#19568 - 15. Criminal Litigation 2023 2024 Appeals - BPC Criminal Litigation (formerly BPTC) 2024/2025

The power of the the Mags’ to rectify mistakes:

• The mags’ may rectify certain mistakes they make in the course of proceedings. The mags’ can:

  • Correct a mistake;

  • Rehear the case in front of a different bench.

• It cannot be used where:

  • The CC has already determined an appeal against sentence, order or conviction which is disputed, or against any related sentence or order; or

  • The sentence or order has already been dealt with by the High Court by way of case stated.

The general right of appeal from the Mags’ to the CC:

• Permission to appeal is not needed: there is an automatic right of appeal.

• Appeal can be against conviction or sentence. An appeal against conviction is made where D believes that the Mags’ reached the wrong factual conclusions; an appeal against sentence is made where D believes that the Mags’ have passed too harsh a sentence.

• If D pleaded guilty, he cannot appeal against conviction, unless:

  • The guilty plea was equivocal or the guilty plea was made under duress.

• D can appeal against sentence after a guilty plea.

The procedure in the CC for dealing with the appeal:

• The appellant should send notice of the appeal within 15 days to both the Mags’ and P. Time runs from the date of the decision which is being appealed.

• The appellant should set out:

  • The decision being appealed;

  • A summary of the issues in the case;

  • Which witnesses he wants to call;

  • How long the trial lasted and how long the appeal is likely to last;

  • Whether he has asked the mags’ to reconsider the case;

  • A list of those on whom he has served the notice of appeal.

• The appeal is heard by a judge together with 2-4 lay justices.

• An appeal against conviction is simply a rehearing of the proceedings in the Mags’ e.g takes the form of a full trial. Both sides can call new evidence and witnesses if they wish. The CC judge is not bound by any findings of facts made in the mags.

• An appeal against sentence takes the form of a fresh sentencing hearing.

The powers of the CC on appeal:

• The CC may:

  • Dismiss the appeal;

  • Allow the appeal and quash the conviction;

  • Allow the appeal and vary sentence. The correct procedure is to determine whether the sentence imposed was correct.

• The CC can also increase the sentence up to the max that the Mag’s could have passed.

Appeal to the High Court by way of case stated:

• Where there is an error of law or jurisdiction, both sides may appeal by way of case stated.

• Leave is not required to appeal.

• There must have been a final determination in the case.

• No live evidence is heard.

• The Court can:

  • Acquit;

  • Remit the case back to Mags’ with a direction to convict and sentence D;

  • Convict D;

  • Remit the case back to Mags’ with a direction to continue with the trial e.g after there was a submission of no case to answer.

Appeal to the High Court by way of judicial review:

• Error of law, error of jurisdiction, or a breach of natural justice, both sides may appeal to the High Court by way of judicial review.

• Permission is required, considered by a single HC judge.

• The Court can:

  • Make a quashing order;

  • Make a mandatory order;

  • Make a prohibiting order;

  • Substitute its own decision for that of the Mags’, but only where there was an error of law, and without the error only one conclusion could have been reached.

Abandonment of appeal:

• The appellant may abandon the appeal by giving notice in writing to that effect to the magistrates' court, to the appropriate officer of the Crown Court and to the prosecution and to any other party to the appeal.

• The appeal may be abandoned without permission if it is done before the hearing commences. Once the hearing has started, the appeal may be abandoned only with the permission of the Crown Court.

The power of the CC to rectify mistakes as to sentence:

• The CC can rectify any mistake as to sentence or any other order within 56 days of the date on which the sentence was passed or the order made.

• This allows mistakes to be corrected without the need to make an appeal to the CoA.

The right to appeal to the CoA:

• D can appeal against conviction or sentence, D requires leave to appeal.

  • In order to appeal against conviction, the defence will need to argue that the conviction was unsafe.

• If D pleaded guilty, he cannot usually appeal against conviction, unless:

  • The guilty plea was equivocal or mistaken; or

  • As a result of an incorrect ruling on the law where the facts were admitted, D was left with no choice but to plead guilty.

• An appeal can be brought after D’s death.

• Principle of double jeopardy dictates that one acquitted, D should not face further prosecution for the same allegations. P can appeal against acquittal in limited circumstances:

  • The offence was serious; and

  • New evidence has come to light which is reliable, substantial and highly probative; and

  • A prosecution would be in the interests of justice;

  • P could not have used or found this new evidence before.

• A court consisting of an uneven number of judges no fewer than three is required to determine:

  • An appeal against conviction

  • A review of a sentence

  • An appeal against a finding under fitness to plead, that a person is under a disability

  • Not guilty by reason of insanity

  • An application for leave to appeal to the Supreme Court

Requirement to obtain leave to appeal:

• Leave is required within 28 days of conviction (unless a fit for appeal certificate was issued

• For the CCRC to refer a case, there must be a real possibility that the Court of Appeal or Crown Court will quash the original conviction or sentence. )

Procedural requirements:

• Written grounds of appeal within 28 days of conviction must be submitted.

  • The Court of Appeal requires the grounds of appeal and relevant facts to be set out in one document. Counsel should not submit separate grounds and advice.

  • The grounds of appeal first lodged may be varied or amplified within such time as the Court of Appeal will allow.

  • When the Registrar's office sends the transcripts, counsel has 14 days within which to perfect the grounds

  • Although the time period for lodging the notice of application for leave to appeal is 28 days, that period may be extended either before or after its expiry

• The application for leave to appeal is considered by a single judge on the papers.

  • If the single judge refuses to grant leave to appeal, the decision can be challenged by renewing the application to a sitting of the CoA. D must notify the court of an intention to renew the application within 14 days, although this can be extended.

• Certificate that a case is fit for appeal may be issued by the CC. Counsel must:

  • Make an immediate oral application and apply in writing within 14 days.

Loss of time direction:

• The Court of Appeal can direct that time D spends in custody pending the determination of his appeal will not count towards his custodial sentence.

• This is used where D renews an application for leave to appeal which is wholly without merit, after it has been rejected by a single judge.

• The CoA may not make a loss of time direction where:

  • Leave has already been granted.

  • The trial judge has issued a certificate that the case was fit for appeal.

  • The case was referred by the Criminal Cases Review Commission.

Fresh evidence:

• Evidence will be heard on appeal where it is necessary or expedient in the interests of justice to do so.

• In so deciding, the Court of Appeal will consider:

  • The evidence appears capable of belief;

  • It may afford any ground for...