Processes: Appeal Procedure Flashcards
What are the grounds for appeal from the Magistrates’ Court?
Defendants convicted of an offence in the magistrates’ court may appeal to the Crown Court against conviction or sentence, or the High Court by way of case stated.
Two grounds of appeal available:
1) Against conviction or sentence: A convicted person may appeal to the Crown Court against the conviction or sentence
2) By way of case stated: If either party to the proceedings (prosecution or defence) believes that the magistrates were wrong in law, they may appeal to the Divisional Court of the High Court by way of case stated
What are the key features of appeals from the Magistrates’ Court?
Key features of appeals from Magistrates’ Court to Crown Court
→ As of right; no leave required;
→ To appeal conviction and / or sentence;
→ Re-hearing of issues
→ Sentence can be revisited
What is meant by the automatic right of appeal and how is this applicable to the Magistrates’ Court?
A defendant can seek a retrial of a Magistrates’ Court conviction in the Court Court - no leave is required
What is ‘by way of case stated’?
Errors of law in the Magistrates’ Court can be challenged in the High Court (Divisional Court) under the case stated procedure
When is judicial review used in appeals?
JR can be used to challenge decisions of the Magistrates’ Court (and Crown Court as a court of appeal from the Magistrates’ Court)
When is the right to appeal to the Crown Court lost?
A defendant can lose the right of appeal to the CC if case stated or judicial review are used
What is the procedure for appeal against conviction and/or sentence from Magistrates Court to Crown Court?
Procedure for appeal against conviction and/or sentence from Magistrates Court to Crown Court:
1) Appellant must serve appeal notice on magistrates court and every other party involved in the case, not more than 15 business days after the magistrates pass or defer sentence.
N.B: Appeal notice must be served not more than 15 business days after sentence, not conviction.
2) Presumption of bail does not apply to defendants appealing against conviction or sentence
3) Provided notice is given within time, no leave to appeal is required (automatic right of appeal)
4) If appeal is against conviction, and the appeal is contested, the respondent must submit a respondent’s notice not more than 15 business days after service of the appeal notice
What is the procedure for appeal by way of case stated from Magistrates Court to the High Court?
Procedure for appeal by way of case stated from Magistrates Court to the High Court
1) Appellant must apply in writing for magistrates to state the case for the opinion of the High Court - not more than 21 days after judgment
2) Where the magistrates’ court decide to state the case for the opinion of the High Court, the court officer must serve a draft statement of case on each party not more than 15 business days after the court’s decision to state the case.
3) Parties will make representations as to necessary amendments to the case. Once the case has been agreed, it will need to be lodged with the High Court by the appellant.
4) Hearing the appeal: Confined to legal arguments made and no evidence may be called. Such appeals are often heard by 3 judges but sometimes also 2 judges (no fewer than 2). If judges reach a stalemate, the appeal fails and the decision of the magistrates’ court stands.
What are the powers of the High Court when determining an appeal?
Powers of the High Court
High Court will determine the question arising on the case and shall:
- Reverse, affirm or amend the decision made by the magistrates’ court, or
- Remit (i.e return) the matter to the magistrates’ court with the opinion of the high Court, and may make such other order in relation to the matter (including as to costs) as it thinks fit
How can a further appeal be made from the High Court?
Further Appeal - Supreme Court
An appeal from the High Court is heard in the Supreme Court (bypassing the Court of Appeal). Both the prosecution and defence may appeal to the Supreme Court.
In order to appeal, the High Court must certify that the case involves a point of law of general public importance and leave to appeal must be obtained from either the High Court or the Supreme Court.
What are the grounds for appeal from the Crown Court?
Appeals from the Crown Court - permission required
Following trial in the Crown Court at first instance, a defendant may appeal to the Criminal Division of the Court of Appeal against their conviction or sentence. Leave is always required. Only a single right of appeal is available.
Two grounds of appeal available:
1) Unsafe conviction: D’s right to a fair trial has been breached. A defendant can appeal a Crown Court conviction to the Court of Appeal on the ground that it is unsafe - LEAVE is required
2) Against sentence: A defendant can appeal a Crown Court sentence to the Court of Appeal on the grounds that it is excessive, unlawful or wrong in principle and the Court of Appeal cannot sentence more severely - LEAVE is required
What are the key features of appeals from the Crown Court?
Key features of appeals from Crown Court to Court of Appeal
→ Requires leave (refusal can be judicially reviewed)
→ Error in law, determined on submissions
→ Sentence cannot be increased
What are the rules concerning fresh evidence?
An appeal will not be allowed on the grounds of introducing evidence which was not heard at trial.
Exception - the Court of Appeal can hear fresh evidence if it is in the interests of justice to do so. Will consider whether the fresh evidence is credible (i.e capable of belief), affords a ground of appeal, would have been admissible at trial and whether there is a reasonable explanation for the failure to adduce it at trial.
What is the procedure when appealing to the Court of Appeal from the Crown Court?
Procedure when appealing to the Court of Appeal from the Crown Court:
1) Defendant is convicted. Defendant wishes to appeal against conviction and / or sentence;
Scenario A: Trial judge grants leave to appeal → Court of Appeal will hear the appeal as a full court
Scenario B: Trial judge does not grant leave to appeal → Proceed below
2) The defendant must serve appeal notice on Registrar within 28 days from the date of conviction / sentence
3) Single judge will consider whether to grant leave on the papers
4) If leave to appeal is refused, no further appeal may be brought
5) Hearing the appeal: Appeal will be considered by an uneven number of judges (at least 3 judges, sometimes 5 or 7 if case is of exceptional complexity or significance). A bench of 2 judges may sit in dealing with an appeal against sentence; an appeal against conviction must have a minimum of 3 judges
What are the powers of the Court of Appeal when determining appeals against conviction?
If the Court of Appeal considers an appeal against conviction, it may:
Dismiss the appeal and uphold the conviction;
Allow the appeal and quash the conviction;
Allow part of the appeal, but dismiss the other part;
Allow the appeal, quash the conviction and order a retrial;
Allow the appeal and find the appellant guilty of an alternative offence;
Make an order for loss of time
What are the powers of the Court of Appeal when determining appeals against sentence?
If the Court of Appeal considers an appeal against sentence, it may:
Dismiss the appeal and confirm the sentence passed;
Allow the appeal and quash any sentence or order which the appeal concerns;
Allow the appeal and substitute any sentence which was available to the Crown Court
Make an order for loss of time
Can a further appeal be made from the Court of Appeal?
A defendant has a single right of appeal. If an appeal is heard by the Court of Appeal, and it is subsequently dismissed, there is generally no right to raise those grounds again. Any subsequent appeal will be to the Supreme Court.
When can the prosecution appeal against a decision from the magistrates’ court?
The prosecution may only appeal against a decision of the magistrates’ court by way of case stated.
What are other situations that will allow for a prosecution appeal?
Other limited situations for prosecution appeals:
- [Terminating ruling] The prosecution can appeal against a terminating ruling (where the trial judge has effectively terminated the proceedings - e.g accepting a submission of no case to answer)
- [Lenient sentence] The prosecution can appeal an unduly lenient Crown Court sentence (and it can be sentenced more severely)
- [Points of law in a trial] The prosecution can appeal points of law following a Crown Court trial, but this has no effect on an acquittal
- [Appeal decisions made during trial] The prosecution can appeal some decisions made during the trial, but if it does so, it must promise to cease the case against the defendant if its appeal fails
- [Retrying an acquitted defendant] The prosecution has very limited powers to retry an acquitted defendant in serious cases
Explain what is required for a retrial of a serious offence to be permitted?
Retrial of serious offences
An appeal against an acquittal, and ordering of a retrial, will only be permitted if:
- The defendant has been acquitted of a ‘qualifying offence’
- The written consent of the Director of Public Prosecutions (DPP) has been obtained, and
- Leave to appeal has been granted
The qualifying offences include murder, attempted murder, manslaughter and aggravated arson. The DPP must only give their consent if there is ‘new and compelling evidence’ and if it is in the public interest for the DPP to give consent.
