Appeal MCQs Flashcards
You represent a client at trial before the magistrates’ court. He was charged with common assault and at the conclusion of the trial the magistrates found him not guilty. You speak to your client after the trial and while he is very happy with the result he is concerned that the prosecution might appeal against his acquittal.
Which of these statements best sets out what you should tell your client?
The prosecution can appeal against his acquittal to the Crown Court who can order a retrial in the magistrates’ court.
The prosecution can only appeal against sentence, not acquittal, so they cannot appeal on this occasion.
The prosecution cannot appeal against his acquittal.
The prosecution can appeal against his acquittal to the Crown Court where there will be a retrial.
The prosecution can appeal to the Divisional Court as of right.
The prosecution cannot appeal against his acquittal.
Correct. The prosecution cannot appeal against either conviction or sentence in the magistrates’ court. They can only appeal to the Divisional Court by way of case stated if there is an error of law or the court acted in excess of jurisdiction.
The other statements while plausible are incorrect:
- The prosecution have no option to appeal against conviction to the Crown Court. By contrast the defendant can appeal against conviction and/or sentence to the Crown Court as of right. An appeal against a conviction would result in a retrial
- The prosecution have no option to appeal against conviction to the Crown Court. By contrast the defendant can appeal against conviction and/or sentence to the Crown Court as of right. The Crown Court would hear an appeal against conviction by way of retrial, and cannot order a retrial in the magistrates’ court.
- The prosecution cannot appeal against sentence (or conviction) to the Crown Court.
- The prosecution have no right to appeal to the Divisional Court. They can appeal by case stated where there has been an error of law or the magistrates acted in excess of the court’s jurisdiction.
Your client has been convicted of grievous bodily harm with intent and she has been sentenced to 9 years imprisonment. Advice from her barrister is that the sentence is excessive in the circumstances.
Which of these statements is the most appropriate advice to your client?
You can appeal to the Court of Appeal against sentence on the ground that the sentence is manifestly excessive, and against conviction on the ground that the conviction is unsafe.
You can appeal to the Court of Appeal against sentence but risk the Court of Appeal substituting a lengthier sentence.
You can appeal to the Court of Appeal against sentence on the ground that the conviction is unsafe.
You can appeal to the Court of Appeal against sentence on the ground that the sentence is harsh.
You can appeal to the Court of Appeal against sentence on the ground that the sentence is manifestly excessive.
You can appeal to the Court of Appeal against sentence on the ground that the sentence is manifestly excessive.
Correct. This is usually on the grounds that the sentence was manifestly excessive and therefore not commensurate with the level of seriousness of the offence. The Court of Appeal cannot impose a more severe penalty than the Crown Court.
The other answers while plausible are not correct.
- A sentence might be perceived as harsh but that is not sufficient for a successful appeal against sentence. The sentence must be manifestly excessive in the circumstances.
- The Court of Appeal cannot substitute a lengthier sentence that that made by the Crown Court.
- You cannot appeal against sentence on the grounds that the conviction is unsafe. You can appeal against conviction on that ground, but there is no suggestion here of anything that would render the conviction unsafe.
- You can appeal against both sentence and conviction BUT there is no suggestion that the conviction is unsafe on these facts.
Your client has been convicted and sentenced for an offence of assault occasioning actual bodily harm (ABH)in the magistrates’ court. He was convicted 23 days ago, and sentenced 10 days later. Only now has he phoned you with his decision to appeal to the Crown Court. He is worried that he might be out of time for an appeal.
Which of these statements best describes his situation regarding an appeal against conviction and sentence?
Notice of appeal must be lodged within 15 business days of conviction, so your client is out of time to appeal.
Notice of appeal must be lodged within 21 business days of sentence, so there is still time to appeal against conviction and sentence.
Notice of appeal against conviction must be lodged within 15 business days of conviction, and notice of appeal against sentence must be lodged within 15 business days of sentence. This means your client can only appeal against sentence.
Notice of appeal must be lodged at the Crown Court within 15 business days of sentence, so there is still time to appeal against conviction and sentence.
Notice of appeal must be lodged within 15 business days of the sentence, so there is still time to appeal against conviction and sentence.
Notice of appeal must be lodged within 15 business days of the sentence, so there is still time to appeal against conviction and sentence.
Correct. The defendant has 15 business days from the date of sentence (not conviction) during with the lodge an appeal. This must be served on the relevant magistrates’ court and the prosecution.
The other answers while plausible are incorrect:
- 21 days is the not the correct period. Appeals must be lodged within 15 business days.
- The clock does not start running from conviction, but from sentence. A defendant must appeal (conviction and/or sentence) with 15 days from the date of sentence.
- The time limit of 15 business days runs from sentence for appeals against sentence AND conviction. There are not two separate ‘clocks’.
- An appeal is not lodged at the Crown Court. It must be served on the relevant magistrates’ court and the prosecution.
You represent a client who has been convicted and sentenced for murder. Counsel has advised that there are grounds for a appeal on the basis that the judge misdirected the jury, and your client has instructed you to appeal. You have applied to the Court of Appeal for leave to appeal and have just received notification that the the application has been refused by the Single Judge. You arrange to meet your client to advise him as to what will happen now.
Which of the below statement best sets out your client’s position?
He can renew his application to the full Court of Appeal who will consider the matter based on the same papers provided to the Single Judge.
He can renew his appeal to the full Court of Appeal, where two or three judges will decide on the appeal, and quash the conviction or order a retrial where appropriate.
He can renew his application for leave to the full court of two or three judges where the application will be reconsidered by way of oral hearing.
He has been refused leave to appeal so he will not be able to appeal against his conviction before the Court of Appeal.
He can request an oral hearing before the Single Judge, but it is unlikely that the Single Judge will change their decision.
He can renew his application for leave to the full court of two or three judges where the application will be reconsidered by way of oral hearing.
Correct. If leave to appeal is rejected by the Single Judge on the papers then the application for leave can be renewed. However, there is no legal aid available for this hearing so counsel would have to represent the defendant on a pro bono or private basis.
The other statements whilst plausible are incorrect:
- Refusal by the Single Judge is not the last option. As stated above the application can be renewed.
- On renewal of the application the court is not considering the merits of the appeal case, but whether the leave should be granted to bring the appeal.
- A renewal application takes place before the full court by way of oral hearing, not papers only.
- A defendant cannot request an oral hearing before a Single Judge.
Your client has just been convicted of a series of burglaries in the magistrates’ court. She wishes to appeal her conviction to the Crown Court, but she found her experience in the magistrates’ court very stressful and she wants to know what will happen at the Crown Court during her hearing.
Which of the below best sets out what will happen at her appeal hearing?
There will be a re-hearing of her case before a judge and two lay magistrates where the facts will be presented to the court by both prosecution and defence.
There will be a re-hearing of her case before a judge which will proceed in the same way as her original trial. Neither defence nor prosecution are restricted to the same evidence as the original trial.
There will be a re-hearing of her case before a judge and two lay magistrates which will proceed in the same way as her original trial. Defence and prosecution are restricted to the same evidence as the original trial.
There will be a re-hearing of her case before a judge and two lay magistrates. If the court is convinced that the conviction is unsafe then it will order a retrial at the original magistrates’ court.
There will be a re-hearing of her case before a judge and two lay magistrates which will proceed in the same way as her original trial. Neither defence nor prosecution are restricted to the same evidence as the original trial.
There will be a re-hearing of her case before a judge and two lay magistrates which will proceed in the same way as her original trial. Neither defence nor prosecution are restricted to the same evidence as the original trial.
Correct. There is a retrial of the matter during which evidence will be called, and witnesses cross examined. New evidence can be adduced.
The other statements while plausible are incorrect:
- The parties are NOT restricted to the same evidence as in the first trial. This is, in effect, a new trial.
- The Crown Court will not order a retrial of the case. It is the Crown Court who will make the finding of guilty or not guilty based on the re-hearing of the evidence.
- It is not the case that facts are presented to the court. There is a full hearing of the evidence. If the appeal is against sentence only then the court would hear facts and mitigation.
- A re-hearing cannot be heard by a judge sitting alone. There are normally two magistrates, and in exceptional circumstances the court can proceed with just one lay magistrate.
You represent Philip who has been tried and convicted at a Magistrates’ Court of common assault. He will be sentenced next week. During the trial the prosecution made an application to adduce Philip’s previous conviction for assault occasioning actual bodily harm (‘ABH’). You unsuccessfully opposed this application and the court admitted his previous conviction. You think this decision was quite harsh and that the court may have wrongly applied the law in relation to bad character. You are also of the view that during the trial the magistrates got the facts wrong in relation to the offence. Philip wants to appeal his conviction.
What is the best advice to give Philip?
Advise Philip to appeal to the High Court by way of case stated because the court made an error of law by admitting his previous conviction.
Advise Philip to apply for Judicial Review as the court made an error of law by admitting the previous conviction.
Advise Philip to use the ‘slip rule’ because the magistrates got the law and the facts wrong.
Advise Philip to appeal to the Crown Court and advise him that the appeal is by way of a re-hearing.
Advise Philip to appeal to the Crown Court and advise him that the appeal is by way of a re-hearing.
Correct. This is the best advice to give. Appeal to the Crown Court is the best option here as you are not sure the court has wrongly applied the law and there is a mixture of errors of fact and potentially law too. Appeal to the Crown Court is an appeal as of right and it is sensible to advise Philip that the appeal is a re-hearing so he knows what to expect. The advantage of pursuing this route of appeal is that you could still appeal by way of case stated from the Crown Court, should there be arguable grounds.
The other options were not the best answers.
Although you can appeal to the High Court by way of case stated if there has been an error of law, the question suggests that you think the court made an error of law, implying you are not sure of this. Furthermore, in R v Hereford Magistrates Court ex p Rowlands [1997] 2 Cr App R 340, the court advised that where the defendant complains that the magistrates made an error of law and also of fact, he should appeal to the Crown Court. If you appeal to the High Court by way of case stated you lose your right of appeal to the Crown Court.
While you can technically judicially review a decision if it is wrong in law this is not the best route of appeal here because you are not sure that the court made an error of law. In the case of R v Liverpool City Magistrates Court (2006) 170 JP 453 the court offered some guidance on which route of appeal to pursue and stated that the normal route where it is alleged there has been an error of law is by way of case stated.
Section 142 of the Magistrates’ Courts Act 1980 gives the magistrates court the power to vary a sentence or set aside a conviction if it is in the interests of justice to do so. Case law has made clear that the ‘slip rule’ gives the court the power to rectify mistakes where the mistake is quickly identified and it is accepted on all sides that a mistake has been made (R v (Holme) v Liverpool Magistrates Court (2005) JP 306). This is not the best answer because the magistrates are unlikely to agree they made a mistake.
Raphael was convicted in a Magistrates’ Court of driving with excess alcohol. He was ordered to pay a fine of £1000 and was disqualified from driving for 18 months. He appealed to the Crown Court against sentence.
The judge in the Crown Court hears the matter and is not impressed with Raphael’s appeal as is of the view that the sentence Raphael received was lenient in the circumstances. The judge would like to increase Raphael’s disqualification. The judge hears the advocates submissions and then rises to check the law on whether the driving disqualification can be increased. The judge notes that the maximum sentence a Magistrates’ Court would have had the power to impose was 24 months.
What decision is the judge most likely to make on Raphael’s appeal?
The judge will allow the appeal and reduce the driving disqualification to 12 months.
The judge will dismiss the appeal and Raphael’s sentence will remain as it is.
The judge will dismiss the appeal and vary Raphael’s sentence by increasing the driving disqualification to 36 months, as the Crown Court has higher sentencing powers.
The judge will dismiss the appeal and vary Raphael’s sentence by increasing the driving disqualification to 24 months.
The judge will dismiss the appeal and vary Raphael’s sentence by increasing the driving disqualification to 24 months.
Correct. The Crown Court has the power to vary the sentence imposed by the magistrates including increasing the sentence but not beyond the maximum sentence which the Magistrates’ Court could have imposed. The judge will check the law and is likely to increase the driving disqualification to 24 months.
The other options were either incorrect or unlikely on the facts.
Given the judge is of the view that the original sentence imposed by the Magistrates’ Court was lenient the judge is unlikely to: * allow the appeal and reduce the driving disqualification to 12 months. * dismiss the appeal and Raphael’s sentence will remain as it is.
The judge does not have the power to vary Raphael’s sentence by increasing the driving disqualification to 36 months, as we are told the maximum the Magistrates’ Court could have imposed was 24 months.
You represent the Defendant, Cinnamon, in a matter before the Crown Court. Cinnamon pleaded guilty to five counts of fraud. She was a bursar for a secondary school and was taking money from the school account to pay for luxury holidays and private school fees for her children. The value of the fraud amounted to more than £100,000 over a 2 year period. You advised Cinnamon that you expected that she would receive a sentence in the region of 24 months to take into account credit for a guilty plea and her personal mitigation. You also advised that you would attempt to persuade the judge to suspend the sentence.
The judge refused the application for a pre-sentence report, and proceeded straight to sentence. You advanced significant mitigation on behalf of Cinnamon, but the judge’s sentencing remarks failed to indicate that these had been taken into consideration. Cinnamon was sentenced to 30 months immediate custody, on each count to run concurrently. Cinnamon wishes to appeal her sentence to the Court of Appeal.
What is the best advice to give Cinnamon on her wish to appeal?
You advise Cinnamon to appeal on the basis that the sentence is manifestly excessive because the court failed to properly take into account her personal mitigation.
You advise Cinnamon that if she appeals and loses, she will be subject to a loss of time direction.
You advise Cinnamon to appeal the sentence on the basis that she did not have the benefit of a pre-sentence report.
You advise Cinnamon not to appeal as the sentence is fair given the nature of the offence and there are no arguable grounds upon which to appeal.
You advise Cinnamon to appeal on the basis that the sentence is manifestly excessive because the court failed to properly take into account her personal mitigation.
Correct. The test for appeal against sentence is clearly outlined and the basis for making the application to appeal is also substantiated.
The other options were incorrect or not the best answer because:
* it is within the judge’s discretion as to whether or not to order a pre-sentence report.
* there are arguable grounds here to advance to the Court of Appeal, taking into account that no pre-sentence report was ordered and that Cinnamon had significant personal mitigation, which the judge appeared not to take into account.
* the Court of Appeal can make a loss of time direction in the event of a frivolous appeal and there are arguable grounds for appeal here.
Aidan is sentenced at the Crown Court for two offences of robbery. The Attorney General wishes to refer the case to the Court of Appeal for consideration of whether the sentence was unduly lenient.
How will the Attorney General’s reference for review of sentence proceed?
According to new material which was not before the sentencing judge and if the Court of Appeal decides the sentence was unduly lenient, it may receive fresh material to reach its conclusions as to the new sentence which is favourable to the offender only
According to new material which was not before the sentencing judge and if the Court of Appeal decides the sentence was unduly lenient, it may receive fresh material to reach its conclusions as to the new sentence which is either favourable or adverse to the offender
According to the facts before the sentencing judge and if the Court of Appeal decides the sentence was unduly lenient, it may not receive fresh material to reach its conclusions as to the new sentence
According to the facts before the sentencing judge and if the Court of Appeal decides the sentence was unduly lenient, it may receive fresh material to reach its conclusions as to the new sentence
According to the facts before the sentencing judge and if the Court of Appeal decides the sentence was unduly lenient, it may receive fresh material to reach its conclusions as to the new sentence
Correct. This answer reflects the position regarding references of unduly lenient sentences. The other options while they may sound plausible, do not reflect the position as set out in ss. 35 and 36 Criminal Justice Act 1988.
Your client, Fred, was convicted at the Crown Court two weeks ago of possession of Class A drugs and awaits sentence. The conviction was solely based on the evidence of an undercover police officer. You found out last week that the officer has since been dismissed from the force due to discreditable conduct in relation to the falsification of evidence. On Fred’s instruction you seek leave to appeal against the conviction.
What power is the Court of Appeal most likely to exercise, if Fred’s appeal is allowed?
The Court of Appeal will quash Fred’s conviction and order a retrial.
The Court of Appeal will quash Fred’s conviction and order that the Crown Court enter a verdict of not guilty against him.
The Court of Appeal will quash Fred’s conviction and order that the Crown Court enter a verdict of not guilty against him as a retrial will not be ordered due to prejudicial publicity.
The Court of Appeal will substitute a verdict of guilty for the alternative offence of possession with intent to supply a Class A drug
The Court of Appeal will quash Fred’s conviction and order that the Crown Court enter a verdict of not guilty against him.
Correct. Given that the sole evidence against Fred comes from a discredited police officer it seems unlikely that the Court of Appeal would order a retrial under section 7 Criminal Appeal Act 1968 as there would be no other credible evidence to prove the case against Fred.
The other options were either incorrect or not the most likely power the Court of Appeal would exercise.
The court can 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 D guilty of the offence. The offence of possession with intent to supply Class A drugs is a more serious offence than mere possession of Class A drugs which suggests that the jury were not satisfied Fred was guilty of that offence. While this power can be exercised on a partially successfully appeal against conviction, it is not appropriate on the facts.
While a retrial would not be ordered due if on the balance of probabilities the verdict that may be returned on Fred’s retrial would be unsafe due to prejudicial publicity, there is no suggestion on the facts that there was any publicity adverse to Fred in relation to the original trial or subsequent appeal.
Question 1
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
Option E is the best answer. 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 2
A man is convicted following trial in the Crown Court. During the trial, the judge failed 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
Option B is the best answer. 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.
