sentencing and appeals Flashcards
(32 cards)
sentencing principles - exam structure
(first, it considers its powers, and refers to relevant sentencing guidelines + hears reps from both sides)
- assess the seriousness of the offence (look at the range of that offence though - if ABH and broken jaw thats VERY serious for ABH, even though u can think of more serious harm but that would be GBH)
- identify the category with ref to culpability and harm
- aggravating factors
- mitigating factors
- guilty plea entered?
- threshold met?
- decide on sentence - any ancillary orders like compensation?
aggravating factors - sentencing
- STATUTORY
- offending whilst already on bail
- previous convictions
- racial or religious aggravation
- hostility to a person’s disability or sexual orientation - overreaching principles: seriousness (always aggravate offence)
- factors in specific guidelines for the offence
- circumstances of offence that might aggravate the seriousness of the offence
mitigating factors - sentencing
- circumstances of offence/factors in offence specific guidelines
- e.g. injuries minor
- sums of money involved were small
- opportunistic - D’s personal circumstances
- genuine remorse (only if guilty plea entered)
- addictions to drug/alcohol RARELY a mitigating factor but will consider this when considering TYPE of sentence (e.g. will D respond to treatment)
reduction of guilty plea
max = 1/3rd reduction of sentence
- the earlier the plea, the greater the discount
- specific guidelines on this (beyond scope of the course)
- if enter on first occasion in court before trial = full 1/3 discount
appeals from MC go to CC - how?
How?
- lodge NOTICE OF APPEAL within 21 days
- to CLERK OF MC
- no requirement to give detailed grounds for appeal at this stage
- common practice to set out grounds and nature of appeal
appeals from MC to CC - appeal
- Judge + at least 2 justices will hear appeal at CC
- Appeal is treated as ‘de novo’ (first hearing)
- New evidence can be called
- Court may: confirm, reverse, vary any element BUT powers of sentencing limited to those of MC
- CC may impose any sentence available for MC so a more severe penalty can result
appeals from MC to DC - how?
- grounds: ERROR of LAW or decision was IN EXCESS OF JURISDICTION
- same issue cannot be appealed to CC after application is made to state case in DC
- application must be made within 21 days to the clerk of MC
- must state point of law in issue
appeals from MC to DC - appeal
- Appeal hearing is before THREE JUDGES
- Legal argument ONLY (on questions set down for court to answer)
- No issues of fact are decided + no evidence is called
- Court has wide powers to confirm, reverse, or vary the original decision, or order a re-trial
appeal from CC to criminal division of CA - how can d appeal?
against:
- conviction
- sentence
- both conviction and sentence
- point of law
- any matter relating to trial
appeal from CC to CA - appeal against conviction
grounds (only one):
- conviction is ‘unsafe’ (s.2(1)(a) CAA)
- key issue: whether art.6 ECHR has been breached
non-exhaustive list - when may it be unsafe? if trial judge:
- Misdirected the jury
- Failed to give relevant direction
- Demonstrated an obvious bias that would have affected decision making process of jury
- Made an error in law
- Admitted/excluded evidence when no reasonable judge would have exercised his discretion in such a way
appeal from CC to CA - appeal against sentence
grounds (only one):
- sentence was MANIFESTLY EXCESSIVE and therefore NOT COMMENSURATE with the level of seriousness of the offence
appeal from CC to CA - procedure
- lodge application within 28 days of conviction or sentence, submitted to the court that imposed sentence or court D was convicted
- relevant CC will forward notice to CA
- CA puts matter before single judge to decide whether to grant appeal or not (unless matter already certified fit for appeal by trial judge)
- if single judge refuses to grant leave for appeal, D can renew app to full court
- if leave granted, hearing takes place before full CA
court can:
- quash conviction
- find d guilty of alternate offence
- allow part of appeal
- direct re-trial
- impose any sentence available at CC
- cannot impose more serious penalty than CC
appeal from CA to SC
How?
- consent of either court
- CA has certified there is a point of law of general public importance
criminal cases review commission (independent body)
- Set up to review suspected miscarriages of justice in England, Wales and NI Last resort (prior to applying to ECHR) once all normal appeal routes have been exhausted
- Once commission has investigated case – it is referred back to court which heard original appeal
ECHR
If all domestic remedies have been exhausted – D can attempt to appeal to ECHR (claiming breach of relevant article of ECHR)
- appealing a conviction
advising a client
cannot if D pleaded guilty
- appealing a sentence
advising a client
appeal from MC to CC
chance of success?
- work out what sentence should have been
- different?
- lots of mitigating factors court didn’t consider?
public funding - box 8 (proceedings may involve cross examination of witness)
o Think about legal issues to be identified
o Who would need to be challenged about these?
o What knowledge would person conducting XE require to do this?
o If police officers acted dodgy – then need to XE the police officers (about search, interview, witness)
public funding - box 5 (does he need help of solicitor?)
yes if need to:
- Challenge lawfulness of police actions (e.g. search, interview without solicitor)
- Challenge confessions made
- Challenge things said or done (e.g. if police lied and said there is a witness)
- Law of the offence
Fines (CC + MC)
- court determines level of fine
- factors in any reductions (e.g. early guilty plea)
- inquires into financial circumstances
can be combined with any other sentence including custody (except discharge)
fail to pay:
too high? apply to court to have fine reduced or
wilful refusal to pay? other penalties may be imposed (incl. imprisonment)
victim surcharge
If court imposes any sentence re: one or more offences, it must order D to pay ‘victim surcharge’ (amount varies according to sentence imposed) – originally this was only attached to payment of fine but now extended to all forms of sentence
compensation order
court has a duty to consider an award of compensation
- if involves PI, court must give reasons if order for compensation is not made
- sum of money court orders offender to pay victim to compensate victim for personal injury, loss, or damage
- can be made alongside any other sentence
absolute discharge
no penalty other than recording criminal conviction against offender
- sufficient sentence if circumstances of the case and those of the offender is such that recording is sufficient penalty in itself
conditional discharge
- offender cannot re-offend within a period of time as specified by the court (max. 3 years)
- if re-offend, sentenced afresh for first offence and new offence
- commission of new offence during conditional period is an aggravating factor for sentencing new offence
