Flashcards in LG 10 Deck (29):
Challenging and appeals
Challenging decisions of magistrates’ courts:
Setting aside conviction/sentence under the MCA 1980, s 142.
Appeals from magistrates’ courts:
Appeal to the Crown Court (defendant only);
Appeal to the Divisional Court by way of case stated (defence or prosecution);
Judicial Review (defence or prosecution).
Appeal to the Court of Appeal (Criminal Division):
Appeals against conviction;
Appeals against sentence;
§27. Appeals from the magistrates’ courts and from the Crown Court in its appellate capacity
the power of the magistrates to rectify mistakes: D23.24 and D23.25
the general right of appeal from the magistrates’ court to the Crown Court: D29.1 and D29.3
the procedure in the Crown Court for dealing with the appeal: D29.6 and D29.7
the powers of the Crown Court on appeal, including the power to increase sentence: D29.10 and D29.13
appeal to the High Court by case stated and by judicial review: D29.18, D29.24, the first two sub-paragraphs of D29.25, D29.27, D29.42 and D29.44
appeals from the Crown Court: first sub-paragraph of D29.38 and D29.40
§28. Appeals from the Crown Court (1)
the power of the Crown Court to rectify mistakes as to sentence: D20.95 and D20.96
the right to appeal to the Court of Appeal and the requirement to obtain leave: D26.1, D26.3, D26.4, D26.7, D26.8 and D26.9
the more common grounds that can give rise to appeal against conviction and sentence: D26.20-26.22, D26.25-26.35 and D26.49-D26.57
the procedural requirements for applying for leave to appeal, including the practical steps that counsel should take when advising and preparing grounds of appeal: D27.1, D27.3, D27.5, D27.6, D27.7, D27.8, D27.10, D27.12, D27.13, D27.22 and D27.23
renewal of application before full court after a refusal by single judge: D27.11
the power of the Court to make a loss of time direction: D26.12
the rules concerning the Court of Appeal hearing fresh evidence during the appeal: D27.25
the principles the Court of Appeal will adopt when determining appeals against conviction and sentence: D26.14-D26.15
consequences of a conviction being quashed, including ordering re-trials: D26.36, D26.37 and D26.39
Attorney General’s references on points of law and references of unduly lenient sentences: D28.6 and D28.8
prosecution appeals against trial judge rulings: D16.74, the first sub-paragraph of D16.76, D16.77 and D16.78
the Criminal Cases Review Commission: D28.1
appeals to the Supreme Court: D30.1 and D30.3
Magistrates’ Courts: rectifying mistakes
Power to set aside conviction: MCA 1980, s 142(2) or sentence, s 142(1).
The application is made to the magistrates’ court (it does not have to be the original bench).
If a conviction is set aside, there will usually be a re-trial by a different bench.
An application to vary sentence can be made whether D pleaded guilty or was found guilty.
Limits on use of s 142: error of law or obvious mistake (R (Holme) v Liverpool Justices  EWHC 3131 (Admin); (2005) 169 JP 306.
No time limit, but delay is relevant in deciding whether to grant the application (R v Ealing Mags Ct ex p Sahota (1998) 162 JP 73).
Appeal to the Crown Court (MCA 1980, s 108)
Not guilty plea: D can appeal against conviction and/or sentence;
Guilty plea: D can appeal against sentence only.
Notice of appeal must be served on the magistrates’ court and the prosecution within 21 days of sentence, and must summarise the issues (i.e. state grounds of appeal).
In an appeal against conviction, D must:
identify the prosecution witnesses whom he will want to question if they are called to give oral evidence, and
say how long the trial lasted in the magistrates’ court and how long the appeal is likely to last in the Crown Court.
The notice must say whether D asked the magistrates’ court to reconsider the case (i.e. under MCA 1980, s 142)
Leave is not required.
The appeal can be abandoned without permission if notice is served before the hearing (otherwise permission is needed).
The hearing of the appeal
The appeal is heard by a Judge (Circuit Judge/Recorder) plus 2-4 lay justices.
The appeal takes the form of a re-hearing:
Appeal against conviction: full trial (the parties are not limited to the evidence called at the original trial);
Appeal against sentence: the prosecutor summarises the facts and the defence present a plea in mitigation.
Powers of the Crown Court (SCA 1981, s 48(2)):
Dismiss the appeal (i.e. uphold the conviction and/or sentence);
Quash the conviction;
Vary the sentence (Swindon Crown Ct ex p Murray (1998) 162 JP 36: the court should form an independent view as to the correct sentence);
The Crown Court can increase the sentence up to the maximum the magistrates’ court could have imposed, and can alter the sentence even if D appeals only against conviction.
Appeal by way of case stated (MCA 1980, s 111)
Available to the defence and the prosecution;
Must be based on an error of law or jurisdiction;
There must have been a ‘final determination’ (i.e. acquittal, or conviction and sentence);
The appellant asks the magistrates to state a case (specifying the proposed question(s) of law/jurisdiction);
The appeal must be started within 21 days of acquittal/ sentence (this time limit cannot be extended);
The appeal is heard by a ‘Divisional Court’ (two or more High Court judges);
The appeal takes the form of legal argument based on the stated case: no evidence is called.
Powers of the Divisional Court
Senior Courts Act 1981, s 28A(3)):
Reverse/affirm/vary the decision, or remit the case with its opinion, i.e.:
Quash the conviction or acquittal;
Remit the case to the magistrates’ court with a direction to:
re-try the case; or
convict and pass sentence;
Replace an acquittal with a conviction and proceed to sentence;
Quash the sentence and re-sentence, or remit to the magistrates’ court to re-sentence.
Based on error of law; excess of jurisdiction; breach of the rules of natural justice (i.e. the rule against bias; the rule that both sides must be heard).
Procedure is governed by Civil Procedure Rules, Part 54 & Practice Direction:
Claim form (including statement of grounds, plus any written evidence in support of claim), filed promptly and, in any event, not later than 3 months after the decision;
Permission to proceed is usually considered without a hearing;
If permission is granted, the defendant [i.e. the prosecution where D is seeking judicial review] has to serve detailed grounds for contesting the claim.
The application is heard by a Divisional Court (at least 2 High Court judges) and takes the form of legal argument based on the written evidence.
Remedies from JR
Senior Courts Act 1981, s 31:
Where a decision is quashed on the ground that there was an error of law and, without the error, there would have been only one decision which the court could have reached, the Divisional Court may substitute its own decision for the decision in question.
Case stated or JR
Appeal to the Crown Court is to be preferred: Brett v DPP  EWHC 440 (Admin).
Judicial review is regarded as remedy of last resort (B v Carlisle Crown Court  EWHC 3540 (Admin)).
Judicial review is particularly appropriate where a procedural error is alleged (e.g. unfairness in the way the justices conducted case).
Case stated is more appropriate where it is alleged the justices have misdirected themselves in law.
See R(P) v Liverpool City Magistrates  EWHC 887; R (Kracher) v Leicester Magistrates' Court  EWHC 4627 (Admin).
Appeal from the Crown Court acting in its appellate capacity:
Appeal to the Divisional Court by way of case stated or application for judicial review (but only on points of law/jurisdiction).
Appeal from the Divisional Court in criminal cases lies direct to the Supreme Court.
Appeals to Court of Appeal (Criminal Division)
Appeal from the Crown Court:
Against conviction and/or sentence following trial on indictment;
Against sentence following sentence by the Crown Court where D was committed for sentence from a magistrates’ court.
See A Guide to Commencing Proceedings in the Court of Appeal (Criminal Division): http://www.justice.gov.uk/downloads/courts/court-of-appeal/criminal-division/proc_guide.pdf
Appeal against conviction
Criminal Appeal Act 1968, s 1: leave is required unless the trial judge certifies that the case is ‘fit for appeal’ (certificates are given only in exceptional cases: R v Harries  EWCA Crim 820).
Time limit for lodging appeal against conviction: 28 days from date of conviction (CAA 1968, s 18(2))
An application to extend time may be made if there is good reason.
Appeal against conviction where D pleaded guilty is possible only if he did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or upon the admitted facts he could not in law have been convicted of the offence charged (Forde  2 KB 400; Chalkley  QB 848).
Unsafe grounds of appeal
Single ground of appeal: the conviction is ‘unsafe’ (CAA 1968, s 2).
Defects in the indictment
Errors during the course of the trial (e.g.):
Wrongful admission/exclusion of evidence;
Wrongful rejection of submission of no case to answer;
The conduct of the trial judge;
Alleged jury irregularities.
Errors in the judge’s summing up to the jury (e.g.)
Misdirection on law;
Wrongful withdrawal of issues from the jury;
Misdirection on the facts;
Improper comments by the judge.
Fresh evidence (CAA 1968, s 23)
The Court of Appeal may hear fresh evidence if ‘necessary or expedient in the interest of justice’.
The Court must have regard to the following factors when deciding whether to receive fresh evidence:
Is it ‘capable of belief’ (credibility)?
Does it afford a ground of appeal (relevance)?
Would it have been admissible (admissibility)?
Is there a ‘reasonable explanation’ for the failure to adduce it at trial?
R v George  EWCA Crim 2507, Sir Brian Leveson P (at ): the essential question, where the Court of Appeal has to consider the impact of fresh evidence, is whether, in the light of that fresh evidence, the conviction is unsafe [whether that evidence might reasonably have led to an acquittal].
Drafting the grounds of appeal
The notice of appeal must identify each ground of appeal on which the appellant relies, concisely outlining each argument in support; summarise relevant facts; identify any relevant authorities.
Guide, A2-4: The grounds of appeal should set out the relevant facts concisely in one all encompassing document (the intended readership is the Court, not the appellant/solicitor; its purpose is to enable the single Judge to grasp quickly the facts and issues in the case).
Guide, A2-6: Counsel should not settle or sign grounds unless they are reasonable, have some real prospect of success and are such that s/he is prepared to argue them before the Court.
After submission of draft grounds
A transcript of the summing up (and any rulings) is obtained.
The grounds of appeal are then ‘perfected’ (Guide, A5-1: the purpose is to identify the relevant parts of the transcript and to give counsel an opportunity to reconsider the original grounds in light of the transcript).
Applications for leave are usually considered on the papers (i.e. without a hearing) by a single judge.
Refusal of leave to appeal can be challenged by renewing the application to the Court.
If leave is granted on some grounds but refused on others, the grounds upon which leave was refused can be argued only with the leave of the court.
The appeal may be abandoned without leave before any hearing takes place; thereafter, leave is required.
The hearing of the appeal
A skeleton argument must be served if the case involves a complex or novel point of law.
Citation of authorities: “When the advocate is considering what authority, if any, to cite for a proposition, only an authority which establishes the principle should be cited. Reference should not be made to authorities which do no more than either (a) illustrate the principle or (b) restate it” (R v Erskine  EWCA Crim 1425, per Lord Judge CJ, at ).
Appeals against conviction must be heard by at least 3 judges; appeals against sentence may be heard by two judges.
The appeal usually takes the form of legal argument based on the papers.
Fresh evidence is heard only if permitted by the Court.
Powers of the AC
Dismiss the appeal;
Quash the conviction;
Quash the conviction and order a re-trial (if it is in the interests of justice to do so: CAA 1968, s 7);
Substitute a conviction for an alternative offence (if the jury could – and would – have convicted of the alternative: CAA 1968, s 3).
Directions for loss of time (CAA 1968, s 29)
The court may direct that some or all of the time spent in custody as an appellant shall not count as part of the term of any sentence to which the appellant is subject.
Mainly relevant where the applicant renews an application for leave to appeal.
The Court will make a direction where it considers that an application is wholly without merit (Guide A13-1).
The mere fact that counsel has advised that there are grounds of appeal will not necessarily prevent a direction being made (cf. Guide A13-2).
The single Judge will indicate if the Court should consider a loss of time if the application is renewed (Guide A13-3). But the Court may make a direction whether or not such an indication has been given by the single judge (CPD 39E.1)
Appeal against sentence
Leave is required unless the trial judge certifies that the case is fit for appeal (CAA 1968, s 11)
Crown Court judges should certify cases only in exceptional circumstances: R v Matthews  EWCA Crim 2757
Time limit: 28 days from sentence (s 18(2)).
No statutory grounds for appeal, but case law suggests the appeal will be upheld if:
the sentence is wrong in law;
the sentence is wrong in principle;
the sentence is manifestly excessive;
the judge took a wrong approach to sentencing;
there were procedural errors;
the offender has a legitimate sense of grievance.
The Court of Appeal can dismiss the appeal against sentence or quash the sentence.
Where the sentence is replaced with a different one, the appellant must not be dealt with more severely on appeal than he was dealt with by the court below, taking the case as a whole (s 11(3)).
Variation of sentence by the CC
PCC(S)A 2000, s 155:
A sentence imposed by the Crown Court may be varied or rescinded by the Crown Court within the period of 56 days from the day on which the sentence was imposed.
Only the judge who passed the original sentence can exercise this power.
Reference by the Criminal Cases Review Commission (CAA 1995), where there is a real possibility that the conviction would be quashed.
A-G’s reference on a point of law following an acquittal (CJA 1972, s 36): to clarify the law, not reverse the acquittal.
A-G’s reference for review of sentence (CJA 1988, ss 35 and 36): indictable-only and prescribed either-way offences; applies only if the sentence is ‘unduly lenient’.
CJA 2003, ss 58-61: Prosecution appeals against ‘terminating’ rulings, e.g. upholding a submission of no case to answer (the trial is adjourned and the prosecutor must undertake to offer no evidence against D if the appeal is abandoned or unsuccessful).
CAA 1968, s 33: Appeal to the Supreme Court if the CA/SC gives leave and the CA certifies that a point of law of general public importance is involved in the decision.
Charles is charged on an indictment containing two counts, one alleging causing grievous bodily harm with intent, the other alleging forgery. These alleged offences relate to unrelated factual situations. At Charles’ trial his counsel objects to the indictment on the ground that the counts are improperly joined. The trial judge (i) rules that the counts are improperly joined and (ii) orders that the indictment be severed.
The judge was:
[A] Right on point (i) and acting beyond his powers on point (ii).
[B] Right on point (i) and acting within his powers on point (ii).
[C] Wrong on point (i) and acting beyond his powers on point (ii).
[D] Wrong on point (i) and acting within his powers on point (ii).
Correct answer: [A]
The power to sever counts on an indictment applies only to validly joined counts. Here the counts are not validly joined so there is no power to sever.
Syllabus section 6
BCP D11.64 & D11.76
Curing the defect
The defect can be cured by deleting one of the counts to leave a valid indictment – see D11.64 (b).
If the prosecution wish to proceed with the deleted counts, they can apply for a voluntary bill of indictment – see D10.48
Finlay Lewis, Arthur Duke and Gerald Ella are jointly charged with a single count of Robbery.
Which ONE of the following statements correctly describes the possible verdicts that can be reached by the jury:
[A] The jury may acquit all three or convict all three or convict Lewis alone as the first named on the indictment.
[B] The jury may acquit all three or convict all three, but cannot arrive at a different decision in relation to each accused.
[C] The jury may acquit all three or convict all three or return different verdicts in relation to each of the accused.
[D] The jury may convict all three, but if they are in any doubt about the guilt of one of the accused they must acquit all three.
Correct answer: [C]
If A1 and A2 are charged on a joint count the jury may (a) acquit both, or (b) convict both, or (c) acquit one and convict the other.
Syllabus section 6
Consider the following statements:
(i) An indictment may contain more than one count if all the offences charged are founded on the same facts.
(ii) An indictment may contain more than one count only where the offences form or are part of a series of offences of the same or similar character.
(iii) If an indictment contains an improperly joined count, the indictment is a nullity and all proceedings flowing from that indictment are a nullity.
(iv) Once a jury has retired to consider its verdict, no further amendments to an indictment are permitted.
Which ONE of the following is correct?
[A] (i) only is correct
[B] (iii) only is correct
[C] (ii), (iii) and (iv) are correct
[D] (i) and (iv) are correct
Correct answer: [A]
An indictment may include more than one count if the offences charged:-
(a) Are founded on the same facts or
(b) Form or are part of a series of offences of the same or similar character.
Where a count is improperly joined only the proceedings flowing from the improperly joined count are a nullity
An indictment can be amended at any stage of a trial
Syllabus section 6
D11.63 & D11.64 & D11.106