Unit 6 – Appeals

Question 1

Appeals from magistrates court to the crown court

Answer 1

A defendant convicted in the magistrates’ court (including youth court) can appeal to the Crown Court in the following circumstances:

(a) If they pleaded guilty, they may appeal against the sentence they received;

(b) If they pleaded not guilty, they can appeal against any resulting conviction and/or the sentence they received.

Question 2

What are the prosecutions’ right of appeal (magistrates to crown)?

Answer 2

No right of appeal on acquittal / sentence imposed by magistrates.

Question 3

How can prosecution appeal from magistrates?

Answer 3

To the HIGH COURT on a POINT OF LAW.

Question 4

Appeals against conviction in magistrates (by defendant)

Answer 4

• A defendant convicted following a trial in the magistrates’ court may appeal against conviction to the Crown Court on the basis that the magistrates made errors of fact and/or law.
• Appeal against conviction in Crown Court = a full rehearing of the case (i.e., another trial).

– CPS and D will need to call all witnesses whose evidence they wish to rely on including any new witnesses;

– New or different points of law may be relied upon.

Question 5

Appeals against sentence imposed by magistrates (by the defendant)

Answer 5

• A defendant may appeal to the Crown Court against a sentence imposed by the magistrates’ court on the basis that the sentence imposed by the magistrates is excessive.

– Crown Court should carry out a full rehearing of the issues and take an independent view of what the correct sentence should be, rather than simply reviewing the sentence passed by the magistrates’ court.

Question 6

Procedure for D to appeal from magistrates court to crown court –

Answer 6

• File a notice of appeal with both the magistrates’ court and the CPS no more than 15 days from the magistrates passing sentence (or the date sentence was deferred to).

– If D filed their notice outside the 15 business days, a Crown Court judge does have the discretionary power to extend this time limit.

• If D is appealing a custodial sentence, the magistrates may grant bail to D pending the appeal to the Crown Court.

– No presumption in favour of bail. S 4 Bail Act 1976 does not apply to defendants appealing against conviction or sentence.

– If magistrates do not grant bail, D may apply to the Crown Court for bail, pending hearing of appeal.

Question 7

Powers of Crown Court

Answer 7

• Crown court can confirm, reverse or vary the decision.
• Crown Court has the power to impose on D any sentence, as long as it is a sentence which the magistrates’ court has the power to impose.

– I.e., can increase the sentence up to the powers given to the magistrates court (contrast this with appeal at the court of appeal when hearing an appeal against sentence from crown court)

Question 8

Appealing to High Court by way of case stated

Answer 8

Either prosecution or D may appeal from a decision of the magistrates’ court to the QBD of the High Court if:

(a) The decision made by the magistrates is wrong in law; or

(b) The magistrates have acted outside their jurisdiction;

Question 9

Procedure for appealing to High Court QBD by way of case stated ..

Answer 9

Any party wanting to appeal must apply to the magistrates’ court within 21 days of the relevant decision being made by the magistrates’ court.

• Application must identify the question of law on which the aggrieved party is seeking the view of the High Court.
• After receipt of this letter, the magistrates then ‘state a case’ for the opinion of the High Court.

Question 10

Once the magistrates have prepared the statement of case, what happens?

Answer 10

– the clerk sends this to D’s solicitor and the prosecution for suggestions. Once a final version is agreed, the clerk sends this to the party making the appeal.

• D must lodge this with the High Court and give notice to the other party that this has been done.

Question 11

Hearing at the divisional court of the QBD (High Court)

Answer 11

• Appeal is heard by the Divisional Court of the Queen Bench Division (usually by 3 judges).
• Hearing confined to legal argument based on the agreed facts set out in the statement of case (no evidence is given by witnesses).
• Divisional Court’s Powers = Power to reverse, vary or affirm the decision made by the magistrates’ court. Can also remit the case back to the same magistrates’ court with a direction to acquit or convict D, or to remit the case to a different bench of magistrates (if the case needs to be reheard)

– Both prosecution and D can appeal to Supreme Court in respect of any decision or order made by the High Court following an appeal to the High Court by way of case stated.

– Any appeal must be on a point of law only. High Court must verify it to be a point of law of general public importance.

– Either High Court or Supreme Court must grant leave to appeal.

Question 12

Appeals from Crown Court by D

Answer 12

If D is convicted in the Crown Court, they have the following rights of appeal to the Criminal Division of the Court of Appeal:

1) Appeal against conviction.

 D may appeal against their conviction if either the Court of Appeal grants leave to appeal, or the trial judge grants a certificate that the case is fit for appeal.

2) Appeal against sentence.

 D may appeal against the sentence they received if either the Court of Appeal grants leave to appeal, or the judge who passes sentence has granted a certificate that the case is fit for appeal against sentence.

Question 13

1) Appeal against conviction (by crown corut)

Answer 13

• If the Court of Appeal considers a conviction to be ‘unsafe’, it must allow the appeal. In all other cases, the Court of Appeal must dismiss the appeal.

Question 14

Reasons for a conviction/sentence being “unsafe”..

Answer 14

1) Judge failed to direct the jury properly
2) Judge wrongfully admitted or excluded evidence
3) Judge failed to give correct warnings to jury (e.g., no Turnbull warning)
4) Inappropriate interventions by the trial judge
5) Failure by trial judge when summing up the case to the jury
6) Fresh evidence comes to light which casts doubt on D;s guilt

Question 15

Procedure for making appeal against conviction in Crown Court

Answer 15

D seeks permission to appeal from the Court of Appeal directly (although, they can also ask the trial judge to certify that the case is fit for appeal).

Part 39 Procedure:

1. Within 28 days of the conviction (not sentence), D must serve their appeal notice, together with the draft grounds of appeal, on the Registrar of Criminal Appeals at the Court of Appeal.

Note – Grounds of appeal = separate document prepared by defence counsel setting out the detailed arguments as to why the conviction is unsafe.

2. On receipt of these documents, the Registrar will obtain a transcript of the evidence that was given at trial and of the judge’s summing up to the jury.

 Registrar then puts the case papers before a single judge, who determines whether permission to appeal ought to be granted. Filtering stage designed to weed out weak cases.

 If permission is granted, the single judge will also grant D public funding for the hearing of the appeal.

3. The hearing of the appeal will then take place before the full Court of Appeal, which comprises of 3 judges.

• Court will hear oral arguments from the parties, and may hear fresh evidence if it:

(a) Appears to be credible;

(b) Would have been admissible at D’s trial; and

(c) There is a reasonable explanation for the failure to adduce this evidence at D’s trial.

Question 16

What is a direction of loss of time?

Answer 16

• Where an appeal is completely without merit, the single judge can, when dismissing the appeal, make a direction as to loss of time.

– Direction of loss of time = Any time spent by D in custody awaiting the outcome of the appeal will not count towards the total time the defendant must serve for their sentence (as would normally be the case).

Question 17

What are the powers of the Court of Appeal at an appeal against conviction?

Answer 17

Court of appeal can do any of the following:

1. Quash the conviction and acquit D – e.g., if new evidence arises which would have led to D being acquitted.
2. Quash the conviction and order a retrial take place – e.g., if the conviction is unsafe because the judge ailed to direct the jury properly.
3. Allow part of the appeal and dismiss other parts. In this case, court will probably re-sentence D in respect of the offences for which his conviction was upheld.
4. Find D guilty of an alternative offence, where they’ll probably re-sentence D; or
5. Dismiss the appeal

Question 18

What is an outcome under S 7 CAA?

Answer 18

– Enables court of appeal to order a retrial where the court allows an appeal against conviction and where it appears to the Court that ‘the interests of justice so require’.

– If the Court is satisfied that D would have been acquitted at trial, they will not order a retrial.

Question 19

Appeal against sentence in Crown Court

Answer 19

Procedure

Essentially the same as for appeal against conviction.

• D requires either a certificate from the sentencing judge that the case is fit for appeal, or D seeking permission from the Court of Appeal to proceed.
• If D seeks permission from Court of Appeal, a notice of application for permission to appeal together with draft grounds of appeal must be sent to the Registrar of Criminal Appeals at the Court of Appeal within 28 days of the sentence being passed.
• Draft grounds of appeal state why the sentence passed by the Crown Court is either wrong or excessive.
• Where leave to appeal is granted by the single judge, the appeal is then considered by a 2 or 3 judge panel.
• Appeal is confined to legal submissions on what the appropriate sentence (or sentencing range) is in the particular case.

Question 20

When will an appeal against sentence be successful?

Answer 20

An appeal against sentence will be successful only if:

(a) Sentence passed by trial judge is wrong in law – i.e., they did not have the power to grant it

(b) Sentence passed by trial judge is wrong in principle – e.g., a custodial sentence was given where offence was not serious enough to warrant one

(c) Judge adopted the wrong approach when sentencing. Examples include:

• Judge increased sentence because D had pleaded not guilty
• Judge failed to give D appropriate discount following a not guilty plea
• Judge should have held a Newton hearing before determining the facts of the offence upon which the sentence was based;
• Judge failed to take into account any relevant offence or offender mitigation put forward by D

(d) For co-defendants, there is an unjustified disparity in the sentence each D receives, particularly where both Ds appear to have been equally culpable; or

(e) Sentence passed is ‘manifestly excessive’. Court of Appeal will only interfere if sentencing judge has gone beyond the upper limit of the range of possible sentences which is appropriate for the offence.

– Court of appeal will not reduce a sentence because it would have imposed a lower sentence within the appropriate range.

Question 21

Powers of court of apppeal in rectifying a sentence made by crown court

Answer 21

• Court of appeal can confirm a sentence passed by Crown Court or quash it and replace it with an alternative sentence or order.
• Court of appeal cannot increase the sentence imposed by the judge in the Crown Court.
• Loss of direction can also be made if their appeal is considered to be made without merit.

Question 22

Appeal by prosecution in Crown Court

Answer 22

CPS has no right of appeal if D has been acquitted by a jury following a Crown Court trial.

CPS has a right of appeal where the trial judge has made a ruling either before or during the trial which:

(a) Either effectively terminate the trial (‘termination rulings’); or

(b) Significantly weaken the prosecution case (‘evidential rulings’).

Question 23

Powers of Attorney General …

Answer 23

CPS has a right of appeal to the Court of Appeal if the Attorney-general considers that the Crown Court has passed a sentence which is ‘unduly lenient’.

• AG has the power to refer the case to the Court of Appeal, who can increase a sentence.
• AG may refer a case to the Court of Appeal only if the offence is an offence triable only on indictment or is a specified either-way offence and the Court of Appeal has given permission.
• If referral is successful, the Court of Appeal will quash the sentence passed in the Crown Court and pass the sentence it thinks appropriate.
• Any sentence imposed by Court of Appeal must be a sentence that could have been passed in the Crown Court.

Question 24

Rule against double jeopardy

Answer 24

The rule against double jeopardy

• Prior to enactment of CJA 2003, D could never be tried twice for the same offence. (rule of double jeopardy).

Question 25

Exceptions to rule of double jeopardy …

Answer 25

S 75 CJA lists offences for which a retrial is possible following the acquittal of D:

• Murder / attempted murder
• Manslaughter
• Kidnapping
• A number of sexual offences, including rape, attempted rape and assault by penetration;
• Class A drugs importation and production; and
• Arson endangering life or property.

Question 26

Court of Appeal will only quash an earlier conviction and order a retrial where the CPS can satisfy the two-fold test ..

Answer 26

1) Evidential test

• Requires that there be ‘new and compelling’ evidence of D’s guilt.
• ‘New evidence’ = Evidence not adduced when D was acquitted.
• “Compelling” = must be reliable, substantial and highly probative of the case against D.

2) Interests of justice test

• Court of Appeal should have particular (but not exclusive) regard to the following factors:

(a) Whether existing circumstances make a fair trial unlikely;

(b) The length of time since the offence was allegedly committed;

(c) Whether it is likely that the new evidence would have been adduced in the earlier proceedings, if it had not been for the failure of the police or the prosecution to act with due diligence and expedition; and

(d) Whether, since the earlier proceedings, the police or prosecutor have failed to act with due diligence or expedition.