Appeals Procedure Flashcards
(24 cards)
Who can appeal from the MC to the CC?
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
On what basis can D appeal against conviction from the MC to CC?
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
On what basis can D appeal against sentence from the MC to CC?
D can appeal on the basis that the MC imposed an excessive sentence
- Full rehearing, rather than a review of the sentence passed
What is the procedure for appealing against conviction and/or sentence from the MC to the CC?
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
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
What powers do the CC have in relation to the appeal by D from MC?
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
Who can appeal to the High Court by way of case stated? On what basis can they do so?
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
What is the procedure for a party to appeal to the HC by way of case stated?
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
How is the High Court appeal hearing by way of case stated conducted? What powers do the HC have?
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
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?
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
Who can apply for judicial review of a MC decision?
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
On what basis can D appeal a decision from the Crown Court to the Court of Appeal?
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
Looking first at appeals against conviction from CC to COA, when will such an appeal be allowed?
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
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?
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
What is the 2nd stage in the procedure for requesting permission to appeal against conviction from CC to COA?
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
Time spent in custody prior to conviction will still count towards the sentence
Once permission to appeal against conviction from CC to COA has been obtained, how is the hearing conducted? Will the COA consider fresh evidence?
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
What powers do the COA have when making a decision about an appeal against conviction from the CC?
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
Now looking at appeals against sentence from the CC to COA, what is the procedure for such an appeal?
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
When will an appeal against sentence from CC to COA be successful?
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)
What powers do the COA have when making a decision about an appeal against sentence from the CC?
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
What are termination and evidential rulings and when are they relevant?
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
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
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, which the CC could have imposed
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?
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
What is the evidential test when the CPS is seeking a retrial?
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
What is the interests of justice test when the CPS is seeking a retrial?
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
