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Appeals from the Magistrates Courts and from the Crown Court in its…
Appeals from the Magistrates Courts and from the Crown Court in its appellate capacity
SETTING ASIDE A CONVICTION FOR REHEARING BEFORE DIFFERENTLY CONSTITUTED BENCH
An accused who was convicted in a magistrates court whether as a result of a guilty plea or of finding of a guilty after a trial to ask the magistrates to set the conviction aside
This application can be considered by the same magistrates who convicted the accused or by a different bench
If the conviction was set aside the case is reheard by a different magistrates from those convicted
An application may be appropriate if the magistrates made an error of law or there was some defect in the procedure which led to conviction
The purpose is described as the power to rectify mistakes and is regarded as the slip rule
Where there has been a simple mistake it enables the magistrates to rectify it if necessary by directing the case be reheard by different justices
However, once there is a guilty verdict pronounced by the magistrates it does not enable the convicted accused to make further submissions with a view to persuading the bench to change its mind and substitute a not guilty verdict
If the magistrates have reached the wrong decision on the merits of submissions which have been made to them the appropriate course for the accused is to appeal to the Crown Court or by way of case stated to the High Court
APPEAL FROM THE DIVISIONAL COURT
Any appeal from the High Court in a criminal cause or matter either in relation to an appeal by way of the case stated or in judicial review is direct to the supreme court
The essence of the procedure is an appeal on a point of law which is identified by the lay bench or district judge in a document known as the case
This includes:
The remedy is available to both prosecution and defence
The remedy operates only in relation to an error of law or a decision taken in the excess of jurisdiction
A decision as to a question of fact will ordinarily not give rise to an appeal by way of stated but may do so if the finding of fact is alleged to be such that no reasonable bench could have properly reached that factual conclusion on the evidence
Any defendant who believes that justices should not have arrived at a finding for which there was evidence
For example if it was against the weight of the evidence has a remedy in an appeal to the Crown Court and not to the High Court
Any appellant who employs the case stated procedure forfeits the right to appear to the Crown Court
THE CASE STATED PROCEDURE
The remedy is available only after the final determination of proceedings in the magistrates court
If trial proceedings are adjourned the procedure cannot be employed during the period of adjournment
The remedy is available in respect of the errors made in relation to sentence as well as convictions
Such appeals have often been successfully established by the prosecution where the court has wrongly held that there were special reasons for not disqualifying a driver
A defendant may use the case stated procedure if the bench has passed a sentence which is so far beyond the usual level of sentence for such an offence that it is harsh and oprpresive
If an acquittal is quashed pursuant to an application to state a case by the prosecution that does not extinguish the Defendants rights to appeal against the conviction to the Crown Court
APPLICATION FOR JUDICIAL REVIEW
Prerogative Orders Generally
The High Court polices the decision making of inferior public bodies by way of Judicial Review
Consequently decisions of the magistrates court and those of the Crown Court (those which are not concerned with matters relating to trial on indictment are open to review
The High Court does so by means of prerogative orders foremost with quashing orders, mandatory orders and prohibiting orders
The application for judicial review is dealt with by a Divisional Court of the Kings Bench Division of the High Court
The principal grounds judicial review may be sought are: Error of law on the face of the record so an error disclosed by the courts record
Excess of Jurisdiction
Breach of natural justice which means failing to give the Defendant adequate time to prepare a defence
Failing to grant adjournment to allow for the attendance of a witness
The prosecution failing to call or disclose the previous convictions of a prosecution witness
Making an order as to costs against the Defendant without inquiring to the Defendants means
It is common with applications by way of case stated from the magistrates court an application to appeal by way of case stated from the Crown Court may be made in respect of an error of law or where it is alleged that the Crown Court acted in excess of jurisdiction
There can be no challenge on the basis that a decision is against the weight of the evidence
Similarly as with appeals by way of case stated from the magistrates court the proceedings in the Crown Court must have been finally decided before the case stated procedure may be employed
No appeal by way of case stated is possible in respect of matters relating to trial on indictment
The means of challenge is plainly available in respect of any decision of the Crown Court relating to an appeal against conviction or sentence from a magistrates court
PROCEDURE ON APPEAL TO THE CROWN COURT
It requires notice of appeal to be given in writing to the relevant court officer and every other party within 15 business days of sentence being passed or sentence being deferred
The appellant has 15 business days from the date of sentence even if that is after the date of conviction to appeal against that conviction
The time limit is also 15 business days where the appeal is against an order or failure to make an order
The notice of appeal should state whether the appeal is against conviction or sentence or an order or failure to make an order
The notice of appeal must also summarise the issues and in an appeal against conviction must specify the witnesses whom the appellant will want to question and state how long the trial lasted in the magistrates court and how long the appeal is likely to take
In an appeal against a finding that the appellant insulted someone or interrupted proceedings in the magistrates court, the magistrates courts written findings of fact and the appellants response to those findings must be attached to the notice
Any notice must also stipulate whether the appellant has asked the magistrates court to reconsider the case and identify all those upon whom the 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
If notice is served within time no leave to appeal is required
An application for an extension of time must be served with the appeal notice and must explain why the appeal notice is late
The Crown Court may shorten or extend even after it has expired any time limit applies where a party wants to introduce further use of special measures notice of an application to introduce further evidence relating to bad character or previous sexual history or hearsay evidence or evidence involving the use of special measures notice of an application to introduce such evidence must be made not more than 15 business days after service of the appeal notice
An appeal is heard by a circuit judge or recorder who must normally sit with two lay magistrates who were not involved with the original proceedings
Prior to the hearing the defence may request a copy of the clerk notes of evidence of the summary trial
Any request the appellant might make for a copy should be viewed sympathetically
ROUTES OF CHALLENGE OF DECISIONS OF MAGISTRATES COURTS
A person aggrieved by a decision of the magistrates court has three means of challenge to that decision available
They are as follows:
Appeal to the Crown Court
Appeal to the High Court by way of case stated
Application to the High Court for Judicial review
Any person convicted by a magistrates court may appeal against either the conviction and or sentence
If the offender pleaded not guilty in the magistrates court then the offender if may appeal against conviction in the limited circumstances set out in and sentence to the Crown Court
An appeal to the High Court by way of case stated or an application for judicial review is available to either party in the magistrates court if they are aggrieved at the outcome of proceedings
DETERMINATION BY DIVISIONAL COURT OF AN APPEAL BY WAY OF CASE STATED
The Divisional Court which hears an application by way of case stated will be compromised of at least two judges and often three
If a two judge court cannot agree the appeal is unsuccessful
No evidence is called at the hearing as all evidence which needs to be referred to will be contained in the stated case
Instead the appeal is conducted by way of submissions from the parties
If the facts contained within the case give rise to a point of law which was not argued before the magistrates but would have been provided the defendant with a defence the court may consider the point provided no further evidence is necessary
The court may reverse, affirm or amend the decision of the magistrates court or remit the case with its opinion or make any other order including an order of costs as it sees fit
Thus the Divisional Court may quash an acquittal with a direction that the magistrates court convicts and sentence
The court may simply substitute a conviction for the previous acquittal and proceed to sentence
If the appeal concerns sentence only the court may substitute the appropriate sentence
The appellant may abandon an appeal by way of case stated without leave
The divisional court is entitled to order a retrial before the same bench or a different bench where a fair trial is still possible
POWERS OF THE CROWN COURT ON APPEAL
The powers of the Crown Court when disposing of an appeal are set out in section 48 of the Senior Courts Act 1981
The decision of the Crown Court may be a majority decision
This means that lay justices can out vote the judge
The lay justices must accept any decision on questions of law may by the judge
Following an appeal from the Magistrates Court the Crown Court:
May confirm, reverse or vary any part of the decision appealed against a determination not to impose a separate penalty in respect of an offence or
May remit the matter with its opinion thereon to the authority whose decision is appealed against or
May make such other order in the matter as the court thinks just and by such order exercise any power which the said authority might have exercised
The Crown Court is allowed to:
Quash the conviction
Remit the case to the magistrates court
Vary the sentence imposed by the magistrates this includes the power to increase the sentence but noy beyond the maximum sentence which the magistrates court could have passed
The appellant may abandon the appeal by giving notice in writing to that the effect to the magistrates court to the appropriate officer of the Crown Court and to the prosecution and to any other party on appeal
The appeal may be abandoned without permission if it is done before the hearing commences
Once the hearing has started the appeal may be abandoned only with the permission of the Crown Court
The Crown Court may allow the notice of abandonment to be given in a form other than specified or to be given orally
The Crown Court has a discretion to award costs in an appeal from a magistrates court in all cases even where a timely notice of abandonment has been served
An appeal cannot be abandoned simply by an appellant failing to attend or failing to instruct a advocate
The Crown Court has no power to increase a sentence
Once an appeal has been abandoned the Crown Court has no power to reinstate the appeal unless the abandonment was a nullity
APPEALS AGAINST CONVICTION AND SENTENCE
The appeals to the Crown Court is to widen its application beyond applications to introduce further evidence so as to cover applications about case management or any other question of procedure or the introduction or admissibility of evidence or any other question of law that has not been determined before the hearing of the appeal begins
It follows for greater flexibility in the hearing of appeals especially during the course of case management when it is permissible for no justices to be involved
It remains the case that generally an appeal from the youth court must be heard by a judge or recorder of the Crown Court sitting with two lay justices who are authorised to sit in the youth court The crown court may include only one justice of the peace if the presiding judge decides that the hearing of appeal will otherwise be unreasonably delayed or one or more of the justices who started hearing the appeal is absent
APPLICATION FOR JUDICIAL REVIEW
It is possible to challenge a decision of the Crown Court by judicial review provided that that decision does not concern a matter relating to trial on Indictment
Matters that don't relate to trial on Indictment include forfeiture of a surety, forfeiture of a property used in the court of an offence belonging to a third party and the binding over on an acquitted accused
Restrictions on the public of the identity of a convicted youth
Bail may be granted pending judicial review of a decision of the Crown Court
If a defendant is convicted in the magistrates court appeals to the Crown Court any further appeal to the High Court on a point of law should be by way of case stated and not judicial review
CHOICE BETWEEN JUDICIAL REVIEW AND CASE STATED
Both Judicial review and the case stated procedure set aside the decision of the court below and a choice must be made as to which route to pursue
This includes:
The normal route for an appeal against a decision of justices where it is alleged there has been an error of law by way of case stated
It would be wrong to seek judicial review where case stated was appropriate merely in order to avoid the more stringent time limit
However, judicial review is more appropriate where there is an issue of fact to be raised and decided which the justices did not decide themselves
Judicial review may also be appropriate where it is alleged that there has been unfairness or bias in the conduct of the case by the justices but where it is alleged that there has been a misdirection or an error of law cases stated is the appropriate remedy
Judicial review should be used where the inferior court (lower court) has acted in excess of jurisdiction
Judicial review is the only remedy available where the defence wish to challenge a committal for sentence as the case stated procedure is not available where there has not been a final determination of the case
VARIATION OF SENTENCE UNDER THE MAGISTRATES COURT ACT 1980 S142
A magistrates court are allowed to vary or revoke its decision as to sentence if it is in the interests of justice to do so
The power is similar to that in respect of setting aside a conviction
The magistrates can reopen the case regardless of whether the accused pleaded not guilty or was found guilty
However it cannot operate where the accused was acquitted
There is no power to revoke a defendants costs where the prosecution had withdrawn the charges
A sentence can be used to increase sentence only in exceptional circumstances
Where is a mistake is quickly identified and it is accepted on all sides had been made
It was possible to envisage circumstances in which the failure of the court to be aware of factors which would be relevant to sentence could properly mean that it would be appropriate to resort to
HEARING
The appeal proceeds by way of complete rehearing
The prosecution makes an opening speech and calls evidence after which the defence may make a submission of no case to answer
If that fails the defence evidence is called and counsel makes a closing speech and the court announces its decision
The parties may call evidence which has only become available them since the trial or evidence they decided not to use in the magistrates court
The information on which the appellant was convicted may not me amended by the Crown Court
The Crown Court cannot strike out an amendment made by the magistrates
An appeal against the sentence is in essence a fresh sentencing hearing
The prosecution open the facts and antecedents of the appellant and the defence counsel then mitigates
The court then decides the sentence to be imposed
When dealing with an appeal against sentence the Crown Court should not ask itself whether the sentence was within the discretion of the magistrates as would be the appropriate question in judicial review proceedings
They should ask whether the sentence passed by the magistrates was the correct one
If that court thinks it is appropriate sentence and it differs from the sentence imposed by the magistrates the appeal should be allowed and the sentence of the Crown Court be substituted for that of the magistrates
The Crown Court is not entitled to increase the sentence in appeal from the magistrates court on the basis that the magistrates ought to have committed the offender to the Crown Court for sentence in the first place
The crown court may increase the sentence to the maximum that could be imposed by the magistrates courts