#16086 - Appeals From Crown Court - BPC Criminal Litigation (formerly BPTC) 2024/2025

Appeals 2 – challenging decisions of the Crown Court

Power to rectify mistakes at sentence

• Crown Court version of ‘slip rule’, s155(1) PCC(S)A 2000

  • judge can vary or rescind a sentence or other order within 56 DAYS of it being passed or made.

  • Must be the same judge who passed sentence to make the variation (though if he was accompanied by justices on the first occasion, they need not be present for the variation).

• The power to rectify mistakes is extinguished if an appeal against it, or application for leave to appeal against it, has been determined, i.e. if you proceed with an application for leave to appeal to CA and it is determined by the single judge or by the court then the power is extinguished because a superior court has determined the matter.

• Purpose of slip rule = to save time and money; and removing need for either party to seek redress from a higher court where a recognisable error has been made in the sentence.

• The word ‘varied’ has a wide meaning, not restricted to changing the length of a sentence, Can be used to replace one form of sentence with a quite different form, eg:

  • Replace a six-month prison sentence with a hospital order plus restriction order without time-limit;

  • Replace an unlawful sentence of 30 months’ youth custody passed on a juvenile, with an equivalent term of detention.

• And can be used to add an extra order to the sentence already passed.

• Can be used to make a correction to the period which the court has allowed for time spend in custody on remand.

The Court of Appeal (Crim Div)

• CA (Crim Div) has jurisdiction to hear certain types of case from Crown Court. We are primarily concerned with (non-exhaustive) list. Jurisdiction to:

  1. Determine appeals against conviction on indictment (ss1-2 Criminal Appeal Act 1968).

  2. Determine appeals against sentence passed following conviction on indictment (s9 & 11 CAA).

  3. Determine appeals against sentence passed on committal for sentence (ss10-11 CAA).

  4. Give opinions on points of law referred to the court by the AG following acquittal on indictment (s36 CJA 1972)

  5. To increase sentence on references by AG of unduly lenient sentences for offences triable only on indictment and some either-way offences specified by Home Sec (ss35-36 CJA 1988)

  6. determine appeals against rulings made at preparatory hearings in serious fraud causes (s9(11)-(14) CJA 1987).

  7. determine appeals on a reference by the CCRC (Criminal Cases Review Commission) (CAA 1995, s9).

• NB, no power for CA to hear an appeal against a refusal to make a football banning order

Matters dealt with by the Full Court

• A CA of an uneven number of judges, no fewer than 3, is required to determine:

  • (a) an appeal against conviction;

  • (b) a review of sentence under AG’s references for unduly lenient sentence, Part IV CJA 1988

  • (c) an appeal against a finding of unfitness to plead (s4 Crim Procedure (Insanity) Act 1964)

  • (d) an application for leave to appeal a verdict of not guilty by reason of insanity or a finding under s4 19864 Act which has not previously been refused by a single judge

  • (e) application for leave to appeal to Supreme Court.

• Normally, will be 3 judges: exceptionally, 5 or even 7 judges, when:

  • the matter is v important and would benefit from the authority of such a court;

  • or where there have been conflicting decisions of the CA on the same point.

Matters dealt with by a 2-judge court

• a 2 judge court may deal with any matter other than those above.

• Including: appeal against sentence (not by way of AG’s reference for unduly lenient sentence).

Appeal against conviction (NB, only accused can appeal, not prosecution)

• S1 CAA 1968: a person convicted of an offence on indictment may appeal to the CA against his conviction, IF:

  • (b) trial judge, within 28 days of conviction, grants a certificate that case is fit for appeal (exceptional circumstances).

  • (a) with leave of the CA.

• [i.e. you need leave to appeal to CA, unless trial judge has exceptionally granted certificate of fitness for appeal, see below].

Appeal against conviction following a GUILTY PLEA:

• The fact that a guilty plea has been entered does not preclude an appeal against the resultant conviction (CF magistrates’ court s108 appeal to crown Court, if guilty plea can appeal against sentence only).

• If the conviction is found to be unsafe, despite the guilty plea conviction will be quashed, court can rule the plea a nullity.

• However, it will be highly relevant to the consideration of whether the conviction is safe, that: the appellant was fit to plead; had received expert advice; had been aware of what he was doing; and had intended to plead guilty.

• Most common basis upon which an unequivocal plea of guilty is challenged where there has been an incorrect ruling on a point of law by trial judge which allows the appellant no escape from a guilty verdict.

• But conviction not normally held unsafe if an appellant has simply been influenced to enter a plea of guilty because of a decision to admit evidence which meant his prospects of acquittal were hopeless.

  • Highly unlikely an appeal would be entertained where a D pleaded guilty following a decision to admit evidence of bad character

• CA may quash a conviction arising from a guilty plea following the admission of fresh evidence on appeal (under s23 CAA 1968).

• A conviction may also be held unsafe where the guilty plea flowed from inappropriate legal advice

  • Eg, where D was not advised as to a possible defence if the conviction is regarded as unsafe, but is an exceptional course; only where the CA believes the overlooked defence would quite probably have succeeded, or that there was a reasonable prospect of the defence succeeding.

Common grounds of appeal

Common grounds for appeal against a conviction:

1. fresh evidence

2. wrongful admission/exclusion of evidence

   • wrongful exclusion or wrongful inclusion of inadmissible evidence - will lead to quashing of conviction if error means conviction is unsafe.

   • Even if the appellant’s advocate failed to object to the admission of the evidence when it was adduced.

   • But the fact that the advocate did not object will be a factor in determining whether its admission rendered the conviction unsafe.

3. Erroneous exercise of discretion

   • CA has often said it will not interfere to quash a conviction on basis of an erroneous exercise of discretion except in very limited circumstances.

   • Appeal might succeed if there has been a failure to exercise the discretion, or a failure to take relevant factors into account, or judge took irrelevant factors into account in exercising discretion.

   • The review is not limited to cases in which a trial judge had erred in principle, or where there was no material on which the decision he reached could properly have been arrived at.

   • If necessary, court could examine afresh the relevant facts & circumstances in order to exercise a discretion by way of review where the judge’s ruling may have resulted in injustice to the appellants.

4. misdirection on law/facts in the course of summing up

   • Errors in summing up - quashed conviction if conviction unsafe.

   • (1) Misdirection on Law

     • quashing only if misdirection causes conviction to be unsafe.

     • Eg, where judge failed to direct jury as to the standard and/or burden of proof, but ONLY IF causes conviction to be unsafe.

     • Eg, for robbery, if judge fails to direct jury that it was necessary for the force used to be for the purpose of stealing, which was crucial to distinguish between robbery and theft.

   • (2) wrongful withdrawal of issues from jury

     • If a judge fails to direct a jury as to an issue of fact going to an element of the offence may be quashed if unsafe.

     • Where evidence on a particular issue is agreed, can be appropriate for judge to direct a jury that they may draw adverse inferences against accused on that issue.

     • But if judge removes all issues of fact and law from the jury so that they are effectively directed to convict likely quashed (but not inevitably if a not guilty verdict from a properly directed jury would have been perverse).

   • (3) misdirection on facts

     • A misstatement or omission of a fact in summing-up may lead to quashing if the fact was of such importance that, if correctly stated, the jury may not have reached the same verdict.

     • Eg, where judge told jury that the accused had first mentioned his defence when the trial had commenced.

     • CF, no quashing if the misdirection on facts was not sufficiently central/significant.

   • (4) improper comments on facts or defence case

     • Judge can comment on facts and express opinions as to those facts, so rare for a successful appeal based on such judicial comments.

     • Only when a judge exhibits blatant unfairness and pro-prosecution bias that conviction may be quashed.

     • Eg where judge repeatedly described the defence case as ‘absurd’.

     • Eg where judge described allegations put by the defence to a prosecution witness as ‘really monstrous’ and ‘wicked’.

   • (5) comment on failure of accused to testify

     • a direction on failure of accused to testify is important, error in that direction may give rise to arguably ground.

   • (6) Comments on the accused’s character

     • may lead to quashing if inappropriate direction.

     • Where an accused is entitled to a good character direction and the judge fails to give it in proper form conviction will be quashed as a matter of course.

     • Appellate court should only interfere if it was not properly open to the judge to reach the conclusions he did.

5. conduct of the trial judge

   • Excessive judicial intervention during...