Tonight we continued with appeals, and concluded the course.
RIGHTS OF APPEAL FROM THE CROWN COURT. A person convicted of an offence on indictment may appeal against conviction where he pleaded not guilty and/or against sentence whether he pleaded guilty or not guilty.
Appeal may be made to the Court of Appeal against either conviction or sentence. If a convicted person had legal representation for his trial this extends to initial advice on appeal and drafting grounds of appeal if the advice is that an appeal be pursued. The procedure is as follows:
(1) Within 28 days of conviction or sentence the appellant serves on the registrar of criminal appeals a notice of application for leave to appeal, accompanied by draft ground of appeal.
(2) If the appeal is against conviction then there will need to be a transcript provided, either of the judge’s summing up or, perhaps, of some part of the evidence, or even of most of the trial. The court’s short-hand writer will then be asked by the registrar to transcribe the appropriate part of his notes.
(3) The papers are then put before a single judge who may be either a Lord justice of Appeal or a Higg-h Court Judge sitting as a member of the Court of Appeal. The papers will include the grounds of appeal, transcript and any other relevant documents. This is a filtering stage at which a single judge considers whether leave ought to be given. If he does grant leave to appeal he will grant legal aid for the hearing itself. If the single judge refuses leave to appeal the appellant has 14 further days in which to serve notice upon the registrar that he wishes to renew the application before the full court. The papers are then put before the full court who again consider the papers, though without legal argument usually, since legal aid is not available at this stage. There may be legal argument if the person convicted is able to afford it privately. The judges are at this stage still considering the question of leave to appeal. If they are inclined to grant leave to appeal then they may also grant legal aid for the hearing of the appeal proper.
If the registrar in a preliminary look at the grounds of appeal considers that the appeal has a prima facie chance of success he may bypass the single judge procedure, grant legal aid himself and list the application for leave to appeal for hearing by the full court. He will ask the prosecution to be represented also. The court then, whilst considering the issue of leave to appeal, usually treats the application for leave as the hearing of the substantive appeal.
APPEALS - GRANTING BAIL. The Court of Appeal has power to grant bail to an appellant pending determination of his appeal and this may be exercised by the single judge when he considers the papers. Since the passing of the CRIMINAL JUSTICE ACT 1982 the Crown Court judge who passes the sentence may also give bail pending appeal. The vital factor will be the extent to which the time which may elapse between passing of sentence and the hearing of an appeal may render otiose the appeal itself. For example, if a sentence of only six months has been passed then that would be a cogent reason for granting bail pending appeal in a case which has some prospect of success since it would be not unlikely that the full period of the sentence to be served (i.e. four months with full remission) would pass before the appeal would be dealt with.
APPEALS AGAINST CONVICTION
Where the Court of Appeal grants leave to appeal or if the trial judge grants a certificate that the case is fit for appeal, the Court of Appeal shall allow an appeal against conviction if it thinks that the conviction is “unsafe”, s2 CRIMINAL APPEAL ACT 1968 as amended by the CRIMINAL APPEAL ACT 1995.
In deciding whether the conviction is unsafe, the Court of Appeal will listen to argument and may exceptionally hear fresh evidence under s23 CRIMINAL APPEAL ACT 1968, if that evidence:
(1) appears likely to be credible; and
(2) would have been admissible at the trial; and
(3) was not heard at the trial but there is a reasonable explanation for the evidence not being heard.
The court may:
(1) quash the conviction, in effect ordering an acquittal; or
(2) quash the conviction and order a retrial; or
(3) dismiss the appeal.
APPEAL AGAINST SENTENCE.
Leave is also required where the appellant seeks to appeal to the Court of Appeal against sentence. The grounds on which the appeal may be allowed:
(1) that the judge erred on a matter of principle; or
(2) that the sentence is manifestly excessive; or
(3) that the sentence was wrong in law.
Under s11(3) CRIMINAL APPEAL ACT 1968, the Court of Appeal does not have the power to increase the sentence.
ATTORNEY-GENERAL’S REFERENCES.
Under s36 CRIMINAL JUSTICE ACT 1972 where a trial on indictment results in the acquittal of the accused, the Attorney-General may refer to the Court of Appeal any point of law which arose in the case. (As has been earlier indicated the prosecution have no right of appeal against an acquittal.) This enables the Attorney- General to obtain clarification and perhaps a useful precedent on matters of law where he contends that there has been a misdirection or misinterpretation of the law favourable to the accused. Counsel will be briefed by the Attorney-General and the person who has been acquitted may also have counsel to present argument. The proceedings have a purely technical nature and the accused person’s acquittal is not called into question as such in the proceedings, so that whatever the outcome he remains acquitted. Under s36 CRIMINAL JUSTICE ACT 1988 the Attorney-General has power, with leave of the Court of Appeal, to refer to that court any sentence imposed by the Crown Court where it is considered by the Attorney General that the sentence was unduly lenient. The Court of Appeal then may quash any sentence originally passed and in place of that substitute such sentence (usually a heavier sentence) as they think appropriate for the case and which the court below had power to pass when dealing with the offender. This power of referral for review by the Attorney-General has been used quite frequently since the 1988 Act came into force.
APPEALS TO THE HOUSE OF LORDS
Under s33 CRIMINAL APPEAL ACT 1968 either prosecution or defence may appeal to the House of Lords from a decision of the Criminal Division of the Court of Appeal provided:
(1) the Court of Appeal certifies that the decision involves a point of law of general public importance; AND
(2) either the Court of Appeal or the House of Lords gives leave to appeal. Such applications for leave to appeal should be made immediately after the court’s decision or at the latest within 14 days of the decision.
APPEALS FROM MAGISTRATES’ COURTS.
These lie to the Crown Court against conviction and/or sentence. Notice of appeal must be given in writing to the clerk of the magistrates’ court and to the prosecution within 21 days of sentence. No detail is needed, the usual wording simply being that “the defendant proposes to appeal on the ground that the magistrates erred in fact and in law in convicting him”, or on the grounds that the sentence was excessive if the plea was one of guilty.
There is no filtering mechanism as with appeals to the Court of Appeal and no discretion to refuse to accept the appeal. There is a discretion to extend the time for giving notice of appeal. In the case of a person who has received a custodial sentence at the Magistrates’ Court an application for bail until the hearing of the appeal may be made, and if that is refused a further application may be made to the Crown Court itself.
Appeals to the Crown Court are usually heard by a Circuit judge sitting with two to four magistrates. It takes the form of a complete re-hearing of the case so that either side may call fresh evidence which they did not call in court below and may decline to call evidence which they did call in the court below. New arguments on law may also be advanced. There is no jury.
The powers of the Crown Court in disposing of the appeal are that it may confirm, reverse or vary the decision appealed against or remit the matter to magistrates with its opinion. Only the defendant may appeal to the Crown Court under this method.
Either party to proceedings before a Magistrates’ Court may challenge the decision of the court by applying to the magistrates to STATE A CASE for the opinion of the Queen’s Bench Divisional Court on a question of law.
In this situation, therefore, either side may call into question a ruling on a point of law. An application by the person aggrieved must he made to the magistrates within 21 days of the acquittal or conviction.
The application should be in writing and should identify the question of law on which the High Court’s opinion is sought. It may be by letter. The application is sent to the magistrates’ clerk.
A “statement of case” should outline the facts called into question; state the facts which the magistrates found; and then state the magistrates’ finding on the points of law in question, list any authority cited and finally pose the question for the High Court. The “case” is drafted by the magistrates’ clerk in consultation with the magistrates. Drafts of the “case” are usually sent to the parties who may suggest amendments. The final form of case must then be sent to the appellant who must lodge it at the Crown office of the Royal Courts of Justice. Notice must then be given to the respondent with a copy of the “case”.
Eventually the hearing, which will be by at least two judges of the Queen’s Bench Division, takes place with the appeal taking the form of a legal argument for both sides based solely on the facts as found in the case. The Divisional Court, when considering the appeal can reverse, affirm or amend the magistrates’ decisions or may remit the matter back to the magistrates with its opinion (for example, with a direction that they continue the hearing, convict, or acquit) or may remit the case to some other bench of magistrates.
APPLICATION FOR JUDICIAL REVIEW.
A full examination of the powers of the High Court to review inferior tribunals is beyond the scope of this text. There are three prerogative orders:
Quashing: the decision of an inferior court is quashed;
Mandatory: compels an inferior court to carry out its duties;
Prohibition: prevents an inferior court from acting unlawfully.
The clearest examples of the use of these procedures to challenge a Magistrates’ Court would be where the court acts in excess of jurisdiction as by failing to follow the statute which confers jurisdiction; or by acting in breach of the rules of natural justice (e.g. failing to allow an adjournment requested by a defendant on proper grounds; or failing to give proper time to prepare a defence; or, finally, where there is an error of law apparent on the face of the record).
At the hearing, argument is advanced and the court considers whether the application for the relief claimed is made out. If it finds that it is, then the appropriate order is issued to the court below.
We then looked at a previous examination paper, and will continue in the same vein after Easter.
RIGHTS OF APPEAL FROM THE CROWN COURT. A person convicted of an offence on indictment may appeal against conviction where he pleaded not guilty and/or against sentence whether he pleaded guilty or not guilty.
Appeal may be made to the Court of Appeal against either conviction or sentence. If a convicted person had legal representation for his trial this extends to initial advice on appeal and drafting grounds of appeal if the advice is that an appeal be pursued. The procedure is as follows:
(1) Within 28 days of conviction or sentence the appellant serves on the registrar of criminal appeals a notice of application for leave to appeal, accompanied by draft ground of appeal.
(2) If the appeal is against conviction then there will need to be a transcript provided, either of the judge’s summing up or, perhaps, of some part of the evidence, or even of most of the trial. The court’s short-hand writer will then be asked by the registrar to transcribe the appropriate part of his notes.
(3) The papers are then put before a single judge who may be either a Lord justice of Appeal or a Higg-h Court Judge sitting as a member of the Court of Appeal. The papers will include the grounds of appeal, transcript and any other relevant documents. This is a filtering stage at which a single judge considers whether leave ought to be given. If he does grant leave to appeal he will grant legal aid for the hearing itself. If the single judge refuses leave to appeal the appellant has 14 further days in which to serve notice upon the registrar that he wishes to renew the application before the full court. The papers are then put before the full court who again consider the papers, though without legal argument usually, since legal aid is not available at this stage. There may be legal argument if the person convicted is able to afford it privately. The judges are at this stage still considering the question of leave to appeal. If they are inclined to grant leave to appeal then they may also grant legal aid for the hearing of the appeal proper.
If the registrar in a preliminary look at the grounds of appeal considers that the appeal has a prima facie chance of success he may bypass the single judge procedure, grant legal aid himself and list the application for leave to appeal for hearing by the full court. He will ask the prosecution to be represented also. The court then, whilst considering the issue of leave to appeal, usually treats the application for leave as the hearing of the substantive appeal.
APPEALS - GRANTING BAIL. The Court of Appeal has power to grant bail to an appellant pending determination of his appeal and this may be exercised by the single judge when he considers the papers. Since the passing of the CRIMINAL JUSTICE ACT 1982 the Crown Court judge who passes the sentence may also give bail pending appeal. The vital factor will be the extent to which the time which may elapse between passing of sentence and the hearing of an appeal may render otiose the appeal itself. For example, if a sentence of only six months has been passed then that would be a cogent reason for granting bail pending appeal in a case which has some prospect of success since it would be not unlikely that the full period of the sentence to be served (i.e. four months with full remission) would pass before the appeal would be dealt with.
APPEALS AGAINST CONVICTION
Where the Court of Appeal grants leave to appeal or if the trial judge grants a certificate that the case is fit for appeal, the Court of Appeal shall allow an appeal against conviction if it thinks that the conviction is “unsafe”, s2 CRIMINAL APPEAL ACT 1968 as amended by the CRIMINAL APPEAL ACT 1995.
In deciding whether the conviction is unsafe, the Court of Appeal will listen to argument and may exceptionally hear fresh evidence under s23 CRIMINAL APPEAL ACT 1968, if that evidence:
(1) appears likely to be credible; and
(2) would have been admissible at the trial; and
(3) was not heard at the trial but there is a reasonable explanation for the evidence not being heard.
The court may:
(1) quash the conviction, in effect ordering an acquittal; or
(2) quash the conviction and order a retrial; or
(3) dismiss the appeal.
APPEAL AGAINST SENTENCE.
Leave is also required where the appellant seeks to appeal to the Court of Appeal against sentence. The grounds on which the appeal may be allowed:
(1) that the judge erred on a matter of principle; or
(2) that the sentence is manifestly excessive; or
(3) that the sentence was wrong in law.
Under s11(3) CRIMINAL APPEAL ACT 1968, the Court of Appeal does not have the power to increase the sentence.
ATTORNEY-GENERAL’S REFERENCES.
Under s36 CRIMINAL JUSTICE ACT 1972 where a trial on indictment results in the acquittal of the accused, the Attorney-General may refer to the Court of Appeal any point of law which arose in the case. (As has been earlier indicated the prosecution have no right of appeal against an acquittal.) This enables the Attorney- General to obtain clarification and perhaps a useful precedent on matters of law where he contends that there has been a misdirection or misinterpretation of the law favourable to the accused. Counsel will be briefed by the Attorney-General and the person who has been acquitted may also have counsel to present argument. The proceedings have a purely technical nature and the accused person’s acquittal is not called into question as such in the proceedings, so that whatever the outcome he remains acquitted. Under s36 CRIMINAL JUSTICE ACT 1988 the Attorney-General has power, with leave of the Court of Appeal, to refer to that court any sentence imposed by the Crown Court where it is considered by the Attorney General that the sentence was unduly lenient. The Court of Appeal then may quash any sentence originally passed and in place of that substitute such sentence (usually a heavier sentence) as they think appropriate for the case and which the court below had power to pass when dealing with the offender. This power of referral for review by the Attorney-General has been used quite frequently since the 1988 Act came into force.
APPEALS TO THE HOUSE OF LORDS
Under s33 CRIMINAL APPEAL ACT 1968 either prosecution or defence may appeal to the House of Lords from a decision of the Criminal Division of the Court of Appeal provided:
(1) the Court of Appeal certifies that the decision involves a point of law of general public importance; AND
(2) either the Court of Appeal or the House of Lords gives leave to appeal. Such applications for leave to appeal should be made immediately after the court’s decision or at the latest within 14 days of the decision.
APPEALS FROM MAGISTRATES’ COURTS.
These lie to the Crown Court against conviction and/or sentence. Notice of appeal must be given in writing to the clerk of the magistrates’ court and to the prosecution within 21 days of sentence. No detail is needed, the usual wording simply being that “the defendant proposes to appeal on the ground that the magistrates erred in fact and in law in convicting him”, or on the grounds that the sentence was excessive if the plea was one of guilty.
There is no filtering mechanism as with appeals to the Court of Appeal and no discretion to refuse to accept the appeal. There is a discretion to extend the time for giving notice of appeal. In the case of a person who has received a custodial sentence at the Magistrates’ Court an application for bail until the hearing of the appeal may be made, and if that is refused a further application may be made to the Crown Court itself.
Appeals to the Crown Court are usually heard by a Circuit judge sitting with two to four magistrates. It takes the form of a complete re-hearing of the case so that either side may call fresh evidence which they did not call in court below and may decline to call evidence which they did call in the court below. New arguments on law may also be advanced. There is no jury.
The powers of the Crown Court in disposing of the appeal are that it may confirm, reverse or vary the decision appealed against or remit the matter to magistrates with its opinion. Only the defendant may appeal to the Crown Court under this method.
Either party to proceedings before a Magistrates’ Court may challenge the decision of the court by applying to the magistrates to STATE A CASE for the opinion of the Queen’s Bench Divisional Court on a question of law.
In this situation, therefore, either side may call into question a ruling on a point of law. An application by the person aggrieved must he made to the magistrates within 21 days of the acquittal or conviction.
The application should be in writing and should identify the question of law on which the High Court’s opinion is sought. It may be by letter. The application is sent to the magistrates’ clerk.
A “statement of case” should outline the facts called into question; state the facts which the magistrates found; and then state the magistrates’ finding on the points of law in question, list any authority cited and finally pose the question for the High Court. The “case” is drafted by the magistrates’ clerk in consultation with the magistrates. Drafts of the “case” are usually sent to the parties who may suggest amendments. The final form of case must then be sent to the appellant who must lodge it at the Crown office of the Royal Courts of Justice. Notice must then be given to the respondent with a copy of the “case”.
Eventually the hearing, which will be by at least two judges of the Queen’s Bench Division, takes place with the appeal taking the form of a legal argument for both sides based solely on the facts as found in the case. The Divisional Court, when considering the appeal can reverse, affirm or amend the magistrates’ decisions or may remit the matter back to the magistrates with its opinion (for example, with a direction that they continue the hearing, convict, or acquit) or may remit the case to some other bench of magistrates.
APPLICATION FOR JUDICIAL REVIEW.
A full examination of the powers of the High Court to review inferior tribunals is beyond the scope of this text. There are three prerogative orders:
Quashing: the decision of an inferior court is quashed;
Mandatory: compels an inferior court to carry out its duties;
Prohibition: prevents an inferior court from acting unlawfully.
The clearest examples of the use of these procedures to challenge a Magistrates’ Court would be where the court acts in excess of jurisdiction as by failing to follow the statute which confers jurisdiction; or by acting in breach of the rules of natural justice (e.g. failing to allow an adjournment requested by a defendant on proper grounds; or failing to give proper time to prepare a defence; or, finally, where there is an error of law apparent on the face of the record).
At the hearing, argument is advanced and the court considers whether the application for the relief claimed is made out. If it finds that it is, then the appropriate order is issued to the court below.
We then looked at a previous examination paper, and will continue in the same vein after Easter.
Labels: Thursday 29 March 2007
posted by John Robotham at 2:12 AM
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