#10416 - Appeal - BPC Criminal Litigation (formerly BPTC) 2024/2025

APPEALS FROM DECISIONS OF MAGISTRATES

CRIMINAL CASES REVIEW COMMISSION

• independent public bodies which reviews cases to ID potential miscarriages of justice

• can refer cases to the appeal courts without leave if the normal appeal process has been exhausted

• test: real possibility CA will overturn original decision? e.g. new evidence / exceptional circumstances such as investigation into police corruption

WAYS OF APPEALING AGAINST DECISION OF MAGS

1. appeal to CC

2. appeal to HC by way of case stated

3. application to HC for JR

N.B. Power to rectify mistakes (NOT appeal)

• application for case to be re-heard by different JPs (s142(2) MCA 1980)

  • appeal, = power to re-open case

  • the application

    • if D convicted (on G OR NG plea) may apply under s142(2)

    • application can be heard by same mags who convicted D

  • the test

    • if appears to court in interests of justice that case should be heard again by different JPs, court may direct

  • when is an application appropriate?

    • only to correct mistakes, NOT wide 'interests of justice' discretion to re-open cases

    • assessment of merits irrelevant (matter for appeal)

    • mags' made error of law / procedural defect

    • mags' wrongly proceed in D's absence

• rescinding or varying a sentence / order (s142(1))

  • the application

    • if D convicted (on G OR NG plea) may apply under s142(2)

    • no time limit BUT delay is a significant factor

    • mags' powers lost after case appealed to CC / HC by way of case stated AND HC / CC has determined the appeal

  • the test

    • court may rescind OR vary sentence / order imposed by it if is in interests of justice

  • when is an application appropriate?

    • mags' made error of law when passing original sentence

    • all agree mistake made, ID'd quickly + power exercised quickly

(1) APPEAL TO CC

Who can appeal

• the D

  • NG plea

    • D may appeal against conviction AND / OR sentence

  • G plea

    • D may appeal against sentence only

    • the exceptions: D can appeal against conviction IF

1. plea was equivocal:

   1. G plea + words amounting to defence OR

   2. G plea + later information revealed to mags' before sentence renders equivocal OR

   3. G plea under duress

2. autrefois acquit / convict arises

• Criminal Cases Review Commission (Crim Appeal Act 1995 s11)

  • reference treated as being made by D, regardless of whether pleaded G / NG

Procedure

1. leave to appeal

1. if in time, NOT required - appeal as of right

2. if out of time, must apply for leave in writing to CC (r63.2(3), 63.9)

2. written appeal notice

1. A gives to mags' court officer AND pros within 21 days of sentence

2. 21 days always run from date of sentence unless:

   1. sentence deferred: date sentence deferred, if earlier (r63.2)

   2. appeal against order: date of order OR date of failure to make

3. appeal notice must

1. summarise issues

2. if A asked mags' to reconsider case under s142, state

3. only if appeal against conviction, A must:

1. ID pros Ws will want to Q if called to give oral evidence; +

2. say how long summary trial lasted

3. say how long appeal likely to last

4. provision by mags' court office of documents

1. notes of evidence to A: no duty BUT request should be viewed sympathetically

2. any document / info to CC: officer must provide (r63(4)(c))

5. all documents forwarded to CC

1. listing officer

1. places appeal on list

2. sends notice of time + place to A, pros + mags'

Bail if D in custody when gives notice of appeal

• mags' may grant bail, with duty to appear at appeal hearing (MCA 1980 s113)

  • if mags' refuse bail OR unacceptable conditions imposed, A may appeal decision to CC (SCA s81)

• no right to bail under s4 BA BUT likely to be granted if sentence likely to have been served before appeal heard

The hearing

• judges

  • judge (CJ / recorder) sits with 2 JPs not involved in case in mags' (r63.10)

  • if appeal from youth court, JPs from youth bench, ideally a man and a woman

• appeal against conviction OR sentence + conviction

  • = complete rehearing

  • either party may call new evidence / omit evidence to that in mags'

  • the decision

    • JPs must accept law from judge

    • decision = majority (JPs can outvote judge; if evenly numbered court divided, judge has casting vote)

    • = procedural irregularity for judge to act as prosecutor in absence of pros advocate

    • reasons for the decision

      • CC judge must give reasons regardless of whether appeal accepted or rejected (refusal may = breach of natural justice):

        • how resolved main issues

        • enable A to:

1. see nature of criminality found; AND

2. consider whether grounds for further appeal to div court by way of case stated

   • A entitled to know basis on which pros case accepted by court

   • failure to give reasons invalidates decision unless reasons obvious

• appeal against sentence

  • D may appeal any order made on conviction by mags' (s108(3))

  • = fresh sentencing hearing

  • the test

    • in light of all the matters which CC has heard, was sentence passed by mags' the correct one?

  • CC not bound by mags' decision to accept D's version of events - can pass sentence on different factual basis, BUT should offer A Newton hearing

Powers of CC on appeal (SCA s48)

1. confirm, reverse (quash) or vary any part of decision appealed against

   • if D has only appealed part of mags' decision, CC may review whole

2. remit case to mags' with its opinion

   • if plea equivocal, usually = direction to enter NG plea + hold trial

3. make any such order it thinks just

   • includes power to increase sentence to max available to mags' (rare)

4. appeal unsuccessful: order appellant to pay Crown's costs

Abandonment of appeal (MCA s109)

• A may abandon appeal by:

1. only if hearing has started getting permission of CC

2. giving notice in writing to mags', appropriate officer of CC, pros + any other party (r68.3(1)(a))

• CC may award costs even if timely notice served

• upon abandonment CC has NO power:

  • to increase sentence; OR

  • re-instate appeal (unless abandonment was a nullity)

Proceeding in absence of parties

• if A is represented + fails to attend CC should hear appeal

• non-attendance abandonment

• if neither party attends AND neither represented dismiss appeal

(2) APPEAL TO HC BY WAY OF CASE STATED (outline only)

The power (MCA s111(1))

• the rule

  • A must show mags' decision:

1. wrong in law; OR

2. in excess of jurisdiction

• the rule applied

  • jurisdiction, admissibility of evidence etc.

  • appeal based on facts of case:

    • general rule (remedy = appeal against conviction to CC)

    • if amounts to error of law i.e. mags' made finding of fact:

      • totally unsupported by evidence; OR

      • which no reasonable tribunal, properly directing self could have reached

  • sentence so far outside mags' normal discretionary powers that it is "harsh + oppressive" (rare)

• when can mags' state a case?

  • must wait until hearing is at an end

• who has right to apply?

1. pros (against acquittal)

2. defence

3. third party whose legal rights effected

• loss of right to appeal to CC

  • once application to state case to HC made, right to appeal to CC lost (MCA s111(4))

• what can be appealed against?

1. conviction

2. order

   • includes sentence (rare) - if outside mags' normal discretionary powers

3. determination

4. NOT committal for trial / sentence ( mags' have no power to state case during hearing)

Procedure

1. application

1. must be made in writing within 21 days of disposal of case (CANNOT be varied); AND

2. should state

   1. point of law on which HC's opinion sought AND grounds

   2. any application for bail

2. application sent to court officer of convicting mags'

3. pros have 14 days from receipt of notice to reply

4. mags' may refuse to state a case (MCA s111(5))

1. 2 situations in which mags' may refuse:

   1. application frivolous (rare)

   • test = is application futile, misconceived, hopeless or academic?

   • mags' must give certificate if doesn't enabling to JR decision AND if A requests reasons, serve within 21 days of request

   2. unless A enters into recognisance - to prosecute appeal without delay AND pay costs as awarded by HC

   • common if mags' think A might abandon appeal half way

2. if mags refuse, decision reviewable by HC on application for JR

   1. A should immediately apply for permission to seek JR

   2. if mags' already given reasoned judgment, single HC judge should give permission for JR if point arguable (avoid case stated entirely)

5. statement (case stated) drafted

1. legal adviser must give JPs advice + may help draft, unless court includes DJ

6. draft statement served on parties for comment

1. must serve within 21 days of decision to state case (r64.3(3))

2. comments must be lodged with court within 21 days

3. statement may be adjusted in response

4. court must state case 21 days after time for service of representation has expired

5. court considers only final version, when agreed

7. final draft completed

1. contents of case stated:

1. names of parties + court

2. procedural history

3. charges

4. findings of fact

5. only if Q is whether sufficient evidence to find fact: summary of evidence

6. request HC's opinion + specify Qs of law / jurisdiction on which HC's opinion sought

8. mags' sign + send final draft to A

9. A files appellant's notice at HC

1. A has 10 days to file:

1. A's notice

2. case stated

3. copy of decision re: case stated

2. A then has further 4 days to serve notice on R

• N.B. all time limits can be extended, even after they expire EXCEPT 21 days within which application must be made (statutory)

Bail pending appeal

• A may be granted bail pending outcome of hearing in HC

• basis: A will return to mags' within 10 days of HC hearing unless conviction quashed (MCA s113)

• if mags' refuse in judge's chambers HC

The hearing

• must be 2 judges, usually 3

  • if 2 judges sitting AND cannot agree appeal fails (decision of judge agreeing with lower court prevails)

• court acts ...