xx

Question 1

1. Crown court power to vary sentence

Answer 1

• Sentence imposed by CC can be varied within 56 days of being passed or made
• Must be done by same judge, however if they were accompanied by justices they do not need to be present
• Judge who announces the variation does not have to be same judge who makes the variation
• Power to vary cannot be exercised in relation to any sentence or order if an appeal against it (or application for leave to appeal against it) has been determined

Question 2

2. Extent of CC power to vary sentence

Answer 2

• Can be used to replace one form of sentence with a different form
• Can add extra order
• Extend sentence, shorten sentence
• Impose a more punitive or more lenient sentence

Question 3

3. What do CofA not have power to hear appeals against

Answer 3

• CofA have no power to hear an appeal against a refusal to make a football banning order

Question 4

4. Matters dealt with by full court

Answer 4

• A court consisting of an uneven number of judges (no fewer than three) is required to determine
• Appeal against conviction
• Review of sentence
• Appeal against finding that a person is under a disability so unfit to plead
• Application for leave to appeal a verdict of NG by reason of insanity or unfitness to plead which has not previously been refused by a single judge
• Application for leave to appeal to the Supreme Court

Question 5

5. Matters dealt with by two judge court

Answer 5

• Can deal with any matter other than those where it must be at least three

Question 6

6. When can a person convicted on an offence appeal to CofA against his conviction

Answer 6

• Person convicted of an offence on indictment may appeal to CofA against his conviction, but only
• With leave of the CofA OR
• if, within 28 days of the date of the conviction, the judge of the court of trial grants a certificate that the case is fit for appeal
• Certificate only to be issued in exceptional circumstances
• Removes need for leave, but the rest of the procedure still needs to be followed

Question 7

7. Appeal against conviction with leave

Answer 7

• Written grounds of appeal must be submitted within 28 days of the conviction
• Decision is initially made on the papers by a single judge
• but sometimes the decision as to leave may be made by a two-judge or full court at the discretion of the Registrar
• If leave is refused by the single judge, the applicant is entitled to renew the application before a two-judge or full court

Question 8

8. Appeal against conviction following a plea of guilty

Answer 8

• Three categories of case in which it has jurisdiction to consider appeals against convictions following unequivocal pleas of guilty (not closed categories)
• where the guilty plea was vitiated by, for example, erroneous legal advice
• ‘abuse of process’ cases; and
• where it was established that the defendant had not committed the offence.
• Must be completely demonstrated that they were not culpable
• The most common basis upon which an unequivocal plea of guilty is challenged is where there has been an incorrect ruling on a point of law by the trial judge which allows the appellant no escape from a guilty verdict
• Where there has been erroneous legal advice, the conviction will only be quashed where the alternative defence would have had a reasonable prospect of succeeding

Question 9

9. Wrongful admission or exclusion of evidence

Answer 9

• The wrongful exclusion of admissible evidence or wrongful inclusion of inadmissible evidence will lead to the quashing of a conviction if the error means that the conviction is unsafe
• Even if the advocate failed to object to the evidence being admitted
• However this will be a factor in determining whether its admission was sufficiently prejudicial to render conviction unsafe

Question 10

10. Erroneous exercise of discretion

Answer 10

• CofA will only interfere to quash a conviction based on erroneous exercise of discretion in very limited circumstances
• The prospects of an appeal succeeding in relation to a matter in the judge’s discretion are much improved if there has been a failure to exercise the discretion or a failure to take relevant factors into account, or the judge has taken irrelevant factors into account in the exercise of his or her discretion
• Approach has been widened - If necessary, the Court could examine afresh the relevant facts and circumstances in order to exercise a discretion by way of review where the judge’s ruling may have resulted in injustice to the appellants.

Question 11

11. Rejection of submission of no case to answer

Answer 11

• The wrongful rejection of a submission of no case to answer at the close of the prosecution case will lead to the conclusion that a conviction is unsafe
• That can be so even when the appellant has given evidence and admitted guilt in cross-examination
• The failure of an experienced advocate to make a submission of no case will not preclude the quashing of a conviction on the basis that there was in fact no case to answer, but the Court of Appeal will presume that the advocate had reason to not make the submission and will look at the whole of the evidence in making its decision.
• The Court will not ordinarily interfere if a submission would have succeeded but was not made, and evidence of guilt emerged later in the trial

Question 12

12. Defects in the indictment

Answer 12

• Number of ways in which the indictment can lead to a challenge to the safety of the conviction
• Where indictment charges offences not known to the law
• Where the indictment is preferred and signed without jurisdiction, the proceedings will be a nullity
• A bill of indictment must be duly signed by the proper officer of the court for it to be a valid indictment
• Where an indictment is duplicitous, a conviction may be quashed if the duplicity results in the conviction being unsafe
• When counts are improperly joined or included in an indictment

Question 13

13. Inconsistent verdicts and jury irregularities

Answer 13

• The Court of Appeal will quash a conviction based on apparently inconsistent verdicts only if those verdicts are such that no reasonable jury applying its mind to the evidence could have reached the conclusions that it did
• Incorrect majority ruling from the jury leads to quash of conviction (e.g. 9-2)
• Misconduct by juror in various forms may lead to the quashing of conviction
• e.g. jurors consulted ouija board while in retirement
• e.g. downloading information from the internet (now a criminal offence)

Question 14

14. Conduct of the trial judge

Answer 14

• Excessive judicial intervention during the course of the evidence of the accused has sometimes led to the quashing of a conviction.
• dismissive remarks about the prospects of acquittal, albeit in the absence of the jury, when D was in the course of giving evidence, would have the same inhibiting effect on D as interruption, and quashed the conviction

Question 15

15. Approach of CofA to commonly occurring errors in summing up - misdirection on law

Answer 15

• A misdirection as to law will lead to the quashing of a conviction only if that misdirection causes the conviction to be unsafe.
• So where the direction would have made no difference to the outcome, it will not be quashed

Question 16

16. Approach of CofA to commonly occurring errors in summing up - wrongful withdrawal of issue from the jury

Answer 16

• if a judge fails to direct a jury as to an issue of fact going to an element of the offence, the conviction may be quashed if it is, as a result, unsafe.
• Where the evidence on a particular issue is agreed, it can be appropriate for a judge to direct a jury that they may draw an adverse inference against D on that issue.
• But if the judge removes all issues of fact and law from the jury so that they are effectively directed to convict, the conviction is highly likely to be quashed

Question 17

17. Approach of CofA to commonly occurring errors in summing up - misdirection on facts

Answer 17

• A mis-statement or omission of a fact in the course of the summing-up may lead to the quashing of a conviction if the fact was of such importance that, if it had been correctly stated, the jury may not have reached the same verdict.

Question 18

18. Approach of CofA to commonly occurring errors in summing up - improper comments on facts or defence case

Answer 18

• A judge is entitled to comment on the facts and express an opinion as to those facts, so it is rare that an appeal will be successful when it is based on such judicial comments. It is only when a judge exhibits blatant unfairness and pro-prosecution bias that the conviction will be imperilled.

Question 19

19. Approach of CofA to commonly occurring errors in summing up - comment on failure of accused to testify

Answer 19

• A direction on the failure of an accused to testify is an important one and an error as to that direction may give rise to an arguable ground of appeal.

Question 20

20. Approach of CofA to commonly occurring errors in summing up - comment on the accused’s character

Answer 20

• An inappropriate direction may lead to the quashing of a conviction.
• where an accused is entitled to a good character direction and the judge fails to give it in proper form, the conviction will not be quashed as a matter of course.
• An appellate court should interfere only if, on the facts, it was not properly open to the judge to reach the conclusions he or she did.

Question 21

21. Commonly occurring grounds of appeal against sentence - sentence wrong in law

Answer 21

• The Court of Appeal will intervene when the sentence imposed on an appellant could not legally be passed.

Question 22

22. Commonly occurring grounds of appeal against sentence - sentence wrong in principle or manifestly excessive

Answer 22

• The Court of Appeal will interfere with a sentence if it is of the view that it was outside the broad range of appropriate penalties.
• The fact that a sentence is merely severe will not be sufficient
• An appeal will succeed only if the sentence was excessive in the sense of being outside the appropriate range for the offence and offender in question, as opposed to being merely more than the Court of Appeal itself would have passed.
• Equally, where a sentence was not manifestly excessive at the time that it was passed, the Court of Appeal will not interfere with the level of that sentence just because the ‘tariff’ for that offence is reduced after the sentence is passed or legislation alters the level of sentence to be imposed

Question 23

23. Commonly occurring grounds of appeal against sentence - judge’s remark when sentencing

Answer 23

• If the judge’s sentencing remarks tend to reveal that irrelevant factors have been taken into account in deciding the appropriate sentence to impose on the appellant, the Court of Appeal may allow the appeal and substitute a different sentence.
• But if the Court takes the view that the sentence was appropriate despite the flaws in the decision-making by the judge, it may nonetheless uphold the sentence.

Question 24

24. Commonly occurring grounds of appeal against sentence - procedural errors

Answer 24

• The failure of a judge to follow the correct procedure may lead to a variation in the sentence by the Court of Appeal. But that is by no means necessarily the case.
• The failure of a sentencing judge to secure a pre-sentence report before passing sentence in circumstances where one was required will not necessarily lead to a reduction in sentence, but the Court of Appeal will secure such a report before dealing with the appeal.

Question 25

25. Commonly occurring grounds of appeal against sentence - sense of grievance

Answer 25

• The Court of Appeal will intervene when the appellant has a justifiable sense of grievance at the sentence imposed following events preceding sentence.
• In practice, this principle applies most often when a sentencing judge orders pre-sentence reports and indicates that, if the reports are satisfactory, a non-custodial sentence will be passed, but then proceeds to send the offender into custody despite positive reports
• But if a judge indicates that the fact of ordering reports should not be taken as any indication that a non-custodial sentence would eventually be passed, or indicates that he or she is ‘making no promises’, then the Court will not be moved to vary the sentence imposed if a custodial sentence follows, as the appellant’s hopes could not be said to have been legitimately raised

Question 26

26. Commonly occurring grounds of appeal against sentence - disparity of sentence

Answer 26

• The fact that offenders who are sentenced at roughly the same time as an appellant in the same Crown Court have received more lenient sentences for comparable offences can never be relied on as a ground of appeal
• Where there is a disparity in sentence between co-accused for no apparent reason
• The court can intervene if the disparity was serious

Question 27

27. Commonly occurring grounds of appeal against sentence - failure to distinguish between offenders

Answer 27

• The failure of the court of sentence to distinguish between offenders when one has powerful mitigation and the other does not can give rise to a successful ground of appeal against sentence.