6.2 Appeals - Crown Court decisions 1

Question 1

What is the deadline for the Crown Court to operate its own version of the slip rule?

Answer 1

Section 155(1) PCC(S)A
The judge can vary or rescind sentence or other order within 56 days of making it.

Question 2

What is the purpose of the slip rule?

Answer 2

To save time and money on appeals where there is a recognisable error.

Question 3

Who can order a correction under the slip rule?

Answer 3

Section 155(4) PCC(S)A
[Only the judge who made the mistake.]

Question 4

What procedural step makes it impossible to use the slip rule?

Answer 4

Section 155(2A) PCC(S)A
The power conferred by subsection (1) may not be exercised in relation to any sentence or order if an appeal, or an application for leave to appeal, against that sentence or order has been determined.

Question 5

By what routes can D appeal from the Crown Court to the Court of Appeal?

Answer 5

Criminal Appeal Act 1968
1.
Appeals against conviction on indictment (sections 1 and 2);
2.
Appeals against sentence following conviction on indictment (sections 9 and 11);
3.
Appeals against sentence passed on committal for sentence (sections 10 and 11).

Question 6

What is the threshold test to get leave to appeal?

Answer 6

[??]

The appeal must be “arguable on the merits”.

Question 7

When must an application to appeal to the Court of Appeal against a sentence or conviction be filed?

Answer 7

CrimPR 39.2(1) [also section 18 Criminal Appeal Act 1968]
The appellant must serve an appeal notice on the Registrar -
(a)
not more than 28 days after -
(i)
the conviction, verdict or finding,
(ii)
the sentence
[etc]

Question 8

What is the basic ground for an appeal against conviction?

Answer 8

Section 2 Criminal Appeal Act 1968
(1)
... the Court of Appeal-
(a)
shall allow an appeal against conviction if they think that the conviction is unsafe

Question 9

What happens when an appeal against a conviction succeeds?

Answer 9

The Court of Appeal may …

Section 2 Criminal Appeal Act 1968
(2)
... quash the conviction 
(3)
... [make] a direction to the court of trial to enter ... a judgment and verdict of acquittal.

Section 3(1)
[Substitute a verdict of guilty of an alternate offence if that would have been available to the jury.]

Section 7
(1)
Where … It appears to the Court that the interests of justice so require, they may order the appellant to be retried.

Question 10

What are counsel’s duties in relation to advising on appeal?

Answer 10

Advise promptly.

Give immediate oral advice to the client.

Send written advice on merits and grounds to D’s solicitors.

Question 11

What should the advice on appeal contain?

Answer 11

1.
Dates and times
2.
Reasonable grounds of appeal 
3.
Advice on merits

Question 12

How good must grounds of appeal in the Advice be?

Answer 12

1.
Reasonable
2.
Some real prospect of success
3.
You are prepared to argue them in court

Question 13

When can you get an appeal to the CA without needing leave of the CA?

Answer 13

Exceptionally, where the trial judge certifies that your case is “fit for appeal”.

Section 11(1A) Criminal Appeal Act 1968
If, within 28 days from the date on which the sentence was passed, the judge who passed it grants a certificate that the case is fit for appeal under Section 9 or 10 of this Act, an appeal lies under this section without the leave of the Court of Appeal.

[Counsel must still apply to appeal in the normal way but the leave to appeal stage is skipped.]

Question 14

What are the seven steps in an appeal to the Court of Appeal?

Answer 14

1.
Advice
2.
Service of Crown Court transcripts
3.
Perfected grounds
4.
Respondent's notice
5.
Single judge considers on the papers - may grant leave
6.
Renew grounds of appeal - hearing
7.
Appeal hearing in full court

Question 15

What options are available to the single judge considering an application for leave to appeal on the papers?

Answer 15

1.
Grant the application wholly or in part;
2.
Refuse the application;
3.
Refer the application to the CA without granting leave.

Question 16

How can you get funding for representation in an application for leave to appeal?

Answer 16

There is no representation order available. It is pro bono or privately funded.

Question 17

What can the single judge do if it finds an application to be totally without merit?

Answer 17

Make a loss of time order.

A loss of time order means that time spent in prison during the appeal does not count towards D’s sentence.

Question 18

When is the single judge likely to refer a case to the full court without granting leave?

Answer 18

1.
Where an unlawful sentence must be amended
2.
Where there is a novel point of law
3.
Where the matter requires expedition e.g. due to age or illness of the appellant.

Question 19

How many Court of Appeal judges will sit on an appeal?

Answer 19

For sentence appeals: two.

For conviction appeals: three.

Question 20

When the appeal is first considered on the papers, is it always by a single judge?

Answer 20

No the Registrar can refer directly to the full CA

Question 21

When is the deadline to renew grounds of appeal?

Answer 21

14 days from the decision on the papers.

Question 22

When is the deadline to serve perfected grounds of appeal?

Answer 22

14 days after transcripts are served.

Question 23

What is the most common ground for appealing a conviction to the Court of Appeal following a guilty plea?

Answer 23

A legal ruling by the trial judge which left no option but to plead guilty.

Question 24

Is legal aid available for the actual appeal?

Answer 24

Once leave is granted a representation order will usually be made.

Question 25

When must skeleton arguments be served?

Answer 25

Appellant: 21 days before hearing.
Respondent: 14 days before hearing.

Question 26

Is the appellant entitled to attend the appeal hearing?

Answer 26

Generally yes but there are exceptions- s. 22 Criminal Appeal Act 1968.

Question 27

When may an appeal on sentence be granted?

Answer 27

Section 11(3) Criminal Appeal Act 1968
Where the court thinks that D "should have been sentenced differently".

Question 28

What happens when an appeal against sentence succeeds?

Answer 28

Section 11 CAA 1968

Quash the sentence or order

Pass sentence or make such order as the CA sees fit

Ensure that overall the appellant is not dealt with more severely than in the court below.

Question 29

What is the test to allow the Court of Appeal to hear new evidence that was not considered at trial?

Answer 29

Section 23 Criminal Appeal Act 1968

Hearing new evidence must be “necessary or expedient in the interests of justice”.

Question 30

What will the CA have regard to in considering whether it is necessary or expedient in the interests of justice to hear fresh evidence?

Answer 30

Section 32(2) Criminal Appeal Act 1968
(a)
whether the evidence appears to the Court to be capable of belief;
(b)
whether it appears to the Court 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 the appeal; and
(d)
whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.