#13789 - Appeals - BPC Criminal Litigation (formerly BPTC) 2024/2025

Appeals

Pt63 - Procedure

• To appeal from MC to CC, a Notice of Appeal must be lodged within 21 days of sentence. Appeal is as of right.

• May ask Mags to reconsider to correct errors (Eg: unlawful sentence) per s142 MCA 1980.

• Bail pending appeal is permissible, and can be made in Mags per s113 MCA 1980. BUT presumption of bail doesn't apply as s4 BA says the presumption doesn't aply after conviction. If unsuccessful, can appeal the bail to CC.

• To appeal from CC to CoA, Notice of Appeal must be lodged within 28 days of conviction/sentence per s18(2) CAA. This date can be extended. Need permission to appeal either by written notice to Judge in CC ("Notice and Grounds") OR ask CC to "certify" case for appeal . Or you can do both. Can apply orally to CC judge with writing 14 days after. A single Lord Justice grants leave on paper, but if you are rejected you have a second hearing before the full court.

• To appeal a "terminating ruling" in CC, P must say immediately after ruling that he intends to appeal, or request an adjournment to consider. Then serve notice on Court, Appeal Court Registrar and D. Determine whether to expediate appeal (next business day) - Test: Whether you've sworn your jury, as if you don't expedite you'll hold up the jury. If non-expedited, it's 5 business days. CoA treats as any other appeal, Trial judge can grant leave (representations from P and D), and if not a single Lord Justice grants leave.

• Generally, s29 CAA states that time pending appeal counts towards sentence. However, whilst CoA can't increase sentence, it can hold that time served pending appeal won't count towards sentence (from lodging of appeal to appeal disposed of by court).

• Key difference between appeal from MC-CC and CC-CoA, from CC, appeal on conviction runs from date of conviction, and sentence runs from date of sentence; in Mags, both run from the date of sentence only.

Presence of D

• s22 CAA 1968 - D is entitled to be present at appeal if he is in custody and wishes unless:

• He is in custody and:

  • Appeal is on point of law alone;

  • Leave to appeal only.

  • Proceedings are preliminary or incidental to main appeal;

  • In custody by reason of NG by reason of insanity, or disability;

Unless CoA give him leave to be present.

NB: CoA may make live link direction, but must give parties opportunity to make representations, it may rescind at any time.

To appeal such a decision, Notice of Appeal must be served on Registrar within 7 days after decision (if represented at hearing), or decision served (if unrepresented at hearing) per r68.12.

Powers on Appeal

The Criminal Cases Review Commission

• This is an independent body with power to refer convictions on sentences imposed to CC (in summary cases) or to CoA (indictment cases).

• The test is whether there is a real possibility that the CoA/CC will quash the original conviction/sentence.

• This may only be made in respect of argument/info not available in court of first instance, or first appeal, unless exceptional circumstances.

References by AG

(1) s36 CJA 1972 - Reference on Point of Law Following ACQUITTAL

• AG may ask CoA to clarify the law on which D was acquitted.

• It will not affect D's acquittal, but will impact on future cases.

• D is entitled to be represented at hearing.

• CoA can refer to SC if they see fit, or party(ies) request this. per s36(3). If referred, UKSC shall give its opinion.

• Acquitted D will be entitled to legal aid for expenses of being represented on the reference (CA) or further reference (UKSC). Only for sums "reasonably sufficient" to compensate him for expernse "properly inccurred".

(2) s35-36 CJA 1988 - Reference for Review of Sentence

• Ground is if AG thinks sentence is unduly lenient and the offence was triable only on indictment or an offence specified in CJA 1988 (Reviews of Sentencing) Order 2006, AG may with the leave of CoA refer the case to CA for review of sentence. You don't need to know this list in the Order!

• If leave is granted, CoA will proceed on facts according to facts before sentencing judge.

• Sentence may be increased if unduly lenient, though some discount will be given for "double jeopardy" - ie compensating D for distress of having to wait to know whether his sentence will be increased. If custodial/non-custodial, D is young or immature, or nearly completed custodial sentence, discount should be at the upper end, around 30%.

• Period in custody pending review is included in his sentence.

• Sch 3(6-7) - D shall be entitled to be present unless he is in custody and it is:

  • Application by AG for leave alone;

  • Preliminary or incidental to a reference.

Unless CoA give permission to be present. ("leave")

• Not entitled to be present in UKSC reference hearing, or any other preliminary/incidental points, except where CoA give him leave if he is in custody. (Sch 3(9)) Court may order him attend by live link per r70.7(2).

• r70.8 - When appeal on a point of law, D's name must remain anonymous unless D gives permission. (This rule may be ultra vires, but CA and HL have inherent jurisdiction to grant injunction to restrain publication of D's identity to protect his right to privacy, and where no Art 10 rights outweighed this consideration per Re BBC (AG's Ref No 3 of 1999))

Prosecution Appeals DURING trial - TERMINATING RULINGS

• Requirements:

  • P must immediately inform court it intends to appeal, or request an adjournment to consider whether to appeal, and if so, to notify the court as such; The judge may grant adjournment per s58(5) CJA 2003.

  • Ruling must be made before summing up (excludes ruling to discharge jury);

  • An acquittal agreement must be given at or before time notifying court of intention to appeal per s58(8) CJA 2003. "The acquittal agreement" is that if appeal is lost, or leave is refused, D will be acquitted on that count. if appeal is abandoned, or...