CLP 7 - Appeals

Question 1

What is the maximum sentence for summary only offenses?

Answer 1

6 months

Question 2

What is the next step if a defendant pleads not guilty to a summary only offense?

Answer 2

Completing the Preparation for Effective Trial form”

Question 3

What is included on the Preparation for Effective Trial form?

Answer 3

• the defendant’s and legal representative’s contact details;​
• names, numbers, types of witness and which party requires their attendance at court;​
• the estimated length of trial;​
• identification of trial issues;​
• advance warning whether any applications are to be made (e.g. special
  measures, bad character and hearsay);​
• whether any prosecution statements can be read; ​
• whether any special arrangements need to be made for trial;​
• that the defendant advocate has advised D of credit for early guilty plea;
• that trial will go ahead in D’s absence if D fails to attend on the trial date;​

Question 4

Can pre-trial hearings be held in the Magistrates court for summary only offences?

Answer 4

Yes. These can cover matters such as admissibility of evidence and fitness to plead. Rulings can be made on the application of the defence or prosecution, or of the court’s own motion. ​

Question 5

How long are pre-trail rulings for summary only offences binding?

Answer 5

conviction or acquittal of the defendant; or ​

a prosecution decision not to proceed; or ​

the dismissal of the case. ​

or varied by the court

Question 6

When can a suspect plea guilty by post?

Answer 6

In summary only cases where:​

• the matter has been commenced by summons or requisition; and​
• the prosecutor has served a summary of the evidence on which the prosecution case is based; and​
• the prosecutor has served information relevant to sentence​

(This procedure is used for minor non imprisonable offences such as speeding or driving without insurance)

Question 7

Who makes up the judges in a summary trial?

Answer 7

• At least two, but usually three, lay magistrates (also known as ‘justices of the peace’) or before a
• single District Judge.

Question 8

Is an authorised court officer (justices’ clerk) mandatory where a summary trial is hear by lay magistrates?

Answer 8

Yes

Question 9

Is an authorised court officer (justices’ clerk) mandatory where a summary trial is hear by District Judge?

Answer 9

No

Question 10

What is the order of a magistrate’s trial?

Answer 10

• Legal arguments would be heard before the trial starts (questions of admissibility)
• Prosecution opening speech
• Defence identify matters in issue (where they disagree with the prosecution - effectively defence statement)
• Prosecution evidence
• Conclusion of the prosecution case
• Submission of no case to answer - On the defendant’s application or on its own initiative, the court may acquit on the ground that the prosecution evidence is insufficient for any reasonable court to properly convict.
• Right to give evidence and adverse inferences
• Defence evidence
• Prosecution closing speech
• Defence closing speech
• Legal advice - Before retiring to consider their verdict, the legal adviser will advise the magistrates in open court on any matters of law that are required
• Magistrates/ district judge retire to consider verdict
• Verdict

Question 11

When can the prosecution make a closing speech in the magistrate’s court?

Answer 11

• the defendant is represented; or​
• whether or not he is represented, the defendant has introduced evidence other than their own. ​

Question 12

Do the Magistrates have the ability to vary their own decisions?

Answer 12

Yes both sentence and conviction if it is in the interests of justice to do so. The ‘Slip rule’ (normally only applies where everyone agrees that there has been a mistake).

Question 13

What are the options for appeal from the Magistrate’s Court?

Answer 13

a)Appeal to the Crown Court (conviction or sentence), by way of re-hearing;

b)Appeal to the High Court (error of law), by way of case stated; or

c) Application to the High Court for judicial review of the decision.

Question 14

What can be appealed from the Magistrate’s Court?

Answer 14

The conviction (in which case a re-trial is held).

The sentence (in which case a sentence hearing is held)

Note: the CC is not judging the conviction or sentence passed, it is passing its own conviction or sentence (up or down).

Question 15

Can the prosecution appeal to the Crown Court?

Answer 15

No - the prosecution cannot appeal against acquittal or sentence.

Question 16

When must the defence give notice of an appeal to the crown court if they want to appeal their sentence or conviction?

Answer 16

21 days after SENTENCE

(note: not conviction).

Question 17

Who must the defence give notice an appeal to?

Answer 17

The Magistrates court and the prosecution.

Question 18

What is the process for hearing an appeal in the Crown Court from the Magistrate’s Court?

Answer 18

The same as in the magistrates court (effectively a re-run of the trial).

Question 19

Do the Magistrates give leave for the defence to appeal to the Crown Court?

Answer 19

No, it is an automatic right (as long as the appeal is in time).

Question 20

Is there a right to bail pending an appeal from the magistrate’s court to the Crown Court

Answer 20

No - but can be requested from the magistrates or Crown Court.

Question 21

When must an application for bail pending an appeal from the magistrate’s court to the Crown Court be made?

Answer 21

In the appeal notice.

Question 22

What happens if the appelant fails to turn up at their appeal and is not represented?

Answer 22

The appeal is abandoned.

Question 23

What powers does the crown court have regarding an appeal from the magistrate’s court?

Answer 23

• confirm, reverse or vary the decision appealed against or any part of it;
• remit the matter with its opinion to the magistrates;
• make any other order which the court thinks is just, so long as they exercise only the power the magistrates could have.

Question 24

Who sits on an appeal in the Crown Court from the magistrate’s court?

Answer 24

• a judge and between 2 and 4 lay magistrates.

Question 25

Does the evidence and way the prosecution puts its case have to be the same on appeal to the Crown Court as it was in the Magistrate’s court?

Answer 25

No

Question 26

What sentences can be imposed by the Crown Court in an appeal from the magistrate’s court?

Answer 26

Any sentence available to the Magistrate’s Court.

Question 27

Which court is an ‘appeal by way of case stated’ made to?

Answer 27

The High Court.

Question 28

What does an appeal by way of case stated concern itself with?

Answer 28

Restricted to an appeal based on questions of law.

Question 29

Can the prosecution make an appeal to the High Court by way of case stated?

Answer 29

Yes. It’s just the Crown Court it can’t appeal to.

Question 30

What is the deadline for making an appeal by way of case stated.

Answer 30

21 days from the date of the decision.

Except where sentence is adjourned following conviction, the date of decision is deemed to be the date of sentence, even where conviction is being appealed.

Question 31

Who must the notice of appeal by way of case stated be served on?

Answer 31

The Magistrate’s Court and the prosecution

Question 32

Can you appeal to the Crown Court after appealing to the High Court?

Answer 32

No

Question 33

Can you appeal to the High Court after appealing to the Crown Court?

Answer 33

Yes

Question 34

Must the Magistrates state a case (i.e. give the basis of their decision in writing)

Answer 34

No, they may refuse where it is considered vexatious.

They will give a certificate of refusal - this can be subject to JR

Question 35

If the Magistrates agree to provide a statement of case for an appeal by way of case stated, when will they provide the statement?

Answer 35

21 days after they agree to state the case.

Question 36

Where would one appeal by way of case stated from the High Court?

Answer 36

An appeal from the High Court in relation to an appeal by way of case stated is direct to the Supreme Court.

Question 37

Does the Crown Court have its own ‘slip rule’?

Answer 37

Yes

Question 38

What are the conditions for the ‘slip rule’ in the crown court?

Answer 38

Yes, allows a judge to vary or rescind a sentence (or other order) within 56 days of it being made.

Question 39

Who can vary a sentence or order under the Crown Court ‘slip rule’?

Answer 39

The judge who passed sentence must be the judge who makes the variation.

It can be used following sentence on an appeal from the magistrates’ court.

Question 40

Is the use of the slip rule is limited to amending the length of the sentence or correcting minor technical errors?

Answer 40

No, it also permits amending the type of sentence or requirements attached to a community based sentence.

Question 41

Is leave required to appeal from the Crown Court?

Answer 41

Yes, either from the CC or the CofA

Question 42

What type of defence appeals are allowed from the Crown Court to the Court of Appeal?

Answer 42

a) Appeals against conviction on indictment;

b) Appeals against sentence passed following conviction on indictment;

c) Appeals against sentence passed on committal for sentence;

Question 43

If leave is sort by the defence from the CofA to appeal to the CofA, what is the first hurdle the defence must clear?

Answer 43

Appellants from the Crown Court need to convince a single judge that their appeal is arguable on the merits before it can proceed to an oral hearing.

Question 44

Who many judges sit in the CofA for a sentence appeal?

Answer 44

2

Question 45

What options are available to the single judge who first reviews an appeal from the Crown Court to the CofA?

Answer 45

• grant the application wholly or in part;
• refuse the application;
• refer it to the full Court of Appeal without granting leave.

Question 46

What if the single judge refuses leave on some or all of the grounds? And what are the time limits?

Answer 46

The appellant can renew the application for leave to appeal within 14 days of receipt of the notification of the single judge’s decision for an oral hearing on whether the application should be allowed before the full court

Question 47

Is an appeal from the Crown Court to the CofA always considered by a single judge before going to full court.

Answer 47

No, the registrar can send straight to the full court if:

• there is an unlawful sentence which must be amended; or
• there is a novel point of law.

Question 48

How many judges sit on the CofA for a conviction appeal?

Answer 48

3

Question 49

What is the time limit for making an appeal to the CofA from the Crown Court

Answer 49

The notice must be served

• within 28 days of the conviction, in conviction appeals, and
• within 28 days of sentence, in sentence appeals.

Question 50

Who will advise and draft the appeal?

Answer 50

Counsel

Question 51

If an appeal is made, Counsel will be sent a transcript of the trial. Counsel will then perfect their grounds of appeal. How long do they have to do this?

Answer 51

14 days

Question 52

Once grounds are perfected (or the court is told that counsel will not be perfecting grounds), what do the prosecution do next?

Answer 52

File a Responder Notice

Question 53

What are the grounds for a defence appeal to the CofA from the Crown Court?

Answer 53

• In an appeal against conviction - unsafe conviction - i.e. error by judge.
• In an appeal against sentence - i.e. the defendant should have been sentenced differently.
• fresh evidence if its in the interests of justice to do so (greatly restricted)

Question 54

In a defence appeal from the Crown Court to the CofA, what are the considerations of the CofA if the appeal is on the basis of fresh evidence?

Answer 54

a) Whether the evidence appears to be capable of belief;

b) Whether it appears that the evidence may afford any ground for allowing the appeal;

c) Whether the evidence would have been admissible in the proceedings from which the appeal lies, on an issue which is the subject of an appeal;

d) Whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.

Question 55

Can the defence appeal from Crown Court to the CofA if the defendant pleased guilty in the Crown Court?

Answer 55

Yes

Question 56

Where the defence make an appeal from the Crown Court to the CofA, what are the CofA’s powers in relation to conviction?

Answer 56

• Quash the conviction.
• order the appellant to be retried.
• substitute a verdict of guilty for an alternative offence if:

– the jury would have been able to convict of the alternative offence at trial; and
– the jury must have been satisfied of facts which proved him guilty of the offence.

Question 57

Where the defence make an appeal from the Crown Court to the CofA, what are the CofA’s powers in relation to sentence?

Answer 57

• Quash any sentence or order which is the subject of the appeal; and
• In place of it pass any such sentence or make such order as they think appropriate, but which the court below had power to pass or make; and
• They must ensure that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was in the court below.

Question 58

What are the sanctions for the defence making an appeal to the CofA from the Crown Court if the appeal was wholly without merit?

Answer 58

The Court of Appeal can direct that some or all of the time spent in prison between the date of lodging the appeal and the date of its dismissal may be ordered not to count towards the appellant’s sentence. This is known as a ‘loss of time’ order.

Question 59

What are the grounds for a prosecution appeal to the CofA from the Crown Court?

Answer 59

d) References by the Attorney-General of unduly lenient sentences, for offences triable only on indictment and some either-way offences specified by the Home Secretary;

e) References by the Attorney-General for opinions on points of law following acquittal on indictment -

f) References by the Criminal Cases Review Commission;

g) Prosecution appeals against terminatory rulings;

h) Appeals against rulings made at preparatory hearings in serious fraud cases.

Question 60

What cases can the AG refer where he considers the sentence to be unduly lenient?

Answer 60

Indictment only cases of those specified in [legislation].

Question 61

What is the time limit for the AG to bring an ‘unduly lenient’ appeal?

Answer 61

28 days

Question 62

Do references by the Attorney-General for opinions on points of law following acquittal on indictment affect the acquittal?

Answer 62

No

The defendant is entitled to be represented at the hearing.

The Court of Appeal can refer to the Supreme Court if it sees fit or where either party requests this.

Question 63

What is a terminatory ruling?

Answer 63

One that brings the case to an end.

Question 64

What are the requirements for an appeal against a terminatory ruling?

Answer 64

• The ruling must be made before summing up;
• An acquittal agreement must be given by the prosecution - the prosecution assures that if leave to appeal is refused or the appeal abandoned before it is decided by the Court of Appeal, the defendant will be acquitted on that count(s).
• The ruling must not be appealable to the Court of Appeal by other means.

Question 65

What are preparatory hearings?

Answer 65

A form of case management hearing held in long, complex or fraud cases.

Question 66

Who can appeal to the Supreme Court?

Answer 66

Defence or Prosecution

Question 67

Is there a right of appeal to the supreme court?

Answer 67

No, the CofA or Supreme Court would need certify that the case involved a point of law of general public importance.

Question 68

What are the time limits for an appeal to the supreme court?

Answer 68

28 days after the court gives reasons for its decisions; or
14 days for an AG reference case

Question 69

Is a Spouse is compellable and competent for the defence?

Answer 69

Yes unless they are co defendants

Question 70

Renewal application to CofA is an oral hearing of the application in front of the full court. True or false

Answer 70

True