#16085 - Appeals From Magistrates - BPC Criminal Litigation (formerly BPTC) 2024/2025

Review/appeal of magistrates decisions

The power to rectify mistakes – s142 MCA 1980, ‘slip rule’ (for a technical mistake in law or procedure)

• First step: consider whether the magistrates have made an error which they themselves are capable of rectifying.

• = ‘slip rule’, s142 MCA – allows a D who was convicted in m’ court (whether guilty plea or verdict after trial) to ask magistrates to:

  • (1) set aside the conviction [s142(2)]; or

  • (2) vary or rescind the sentence [s142(1)]

• Application can be heard by the same or different bench who convicted the D;

  • but if the conviction is set aside, the case will be re-heard by a different bench.

• Defence counsel can apply orally as soon as sentence/conviction passed.

• NB, cannot operate where the accused was acquitted: no power under s142 to revoke a D’s costs order if the prosecution has withdrawn the charges.

• The power is a narrow one, is not an alternative avenue for the D to simply reargue his case

• It does not confer a ‘wide & general power on m’ court to re-open a previous decision’ on the grounds of interest of justice (Zykin v CPS).

• Instead, it exists to allow magistrates to ‘mop up’ any technical mistakes in law or procedure:

  • Eg where there is a simple (1) error of law or (2) defect in procedure.

  • EG, if exceed max power of sentence by sentencing a D to 7 months imprisonment for common assault, s142 could be used to rectify the sentence to less than 6 months.

  • Eg, if court was misled into imposing a particular sentence: that sentence may properly be said to have been imposed because of a mistake (the mistake of failure of court to appreciate a relevant fact).

  • Exceptionally/rarely, a sentence could be increased, if, for example, the court was misled of court failed to consider factors relevant to sentence.

• Is NOT the way to challenge a decision on the merits of the case that is dealt with by appeal to Crown court, below.

Challenging m’ court decisions (for wrong decision on the substantive merits)

• If D feels m’ court has reached the wrong decision on the substantive merits – appropriate course is to APPEAL, 3 means of challenge:

  • (a) appeal to Crown Court

    • Available only to the defence.

    • 21 days from sentence (and extra notice within 14 days after that re certain types of evidence)

    • Form of appeal: rehearing

  • (b) appeal to QBD of High Court by ‘way of case stated’ (heard by Div Court)

    • Available to prosecution and defence.

    • If (a) wrong in law or (b) error of jurisdiction.

    • 21 days from decision appealed.

    • Only after final determination of proceedings.

    • No evidence heard

  • (c) application to High Court for JR (heard by Div Court).

    • Available to prosecution and defence.

    • Must be filed promptly; within 3 months.

• If a person is convicted by m’ court after trial:

  • Can appeal against conviction and/or sentence.

• If the person pleaded guilty:

  • May appeal against sentence only (or conviction only if exceptions apply, eg can show their plea was equivocal).

• The choice depends on the decision to be challenged, R v Hereford M Court, ex p Rowlands, following approach:

  • (a) an error of fact, or mixed fact and law appeal to Crown Court, s108.

  • (b) an error of law, or magistrates acted in excess of their jurisdiction appeal by way case stated to QBD.

  • (c) where D alleges unfairness, bias or procedural irregularity apply for JR.

(a) Appeal from m’ court to Crown Court, s108 MCA (not for prosecution)

• S108 MCA, general right of appeal from m’court to Crown Court.

• Governed by s108 MCA and part 34 CrimPR.

  • CrimPR has been amended to widen its application beyond applications to introduce further evidence, to cover applications about case management or any other question of procedure, or introduction or admissibility of evidence, or any other question of law that has not been determined before the hearing of the appeal beings.

  • Flexibility re hearing of appeals, especially during the course of case management when it is permissible for no justices to be involved.

• Part 63 CrimPR, procedural requirements. A person convicted by m’ court may appeal to Crown court:

  • (a) if he pleaded guilty, may appeal against sentence only (unless can demonstrate their plea was equivocal)

    • [[CF Crown Court appeal to CA, can appeal against conviction even if guilty plea]].

  • (b) if he pleaded not guilty and was found guilty after a trial, may appeal against conviction or sentence.

• Note that:

  • (1) Prosecutors cannot appeal via this route (can only use the other 2 challenges case stated or JR).

  • (2) if the appellant appeals against conviction, the sentence is ‘AT LARGE’ means that the Crown Court can pass any sentence that the m’ court could have passed, including one more severe than the original sentence. [This applies whether the appeal is against convection nor sentence].

  • (3) if the appeal pleaded guilty they can only appeal against sentence (unless they can demonstrate that their plea was equivocal).

Procedure on appeal to Crown Court (CrimPR 34)

• Notice of appeal must be lodged within 21 days OF SENTENCE, (within 21 days of sentence being passed or of sentence being deferred), irrespective of whether the appeal is against conviction or sentence.

  • Notice must be given, in writing, to: the relevant m’ court and every other party within 21 days of sentence being passed or sentence being deferred.

  • So appellant, even if he is appealing only against conviction rather than sentence, has 21 days from the date of sentence, even if that is after date of conviction

  • Timelimit is also 21 days where the appeal is against an order, or failure to make an order

  • An application for an extension of time must be served with the appeal notice, and must explain why it is late.

  • The Crown Court may shorten or extend any time limit

• There is no requirement for drafted ground of appeal, but the notice of appeal must specify:

  1. State whether the appeal is against conviction, sentence, an order, or failure to make an order.

  2. Summarise the issues

  3. in appeals against a conviction: indicate the prosecution witnesses to be called by appellant; state how long the trial lasted in m’ court; and how long the appeal is likely to take.

  4. In an appeal against a finding that the appellant insulted someone or interrupted proceedings in the m’ court -> must attach to the notice the m’ court written findings of fact and the appellant’s response to those findings.

  5. State whether the m’ court has been asked to reconsider its decision under s142 (slip rule)

  6. Identify all the parties on whom the appeal notice has been served.

• The Crown Court may allow an appeal notice to be in a form other than the specified form, OR to be presented orally

• Appeal to Crown Court is as of right, so no requirement for leave to appeal IF notice is served within time.

  • An application for an extension of time must be served with the appeal notice, and must explain why it is late.

  • The Crown Court may shorten or extend any time limit

• Where a party wants to introduce further evidence re:

  • Bad character

  • Previous sexual history

  • Hearsay evidence

  • Evidence involving use of special measures.

  • notice of application to introduce such evidence must be made not more than 14 days after service of appeal notice

The hearing

• Appeal will be heard by: a judge of the Crown Court (circuit judge or recorder) + 2 lay magistrates (who were not involved in the original proceedings).

  • Exceptionally, may proceed with just 1 lay justice (with the judge), if the hearing might otherwise be unreasonably delayed.

• Prior to the hearing, D may request a copy of the clerk’s notes of evidence of the summary trial: any such request should be ‘viewed sympathetically’.

• Appeal is by way of a complete re-hearing:

• For an Appeal against conviction a complete rehearing:

  • Prosecution/respondent makes opening speech; call evidence;

  • Appellant counsel may make submission of no case to answer

  • Defence evidence

  • Closing speech

  • Court decision.

  • Parties are NOT limited to the same evidence called during first trial they may call evidence which has only become available since the trial, or evidence they decided not to use in the m’ court original trial.

  • The information (the written charge on which appellant was convicted) cannot be amended by the Crown Court

    • And the Crown Court cannot strike out an amendment made by the magistrates

• For an appeal against sentence, is in essence a fresh sentencing hearing:

  • Prosecution open facts & antecedents of appellant;

  • Defence counsel mitigate;

  • Court decides sentence.

  • When dealing with appeal against sentence, Crown Court should not ask itself whether the sentence was within the discretion of the magistrates (as would be appropriate question in JR proceedings); but should consider whether the sentence passed by magistrates was the correct one, in light of all the matters the Crown Court has heard.

  • If Crown Court thinks appropriate sentence differs significantly from that imposed by m’ court appeal should be allowed, and the sentence of Crown Court substituted for that of m’ court.

  • Crown Court NOT entitled to increase the sentence on appeal on basis that the magistrates ought to have committed the offence to Crown Court for sentence in the first place.

• NB, an appeal from the YOUTH COURT must be heard by a judge or recorder of the Crown Court sitting with 2 lay justices (one man and one woman) who are authorized to sit in the youth court.

  • Exceptionally, the Crown Court may include just 1 JP, and need not include both a man and woman, if the presiding judge decides the hearing will otherwise be unreasonably delayed, or 1 or more of the...