months in custody.
C) After serving 10 months in custody.
D) After serving 12 months in custody.
E) After serving 16 months in custody.

Answer 3

CORRECT ANSWER B - he woman has been sentenced to a total period of 12 months in custody as the two thefts are ordered to run consecutively (whereas the fraud offence will run concurrently and so does not count toward the overall total). However, a prisoner will generally be released after serving half their sentence, so here, after serving six months in custody. Because the woman’s sentence runs to a total of 12 months, she will be released on licence and will be under the supervision of the Probation Service during the licence period. This will expire at the end of the 12-month period.

Question 4

A woman is convicted following a trial in the magistrates’ court of an offence of low-value theft from a shop. The woman has extensive previous convictions for similar offending and is sentenced to four months’ imprisonment. The woman is considering appealing to the Crown Court against this sentence.

Which of the following best describes the Crown Court’s powers in relation to the woman’s appeal against sentence?

A) The Crown Court may confirm or vary this sentence, including increasing the sentence up to a maximum of six months’ imprisonment.
B) The Crown Court may confirm, reverse or vary this sentence, including increasing the sentence up to the statutory maximum for theft.
C) The Crown Court may confirm, reverse or vary this sentence, but they cannot increase the sentence that has already been imposed.
D) The Crown Court may confirm, reverse or vary this sentence, including increasing the sentence as this is an either-way offence.
E) The Crown Court may confirm, reverse or vary this sentence, including increasing the sentence up to a maximum of six months’ imprisonment.

Answer 4

CORRECT ANSWER E - The Crown Court has the power to impose any sentence, as long as it is a sentence which the magistrates’ court had the power to impose. This means that a defendant appealing against a sentence imposed by the magistrates’ court may have that sentence increased if the Crown Court takes a more serious view of the offence, but only
up to the maximum available in the magistrates’ court, which for this offence (a summary offence) would be six months’ imprisonment (note the woman is not entitled to any discount of sentence for a guilty plea since we are told she was convicted following a trial, so the maximum sentence available would remain at six months).
Option A is not the best answer because the Crown Court can also reverse as well as confirm or vary the sentence, although in this case, reversing such a sentence would be unlikely. Option B is wrong because the sentence cannot be increased above the six months maximum the magistrates could impose for a summary offence. Option C is wrong because the Crown Court can also increase the sentence (unlike the Court of Appeal when hearing an appeal against sentence from the Crown Court). Option D is wrong because low-value shop theft
is not an either-way offence and in any event, even if it were, this is not the reason why the Crown Court can increase the sentence.

Question 5

a judge faild to adequately direct the jury on the operation of the burden of proof. Following conviction, the man’s case is adjourned for three weeks for the preparation of a pre-sentence report. At the adjourned hearing, the man is sentenced to a community order.

Can the man now appeal against his conviction?

A) Yes, because he has 28 days to appeal from the date of his sentence and his ground of appeal will be because of the trial judge’s failure to direct the jury correctly.
B) Yes, because he has 28 days to appeal from the date of his conviction and he will argue his conviction is unsafe because of the trial judge’s failure to direct the jury correctly.
C) No, because he has failed to appeal within the correct time period and his conviction will be upheld even if there was an error or mistake made by the trial judge when directing the jury.
D) No, because although he has 28 days to appeal from the date of his conviction, this will be upheld even if there was an error or mistake made by the trial judge when directing the jury.
E) Yes, because he has 28 days to appeal from the date of his sentence and his grounds of appeal will be that his conviction is unsafe because of the trial judge’s failure to direct the jury correctly.

Answer 5

CORRECT ANSWER B - The defendant has 28 days to appeal from the date of his conviction, rather than the date of his sentence. In this case the man still has seven days in which to serve his appeal notice, together with the draft grounds of appeal on the Registrar of Criminal Appeals at the Court of Appeal. Moreover, there is only one ground of appeal against conviction, namely that the conviction is unsafe (CAA 1968, s 2).
Option A is therefore wrong because the 28-day time period to appeal against conviction does not run from the date of sentence (unlike the magistrates’ court where it does run from that date). Option C is wrong because the man has not failed to appeal within the correct time period. Moreover, although a conviction may be upheld even if there was an error
or mistake made by the trial judge when directing the jury, this would only happen where the Court of Appeal considers that, had the mistake not been made, the correct and only reasonable verdict would still have been one of guilty. This explanation also applies to option D. Option E is wrong because it refers to the wrong grounds of appeal. As mentioned above, there is only one ground of appeal. The reference in option E is to the factors that could be used to support the one ground.

Question 6

Jerome has been charged with robbery. The victim claims that he was threatened with a knife, and that his mobile phone and wallet were taken. Jerome accepts that he threatened to assault the victim and took his mobile phone and wallet, but he does not accept that he threatened the victim with a knife.
There is evidence from an independent eyewitness which, to some extent, supports Jerome’s contention that he did not threaten the victim with a knife. The prosecution, however, refuse to agree the defence version of events.

Which of the following statements concerning Jerome’s case is correct?

A) The judge must sentence on the basis that Jerome did not threaten the victim with a knife given that there is independent evidence which supports his version of events.
B) The judge may order a Newton Hearing in this situation in order to determine the true factual basis for sentence.
C) The judge must order a Newton Hearing in this situation in order to determine the true factual basis for sentence.
D) The judge must sentence on the basis of the account put forward by the victim as the independent eyewitness’s evidence which tends to support the defendant’s version of events is not conclusive on the point.
E) The judge should order That there be a trial in front of a jury because Jerome is not accepting all the elements of robbery.

Answer 6

CORRECT ANSWER B - The accused should be sentenced as far as possible on a basis that accurately reflects the facts of the individual case. Even if a ‘basis of plea’ has been agreed between the defence and the prosecution, the judge is not bound by such an agreement. In a situation such as this where there is a guilty plea, but a significant dispute on the facts between the prosecution and the defence, the judge should first decide whether the dispute will make a substantial difference to the sentence to be imposed. If it will, the judge is entitled (but not obliged) to call a Newton Hearing in order to determine the true factual basis for sentence.

Option A is wrong because although the judge can order a Newton hearing if he or she believes that the use of the knife by Jerome would make a substantial difference to sentence, the judge is not obligated to accept the independent witness’s evidence.

Option C is wrong because a judge is never obliged to order a Newton hearing. It is for the judge to decide.

Option D is also wrong because if the judge does not believe that the difference between the prosecution and defence version of events is substantial, Jerome must be sentenced on his version of events.

Option E is wrong because Section 8(1) of the Theft Act 1968 defines robbery as when someone “steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.” Jerome accepts that he did threatened to assault the victim and stole his phone and wallet. Jerome accepts all elements of the offence of robbery. He does not accept the use of the knife which is an aggravating feature of a robbery, but not a necessary one.

Question 7

Which of the following factors would not be good mitigation on behalf of a man who assaulted his wife causing her actual bodily harm?

A) The injuries to the wife were minor.
B) The man supports his wife financially.
C) The man has no previous convictions.
D) The man is remorseful for his actions.
E) The man was drunk when he assaulted his wife.

Answer 7

CORRECT ANSWER E - The fact that the man was drunk when he assaulted his wife would not be a mitigating factor, but an aggravating factor. If the man were drunk it might explain how his actions may have been out of character, but it would in no way mitigate them.

Option A is wrong because the level of harm is an important factor when considering the level of sentence to be imposed.

Option B is wrong because supporting his wife financially may be a good reason for the court not to impose a sentence of immediate imprisonment on the man. If the man goes to prison, he will no longer be able to support his wife financially. The argument would be that the wife should not suffer twice by being assaulted and harmed financially.

Option C is wrong because a lack of previous convictions is always a good point to be made in mitigation.

Option D is wrong because the man showing remorse will mean that the Probation Service may well be able to work with him to ensure that the incident is not repeated.

Question 8

A woman receives a community order for 12 months for theft. The order includes the requirement that she undertake 100 hours of unpaid work. Two weeks later, the woman commits another theft and receives a 28-day prison sentence.

TRUE OR FALSE:
The court must revoke the community order.

Answer 8

FALSE - The court does not have to revoke the community order. If the defendant receives a lengthy prison sentence, the order could become unworkable, e.g. if the woman receives a 2-year sentence, she would be not be able to complete the community order because she would be serving a prison sentence. Here, the sentence is so short, the court may decide not to revoke the order. The woman would probably only serve two weeks in prison (half of her sentence) and could continue her unpaid work on release on licence.

Question 9

A man receives a conditional discharge for six months for common assault. Three months after that he pleads guilty to criminal damage and receives a fine.

TRUE OR FALSE:
The court must impose a new penalty for the common assault because the man committed an offence during the currency of his conditional discharge.

Answer 9

FALSE - The court can activate the conditional discharge, i.e. by imposing a new penalty for the common assault. However, the court does not have to do so. The court can allow the conditional discharge to continue so that if the man commits yet another offence within the six-month period, the court could resentence him then. Alternatively, the court could decide to revoke the conditional discharge and impose a new penalty, e.g. another fine. Once the court does that, the conditional discharge is at an end because the court have imposed a replacement penalty for the conditional discharge,

Question 10

Your client tells you that he is not guilty of an offence but wishes to plead guilty. Despite your advice to him, he insists that he will plead guilty and wishes you to mitigate on his behalf.

Which of the following statements best describes whether you are able to do as your client insists?

A) No, because by pleading guilty your client is stating that he is guilty of the offence and to allow him to do so would be misleading the court. You must tell the court what your client has told you and insist that a not guilty plea be entered.
B) No, because by pleading guilty your client is stating that he is guilty of the offence and to allow him to do so would be misleading the court. You must withdraw from acting for your client but not tell the court why.
C) No, because it is not in your client’s interests to plead guilty. Your client is acting against your advice so you must withdraw.
D) Yes, because it is for your client to decide how he wishes to plead. However, your mitigation will be limited.
E) Yes, because it is for your client to decide how he wishes to plead. You can put forward whatever mitigation your client wishes you to tell the court.

Answer 10

CORRECT ANSWER D - best describes whether you are able to do as your client insists in allowing him to plead guilty and mitigating on his behalf. It is your client’s decision whether he wishes to plead guilty. However, you are limited in what you say in mitigation. You cannot say, for example, that your client is remorseful because he cannot be remorseful for something that he has told you he did not do. You can give mitigation about his background, etc.

Option A is wrong because you are not misleading the court simply by allowing your client to plead guilty. Further, you are not allowed to disclose your private discussion between you and your client as that would be breaching confidentiality of a legally privileged conversation.

Option B is wrong for the same reason. Further, you do not have to withdraw simply because your client does not follow your advice.

Option C is wrong because you do not have to withdraw simply because your client is acting in a way that you believe is against his interests. You should only withdraw if the relationship between you and your client has broken down or, if continuing to represent your client, would breach your duty to the court.

Option E is wrong because you are limited to what you can say in mitigation. You will not be able to mitigate on the basis of remorse as your client does not accept that he committed it.

Question 11

A woman is charged with an offence of assault occasioning actual bodily harm and intends to plead guilty as soon as possible. Two police officers saw the woman punch a man in the face and kick him as he lay on the ground. When she was arrested, the woman admitted in the police interview that she deliberately attacked the man because she did not like him. She was released on bail after being charged.

What would be the best advice a solicitor could give the woman at her first appearance in the magistrates’ court?

A) The woman should not plead guilty because the police interview might be inadmissible.
B) The woman should not plead guilty because the victim of the assault may not turn up to court to give evidence against her.
C) The woman should plead guilty as she admitted the offence in interview.
D) The woman should plead guilty as the evidence against her is overwhelming.
E) The woman should plead guilty as the case against her is very strong and she will receive maximum credit for her timely guilty plea.

Answer 11

CORRECT ANSWER E - If the woman is to receive the shortest possible sentence, she must plead guilty at the earliest opportunity. The maximum credit usually awarded is a one third reduction in sentence. This will reduce as the case progresses. If the matter goes to the Crown Court (assault occasioning actual bodily harm is an either-way offence: Unit 2) and a defendant pleads guilty at the Plea and Trial Preparation Hearing, the maximum credit is usually one quarter. The credit decreases until the day of trial. The amount of credit reduces whether the woman has her trial in the magistrates’ or Crown Court. The maximum credit on the day of trial is normally one tenth. Moreover, the evidence against her appears to be very strong so there would be no benefit in her not indicating a timely guilty plea.

Option A is not the best advice as the woman says that she wants to plead guilty and there is also nothing to suggest that the confession evidence would be inadmissible.

Option B is wrong because the woman could be convicted on her own confession even if the victim does not attend court. Further, the prosecution could ask for a summons to force the victim to court.

Although Options C and D are correct, the best advice is Option E as credit is the reason she should plead guilty rather than just because she admitted at interview or just because the evidence is overwhelming.

Question 12

A man has been charged with murder and remanded into custody by the magistrates’ court and his case is immediately sent to the Crown Court. His solicitor goes to see him in prison before his Plea and Trial Preparation Hearing in the Crown Court. The man says that he will plead guilty to manslaughter, but not murder.

Which of the following statements is correct?

A) The man cannot apply for bail because he has been charged with murder
B) If the man wishes to avoid a life sentence, he should plead guilty to murder at the Plea and Trial Preparation Hearing.
C) The man can indicate at the Plea and Trial Preparation Hearing that he is willing to plead guilty to manslaughter, even if the prosecution do not accept it.
D) If the man is found guilty of manslaughter, he will not receive a life sentence
E) The man can only receive a life sentence if he is convicted of murder

Answer 12

CORRECT ANSWER C - Manslaughter is a lesser offence so the defendant could indicate at the Plea and Trial Preparation Hearing a willingness to plead guilty to it. The prosecution is not obliged to accept this. However, if the man is found not guilty of murder but guilty of manslaughter at trial, the indication of a guilty to plea at an early stage will reduce his sentence for manslaughter by approximately one quarter.

Option A is wrong because although a defendant cannot apply for bail in the magistrates’ court if he is charged with murder, he can apply for bail before the Crown Court. It is important to note that even in the Crown Court, bail will only be granted to defendants in murder cases in exceptional circumstances.

Option B is wrong because even if the man pleads guilty to murder at an early stage, the mandatory sentence is life imprisonment. The early guilty plea will affect the length of tariff (the minimum amount of time the defendant must spend in prison before conditional release), but the sentence will be life. The judge has no discretion.

Option D is wrong because the court can sentence the man to any sentence for manslaughter up to and including life imprisonment. If the man is considered to be a dangerous offender, the court must impose either a life sentence or an extended prison sentence.

Option E is wrong because many offences including manslaughter, robbery and rape, can result in a defendant receiving a life sentence. In cases other than murder it is discretionary not mandatory.

Question 13

A woman is subject to a community order for assaulting her girlfriend. One day, while the woman’s girlfriend is still in bed, the woman takes her girlfriend’s debit card. The woman goes to the bank pretending to be her girlfriend and withdraws £100. The police arrest the woman at the bank. She is charged with fraud and pleads guilty at the magistrates’ court.

Which of the following statements is correct in relation to what may happen to the woman when she appears in court?

A) The court cannot sentence the woman to a term of imprisonment because the offence is too minor according to the Sentencing Guidelines to warrant such a sentence.
B) The magistrates will keep the case in the magistrates’ court because it is a fraud of less than £200.
C) The magistrates can sentence the woman to a further community order.
D) The court will revoke the community order because she is in breach of it by having committed a new offence of fraud.
E) The magistrates cannot sentence the woman to a suspended sentence order whilst she is subject to a community order.

Answer 13

CORRECT ANSWER C - A court can order two community orders to run alongside each other.

Option A is wrong because a court can impose a prison sentence on the woman because the offence of fraud is imprisonable. The Sentencing Guidelines are aids to the court in sentencing but do not prevent a court from sentencing outside the guidelines. A sentence that is in excess of the guidelines may be appealable, but the court would not be wrong in law to use its discretion and sentence outside the guidelines.

Option B is wrong because fraud is an either way offence, therefore the magistrates could commit for sentence. of shop theft. Section 22A of the Magistrates’ Courts Act 1980 makes ‘low-value shoplifting’ a summary offence, ‘where the value of the stolen goods does not exceed £200.However, this section relates to theft and not fraud.

Option D is wrong because a community order is not breached by committing a new offence. It is only breached by failing to comply with the requirements of it.

Option E is wrong because a court can order a suspended sentence to run concurrently with a community order.

Question 14

At the magistrates’ courts on the 12th May, a man pleads guilty to fraud. The court sentences him to a 4-month sentence of imprisonment suspended for 12 months with a requirement than he completes 200 hours of unpaid work. About 10 weeks later, on the 20th July, the same man pleads guilty to an offence of burglary of a shop committed on the 18th June and a common assault in relation to the shop owner who confronted him. The defendant has completed 100 of the 200 hours of his unpaid work that he received for the fraud conviction when he pleads guilty to the burglary and common assault offences.

What is the maximum sentence of imprisonment the magistrates’ court can impose for the original fraud, the burglary and the common assault offences assuming they do sentence him for all matters?

A) 6 months’ imprisonment because that is the maximum sentence that a magistrates’ court can impose.
B) 8 months’ imprisonment because the maximum sentence the man can receive for the burglary is 6 months plus 2 months for completing only half of the requirement of his suspended sentence.
C) 10 months’ imprisonment because the man can receive up to 6 months imprisonment for the burglary and up to 4 months if the suspended sentence is activated fully and consecutively. Although the common assault also carries a maximum of 6 months imprisonment, the total length of sentence for this and the burglary cannot exceed 6 months since common assault is a summary only offence and moreover these offences are likely to be ordered to run concurrently since they arise from the same facts.
D) 12 months’ imprisonment because the man can receive up to 6 months imprisonment for the burglary, 3 months for the common assault and 3 months if the suspended sentence is activated.
E) 16 months’ imprisonment because the man can receive up to 6 months imprisonment for the burglary, 6 months for the common assault and 4 months if the suspended sentence is activated.

Answer 14

CORRECT ANSWER C - Magistrates’ courts have the power to sentence up to 6 months imprisonment (which can be increased to 12 months imprisonment for two or more either-way offences, but common assault is a summary only offence). Additionally the man is also subject to the suspended sentence, which is breached by him committing the two new offences of burglary and common assault during the operational period of the suspended sentence and that is sufficient to breach it. A suspended sentence can be activated and ordered to be served fully and consecutively to the court’s other sentences.

Option A is wrong because in addition to the maximum sentence of 6 months imprisonment for an either way offence, the suspended sentence can still be activated and ordered to be served fully and consecutively to the court’s other sentences.

Option B is wrong because although the maximum sentence for any one either-way offence is 6 months imprisonment in the magistrates’ court and although the fact that the man has completed half his unpaid work is a factor that the court can take into account, the court can still activate all 4 months of the suspended sentence to run consecutively if it so chooses.

Option D is wrong for two reasons. Firstly, the maximum sentence for common assault is 6 months imprisonment and secondly, this would not run consecutively because it would then exceed the magistrates overall sentencing power of 6 months imprisonment.

Option E is wrong because although the maximum sentence for common assault is 6 months imprisonment this would not run consecutively with the burglary because it would then exceed the magistrates overall sentencing power of 6 months imprisonment.

Question 15

A woman commits a burglary of a dwelling house. She has two previous burglaries of dwelling houses on her list of previous convictions: one was 20 years ago when she was a youth and received a referral order. The second was 10 years ago when she pleaded guilty to burglary at the magistrates’ court. She was committed for sentence to the Crown Court and received 12 months imprisonment suspended for 2 years. The woman attends the magistrates’ court intending to plead guilty.

Which of the following should the woman’s solicitor advise her at the first court appearance?

A) The woman should plead guilty to obtain the maximum credit off her sentence.
B) The woman should indicate that she intends to plead guilty in the Crown Court at the Plea and Trial Preparation Hearing. A plea cannot be taken in the magistrates’ court because this burglary will be treated as an indictable only offence.
C) The woman will receive at least 3 years’ imprisonment when she is sentenced at the Crown Court.
D) The woman will receive at least 2 years’ imprisonment when she is sentenced at the Crown Court.
E) The woman will receive at least 3 years’ imprisonment minus 20% for a guilty plea when she is sentenced at the Crown Court.

Answer 15

CORRECT ANSWER B - The woman should indicate that she will plead guilty at the magistrates’ court if she knows that she will be pleading guilty. The woman cannot plead guilty at the magistrates’ court because this is her third dwelling burglary. This makes this new offence indictable only because of the minimum sentence provisions. Therefore, the woman can only indicate a guilty plea and not actually plead guilty until she is before the Crown Court at the Plea and Trial Preparation Hearing.

Option A is therefore wrong because the woman cannot enter a plea to an indictable only offence in the magistrates’ court.

Option C is wrong because although the mandatory minimum is 3 years imprisonment, she is entitled to some credit for pleading guilty.

Option D is wrong because the maximum credit someone who pleads guilty to a third domestic burglary is not one third but 20%.

However, option E is wrong because the court can in exceptional circumstances depart from the minimum sentence provisions. The solicitor does not know enough about the woman’s position to tell her that there are no exceptional circumstances.

Question 16

Ollie is convicted of wounding on 23rd March, and subsequently sentenced to 3 years’ imprisonment on 13th April. He wishes to appeal against his conviction.

Which of the following statements concerning Ollie’s case is correct?

A) Ollie must serve his application for permission to appeal to the Registrar of Criminal Appeals at the Court of Appeal within 28 days of 13th April.
B) Ollie must serve his application for permission to appeal on the Crown Court within 21 days of 23rd March.
C) Ollie must serve his application for permission to appeal on the Crown Court within 28 days of the 23rd March
D) Ollie must serve his application for permission to appeal on the Single Judge at the Court of Appeal and the trial judge at the Crown Court within 21 days of 13th April
E) Ollie must serve his application for permission to appeal on the Registrar of Criminal Appeals at the Court of appeal within 28 days of 23rd March.

Answer 16

CORRECT ANSWER E - A defendant must serve his appeal notice (Form NG) together with draft grounds of appeal on the Registrar of Criminal Appeals at the Court of Appeal within 28 days of conviction (on 23rd March).

Option A is wrong because the date of conviction not the date of sentence is relevant here.

Option B is wrong because the relevant period for an appeal to the Court of Appeal from the Crown Court is 28 days not 21 days.

Option C is wrong because the appeal must be served on the Court of Appeal not the Crown Court.

Option D is wrong because once again the relevant date is the date of conviction, not sentence. Option D is also wrong because the appeal is served on the Registrar not the Single Judge.

Question 17

Jamie is charged of robbery. He maintains that he has been incorrectly identified. At the outset of the trial, the prosecution applied to amend the indictment, but their application was refused. At the end of the prosecution case, the defence made a submission of no case to answer on the basis that the identification evidence was weak. This submission was rejected by the judge.

At the end of the judge’s summing up he sent the jury out, telling them that if they are not all agreed, they may reach a majority verdict. The jury returns one hour later with a majority verdict, convicting Jamie of robbery. Jamie is advised to appeal against his conviction.

In accordance with s.2 Criminal Appeal Act 1968, which of the following would be the relevant ground of appeal against conviction?

A) A defect in the indictment.
B) The wrongful admission of prosecution evidence.
C) That the conviction was unsafe.
D) A failure by the judge to properly direct the jury in relation to reaching their majority verdict.
E) A failure by the judge to accept the submission by the defence that there was no case to answer.

Answer 17

CORRECT ANSWER C - There is only one ground of appeal against conviction, namely that the conviction is unsafe. Options A, B D & E may be examples of the types of errors that make this conviction unsafe. However, the Court of Appeal will not interfere if just because there is a procedural defect. The Court of Appeal will only interfere if the conviction is unsafe.

Question 18

A solicitor represents a defendant who has been found guilty after trial of assault occasioning actual bodily harm. The magistrates sentence the defendant to 3 months’ immediate imprisonment. The defendant is extremely upset with the decision and wishes to appeal. The solicitor, who represented the defendant at trial, believes that the evidence against him was strong and that the defendant was always likely to be convicted. However, she does feel that the sentence was harsh. The defendant wishes to appeal immediately.

What would the solicitor’s best advice be to the defendant?

A) The defendant can appeal both conviction and sentence, but the Crown Court could increase his sentence.
B) The defendant can only appeal the sentence, because the evidence against the defendant was strong.
C) The defendant should appeal both conviction and sentence, because the Crown Court cannot impose a greater sentence than the magistrates’ court imposed.
D) If the defendant appeals his sentence, the Crown Court judge could potentially sentence the defendant to any sentence the defendant could have received had the magistrates’ committed the defendant for sentence at the end of his magistrates’ court trial.
E) The defendant should appeal by way of case stated to the High Court.

Answer 18

CORRECT ANSWER A - The defendant can appeal against both conviction and sentence. The appeal would effectively be a new trial. The defendant needs to be advised though that appealing against sentence runs the risk that his sentence could also be increased up to the maximum sentence the magistrates could have imposed, which here would be 6 months’ imprisonment, as ABH is an either-way offence.

Option B is wrong because no matter how strong the evidence against the defendant was, he has a right to appeal it. The views of the solicitor do not take precedence over those of the defendant. The solicitor should advise the defendant of the strength of the evidence and the likely outcome. However, the decision is ultimately the defendant’s.

Option C is wrong because of what we have seen in option A. The magistrates had the power in this defendant’s case to sentence him to up to 6 months’ imprisonment. Therefore, the defendant’s sentence could be increased if he appeals.

Option D is wrong because the Crown Court is limited to the powers of the magistrates’ court on appeal. If the magistrates’ court after trial had decided that the defendant should receive a sentence of greater than 6 months, the magistrates could have committed the defendant for sentence to the Crown Court. In that scenario, the defendant could have received up to a maximum of 5 years imprisonment for the assault occasioning actual bodily harm. As the magistrates did not commit the defendant for sentence, the Crown Court’s powers are limited to 6 months.

Option E is wrong because appeals by way of case stated are for cases where the magistrates have made a mistake in law or acted in excess of their powers. We have no evidence that either is present here.

Question 19

A defendant was found guilty of arson in the Crown Court. The sentence was adjourned for two months so that pre-sentence and psychiatric reports could be prepared. At sentencing, the Crown Court Judge imposes a sentence of 6 years imprisonment. The barrister, who represented the defendant at trial, believes this sentence to be far too high and that a reasonable sentence would have been around 4 years’ imprisonment. The barrister advises that there are no grounds to appeal against conviction. The defendant wishes to appeal against both conviction and sentence and asks his solicitor if he can do so.

What would the solicitor’s best advice be to the defendant in relation to appealing against conviction and sentence?

A) The defendant can only appeal against sentence because the barrister has advised that there are no grounds to appeal against conviction.
B) The defendant can only appeal against sentence because the defendant did not appeal against conviction within the 28-day period.
C) If the defendant appeals against sentence, the sentence is at large so the Court of Appeal could substitute his sentence with any sentence the Crown Court could have given. The defendant can also appeal against conviction.
D) If the defendant appeals against sentence, there is no risk that the Court of Appeal could increase the time the defendant spends in prison. The defendant cannot appeal against conviction as there are no grounds to do so given the barrister’s advice.
E) If the defendant appeals against sentence, the time the defendant has spent on remand whilst appealing may not count towards his sentence, but this would be unlikely here. In theory, the defendant can appeal against conviction but should be C not to as the Court of Appeal is unlikely to grant leave to appeal, even if an extension to appeal out of time is granted.

Answer 19

CORRECT ANSWER E - because if the defendant is unsuccessful at appeal, the Court of Appeal can make an order of loss of time meaning that some or all of the time the defendant has spent on remand while appealing will not count towards the sentence he actually serves. However, this would only be ordered if the appeal against sentence was considered to be lacking in merit, which appears to be unlikely in this scenario. See the explanations below as to why appealing against conviction is possible but should not be advised.

Option A is wrong because the defendant can still appeal against conviction even if the barrister advises against it. The Court of Appeal is likely in this scenario to refuse leave, but it does not prevent the defendant from appealing.

Option B is wrong because although the defendant is out of time to appeal against conviction, the defence can ask for an extension to the 28-day time limit on appeals. The Court of Appeal may not grant this extension. However, this can be requested.

Option C is wrong because the Court of Appeal cannot increase the sentence beyond the sentence the Crown Court imposed.

Option D is also wrong because the Court of Appeal can make a loss of time order so the defendant could be ordered to spend more time in prison.

Question 20

A woman is found guilty of section 18 wounding when she stabbed her husband in the stomach. The woman was on remand in prison for 6 months before the trial was heard. The Crown Court Judge found that the woman, who was in her sixties and with no previous convictions, should receive a suspended sentence of 2 years with a requirement that she undertake 200 hours of unpaid work. The judge decided that the time the defendant had spent in prison was sufficient. The prosecuting barrister believes that this sentence is far too lenient.

Is the prosecuting barrister able to appeal against this sentence?

A) Yes, they can appeal directly to the Court of Appeal, who can increase the woman’s sentence.
B) Yes, but only through the Attorney General, who must agree to appeal. The Court of Appeal can increase the sentence up to a maximum of life imprisonment.
C) Yes, but only through the Attorney General, who must agree to appeal. The Court of Appeal can only order the time the defendant spent in prison to be served again.
D) Yes, but only after the Court of Appeal have reheard the evidence in the trial because the defendant has pleaded not guilty.
E) No, because the defendant has already served 6 months in prison and it would be unfair for the Court of Appeal to return her to prison now that she has been released.

Answer 20

CORRECT ANSWER B - The prosecuting barrister can appeal but only by going through the Attorney General’s office (so not directly which is why option A is wrong) and only if the Attorney general agrees that the sentence was unduly lenient. The prosecution barrister cannot appeal of their own motion.

Option C is wrong because the Court of Appeal on an Attorney General’s reference can substitute any sentence the Crown Court could have given. The maximum sentence for section 18 wounding is life. Therefore, the Court of Appeal could (at least in theory) impose a life sentence on the woman.

Option D is wrong because there will not be a retrial because the defendant pleaded guilty. An Attorney General’s reference does not stop the defendant from appealing, but that is a separate appeal.

Option E is wrong because the fact that the woman has already spent 6 months in prison does not prevent the Court of Appeal from returning her to prison if they believe that the Crown Court Judge’s’ sentence was unduly lenient.