28. appeals from the crown court Flashcards
can sentence / order by CC be varied?
yes within 56 days of it being passed or made
who can vary CC sentence/order?
same judge who made it
extent of power to vary sentence / orders?
- replace sentence with a different form
- add an extra order
- make sentence harsher / more lenient
- correct sentence wrong in principle
where do appeals from CC go?
COA crim div
what is a full court in COA and what do they determine?
no fewer than 3 judges (sometimes 5 or 7) to determine:
* appeal against conviction
* review of sentence
* appeal against unfit to plead
* application of leave to appeal to SC
can be 2 sometimes.
what is needed for an appeal against conviction?
- leave of COA or
- trial judge certificate that fit for appeal (within 28 days of conviction) - removes need for leave to appeal.
procedure for getting leave?
- written grounds of appeal submitted within 28 days of conviction
- decision taken on papers
- hearing often needed where unlawful sentence and it will need adjusting
when leave is refused by single judge what can be done?
the applicant is entitled to renew the application before a two-judge or full cour
3 categories of case where COA will consider appeals against convictions following G plea?
- G plea vitiated
- abuse of process cases
- where it was established D had not committed
when can a guilty plea be set aside?
if circs are such to make conviction unsafe.
examples of defects in indictment leading to appeal?
- where it charges an offence not in law - quash
- where preferred without jurisdiction - proceedings a nullity
- duplicity = unsafe conviction
- improper joinder of counts = quash
commonly occurring errors raised on appeal ?
wrongful admission/exclusion of evidence - if conviction unsafe = quash
erroneous exercise of discretion - not lead to quashing
wrongful rejection of submission of no case to answer = unsafe conviction
defects in indictments
inconsistent verdicts and jury irregularities
conduct of trial judge
when will inconsistent verdicts and jury irregularities lead to appeal?
COA will only quash where verdicts are such that no reasonable jury applying its mind to the evidence would have reached that conclusion.
misconduct of jurors if there was a real danger that they were influenced by it and D was prejudicied.
when will conduct of trial judge lead to appeal?
excessive judicial intervention.
e.g. - interrupting accused ev, rudeness, dismissive remarks
what are commonly occurring errors in summing up?
- misdirection on law if conviction unsafe
- wrongful withdrawal of issues from jury
- misdirection on facts
- improper comment on facts or defence case
- comment on failure of accused to testify
- comment on accused character
wrongful withdrawal of issues from jury means…
if judge fails to direct jury as to an issue of fact to an element of the offence, the conviction may be quashed if it is as a result unsafe.
when will a conviction be affirmed when there was wrongful withdrawal of issues ?
only affirmed if no miscarriage of justice, on ground that if question had been left to jury, they MUST have come to conclusion that they were guilty
when will misdirection of fact lead to quashing?
if fact was so important that if it had been correctly stated, jury may not have reached same verdict.
was error significant to mislead the jury.
commonly occurring grounds of appeal against sentence?
- sentence wrong in law
- sentence wrong in principle/manifestly excessive
- judges remarks when sentencing
- procedural errors
- sense of grievance
- disparity of sentence
- failure to distinguish between offenders
when will improper comment lead to quashing?
only where judge exhibits blatant unfairness and pro-prosecution bias
when will sentence be wrong in principle?
- not appropriate form
- inappropriate combination of sentences
when will a sentence be manifestly excessive?
where outside the appropriate range for the offence and offender in question
when will judges sentencing remarks lead to appeal?
if reveal irrelevant factors have been taken into account when deciding sentence.
when will procedural errors lead to appeal?
- failure to follow correct procedure
- failure to get PSR
- failure to hold a newton hearing
when will disparity of sentence lead to appeal?
disparity = difference between co-accused and accused sentence
Disparity in itself is not a sufficient ground of appeal - question is whether the sentence received by the appellant was wrong in principle or manifestly excessive
when deciding disparity of sentence what is the test?
would right-thinking members of the public, with full knowledge of all the relevant facts and circumstances, learning of this sentence consider that something had gone wrong with the administration of justice
what notices are required for appeals?
notice of appeal (if trial judge gives certificate)
notice of application for leave (all other cases w/o certificates
when must notice of appeal/application be lodged?
within 28 days of conviction or sentence depending which is appealed
what has to be served on registrar of criminal appeals?
- form NG
- signed grounds of appeal
- accompanying forms
- all DCS material (as soon as practicable)
what should legal reps do at conclusion of case?
see D and advocates should orally express their final view as to the prospects of an appeal against conviction and/or sentence.
