Unit15 Appeals from the Magistrates Court

Question 1

What power to s142 MCA give to magistrates?

Answer 1

Allows a magistrates’ court to vary or rescind (not increase, only in really limited circs) its decision as to sentence if it is in the interests of justice to do so. The power is similar to that in respect of setting aside a conviction. The magistrates can reopen the case under s. 142 regardless of whether the accused pleaded guilty or was found guilty. However, s. 142 cannot operate where the accused was acquitted.

Question 2

In what limited circumstances may s142 MCA be used to increase a sentence?

Answer 2

Only in the rare circumstance where the mistake is quickly identified and it is accepted on all sides that a mistake had been made.

Question 3

What are the three means of challenge of a Magistrates Court decision?

Answer 3

a. appeal to the Crown Court;
b. appeal to the High Court by way of case stated;
c. application to the High Court for judicial review.

Question 4

Can you appeal if you plead guilty?

Answer 4

Yes but only against sentence, not conviction. (to the crown court)

Question 5

Who must an appeal from the youth court be heard by?

Answer 5

It remains the case that, generally, an appeal from the youth court must be heard by a judge or recorder of the Crown Court sitting with two lay justices (one man and one woman) who are authorised to sit in the youth court. Exceptionally, the Crown Court may include only one justice of the peace and need not include both a man and a woman if the presiding judge decides that the hearing of the appeal will otherwise be unreasonably delayed or one or more of the justices who started hearing the appeal is absent.

Question 6

What should an appeal notice contain?

Answer 6

The notice should state whether the appeal is against conviction or sentence or an order or failure to make an order. The notice of appeal must also summarise the issues and in an appeal against conviction must specify the witnesses whom the appellant will want to question and state how long the trial lasted in the magistrates’ court and how long the appeal is likely to take.

Question 7

Is permission required to appeal from the Mags to the Crown?

Answer 7

If a notice is served within time, no leave to appeal is required.

Question 8

What form does an appeal from Mags to Crown take?

Answer 8

A complete re-hearing. Defence = Applicant v Prosecution = Respondents. Everything happens in the usual crown court order.

Question 9

Can parties call new evidence at an appeal in the crown court?

Answer 9

The parties may call evidence which has only become available to them since the trial, or evidence they decided not to use in the magistrates’ court. The information on which the appellant was convicted may not be amended by the Crown Court.

Question 10

What question should a crown court judge consider in hearing a Mags appeal?

Answer 10

In the light of all the matters which the Crown Court had heard, the sentence passed by the magistrates was the correct one.

Question 11

Can the Crown Court increase a sentence on appeal from the Mags?

Answer 11

The Crown Court may increase the sentence to the maximum that could be imposed by the magistrates’ court.
However, the Crown Court is not entitled to increase the sentence on appeal from the magistrates’ court on the basis that the magistrates ought to have committed the offender to the Crown Court for sentence in the first place.

Question 12

Can lay justices outvote a judge in a mags appeal in the crown court?

Answer 12

The decision of the Crown Court may be a majority decision. This means that the lay justices can out-vote the judge. The lay justices must, however, accept any decisions on questions of law made by the judge.

Question 13

(Read) Section 48(2) provides that, following an appeal from the magistrates’ court, the Crown Court:

Answer 13

a. may confirm, reverse or vary any part of the decision appealed against, including a determination not to impose a separate penalty in respect of an offence; or
b. may remit the matter with its opinion thereon to the authority whose decision is appealed against; or
c. may make such other order in the matter as the court thinks just, and by such order exercise any power which the said authority might have exercised.

Question 14

What does s48 SCA allow the crown court to do with a mags appeal?

Answer 14

a. quash the conviction;
b. remit the case to the magistrates’ court (e.g., in the case of an equivocal plea);
c. vary the sentence imposed by the magistrates (this includes the power to increase the sentence, but not beyond the maximum sentence which the magistrates’ court could have passed: s. 48(4)).

Question 15

How does an appellant abandon their appeal?

Answer 15

The appellant may abandon the appeal by giving notice in writing to that effect to the magistrates’ court, to the appropriate officer of the Crown Court and to the prosecution and to any other party to the appeal. Then the Magistrates can proceed with enforcing the original decision.

Question 16

Can an appeal be abandoned without permission?

Answer 16

The appeal may be abandoned without permission if it is done before the hearing commences. Once the hearing has started, the appeal may be abandoned only with the permission of the Crown Court.

Question 17

If you wish to appeal from the Magistrates court by way of case stated, who is the appeal to?

Answer 17

The appeal is to a Divisional Court of the Queen’s Bench Division of the High Court.

Question 18

Who is an appeal by case stated available to?

Answer 18

Prosecution AND defence.

Question 19

Does an appeal by way of case stated relate to an issue of fact or law?

Answer 19

Law. The remedy operates only in relation to an error of law or a decision taken in excess of jurisdiction. A decision as to a question of fact will ordinarily not give rise to an appeal by way of case stated but may do so if the finding of fact is alleged to be such that no reasonable bench could have properly reached that factual conclusion on the evidence

Question 20

Can you appeal by way of case stated and to the crown court for a retrial?

Answer 20

No. Any appellant who employs the case stated procedure forfeits the right to appeal to the Crown Court.

Question 21

When is appeal by way of case stated available/at what point in proceedings?

Answer 21

The remedy is available only after the final determination of proceedings in the magistrates’ court. If trial proceedings are adjourned the procedure cannot be employed during the period of adjournment

Question 22

Is an appeal by way of case stated only available for appeals against conviction? (or against sentence too?)

Answer 22

The remedy is available in respect of errors made in relation to sentence as well as conviction. Such appeals have often been successfully established by the prosecution where the court has wrongly held that there were ‘special reasons’ for not disqualifying a driver. A defendant may use the case stated procedure if the bench has passed a sentence which is so far beyond the usual level of sentence for such an offence that it is ‘harsh and oppressive.’

Question 23

How many will be on the bench of a divisional court hearing an appeal by way of case stated?

Answer 23

The Divisional Court which hears an application by way of case stated will be comprised of at least two judges, and often three. If a two-judge court cannot agree, the appeal is unsuccessful

Question 24

Is evidence called at a divisional court hearing of an appeal by way of case stated?

Answer 24

No evidence is called at the hearing as all evidence which needs to be referred to will be contained in the stated case. Instead the appeal is conducted by way of submissions from the parties. If the facts contained within the case give rise to a point of law which was not argued before the magistrates but would have provided the defendant with a defence, the court may consider the point provided no further evidence is necessary.

Question 25

What options are available to a divisional court hearing of an appeal by way of case stated?

Answer 25

the court may ‘reverse, affirm or amend’ the decision of the magistrates’ court, or remit the case with its opinion, or make any other order (including an order as to costs) as it sees fit. Thus, the Divisional Court may quash an acquittal with a direction that the magistrates’ court convicts and sentences. Alternatively, the court may simply substitute a conviction for the previous acquittal and proceed to sentence. Similarly, if the appeal concerns sentence only, the court may substitute the appropriate sentence.
The Divisional Court is entitled to order a retrial before the same bench or a different bench where a fair trial is still possible

Question 26

Does an appellant need permission to abandon an appeal by way of case stated?

Answer 26

An appellant may abandon an appeal by way of case stated without leave.

Question 27

Is judicial review available to all decisions in the Mags

Answer 27

Yes. (Crown decisions are limited to those not concerned with trial on indictment).

Question 28

What are the principal grounds upon which judicial review may be sought?

Answer 28

a. error of law on the face of the record — i.e. an error disclosed by the court records;
b. excess of jurisdiction;
c. breach of natural justice.

Question 29

What does breach of natural justice include for JR?

Answer 29

i. failing to give the accused adequate time to prepare a defence;
ii. failing to grant an adjournment to allow for the attendance of a witness;
iii. the prosecution failing to call or disclose the statement of a witness who might assist the defence;
iv. the prosecution failing to disclose the previous convictions of prosecution witnesses;
v. making an order as to costs against a defendant without inquiring as to the defendant’s means.

Question 30

(Read) How should the choice be made between case stated and JR from the Mags?

Answer 30

a. the normal route for an appeal against a decision of justices where it is alleged there has been an error of law is by way of case stated;
b. it would be wrong to seek judicial review where case stated was appropriate, merely in order to avoid the more stringent time-limit;
c. however, judicial review is more appropriate where there is an issue of fact to be raised and decided which the justices did not decide themselves;
d. judicial review may also be appropriate where it is alleged that there has been unfairness or bias in the conduct of the case by the justices but, where it is alleged that there has been a misdirection or an error of law, case stated is the appropriate remedy.

Question 31

What is the only remedy available where the defence wish to challenge a committal for sentence?

Answer 31

Judicial Review, as the case stated procedure is not available where there has not been a final determination of the case.

Question 32

Where does an appeal go after the High Court (i.e. after JR or Case Stated)?

Answer 32

Supreme Court