#10522 - Appeals - Criminal Procedure and Evidence

Auld Review principles and purposes of a good appellate system

Lord Woolf in Access to Justice: 2 functions of the criminal appeal

1. Private- through which justice is done for individuals by correcting wrong decisions

2. Public – upholds public confidence in the due process of law.

Cited w/ approval by Auld LJ in his review.

Auld LJs main criteria:

• Do justice to individual defendants and to the public as represented principally by the prosecution.

• Bring finality to the criminal process, subj to need to safeguard either side from clear/serious injustice and such as would damage the integrity of the system

• Readily accessible, consist w/ proper balance of individual D and public interest

• Clear and simple

• Efficient and effective

• Speedy

System notable for mixed and overlapping appellate routes and remedies and lack of clarity in jurisdiction and procedure. There are also procedural impediments in its ability to do justice in individual cases and adequately protect the public interest.

Auld wants to have broadly similar grounds of appeal at each level, replace the overlapping procedures and jurisdictions w/ a single procedural strand and better match the tribunal to the seriousness and complexity of the case.

Spencer Lecture Notes on appeals

Intro: our appeals process was not designed. It grew slowly from our original position of not having appeals, and gradually created exceptions to this (seen, for example, through diverse time limit rules).

Two concepts of appeals: “right result” and “due process”. In the French tradition they both are differentiated (appeal and cassation), but in ours they are muddled.

• Cassation – do not re-examine facts. Take facts as known and look to the decision, either affirming or annulling.

• Appeal – appellate court reconsiders the case and replaces the first instance decision.

Types of appeal – rehearing or review

D when appealing – in contrast to many systems on the continent, Ds sentence takes effect even when he is appealing

Appeals from summary trial

• Appeal against merits:

  • Defence has open-ended right of appeal to Crown court allowing it to challenge conviction, sentence or both – MCA 1980 s108-110

  • Prosecution has no equivalent right to appeal on merits against unjustified acquittal or inadequate sentence, w/ some random exceptions.

• Appeal as to point of law:

  • Both can appeal to Divisional court by way of ‘case stated’ MCA 1980 s111

  • High Court has greatest powers when dealing w/ appeal on case stated& can reverse, reaffirm or amend the magistrates’ decision.

• Judicial Review SCA 1981 ss29-31 – pros and defence.

  • But hard for prosecution because of principle that High Court cannot quash an acquittal – this is hard to justify given that they can do so when it is brought by case stated.

Disincentive to appealing in Senior Courts Act 1981 s48 – you can get a worse sentence awarded on appeal – this is surprising to continental colleagues. Some say its unfair to discourage people from appealing this way. No Nulla reformtio in peius.

Appeals from the Crown Court

Appeals from Crown –> CA Crim Div

• Criminal Appeal Act 1968 and Criminal Appeal Act 1995

• Went from having no appeal at all (had to petition Crown for pardon/commute sentence), slowly grew + now have unified court in London (sitting w/ several other courts at once) which deals with appeals against sentence and conviction from all Crown Courts in England and Wales.

1. Defence: can appeal against conviction, sentence or both. Now under CAA 1968

2. Prosecution have a range of disparate rights

Mechanisms to deter appealing

• Crown Court hearing appeal from summary trial has no power to increase sentence to deter Ds from wasting time BUT

• Requirement of judicial leave to appeal - s2(a)

• Loss of time directions – s.29 (where they think you are wasting their time).

Options open to the CA:

1. Dismiss the appeal – conviction not unsafe

2. Quash the conviction – conviction unsafe

3. Substitute a conviction for a difference offence – CAA s3

4. Quash the conviction and order a retrial – CAA s7

An appeal from the Crown Court to the CA is a review of what was done below (unlike mag Crown), and the burden is on D.

Ds right of appeal against conviction from Crown Court – CAA 1968 s.1

• s.1 – D can appeal either (i) with leave of the Court of Appeal or (ii) if within 28 days from conviction the trial judge grants certificate that case is fit for appeal.

• CAs powers and duties are in s.2 –

  • 2(1) – shall allow an appeal if the conviction is unsafe, and dismiss in any other case

  • 2(2) – if they allow an appeal the court shall quash the conviction

  • 2(3) - an order of the court quashing the conviction shall, except when under s7 the D is ordered to be retried, operate as a direction to the court of trial to enter a judgment and verdict of acquittal.

The 1995 reform

Was changed in 1995 to just being ‘when unsafe’ rather than the various grounds that existed before (e.g unsafe/unsatisfactory, wrong decision on any question of law, material irregularity in the course of the trial).

• Pre 1995 CA was very reluctant to get involved in the merits of cases. The Royal Commission on Criminal Justice wanted to re-orientate towards appeals on merits and take less notice of trivial irregularities. This meant for new grounds of appeal.

• Spencer = the change was a muddle and potential disaster

3 views as to legal effect

• What Parliament thought it was doing – shifting the emphasis toward ‘right result’ appeals;

• What the Lord Chief Justice thought it did, which was leave the position as it previously was w/ simpler statute

• What the words seem to say, which is that there’s no more appeal on grounds of failure of due process in any case in which CA thinks that D is guilty.

  • Chalkley: said that due process appeals had been eliminated –s o no appeal where D plead guilty just because prosecution used evidence that should have been excluded, and by extension any case in which the CA was convinced that D did it.

  • THIS interp was disproved of in Togher where Lord Woolf CJ said that ‘narrow approach’ from Chalkley was pre-HRA and “certainly wasn’t right afterwards”.

  • So current approach is that there can be ‘failures in process’ in which the conviction is quashed irrespective of guilt, and other ‘harmless errors’ where Ds guilty is clear in which the conviction might not be.

Failures of due process which invariably cause CA to quash

• For breach of Art 6 it just depends – some can be failures of due process, some are ‘harmless errors’.

• Some guarantee quashing regardless of guilt

  • Tribunal not independent – Spear

  • Biased jury – EctHR in Hanif

  • Cannot direct jury to convict (bc jury equity) even if the defence is legally hopeless – Wang.

  • Where case should have been stopped as an abuse of process.

  • Refusing to stop the case at half time

• Other things don’t necessarily guarantee quashing. S.2(1) just says whether the conviction is safe or unsafe.

  • Formal defects on the indictment-

    • Clark and McDaid the HL held, surprisingly, that the failure of the relevant court official to sign the indictment made the whole proceedings void (this was later reversed by statute)

    • Nowadays usually refuse to treat such cases as blue chip cases – Hodgson and Pollin

    • Sometimes courts take a purposive interpretation toward the rule that was broken

  • Misdirection on law; wrongful rejection or misreception of evidence – CA will uphold if they didn’t think it made any difference.

    • Docherty – came out at trial that D was in prison for other offence – upheld bc there was clear guilt.

  • Misconduct by jury; cant complain if it was in retiring room; for other misconduct (e.g. getting information from internet) they investigate but can treat it as ‘harmless error’ if they think it made no difference.

  • Disclosure not followed – Craven

  • Right to Silence – Boyle

• Where the irregularity isn’t that bad, CA quashes only if they think it would have made a diff.

In cases in which the CA has to quash (blue chip cases – where there is failure of due process) can they order a retrial

• Maxwell - CA can always order a retrial, no matter how bad the procedural irregularity is.

Convictions for the wrong offence – s3 CAA

• In such cases CA has explicit power to substitute a conviction for a different offence

• s.3 CAA 1968 – where jury could on indictment have found D guilty of some other offence, and on the finding of the jury it seems to the CA that the jury must have been satisfied of facts which proved him guilty of the other offence.

  • Now also applies where he plead guilty under s3A

• But no substitution

‘Unsafe’ convictions when it is alleged it is a miscarriage of justice

3 standard forms of miscarriage of justice

1. “jury heard relevant evidence but believed wrong bits of it”

   1. Not accepted until Cooper, since which it is possible but liable to fail.

   2. Pope: CA generally only quashes a conviction where there is ‘lurking doubt’ if there is a rational explanation for having that doubt – a mere gut feeling is not enough.

2. “jury never heard evidence that showed me innocent, because my barrister made a mess of my defence”

   1. Used to be impossible

   2. Now more possible but not likely – Ullah, defence counsel failed to use tape recordings of witness discussing evidence w/ friend after court to cast doubt on her credibility. CA quashed the conviction and said ‘real ineptitude’ was needed to appeal because of what counsel did or did not do –tactical decisions usually not enough.

3. “the jury never heard the evidence that showed me innocent, because it only came to light later”

   1. CA has power to hear fresh evidence under s23 CAA but has...