Criminal 6 - Practice - Sentencing Flashcards

Question

Appeal against conviction

Answer 1

- Magistrates Court may appeal on basis Mags made error on facts and or law. Appeal in crown full re-hearing

Answer 2

Magistrates to Crown if sentence too excessive. Crown full re-hearing

Answer 3

Mag to Crown - File notice of appeal with Mag court and CPS not more than 15 business days from Mags passing sentence (or date sentence deferred to). Crown has discretion to extend limit. Clerk will send notice f appeal to Crown and Crown will arrange a date for hearing of appeal. If funded by representation order separate one needed. One not needed for help filling out appeal. Mags may grant bail. No presumption of bail. If Mags dont can appeal to Crown for bail pending hearing of appeal.

Answer 4

May confirm, reverse or vary. Sentence as long as Mags had the power to sentence that long. Then by way of case stated to High on point of law or argument Crown exceeded jurisdiction.

Answer 5

CPS or D may appeal from decision of magistrates to Queens Bench High Division; (a) the decision which has been made by the magistrates is wrong in law; or (b) the magistrates have acted outside their jurisdiction (Magistrates’ Courts Act 1980, s 111). Arguments often raised in an appeal by way of case stated are that: (a) the magistrates misread, misunderstood or misapplied the law; (b) the magistrates decided to hear a case when they did not have the jurisdiction to hear it; (c) the magistrates made errors in deciding the admissibility or otherwise of evidence; (d) the magistrates erred in their decision following a submission of no case to answer. Must apply to Mags within 21 days of decision being made. Writing to clerk of Mags. Must identify question of law. Mags must then state a case to high court Will prepare draft statement of case that; -specifies decision in issue -specify question of law or jurisdiction on which opinion asked. -include succinct summary of (nature and history, relevant findings of fact, relevant contentions of parties) -if questions whether sufficient evidence on which court reasonably could reach finding of fact; -specify that finding -include summary of evidence on which court reached finding. Clerk will then send draft to CPS and D solicitor to suggest amendments. Once final version send to party making appeal. Party must lodge this with High Court and give notice to other party it has been done.

Answer 6

Heard by Divisional Court of Queen's Bench Division - usually by three judges. Confined to legal argument. Power to reverse, vary or affirm decision. Might remit case back to acquit or convict, or remit to diff bench of Mags for re-trial. CPS and D can appeal to Supreme Court following decision. Must be point of law of general public importance. High or Supreme must grant leave. Quicker and easier to apply to Crown.

Answer 7

Made by CPS or D if -made an order they had no power to make (ultra vires). -breached rules of natural justice (by contravening a partys right to a fair hearing, or by appearing to be biased). Seek order from Divisional Court quashing decision or compelling Mags to act in certain way.

Answer 8

Rights of appeal to Criminal Division of Court of Appeal; -Appeal against conviction. (Court of Appeal Grants Leave or trial judge grants a certificate that case fit for appeal) -Appeal against sentence (Court of Appeal grants leave or judge who passed sentence grants certificat).

Answer 9

When must be allowed? -'Unsafe' Even if error of mistake if still would have been guilty must dismiss. UNLESS if abuse of power by police or prosecuting authorities Any failings by judge may amount to appeal. To seek permission from court of appeal; -Within 28 days of conviction must serve appeal notice on Registrar of Criminal Appeals at Court of Appeal. -On receipt registrar will put case papers before single judge, will determine whether permission to appeal ought to be granted. Will also grant public funding if approved. -If no merit order of loss of time (time in custody awaiting outcome not counted towards sentence). D has choice to accept views of judge. Then before three judges in Court of Appeal; Hear oral arguments from parties and hear fresh evidence if it; appears to be credible would have been admissable at trial reasonable explanation for failure to adduce evidence at D trial.

Answer 10

quash conviction and acquit (if new evidence would have been acquitted at trial) quash conviction and order re-trial (if unsafe e.g. judge error) Find guilty of alternate offence Dismiss appeal Requires - unsafe and interests of justice

Answer 11

Either certificate or case is fit from CA. If to CA - Notice and draft grounds of appeal sent to Registrar within 28 days of sentence being passed. State why considered excessive. If leave granted two or three judge panel. Will be wrong if; sentence wrong in law (did not have power) wrong in principle (excessive) increasing sentence for not guilty. No discount for guilty, should have had Newton, failed to take into account relevant offence or offender mitigation. Co-defendant disparity Manifestly excessive (only if beyond upper-limit) After D sentenced, D counseil normally provide written advice on prospects of appeal in accordance with instruction in brief to counsel Powers of CA; confirm, or quash and re-sentence Loss of time direction applies (continuing without merit).

Answer 12

No right of appeal against acquitting at Crown. Can appeal rulings of trial judge before or during trail which; effectively terminate the trial (termination rulings) significantly weaken the prosecution case (evidential rulings) Powers of Attorney General; CPS has right of appeal to Court of Appeal if Attorney-General considers Crown sentence unduly lenient. Only triable on indictment or specified either-way Must be a sentence that could have been passed in Crown.

Answer 13

-Double-jeoprady (used to exist pre- CJA 2003, could not be tried twice). But can for (after acquital) Murder and Attempted Murder Manslaughter Kidnapping Sexual offences (rape, attempted rape and assault by penetration) Class A drugs such as unlawful importation and production Arson endangering life or property. CPS have to satisfy two-fold test for CA to quash and order new trial; Evidential - 'new and compelling' evidence - Must be new after trial and highly probative and substantial. Interests of justice -Existing circumstances make fair trial more likely -Length of time since offence allegedly committed -Likely new evidence would have been adduced in earlier proceedings but for failure of police or prosecution to act with due diligence and expedition -since earlier proceedings police or prosecutor failed to act with due diligence or expedition.

Criminal 6 - Practice - Sentencing Flashcards

(37 cards)