Appeals Procedure

Question 1

When may a defendant convicted in the magistrates’ court appeal to the crown Court?

Answer 1

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

2) if they pleaded not guilty, they may appeal against the conviction and/or the sentence they received.

Question 2

who hears the appeal in the Cornw Court>?

Answer 2

The appeal will be heard by a recorder or a circuit judge, who will sit with an even number of magistrates.

This will usually be 2 magistrates, but up to four can sit on an appeal.

Question 3

Do the prosecution have any appeal against acquittal to the Crown Court?

Answer 3

No. Proseuction haven appeal against the sentence or the acquittal.

They can however appeal to the high court on a point of law by way of case stated.

Question 4

Can the defence appeal to the high court on a point of law by way of case stated?

Answer 4

Yes.

The prosecution can also do this.

Question 5

What are the grounds under which the defence can appeal a conviction from the Magistrates at the Cornwall Court?

Answer 5

D may appeal to CC against conviction on the basis the magistrates’ made errors of fact and/or law.

An appeal against conviction is a full rehearing in the CC (ie another trial). CPS and defence will therefore need to call all witnesses whose evidence they wish to rely on.

Question 6

Can new points of law and new witnesses be relied on in the appeal hearing at the CC?

Answer 6

Yes, if there is an appeal on conviction to the CC, new witnesses may be called and new points of law may be raised.

Question 7

Explain the grounds for appealing a sentence imposed by the Magistrates’.

Answer 7

D may appeal sentence imposed by Magistrates’ to the CC.

CC just conduct full rearing of the issues and tasks an independent view of what the correct sentence should be.

Question 8

Explain the procedure for an appeal from th Maigtsrsates’ to the CC.

Answer 8

D must file a notice of appeal with both the magistrates’ court and the CPS within 15 business days from the Magistrates’ passing sentence (or the date the sentence was referred to).

Clerk at magistrates’ court will send notice of appeal to the relevant CC.

CC will then arrange date for the hearing to take place.

Question 9

What happens if D files their notice to appeal later than 15 business days from the date of their sentence?

Answer 9

The CC judge has the power to extend this limit but this is entirely discretionary.

Question 10

What is the position with bail where the Magistrates’ have imposed a custodial sentence and D subsequently appeals?

Answer 10

They may grab bail pending the appeal to the CC.

However, there is no presumption of bail in these circumstances.

If the Magistrates’ do not grant bail pending application of appeal, D can also apply for a bail hearing at the CC pending the hearing of the appeal.

Question 11

Does the representation order for publicly funded case in the Magistrates’ extend to cover the appeal in the CC?

Answer 11

No. A separate representation order will be required to cover the hearing of the appeal by the CC.

However, advice and representation given to D in preparing the notice of appeal will be covered by the original representation order.

Question 12

Explain the powers of the CC when dealing with an appeal by D from the Magistrates’.

Answer 12

CC may confirm, reverse or vary the decision.

CC has the power to impose on D any sentence, as long as it is a sentence the Magistrates’ had the power to impose themselves (ie it cannot exceed the sentencing powers of the Magistrates’).

it is therefore possible D receives an increased sentence if CC takes a more serious view of the case.

Both CPS and D have the right to appeal to the high court against any decision taken by the CC following appeal from the Magistrates’. However this appeal must either be based on a point of law, or on an argument that the CC has exceeded its jurisdiction.

Question 13

Can the decision taken by the CC on appeal form the Magistrates’ be appealed to the High Court and if so who can make this appeal?

Answer 13

Both CPS and D have the right to appeal to the high court against any decision taken by the CC following appeal from the Magistrates’. However this appeal must either be based on a point of law, or on an argument that the CC has exceeded its jurisdiction.

Question 14

Summarise the appeal to the high Court by way of case stated.

Answer 14

CPS or D may appeal decision from Magistrates’ court to the QBD of the high court if:

1) Decision was wrong in law; or
2) Magistrates’ have acted outside their jurisdiction.

Question 15

List some typical arguments often raised in an appeal by way of case stated to the High Court.

Answer 15

• Magistrates’ misread, misunderstood or misapplied the law;
• Magistrates’ decided to hear case when they did not have jurisdiction to do so;
• Magistrates’ made errors in deciding the admissibility of evidence;
• Magistrates’ made error in their decision following a submission of no case to answer.

Question 16

Explain the procedure for making an appeal by way of case stated.

Answer 16

Application to appeal must be lodged with the Magistrates’ court within 21 days of the initial decision (ie the conviction or sentence).

The application must identify the question of law on which aggrieved party seeks redress by the HC.

Magistrates’ must state a case for the opinion of the HC once they have received this notice from the defence.

Question 17

What will the draft statement of case from the Magistrates’ include?

Answer 17

1) It will:

• specify the decision;
• specify the questions of law/ jurisdiction on which the opinion of the HC will be asked;
• include a summary of the nature and history of the proceedings;
• include a summary of the court’s relevant findings of fact and the relevant contentions of the parties.

2) Furthermore, if the question is whether there was sufficient evidence on which the court reasonably could reach a finding of fact, the statement of case will:

• specify that finding; and
• include a summary of the evidence on which the court related on to reach that decision.

Question 18

What happens once the Magistrates’ clerk has prepared the statement of case (when appealing?

Answer 18

It is sent to the CPS and defence for ay suggested amendments. Once finalised, it is sent to the party making the appeal, and that party will lodge the statement with the high court and give notice to the others that this has been done.

Question 19

Explain the procedure of the hearing of the appeal in the High Court.

Answer 19

Appeal is heard by the QBD in the high court by three judges.

No evidence is permitted to be given by witnesses - the hearing is limited to the arguments set out in the statement of case.

The QBD have the power to reverse, arrive or vary the initial decision. They can also remit the case back to the magistrates’ court with a direction to acquit or convict the defendant.

They may also order the case to be reheard in the magistrates’ by a different panel.

Question 20

In what circumstances can the decision the the High Court (on appeal from the Magistrates’) be further appealed to the Supreme Court?

Answer 20

This has to be done by way of case stated and must be on a point of law.

The High Court must also confirm that the point of law is of sufficient general public importance.

The High Court or the Supreme Court must also grant leave to appeal.

Question 21

Why might the defendant choose to appeal sentence or conviction to the Crown Court as opposed to making an application for appeal by way of case stated to the High Court?

Answer 21

Crown Court would hear the case quicker.

It would also avoid the case being sent back to the Magistrates’ by the Crown Court.

Question 22

When might the CPS or the defence make an application for judicial review?

Answer 22

They may do so if:

1) The magistrates’ court has made an order that they had no power to make (ie acted ultra vires); and

2) The magistrates’ court has breached there rules of natural justice (either by contravening a party’s right to a fair hearing, or appearing to be biased).

Question 23

What must the applicant for judicial review do to initiate the application?

Answer 23

Seek an order from the Divisional Court either quashing the decision made in the Magistrates’ court or compelling the Magistrates’ court to act (or not to act) in a certain way).

This is not the usual route for the CPS or the defence to make.

Question 24

Explain D’s rights of appeal to the Court Of Appeal when they have been convicted in the Crown Court.

Answer 24

D who is convicted in the CC has the following rights of appeal to the COA:

1) Appeal against conviction - this can be done if either the COA grants leave for 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 either if COA grants leave for appeal or the trial judge who passed the sentence has granted a certificate that the case is fit for appeal against sentence.

Question 25

When will the COA grant leave for an appeal by D against conviction from the CC?

Answer 25

If the COA deems the conviction by the CC to be unsafe they will grab the appeal. In all other cases they must dismiss the appeal.

This means the conviction may be upheld even if there was error or mistake at D’s trial in the CC, but only if the COA feels that even if the mistake has not been made, the correct, reasonable and likely verdict would have been a guilty one.

Question 26

Explain what points the defence may raise in their appeal to argue the conviction is unsafe, in relation to the judge’s direction of the jury at trial.

Answer 26

The defence may argue the trial judge to direct the jury correctly as to:

a) burden and standard of proof;

b) substantive law concerning the offences;

c) that it is for the jury to decide what the facts of the case are, and to judge the evidence.

d) that the jury must return a unanimous verdict (and that the judge would notify them when time has elapsed and a majority verdict would be acceptable); and

e) the jury’s power to convict D for any lesser offence which there was evidence to support.

Question 27

Give an example of a situation where the COA would grant the appeal against conviction and quash the conviction, despite believing that D is guilty.

Answer 27

They may do this if they believe there was an abuse of process (eg by the police or by the proseuction, such as bugging a privileged conversation between D and his solicitor).

Question 28

Explain the argument the defence might make in the appeal to the COA regarding the judge’s errors in admitting/ excluding evidence.

Answer 28

The defence may argue the train judge wrongfully admitted or excluded evidence, such as:

1) judge wrongfully allowing the admission of a disputed confession or D’s previous convictions;

2) judge wrongfully excluded hearsay evidence which would have assisted D’s case.

Question 28

Explain the argument the defence might make in the appeal to the COA regarding the judge failing to administer the correct warnings to the jury.

Answer 28

They may argue the trial judge failed to administer correct warnings to the jury such as:

1) failure to give Turnbull warning in a case of disputes identification, or a corroboration warning where D alleges the witness had a purpose of their own when giving evidence against D.

2) failure to give proper direction to the jury as to the drawing of adverse inferences; and

3) failure to give proper direction to the jury as to the relevance of any previous convictions which were brought up in evidence.

Question 28

Explain the argument for appeal to the COA that the judge may have made inappropriate interventions during the trial.

Answer 28

The defence may argue on appeal that the judge made inappropriate interventions - for example constantly interrupting defence counsel during the cross examination of a prosecution witness.

Question 29

Explain the argument which may be made by the defence in their appeal to the COA: failure by the trial judge to properly summarise the case summing up the case to the jury.

Answer 29

They may argue the judge failed, when summing up to the jury, to:

1) deal with essential points of the defence case;
2) identify inconsistencies in the prosecution case;
3) summarise evidence on which the jury may properly rely in order to convict D;
4) tell the jury when special measures have been used to enable a prosecution witness to give evidence, that this should not be used to prejudice D, nor assume the special measures means D has behaved improperly.

Question 30

Explain how fresh evidence might be used as an argument on appeal against conviction to the COA.

Answer 30

Defence may, on appeal, argue the conviction is unsafe due to fresh evidence coming to light which casts doubt of D’s guilt (eg new witnesses coming forward to substantiate an alibi, or expert evidence relied on by the CPS which is shown to be inaccurate).

The fresh evidence itself does not have to make the conviction unsafe, but the COA need to be satisfied the verdict may have been different had it been placed before a jury.

Question 31

Explain the procedure for making an appeal to the COA against conviction.

Answer 31

Usual method is to seek permission for appeal from the COA directly. Procedure is as follows:

1) Within 28 days of the conviction, D must serve appeal notice with draft grounds for appeal to the COA. Grounds are a document prepared by the defence counsel setting out the detailed arguments as to why conviction is unsafe.

2) On receipt of the appeal docs, COA obtain transcript of evidence that was given at CC trial and of the judges summing up to the jury. a single judge then reviews the papers to determine whether permission ought to be granted. If permission is granted, COA will grant D public funding for the hearing of the appeal.

3) Hearing then takes place in front of the COA, comprised of 3 judges. COA hear oral arguments from the parties, and may hear fresh evidence under some circumstances.

Question 32

Under what circumstances will the COA allow fresh evidence to be presented at the appeal?

Answer 32

They will allow such evidence if:

1) it is credible;
2) it would have been admissible at the initial trial in the CC; and
3) there is reasonable explanation for failure to adduce the evidence at the time of the initial trial.

Question 33

What is a direction as to loss of time (under s29 CAA 1968)?

Answer 33

Direction of the COA judge when reviewing the appeal and it is found to have no merit.

They will effectively order that the time D spent in custody whilst waiting for the outcome of the appeal will not count towards the total time D must serve for their sentence.

Question 34

Explain the powers of the COA at an appeal against conviction.

Answer 34

The COA may do an of the following:

1) Quash the conviction and acquit D - this may be if new evidence has come to light which would likely have led to D being acquitted at trial;

2) Quash the conviction and order a re-trial - if conviction is deemed unsafe due to misdirection by the trial judge (for example);

3) Allow part of the appeal and dismiss other parts of the appeal - applies where D was convicted of more than one offence. They will usually be re-sentenced for the offences which have had the conviction upheld.

4) Find D guilty of an alternative offence (in which case the court will likely re-sentence D).

5) Dismiss the appeal.

Question 35

Explain the procedure for an appeal to the COA by D against the sentence.

Answer 35

Similar to the procedure for appealing against conviction.

D will usually appeal to the COA, and must save a notice of apposition for permission to appeal, together with draft grounds of appeal, within 28 days of the sentence being passed.

Question 36

List some situations where an appeal against sentence to the COA may be successful.

Answer 36

1) Sentence passed by trial judge is wrong in law (eg judge acted ultra vires);

2) Sentence passed by trial judge is wrong in principle (eg custodial sentence when the offence wasn’t serious enough for it).

3) Judge adopted wrong approach when sentencing.

4) In the case of co-defenants, there is an unfair disparity between the sentences of the two co-defendants.

5) The sentence passed is manifestly excessive (ie they have gone beyond the upper limit of thence for that particular offence).

Question 36

For an appeal to the COA against sentence, what may the draft grounds contain?

Answer 36

The draft grounds will state why it is considered the sentence passed by the CC is either wrong or excessive.

Question 37

List the situations where it might be deemed the trial judge took the qworng approach when sentencing D.

Answer 37

1) judge increased sentence because D had pleaded not guilty.

2) judge failed to I’ve D appropriate discount for entering a guilty plea;

3) Judge should have conducted a Newton hearing before determining the facts, but failed to do so.

4) Judge failed to take into account any relevant mitigation put forward by the defence.

Question 38

Explain the power of the COA when hearing an appeal on sentence from the CC.

Answer 38

COA may either confirm a sentence passed by the CC or quash the sentence and replace it with an alternative sentence.

COA DOES NOT have the power to increase the sentence imposed by the judge in the CC (where the appeal is made by the defence).

A loss of time direct may also be made.

Question 39

Explain the powers of the AG (where the CPS appeals to the COA).

Answer 39

CPS has right to appeal to COA if the AG considers that the CC has passed a sentence which is ‘unduly lenient’.

The sentence can be appealed to the COA by the AG if unduly lenient and the COA then has the power to increase the sentence as appropriate. However, the setnece imposed by the COA must be within the sentencing powers of the CC (ie a sentence which could have been passed by the CC).

Question 40

Which offences are able to be subject to a re-trial where D has been acquitted?

Answer 40

1) Murder and attempted murder;
2) Manslaughter;
3) A number of sexual offences, including rape and attempted rape;
4) Kidnapping;
5) Various offences relating to class A drugs (eg unlawful importation and production).
6) Arson endangering life or property.

Question 41

Explain the two steps which are required to be satisfied in order for the COA to quash an earlier conviction and order a re-trail.

Answer 41

1) The Evidential test.

2) The interests of justice test.

Question 42

Explain the evidential test the CPS must satisfy in order for the COA to quash an earlier decision and order a re-trial.

Answer 42

Requires there to be new and compelling evidence of D’s guilt.

New Evidence means evidence not adduced when D was acquitted.

To be compelling, the evidence must be reliable, substantial and highly probative to the case against D.

Question 43

Explain the interests of justice test the CPS must satisfy in order for the COA to quash an earlier decision and order a re-trial.

Answer 43

COA should have particular regard to the following factors:

1) whether existing circumstances make a fair trial unlikely;
2) the eight of tie since the offence was allegedly committed;
3) whether it is likely the new evidence would have been adduced in the earlier proceedings, but for the failure of the police or prosecution to act with due diligence and expedition; and
4) whether, since the earlier proceedings, police or prosecution have failed to act with due diligence or expedition.