Flashcards in SG11 Deck (27):
a) Power of CCT to rectify mistakes as to sentence
Pursuant to s 155 PCC(S)A 2000.
Power to rectify mistakes as to sentence imposed in the CCT.
Within 56 days of sentence being passed.
Variation must be by judge who originally passed sentence.
Can be used to replace, reduce or increase sentence or to add another order.
Can be used to make a correction to the period which the court has allowed for time spent in custody on remand.
Power to vary cannot be exercised if an appeal against the sentence or application for leave to appeal has been determined. D20.95-96
Comparable powers in the MC (see SGS 8):
s.142(1) - D23.23-24 – vary or rescind sentence in MC.
s.142 (2) - D22.70- set aside conviction in MC.
Leave to appeal required in all cases (unless judge certifies case fit for appeal – rare).
Certificates remove need for leave, but advocate must still follow procedure for lodging appeal.
c) Statutory basis for granting appeal
d) Practical steps at court immediately following conviction
Immediately following the conclusion of the case, the legal representatives should see the convicted accused, and counsel should give oral advice comprising either a final view on the prospect of a successful appeal, or a provisional view, or explain that he requires time to consider the appeal.
e) Expectation on counsel after leaving court
If there are no grounds of appeal, that should be confirmed in writing as soon as possible.
If there are arguable grounds of appeal, they should be drafted by counsel, signed by counsel and sent to the accused’s solicitors as soon as possible.
f)What should be included in grounds of appeal
Be sufficiently detailed to enable the Registrar and the Court of Appeal to identify clearly the matters relied on.
Any document mentioned in the grounds should be clearly identified by exhibit number or otherwise.
The grounds should set out the relevant facts and nature of the proceedings concisely. The grounds and advice should be included in one all encompassing document, not separate grounds and advice.
g) Intended readership
The single judge (not the professional or lay client).
Purpose to enable the single Judge to grasp quickly the facts and issues in the case.
h) Instruction from client to settle grounds which have no basis
Counsel should not settle or sign grounds unless they are reasonable, have some real prospect of success and are arguable.
Counsel should not settle grounds just because s/he is ‘instructed’ to do so by the client. D27.8
Note: Grounds of appeal that are sent to the CA should contain positive grounds only. If counsel has been asked to consider matters that in counsel’s opinion do not give rise to grounds of appeal, the best way to address those issues is to write separately to the solicitors (e.g. a letter that can be passed on to the client).
i) Grounds of appeal against sentence
The most common grounds of appeal against sentence are that the:
Sentence was wrong in law; or
Wrong in principle/manifestly excessive (can be argued here for Duke). D26.50-52
Other commonly occurring grounds of appeal against sentence:
Judge’s remarks when sentencing
Sense of grievance (e.g. judge failing to abide by an indication of sentence).
Disparity of sentence (inconsistency of approach in CA, but more recent cases suggest that CA will intervene where disparity is serious).
Failure to distinguish between offenders D26.54-58
j) Where should application for leave be filed/what should it include
Form NG lodged at the Crown Court where the defendant was convicted and accompanied by the grounds of appeal.
The Crown Court then passes the papers to the Registrar of Criminal Appeals. D27.3
j) Time limits
Time limits: within 28 days of conviction where appealing conviction/within 28 days of sentence where appealing sentence (appeal conviction should not be delayed awaiting sentence). D27.3
Revision tip: compare appeal from mags to Crown Court – 21 days from sentence whether appeal against conviction or sentence or both (SGS 8)
k) Extension of time
An application for an extension of time for leave to appeal can be made to the CA.
That can be made before or after the expiry of the 28 day time limit for lodging the notice of application for leave to appeal.
The period may be extended by the Registrar’s office or the single Judge.
The application for an extension of time must always be supported by reasons why the application for leave was not submitted in time (so you need to explain to the CA that you were mistaken about the time limits – honesty pays and I have seen cases where QCs have to admit this sort of error)
Such an application should be submitted when the application for leave is made and not in advance.
After the papers are sent to the Registrar of Appeals the Registrar decides whether a transcript is necessary and, if so, how extensive it should be (bearing in mind the cost).
There is an obligation on counsel to identify, in the notice of appeal, any further transcript which counsel considers the court will need.
Transcript of submission made by counsel are unnecessary as counsel should be able to remember their arguments.
In conviction cases, transcripts of the summing up and proceedings up to and including verdict are obtained as a matter of course.
Similarly, the transcript of the prosecution opening of facts on a guilty plea and the judge’s observations on passing sentence are usually obtained in sentence cases.
In this case: summing up, up to and including verdict and judge’s sentencing remarks. D27.13
Upon receiving transcript counsel has time to vary or amplify grounds (or abandon) and should direct the court’s attention to any relevant passages of the transcript.
e.g. “the learned trial judge erred in that s/he directed the jury that ...(Vol I 7F”). (The transcripts are given sequential volume numbers by the CA, which counsel should follow).
Purpose two fold:
To save judicial time identifying the relevant parts of the transcript
To enable counsel to reconsider grounds in the light of the transcript.
Counsel will have 14 days to perfect the grounds from when transcript sent.
Perfected grounds should comprise a fresh document.
n) What happens after perfection and input from the prosecution
Ordinarily, the Registrar then passes the papers to a single Judge of the Court of Appeal to consider leave.
The single Judge then considers the papers (‘almost invariably’ without a hearing).
If the single judge would be assisted by having the prosecution’s response to the grounds, the Registrar or single judge may direct that the prosecution respond to the grounds in Form RN (Form RN generally used in cases involving PII, allegations of jury irregularity, criticisms of conduct of judge, complex frauds, high media profile).
Sometimes the single Judge or Registrar may refer the case to the full court to determine leave and the prosecution will be asked to attend. If full court grants leave, court may proceed forthwith to substantive hearing of appeal.
o) What if leave granted/refused
If leave to appeal is granted or the matter is referred to the full court, the case proceeds and is heard by a full Court.
If SJ grants leave on one ground without deciding leave in respect of other grounds, the appellant can argue the other grounds at the substantive hearing.
If SJ grants leave on one ground and refused leave in respect of other grounds, appellant must renew application for leave in relation to those other grounds.
If leave is refused the applicant has 14 days to give notice that he wishes to renew the application for leave in front of the full Court of Appeal.
Time for notification may be extended before or after the expiry of the 14 day period. D27.10-11
p) Direction for loss of time
A positive advice on appeal should contain a paragraph explaining loss of time.
CA can make direction that part or all of time spent in custody since commencement of appeal (when application for leave/Form NG lodged) shall not count towards sentence being served
q) Number of judges at full hearing of appeal against conviction
Appeal against conviction: uneven number of judges required, no less than three.
(usually three judges, cases of importance, will exceptionally comprise five or seven).
Other hearings requiring this number of judges:
A-G reference of sentence.
An appeal against a finding of unfitness to plead.
An application to appeal a verdict of not guilty by reason of insanity.
Application for leave to appeal to the Supreme Court.
r) Prosecution appeals
Prosecution can appeal against a ‘terminating ruling’
CJA 2003 provisions re appeals against evidentiary rulings: not in force.
Terminating ruling: any ruling that brings proceedings to an end
Leave required from trial judge or CA.
Immediately following the ruling, the prosecution must inform the court that they intend to appeal or ask for an adjournment to consider their position.
The court must grant the adjournment which will be until the next business day.
If intends to appeal, must serve notice on court, Registrar and accused (by next day if appeal expedited or within five days if not).
Prosecution MUST undertake to offer no evidence if appeal abandoned or refused.
If appeal granted proceeding in the CCT continue.
D16.74; D16.76 (first sub-para only); D16.77; D16.78
Edward is convicted in the Middlemarch Crown Court of burglary and sentenced to two years' imprisonment. He appeals against his conviction. Depending on the facts and evidence put before the Court of Appeal, which one of the following options is open to the Court of Appeal?
[A] Order a retrial.
[B] Make a direction for loss of time.
[C] Substitute a verdict of guilty of theft.
[D] Exercise any of the above powers.
[D] is correct as all 3 powers can be exercised by the Court of appeal.
[A] A retrial may be ordered.
In deciding whether or not to order a retrial the court will take account of:
The length of time that has elapsed between the original conviction and the successful appeal.
The effect of any fresh evidence on the strength of the prosecution case.
Any verdicts would be unsafe due to publicity.
[B] A direction for “loss of time” can be made (i.e. that all or part of the time an applicant for leave to appeal has spent in custody since the commencement of the appeal proceedings shall not count towards the sentence he is required to serve. Commencement of proceedings is when notice of appeal is served)
[C] The Court of Appeal can substitute a conviction for an offence of which the jury could have convicted the defendant. It must appear to the Court of Appeal that the jury must have been satisfied of the facts, which proved the defendant guilty of the offence.
Following an acquittal what kind of matter can the A-G refer to the CA?
What happens to the acquittal?
What type of sentence can the A-G refer to the CA for review?
Is leave required when sentence is referred?
Following acquittal, the A-G can refer any point of law that arose during trial on indictment to CA for its opinion.
Whatever opinion of CA, acquittal unaffected.
A-G can refer unduly lenient sentence to CA for review.
Leave from CA required.
NB. Sentence referable if offence triable only on indictment or either way offence which is specified as reviewable.
Can the CCRC refer a conviction, sentence or both?
What test must the CCRC apply before referring a matter?
What circumstances/reasons usually form the basis for a referral?
Can refer a conviction or any sentence imposed in relation to that conviction (unless it is a sentence fixed by law) to CA.
For the CCRC to refer a case, there must be a real possibility that the CA or Crown Court will quash the conviction or sentence.
Usually fresh argument/evidence or exceptional circumstances.
Who may appeal to the Supreme Court?
Against the decision of which lower court?
What two conditions must be satisfied before an appeal can be made to the Supreme Court?
Either the prosecution or the defendant may appeal
From any decision of the CA.
In order to appeal to the Supreme Court:
either the CA or the Supreme Court must grant leave; and
the CA must certify that the case raises a point of law of general public importance.
In order to determine an appeal against conviction, how many judges are required?
Does the number differ for an appeal against sentence?
Conviction: at least three judges required. When dealing with a case of particular importance, five or seven judges may sit (D26.3).
Sentence: Usually only two judges sit (D26.3-4).
Give examples of the more common grounds for conviction and sentence (think of as many examples as you can)
D26.21-36 (conviction): D26.50-58 (sentence)
Wrongful admission/exclusions of evidence; erroneous exercise of discretion; conduct of lawyers; rejection SNCA; defects in indictment; inconsistent verdicts; conduct trial judge; errors in summing up (misdirection of law; wrongful withdrawal of issues from jury; misdirection on facts; improper comments on facts or defence case; comment on failure of accused to testify; comment on the accused’s character).
Wrong in law; wrong in principle or manifestly excessive; judge’s remarks; procedural errors; sense of grievance; disparity; failure to distinguish between offenders.
Firstly, what is the time limit for lodging grounds of appeal and from when does time run?
What must be provided in support of an application to extend time?
When should an application for an extension of time be submitted?
The time limit for lodging grounds of appeal is 28 days from the date of conviction (if appealing against conviction) and 28 days from the date of sentence (if appealing against sentence). An appeal against conviction should not be delayed until the outcome of the sentencing hearing (D27.3).
The application for an extension of time must always be supported by reasons why the application for leave was not submitted in time (D27.12).
Such an application should be submitted when the application for leave is made and not in advance (D27.12)