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Appeals from the Crown Court - Coggle Diagram
Appeals from the Crown Court
VARIATION OF THE SENTENCE
A sentenced imposed or other order made by the Crown Court when dealing with an offender may be varied or revoked within 56 days of being passed or made
The judge who makes the variation must be the judge who originally passed the sentence
If however the judge was accompanied by justices on the first occasion i.e on an appeal from the magistrates court they do not need to be present for the variation
The judge who announces the variation does not have to be the judge who makes the variation
The power to vary may not be exercised in relation to any sentence or order if an appeal against it or application for leave to appeal against it has been determined
EXTENT OF THE POWER TO VARY
The power may be used to replace one form of sentence with a quite different form
For example, a six month prison sentence was substituted for a hospital order plus a restriction order without time limit
Another example, is that an unlawful sentence of 30 months youth custody passed on a 16 years old was replaced by an equivalent term of detention
The court may use this power to impose either a more punitive or more lenient sentence and to correct a sentence that is on reflection considered to have been wrong in principle
APPEAL AGAINST CONVICTION
Statutory Basis of Appeal against Conviction
Section 1 of the Criminal Appeal Act 1968
A person convicted of an offence on Indictment may appeal to the Court of Appeal against their conviction
An appeal lies only with leave of the Court of Appeal OR
If within 28 days of the date of conviction the judge of the court of trial grants a certificate that the case is fit for appeal
Unless the trial judge certifies that a case is fir for appeal leave to appeal to the Crown Court is required
Such a certificate of fitness to appeal against conviction or sentence should be issued only in exceptional circumstances
The certificate removes the need for leave to appeal to be granted by the Court of Appeal but it does not commence the appeal advocates will still need to follow the procedure
APPEAL AGAINST CONVICTION WITH LEAVE
Unless the trial judge has granted a certificate that case is fit for appeal any would be appellant needs to appeal
Written grounds of appeal must be submitted within 28 days of conviction
The initial decision either to grant or refuse leave is usually taken on the papers by the single judge but sometimes the decision as to leave may be made by a two judge or full court at the discretion of the Registrar of Criminal Appeals
The need for expedition is sometimes a reason for holding such a leave hearing
Such a hearing will also often take place when an unlawful sentence has been passed and the sentence will inevitably need adjusting
If leave is refused by the single judge the applicant is entitled to renew the application before a two judge or full court
COMMONLY OCCURING ERRORS RAISED ON APPEAL
Exhaustive consideration of the many errors and irregularities which can found a successful appeal against conviction is not possible and regard should be had to other parts of this work dealing with matters of procedure and substantive law
Nevertheless it is possible to identify commonly occurring errors
WRONGFUL ADMISSION OR EXCLUSION OF EVIDENCE
The wrongful exclusion of admissible evidence or wrongful inclusion of inadmissible evidence will lead to the quashing of a conviction if the error means that the conviction is unsafe
That remains true even if the appellants advocate failed to object to the admission of the evidence when it was adduced
But the fact that the advocate did not object to the evidence will be a factor in determining whether its admission was sufficiently prejudicial to render the conviction unsafe
ERRONEOUS EXERCISE OF DISCRETION
The court of appeal will not quash a conviction on the basis of an inaccurate exercise of discretion except in very limited circumstances
The prospects of an appeal succeeding in relation to a matter in the judges discretion are much improved if there has been a failure to exercise the discretion of a failure the take relevant factors into account or the judge has taken irrelevant factors into account in the exercise of his or her discretion
If necessary the court could examine afresh the relevant facts and circumstances in order to exercise a discretion by way of review where the judges ruling may have resulted in injustice to the appellants
ALLOCATION OF BUSINESS
Matters dealt with by the Full Court
A court consisting of an uneven number of judges no fewer than three is required to determine:
An appeal against conviction
A review of a sentence
An appeal against a finding under the Criminal Procedure Insanity Act and unfitness to plead that a person is under a disability
An application for leave to appeal a verdict of not guilty by reason of insanity or a finding which has not previously been refused by a single judge AND
An application for leave to appeal to the Supreme Court
Usually it will be three judges determining the above
However in exceptional circumstances five or seven judges will sit when the matter to be decided is very important and would benefit from the authority of such a court or where there had been conflicting decisions of the Court of Appeal on the same point
MISDIRECTION ON LAW
A misdirection to the Law will lead to the quashing of a conviction only if that misdirection causes the conviction to be unsafe
APPEAL AGAINST CONVICTION FOLLOWING A GUILTY PLEA
The fact that a plea has been entered does not prevent an appeal against the resulting conviction
If the conviction is found to be unsafe despite the guilty plea it will be quashed
The fact that an appellant was fit to plead, had received expert advice and had been aware of what he or she was doing and had intended to plead guilty would be highly relevant to the consideration of the safety of the conviction
The court identified three categories of cases in which it has jurisdiction to consider appeals against convictions following unequivocal guilty pleas
Those categories are:
1)Where the guilty plea was undone- e.g incorrect legal advice
2)Abuse of process cases
3)Where it is established that the defendant has not committed the offence
The Court of Appeal may also quash a conviction arising from a guilty plea following the admission of fresh evidence on appeal
BASES OF JURISDICTION OF THE COURT OF APPEAL (CRIMINAL DIVISION
Statutory Bases
The vast majority of appeals against conviction and sentence are disposed of by the Court of Appeal Criminal Division
Section 15(2) of the Senior Courts Act 1981 enables the exercise of the statutory powers conferred under the following legislative provisions:
Criminal Appeal Act 1968 ss 1 and 2-Jurisdiction to determine appeals against conviction on Indictment
Criminal Appeal Act 1968 ss 9 and 11- Jurisdiction to determine appeals against sentence passed following conviction in Indictment
Criminal Appeal Act 1968 ss 10 and 11- The Jurisdiction to determine appeals against sentence passed on a committal for sentence
Criminal Appeal Act 1972 ss 36- Jurisdiction to give an opinion on a point of law referred to the court by A-G following an appeal on Indictment
Criminal Justice Act 1987 s9(11-14)- Jurisdiction to determine appeals against rulings made at preparatory hearings in serious fraud cases
Criminal Justice Act 1988 ss 35 and 36- Jurisdiction to increase sentence on a reference by A-G following an unduly lenient sentence for an offence triable only on indictment
Criminal Appeal Act 1995 s9- Jurisdiction to determine appeals on a reference by the CCRC
There is no power for the Court of Appeal Criminal Division to hear an appeal against a refusal to make a football banning order
MATTERS DEALT WITH BY A TWO-JUDGE COURT
A court comprised of two judges may deal with any matter other than those mentioned
INCONSISTENT VERDICTS AND JURY IRREGULARITIES
The Court of Appeal will quash a conviction based on apparently inconsistent verdicts only if those verdicts are such that no reasonable jury applying its mind to the evidence could have reached the conclusions that did it
The tests to be applied in determining whether a conviction should be quashed is that it is necessary on appeal to demonstrates the verdicts were not merely inconsistent as to demand interference on appeal
Misconduct by jurors in various forms can lead to the quashing of conviction by the Court of Appeal
CONDUCT OF THE TRIAL JUDGE
Excessive judicial intervention during the course of the evidence of the accused has sometimes led to the quashing of conviction
Conduct other than interruption which prevents justice being done to the defence case can also give rise to a successful ground of appeal against conviction
Dismissive remarks about the prospects of acquittal albeit in the absence of the interruption and quashed the conviction
The Court expressed the view that exchanges between the judge and counsel betrayed a rudeness and discourtesy on the judge's part of which he should be ashamed
Safety of a conviction does not simply depend on the strength of the evidence the jury hears but also on the observance of due process
APPROACH OF COURT OF APPEAL TO COMMONLY OCCURRING ERRORS IN SUMMING-UP
Plainly, errors in the summing up may found a successful appeal against a conviction if the error leads to the conclusion that the conviction is unsafe
REJECTION OF SUBMISSION OF NO CASE TO ANSWER
The wrongful rejection of a submission of no case to answer at the close of the prosecution case will lead to the conclusion that a conviction is unsafe
That can be even so when the appellant has given evidence and admitted guilt in cross examination
The failure of an experienced advocate to make submissions of no case to answer will not preclude the quashing of a conviction on the basis that there was in fact no case to answer but the Court of Appeal will presume that the advocate had reason to not make a submission and will look at the whole of the evidence in making its decision
The Court will not ordinarily interfere if a submission would have succeeded but was not made and evidence of guilt emerged later in the trial
DEFECTS IN THE INDICTMENT
Where the indictment charges an offence not known to law, the conviction will be quashed
That will be the case even if the accused pleads guilty or no point is taken at trial
Where the indictment is preferred and signed without jurisdiction the proceedings will be a nullity
A bill of indictment must be duly signed by the proper officer of the court for it to be a valid indictment
Without such an indictment there could be no valid trial on Indictment
Where an Indictment is false or dishonestly made a conviction may be quashed if the results in the conviction are unsafe
When counts are improperly joined or included in a indictment the conviction may be quashed
If the joinder of counts falls foul the conviction will be quashed subject to a caveat that the application must be made at trial to quash the indictment