x Flashcards
1
Q
- Setting aside conviction in MC
A
- An accused who was convicted in MC can ask the magistrates to set the conviction aside
- This application can be considered by same or different bench
- If conviction is set aside then the case is reheard by different bench
- Application may be appropriate where there has been an error of law or there was some defect in the procedure which led to the conviction
- NOT a general power to re-open a previous decision on the grounds that it is in the interests of justice to do so
2
Q
- Failure of both parties to appear for trial
A
- If neither party attend for trial then the court can either dismiss the charge or - if evidence has been received on a previous occasion - proceed in their absence
3
Q
- Party wishes to have assistance of friend at trial
A
- where a party wishes to have the assistance of a friend, they may sit next to them and advise during the course of the hearing
- They can’t however directly ask questions to witnesses or address the court
4
Q
- Somebody to accompany a witness
A
- Court may permit someone to accompany a witness
- In cases of domestic abuse or sexual offence, the companion may be an ‘advisor’
- in such cases, the advisor must notify the court of their presence, their name, and the name and address of the organisation, if any, on behalf of which the advisor is providing the witness with support.
- The companion or advisor must not discuss the evidence with the witness; advise the witness on how to answer a question; give the witness legal advice; or address the court unless asked to do so
- Court should be informed of the fact that a party wants to be accompanied by an adviser, and if the assistance is unreasonable, improper or inimical to the administration of justice the court can restrict the use of this assistance
5
Q
- Routes of challenge of decision in MC
A
- From MC a person has three means of challenge
- Appeal to CC
- Appeal to HC by way of case stated
- Appeal to the HC for judicial review
- Any person convicted by MC can appeal against the conviction and/or the sentence
- In limited circumstances a person who pleaded guilty can appeal against conviction and sentence to CC
- Appeal to HC by way of case stated or an application for JR is available to either party in the MC
- Will be heard by a divisional court of the King’s Bench Division of the HC
6
Q
- Appeals from the YC
A
- An appeal from the YC must be heard by a judge or recorder of the CC sitting with two lay justices who are authorized to sit in the YC
- In some cases this may only be one justice if the judge thinks the hearing would otherwise be unreasonably delayed or the justice who started hearing the appeal is ill
7
Q
- Procedure on appeal to the CC
A
- Notice of appeal must be given in writing to the relevant MC officer and every other party within 15 business days of the sentence being passed or deferred
- Time limit is also 15 days where the appeal is against an order, or failure to make an order
8
Q
- Notice of appeal to the CC should state
A
- Notice should state
- Whether appeal is against conviction, sentence, order or failure to make order
- Summarise the issues
- In appeal against conviction it must specify the witnesses who the appellant will want to question and how long appeal will take
- In an appeal against a finding that the appellant insulted someone or interrupted proceedings in the magistrates’ court, the magistrates’ court’s written findings of fact and the appellant’s response to those findings must be attached to the notice.
- Any notice must also stipulate whether the appellant has asked the magistrates’ court to reconsider the case
- identify all those upon whom the notice has been served.
- Under r. 34.10(d), the Crown Court may allow an appeal notice to be in a form other than the specified form, or to be presented orally.
9
Q
- Is leave to appeal required for appeal to the CC + what if application is late
A
- If a notice is served within time, no leave to appeal is required.
- An application for an extension of time must be served with the appeal notice and must explain why the appeal notice is late.
10
Q
- If party wants to introduce further evidence relating to bad character or previous sexual history, or hearsay evidence or evidence involving the use of special measures
A
- Where a party wants to introduce further evidence relating to bad character or previous sexual history, or hearsay evidence or evidence involving the use of special measures; notice of an application to introduce such evidence must be made not more than 15 business days after service of the appeal notice.
11
Q
- Who hears appeal from MC to CC
A
- An appeal is heard by a circuit judge or recorder who must normally sit with two lay magistrates who were not involved with the original proceedings
- Prior to the hearing, the defence may request a copy of the clerk’s notes of evidence of the summary trial.
- Any request the appellant might make for a copy should be ‘viewed sympathetically’
12
Q
- Hearing of an appeal from MC to CC
A
- Appeal proceeds by way of a complete hearing
- 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
- Equally, the Crown Court cannot strike out an amendment made by the magistrates
13
Q
- Question CC should ask when dealing with an appeal of sentence
A
- When dealing with an appeal against sentence, the Crown Court should not ask itself whether the sentence was within the discretion of the magistrates (as would be the appropriate question in judicial review proceedings) but should consider whether, in the light of all the matters which the Crown Court had heard, the sentence passed by the magistrates was the correct one
- If what the court thinks is the appropriate sentence differs significantly from the sentence imposed by the magistrates, the appeal should be allowed and the sentence of the Crown Court substituted for that of the magistrates
14
Q
- Can CC increase sentence on appeal from MC
A
- The CC cannot increase the sentence on appeal from MC on the basis that the MC ought to have committed the offender to the CC for sentencing
- The CC may however increase the sentence to the maximum that could be imposed by the MC
15
Q
- Powers of the CC on appeal + can it be majority decision
A
- The decision of the CC may be a majority decision
- This means the lay justices can outvote the judge, however they must accept any decision on questions of law made by the judge
- Following an appeal from the MC the CC can
- Quash the conviction
- Remit the case to the MC
- Vary sentence imposed, but not beyond the maximum sentence the MC could have imposed
16
Q
- Abandonment of appeal
A
- The appellant may abandon the appeal by giving notice in writing to the MC, to the appropriate officer of the CC and to the prosecution + any other party to the appeal
- The appeal may be abandoned without permission if it is done before the hearing commences
- If hearing has already begun then this can only be done with the CC permission
- As with notice of appeal, the CC may allow the notice of abandonment to be given in a form other than that specified or to be given orally
- The CC has a discretion to award costs in appeal from a MC in all cases
- Appeal cannot be abandoned simply by failing to attend or failing to instruct an advocate
- Upon the abandonment of appeal the CC has no power to increase sentence
- Once an appeal has been abandoned, the Crown Court has no power to reinstate the appeal unless the abandonment was a nullity
17
Q
- To where is an appeal by way of case stated
A
- Appeal is to a Divisional Court of the KBD of the HC
18
Q
- Which side can appeal by way of case stated
A
- Remedy is available to both sides
19
Q
- When is appeal by way of case stated necessary/available
A
- 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
20
Q
- Effect of employing an appeal by way of case stated
A
- any appellant who employs the case stated procedure forfeits the right to appeal to the Crown Court.
- If an acquittal is quashed pursuant to an application to state a case by the prosecution, that does not extinguish D’s rights to appeal against the conviction to the Crown Court under the MCA 1980, s. 108
21
Q
- What is the ‘case’
A
- Essence of the procedure is an appeal on a point of law which is identified by the lay bench or district judge in a document known as the ‘case’
22
Q
- How is appeal by way of case stated heard
A
- Appeal is to a Divisional Court of the KBD of the HC
- At least 2 judges, often 3
- If 2 judges can’t agree then appeal is unsuccessful
- 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 defense, the court may consider the point provided no further evidence is necessary
23
Q
- Options of court upon appeal by way of case stated
A
- 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.
24
Q
- Abandoning an appeal by way of case stated
A
- An appellant may abandon an appeal by way of case stated without leave
25
Q
- Divisional court ordering retrial
A
- can order retrial before same or different bench, where a fair trial is still possible
26
Q
- Who deals with application for judicial review
A
- The application for judicial review is dealt with by a Divisional Court of the King’s Bench Division of the High Court.
27
Q
- How are applications for judicial review dealt with
A
- The High Court does so by means of prerogative orders, foremost of which are quashing orders, mandatory orders and prohibiting orders
28
Q
- Principal grounds upon which judicial review may be sought
A
- Error of law on the face of the record
- Excess of jurisdiction
- breach of natural justice.
- The concept of breach of natural justice has frequently been litigated and has been widely drawn. It has been held to include:
- (i) failing to give D 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 D without inquiring as to D’s
29
Q
- Choice between judicial review and case stated
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;
- it would be wrong to seek judicial review where case stated was appropriate, merely in order to avoid the more stringent time-limit;
- 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;
- 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.
30
Q
- For which situation is judicial review available and case stated not
A
- Judicial review is the only remedy available where the defence wish to challenge a committal for sentence, as the case stated procedure is not available where there has not been a final determination of the case.
31
Q
- Appeals from the the divisional court
A
- Any appeal from the High Court in a criminal cause or matter, either in relation to an appeal by way of case stated or a judicial review, is direct to the Supreme Court
32
Q
- Appeal by way of case stated from CC acting in appellate capacity
A
- In common with applications by way of case stated from the magistrates’ court, an application to appeal by way of case stated from the Crown Court may be made in respect of an error of law or where it is alleged that the Crown Court acted in excess of jurisdiction.
- There can be no challenge on the basis that a decision is against the weight of the evidence.
- Similarly, as with appeals by way of case stated from the magistrates’ court, the proceedings in the Crown Court must have been finally decided before the case stated procedure may be employed
- No appeal by way of case stated is possible in respect of matters relating to trial on indictment
- This means that this means of challenge is plainly available in respect of any decision of the Crown Court relating to an appeal against conviction or sentence from the magistrates’ court.
33
Q
- Application for judicial review from the CC
A
- It is possible to challenge a decision of the Crown Court by way of judicial review provided that that decision does not concern a matter relating to trial on indictment.
- Matters which do not relate to trial on indictment include forfeiture of a surety, forfeiture of property used in the course of an offence belonging to a third party, binding over of an acquitted accused and restrictions on the publication of the identity of a convicted youth
- Bail may be granted pending judicial review of a decision of the Crown Court.
- If a defendant convicted in the magistrates’ court appeals to the Crown Court, any further appeal to the High Court on a point of law should be by way of case stated and not judicial review
