Appeals Procedure

Question 1

Who can appeal from the MC to the CC?

Answer 1

From MC and youth court, D can appeal to CC:

• If pleading guilty – against sentence
• If pleading not guilty – against conviction and/or sentence

P cannot appeal from the MC to CC against acquittal of D or their sentence

• They can appeal to the HC by way of case stated, as can D

Question 2

On what basis can D appeal against conviction from the MC to CC?

Answer 2

D can appeal on the basis that the MC made errors of fact and/or law

• Full rehearing of the case and both P + D can call new witnesses and rely on new points of law
• Heard by a Crown Court Judge sitting with lay magistrates
• The appeal hearing will take place before a Circuit Judge, Recorder, or, very occasionally, a High Court Judge and two magistrates who were not involved in the original hearing. Exceptionally, there may be only one magistrate to avoid unreasonable delay.

Question 3

On what basis can D appeal against sentence from the MC to CC?

Answer 3

D can appeal on the basis that the MC imposed an excessive sentence

• Full rehearing, rather than a review of the sentence passed

Question 4

What is the procedure for appealing against conviction and/or sentence from the MC to the CC?

Answer 4

D must file a notice of appeal with both the MC and CPS not more than 15 business days from the MC passing sentence

• CC can extend the time limit at their discretion
• Can appeal immediately and don’t have to wait for sentence if passed later

Clerk of MC sends this to CC, who arrange a hearing date for appeal

If D’s MC case was funded by representation order

• Original order covers advice and assistance in preparing notice of appeal
• Separate order needed for hearing of appeal by CC

No presumption for bail pending appeal – if MC don’t grant bail, D can apply to CC for bail

• Court can make a bail decision only once an appeal is lodged, but they are reluctant to release someone on bail, only to return them to prison if an appeal is unsuccessful, so will be rarely granted - They are more likely to expedite the appeal instead

Question 5

What powers do the CC have in relation to the appeal by D from MC?

Answer 5

CC can confirm, reverse or vary the decision

• They can increase sentence to the maximum that the MC could have imposed

Following CC appeal, CPS and D could appeal to HC by way of case stated

• Appeal must be based either on a point of law, or that CC exceeded jurisdiction

Question 6

What else might be relevant to tell a D who wishes to appeal?

Answer 6

The fact that the complainant suffered injuries might create a basis for a compensation order

Client could be ordered to pay costs if his appeal is unsuccessful

Question 7

Where D has unsuccessfully appealed a summary offence from the MC to the CC, what are their next options?

Answer 7

They cannot appeal further to the COA

They might be appeal to the High Court by way of case stated or try for judicial review, if the relevant circumstances exist

Question 8

Who can appeal to the High Court by way of case stated? On what basis can they do so?

Answer 8

CPS or D may appeal a decision of the MC to the KBD of HC if:

• MC decision is wrong in law; or
• MC acted outside their jurisdiction

Common arguments are that:

• MC misread, misunderstood or misapplied the law
• MC heard a case they had no jurisdiction to hear
• MC made errors in deciding admissibility of evidence
• MC erred in their decision following a submission of no case to answer

Question 9

What is the procedure for a party to appeal to the HC by way of case stated?

Answer 9

Party must apply to MC within 21 days of relevant MC decision

Application must identify the question of law they want the HC’s view on

The MC must prepare a draft ‘statement of case’ for the HC that:

1) Specifies the decision in issue

2) Specifies the questions of law or jurisdiction that the HC need to consider

3) Includes a summary of:

• (i) The nature and history of proceedings
• (ii) Court’s relevant findings of fact
• (iii) Relevant contentions of parties

4) If a question is whether there was sufficient evidence on which the court reasonably could reach a finding of fact:

• (i) specify that finding; and
• (ii) include a summary of the evidence on which the court reached that finding

This is sent to CPS and D to ask for amendments and the final version is lodged with HC by party making the appeal – must give notice to other side to say this happened

Question 10

How is the High Court appeal hearing by way of case stated conducted? What powers do the HC have?

Answer 10

No witness evidence + hearing confined to legal argument based on the agreed facts set out in the statement of case

Divisional Court of KBD can reverse, vary or affirm the MC’s decision or, remit back to same MC to acquit or to a new bench of magistrates if case needs to be reheard

CPS and D can appeal to SC on a point of law of general public importance

• HC or SC must grant leave to appeal

Question 11

If a client is considering an appeal from the MC to the Crown Court or to the High Court, what would a solicitor ordinarily advise?

Answer 11

Only appeal option for CPS from MC is by way of case stated

Better for D to appeal to CC, as it is much quicker and more efficient, since a successful HC appeal might end up with the case back before the MC for a retrial anyway

Question 12

Who can apply for judicial review of a MC decision?

Answer 12

Can be made by CPS or D if:

• MC has made an order that they had no power to make (acted ultra vires)
• MC has breached rules of natural justice

Applicant will seek an order from the Divisional Court, either quashing the decision or compelling MC to act in a certain way

Not a usual route to take

Question 13

On what basis can D appeal a decision from the Crown Court to the Court of Appeal?

Answer 13

D can appeal from CC to Criminal Division of Court of Appeal against:

• Conviction - if COA grant leave to appeal or trial judge grants a certificate that the case is fit for appeal
• Sentence – if COA grant leave to appeal or judge passing sentence grants a certificate that the case is fit for appeal

Question 14

Looking first at appeals against conviction from CC to COA, when will such an appeal be allowed?

Answer 14

1) If the COA considers the conviction unsafe, it must allow the appeal

1a) In all other cases, it must dismiss the appeal

• Therefore, even if mistakes made, if there is other compelling evidence, the appeal may be dismissed

2) Commonly argued examples to show convictions are unsafe:

• Trial judge fails to direct jury correctly
• Trial judge wrongfully admits or excludes evidence
• Trial judge failed to administer correct warnings (Turnbull warnings, directions re adverse inferences etc)
• Inappropriate interventions by trial judge
• Failure to properly sum up the case to the jury
• If fresh evidence was placed before the jury, the verdict might have been different

Question 15

In order for D to make an appeal against conviction from a CC decision to the COA, they need permission

The usual method is for D to seek permission to appeal from COA direct.

What is the 1st stage in the procedure for requesting permission to appeal?

Answer 15

Within 28 days of conviction (not sentence), D must serve appeal notice and draft grounds of appeal on the Registrar of Criminal Appeals at the COA

Question 16

What is the 2nd stage in the procedure for requesting permission to appeal against conviction from CC to COA?

Answer 16

Single judge will review the grounds of appeal, transcript of trial evidence and judge’s summing up to jury and decide whether to give permission to appeal

• If permission granted, they will also grant D public funding for the hearing of the appeal
• For appeals completely without merit, the single judge may, when dismissing the appeal, a direction as to loss of time can be made, meaning the time D was awaiting outcome of the appeal will not count towards their sentence
• D can push for an appeal, even if the single judge denies permission, but a failed appeal after this will invariably result in a loss of time order

Time spent in custody prior to conviction will still count towards the sentence

Question 17

Once permission to appeal against conviction from CC to COA has been obtained, how is the hearing conducted? Will the COA consider fresh evidence?

Answer 17

Hearing of the appeal takes place before full COA. They hear arguments from both sides and fresh evidence potentially if:

• It appears to be credible
• Would have been admissible at D’s trial; and
• There is a reasonable explanation for the failure to adduce evidence at D’s trial

Question 18

What powers do the COA have when making a decision about an appeal against conviction from the CC?

Answer 18

1) Quash the conviction and acquit D

2) Quash the conviction and order a retrial

• They can order a retrial where ‘the interests of justice so require’

3) Allow part of the appeal and dismiss other parts (if D appealing against conviction for more than one offence)

• They will probably re-sentence D for upheld convictions

4) Find D guilty of alternative offence

• Will probably re-sentence D

5) Dismiss the appeal

• Must be dismissed unless the conviction is unsafe

Question 19

Now looking at appeals against sentence from the CC to COA, what is the procedure for such an appeal?

Answer 19

Same procedure as for an appeal against conviction, except D must send a notice of application for permission to appeal with draft grounds of appeal within 28 days of sentence (not conviction)

• Grounds of appeal will state why the sentence is wrong or excessive

The appeal hearing is usually confined to legal submissions on what the appropriate sentence should be

Question 20

When will an appeal against sentence from CC to COA be successful?

Answer 20

Appeal against sentence will be successful only if:

• Sentence passed was wrong in law
• Sentence passed was wrong in principle (custody threshold not met etc)
• Wrong approach adopted when sentencing (failure to give guilty plea discount, failure to hold Newton hearing or to consider relevant mitigation)
• Unjustified disparity between co-defendants’ sentences
• Sentence is manifestly excessive - Only relevant if the sentencing judge has gone beyond the upper limit of the range which would have been appropriate for the offence (most claimed)

Question 21

What powers do the COA have when making a decision about an appeal against sentence from the CC?

Answer 21

COA can confirm CC’s sentence or quash the sentence and replace it with an alternative sentence

• They cannot increase CC’s sentence

Loss of time direction can be made if D’s appeal is without merit

Question 22

What are termination and evidential rulings and when are they relevant?

Answer 22

CPS has no right to appeal for a defendant acquitted by jury in CC

CPS has a right to appeal to COA in respect to rulings made by a trial judge either before or during the trial which:

• (a) either effectively terminate the trial (termination rulings); or
• (b) significantly weaken the prosecution case (evidential rulings)

Not important to an NQ

Question 23

The prosecution may be able to appeal a case with the help of the Attorney General. Explain how this is done and when it is relevant

Answer 23

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

• AG can only refer case to COA where it is an offence triable only on indictment or a specified either-way offence + COA has given permission
• If the referral is successful, the COA will quash the sentence passed in the CC and pass a sentence they consider appropriate, up to the max which the CC could have imposed

Question 24

For what offences might the CPS be able to seek a retrial and, in brief, what are the two tests for this to be possible?

Answer 24

A retrial is possible following D’s acquittal for certain offences:

• Murder and attempted murder
• Manslaughter
• Kidnapping
• Certain sexual offences
• Various Class A drug offences
• Arson endangering life or property

COA will only quash an earlier conviction and order a retrial where CPS satisfies a 2-part test

1) The evidential test
2) The interests of justice test

Question 25

What is the evidential test when the CPS is seeking a retrial?

Answer 25

Must be **new and compelling evidence of D’s guilt** * New = not adduced when D was acquitted * Compelling = evidence must be reliable, substantial and highly probative

Question 26

What is the interests of justice test when the CPS is seeking a retrial?

Answer 26

COA should have particular regard to the following factors: * Whether existing circumstances make a fair trial unlikely * The length of time since the offence was allegedly committed * Likelihood of new evidence being adduced in earlier proceedings, but for failure to police or CPS to act with due diligence and expedition; and * Whether, since the earlier proceedings, the police or prosecutor have failed to act with due diligence or expedition