Appeals from the Crown Court.docx

***[Appeals from the Crown Court -- 2 Q's]*** ***[Power to Vary -- ]*** **A sentence imposed or other order made by the Crown Court when dealing with an offender may be varied or rescinded within 56 days of being passed or made**. **The judge who makes the variation must be the judge who original...

***[Appeals from the Crown Court -- 2 Q's]*** ***[Power to Vary -- ]*** **A sentence imposed or other order made by the Crown Court when dealing with an offender may be varied or rescinded within 56 days of being passed or made**. **The judge who makes the variation must be the judge who originally passed sentence;** if, however, **the judge was accompanied by justices on the first occasion (i.e., on an appeal from the magistrates' court), they need not be present for 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.** Power in the SA 2020, s. 385, **may be used to replace one form of sentence with a quite different form.** - Where the Crown Court, upon learning that D had been diagnosed by psychiatrists as suffering from paranoid psychosis and was dangerous, substituted for a six-month prison sentence a hospital order plus restriction order without time-limit. - an unlawful sentence of 30 months' youth custody passed on a 16-year-old was replaced by an equivalent term of detention under what is now the SA 2020, s. 250. The word 'varied' in (what is now) s. 385 has a wide meaning **and the court's power is therefore not restricted to changing the length of a sentence.** The section may also be used to add an extra order to the sentence already passed. The Court may use the 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. ***[Right to appeal to the Court of Appeal and the requirement to obtain leave]*** The vast **majority of appeals against conviction and sentence are disposed of by the Court of Appeal (Criminal Division)** under its statutory jurisdiction. 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 on indictment**. Criminal Appeal Act 1968, ss. 10 and 11 Jurisdiction to determine **appeals against sentence passed on a committal for sentence.** Criminal Justice Act 1972, s. 36 Jurisdiction to **give an opinion on a point of law referred to the court by the A-G following an acquittal on indictment.** Criminal Justice Act 1987, s. 9(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 the A-G following an unduly lenient sentence for an offence triable only on indictment.** Criminal Appeal Act 1995, s. 9 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. A court consisting of **an uneven number of judges** **no fewer than three** is required to determine a. an **appeal against conviction**, b. a **review of a sentence under the CJA 1988, Part IV (A-G's references**), c. an **appeal against a finding under the Criminal Procedure (Insanity) Act 1964, s. 4 (unfitness to plead), that a person is under a disability**, d. an **application for leave to appeal a verdict of not guilty by reason of insanity or a finding under s. 4 of the 1964 Act which has not previously been refused by a single judge, and** e. an **application for leave to appeal to the Supreme Court**. Ordinarily, **a court sitting to deal with any of the above hearings will comprise just three judges.** But, **exceptionally, five or even 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 have been conflicting decisions of the Court of Appeal on the same point.** [A court comprised of two judges may deal with any matter other than those mentioned] ***[What is the statutory basis of appeal against conviction? ]*** A **person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction**. An appeal under this section lies only--- a. **with the leave of the Court of Appeal**; or b. **if, within 28 days of the date of the 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 fit for appeal, leave to appeal to the Court of Appeal 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 still need to follow the procedure. Unless the trial judge has granted a certificate that the case is fit for appeal, **any would-be appellant needs leave to appeal.** **Written grounds of appeal must be submitted within 28 days of the conviction**. The **initial decision either to grant or refuse leave is usually taken on the papers by the single judge** (Criminal Appeal Act 1968, s. 31(2)(a)), **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 Registrar'). **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 under** ***[What about appeals against conviction following a plea of guilty? ]*** The fact that a plea of guilty has been entered does not preclude an appeal against the resultant conviction. **If the conviction is found to be unsafe despite the plea of guilty** (see D26.15), it will be quashed. - The fact that an appellant was fit to plead, had received expert advice, 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 **Most common basis upon which an unequivocal plea of guilty is challenged is where there has been an incorrect ruling on a point of law by the trial judge which allows the appellant no escape from a guilty verdict**. But **if an appellant has simply been influenced to enter a plea of guilty because of a decision to admit evidence which meant that the prospects of acquittal were hopeless, the conviction would not normally be held to be unsafe.** **It was highly unlikely that an appeal would be entertained when D pleaded guilty following a decision to admit evidence of bad character.** The Court of Appeal may also quash a conviction arising from a guilty plea following the admission of fresh evidence on appeal. A conviction may also be held to be unsafe when the guilty plea which led to it flowed from inappropriate legal advice. D had pleaded guilty to an offence of possessing a false identity document contrary to the Identity Documents Act 2010, s. 4, without being advised as to a possible defence under the Immigration and Asylum Act 1999, s. 31. The Court observed that in Boal (1992) 95 Cr App R 272 **it was indicated that a guilty plea might be set aside on appeal in such a situation if the circumstances are such that the Court regards the conviction as unsafe**. But it was an exceptional course to be taken **only when the Court believes that the overlooked defence would quite probably have succeeded and therefore concludes that an injustice has been done.** ***[What are the commonly occurring errors raised on appeal?]*** 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 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 to the evidence will be a factor in determining whether its admission was sufficiently prejudicial to render the conviction unsafe. Court of Appeal has often said that **it will not interfere to quash a conviction on the basis of an erroneous exercise of discretion** save in very limited circumstances. The prospects of an appeal succeeding in relation to a matter in the judge's discretion are much improved **if there has been a failure to exercise the discretion or a failure to take relevant factors into account, or the judge has taken irrelevant factors into account in the exercise of his or her discretion.** **Court said that the review was not limited to cases in which a trial judge had erred in principle or where there was no material on which the decision reached could properly have been arrived at.** If necessary, **the Court could examine afresh the relevant facts and circumstances in order to exercise a discretion by way of review where the judge's ruling may have resulted in injustice to the appellants.** 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** (Abbott \[1955\] 2 QB 497 ). That can be so even when the appellant has given evidence and admitted guilt in cross-examination. - The **failure of an experienced advocate to make a submission of no case 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 the 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. 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 **trials proceeded on indictments that had been uploaded to the Crown Court Digital Case System but had not been formally amended and the defendants had not been arraigned on them.** The Court of Appeal **dismissed the appeals against conviction, observing that although the proper course would have been for the original indictments to have been amended and for the defendants to have been re-arraigned, those procedural errors had not resulted in any unfairness to the defendants**, nor had they otherwise called into question the safety of their convictions. Where **an indictment is duplicitous, a conviction may be quashed if the duplicity results in the conviction being unsafe**. That is so whether objection was taken at trial or not When **counts are improperly joined or included in an indictment contrary to CrimPR 3.29(4) (see D11.63), the Administration of Justice (Miscellaneous Provisions) Act 1933, s. 2(2), or the CJA 1988, s. 40, the conviction may be quashed.** If the **joinder of counts falls foul of s. 2(2) of the 1933 Act, the conviction will be quashed subject to the caveat that application must be made at trial to quash the indictment**. D had been unrepresented at trial, but the trial judge raised the point and that was held to be sufficient. the Court of Appeal expressed the obiter view that **it had inherent jurisdiction to quash added or substituted counts if they might result in injustice even though they were founded on** the committal papers and no objection was taken at trial. If counts are improperly joined contrary to **the conviction in relation to the wrongly joined count will be quashed.** 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 it did** The fact that D is the only person convicted of an 'open' conspiracy is insufficient to render a conviction unsafe on the basis of inconsistent verdicts. - it is **necessary on appeal to demonstrate the verdicts were not merely inconsistent but were so inconsistent as to demand interference on appeal.** D's convictions were quashed because they were by a majority of nine to two. By virtue of the Juries Act 1974, s. 17(1), **when a jury is only 11 in number any majority verdict must be one on which at least ten of the jury are agreed**. When **there are only ten jurors remaining, the verdict must be one on which at least nine are agreed.** Misconduct by jurors in various forms can lead to the quashing of a conviction by the Court of Appeal. number of jurors consulted a Ouija board whilst in retirement. The Court of Appeal quashed the conviction, **taking the view that there was a real danger that some jurors may have been influenced by it and that D was thereby prejudiced.** Many **cases of juror misconduct have centred on the downloading of information from the internet, which, following the implementation of the CJCA 2015, s. 71, is now a criminal offence.** **Excessive judicial intervention during the course of the evidence of the accused has sometimes led to the quashing of a 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. Court of Appeal held **that dismissive remarks about the prospects of acquittal, albeit in the absence of the jury, when D was in the course of giving evidence, would have the same inhibiting effect on D as interruption, and quashed the conviction**. 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.** The judge had also **delayed a change of clothes for D after he had withdrawn his bail.** The Court observed that the safety of a conviction does not simply depend on the strength of evidence the jury hears, but also on the observance of due process. **It was an inescapable effect of the judge's conduct that D must have been inhibited in the course of his defence.** Court **quashed a conviction for dangerous driving when the trial judge had not only made inappropriate interventions, but had treated defence counsel's questions and submissions with hostility.** It culminated in his sending a note to defence counsel **headed '6P's'. The 6P's were explained in bold as 'Prior Planning Prevents Piss Poor Performance'.** **Errors in the summing-up may found a successful appeal against conviction if the error leads to the conclusion that the conviction is unsafe.** A **misdirection as to law** will lead to the quashing of a conviction only if that misdirection causes the conviction to be unsafe. - Court of Appeal **dismissed the appeals despite the judge having failed to direct the jury as to the standard and burden of proof respectively.** In each case the Court observed that the evidence against D was very strong and justified the exercise of the proviso which then applied under s. 2(1) of the Criminal Appeal Act 1968. - The Court quashed a conviction for robbery where the trial judge had failed to direct the jury that it was necessary for the force used to be for the purpose of stealing. That direction was crucial to distinguish between robbery and theft. if a **judge fails to direct a jury as to an issue of fact going to an element of the offence, the conviction may be quashed if it is, as a result, unsafe.** Where the e**vidence on a particular issue is agreed, it can be appropriate for a judge to direct a jury that they may draw an adverse inference against D on that issue. But if the judge removes all issues of fact and law from the jury so that they are effectively directed to convict, the conviction is highly likely to be quashed** (Stonehouse \[1978\] AC 55 ). That is **not inevitably so** **if a not guilty verdict from a properly directed jury would have been perverse.** A **misstatement or omission of a fact in the course of the summing up may lead to the quashing of a conviction if the fact was of such importance that, if it had been correctly stated, the jury may not have reached the same verdict.** **Court of Appeal quashed the conviction where the judge told the jury that D had first mentioned his defence when the trial had commenced. The Court took the view that it was at least 'on the cards' that the jury would have acquitted if the facts had been correctly stated to them.** **Judge erred in his handling of the facts, the question must be, first of all, was there error, and secondly, if there was, was it significant error which might have misled the jury?** If this court has a lurking doubt it is its duty to quash the conviction as unsafe, but this court ... has reached the clear conclusion that this verdict was safe and satisfactory. A **judge is entitled to comment on the facts and express an opinion as to those facts, so it is rare that an appeal will be successful when it is based on such judicial comments**. It is only **when a judge exhibits blatant unfairness and pro-prosecution bias that the conviction will be imperilled**. In Canny (1945) 30 Cr App R 143, the **conviction was quashed when the judge repeatedly described the defence case as absurd.** the conviction was quashed when the judge described allegations put by the defence to a prosecution witness as 'really monstrous' and 'wicked'. A **direction on the failure of an accused to testify is an important one** and an error as to that direction may give rise to an arguable ground of appeal. **Where an accused is entitled to a good character direction and the judge fails to give it in proper form, the conviction will not be quashed as a matter of course**. An appellate court should interfere only if, on the facts, it was not properly open to the judge to reach the conclusions he or she did. Elements of directions as to character may be found at F13. **An inappropriate direction may lead to the quashing of a conviction.** ***[What are the commonly occurring grounds of appeal against a sentence? ]*** The Court of Appeal will intervene when the **sentence imposed on an appellant could not legally be passed.** A **youth convicted summarily was sentenced to three years' detention, ostensibly in accordance with s. 53(3) of the CYPA 1933 but following committal for sentence.** As s. 53(3) **[detention could be imposed only following conviction on indictment, the Court of Appeal was forced to substitute the maximum available sentence in the youth court of 12 months' youth custody]**, despite observing that a sentence of three years was richly deserved. The **Court of Appeal will interfere with a sentence if it is of the view that it was outside the broad range of appropriate penalties**. The fact that a sentence is merely severe will not be sufficient. This court **never interferes with the discretion of the court below merely on the ground that this court might have passed a somewhat different sentence**; for this court to revise a sentence there must be some error in principle. a sentence is not of the appropriate form (e.g., because an offender was not eligible for the custodial sentence imposed), the more appropriate description is that the sentence is 'wrong in principle'. Equally, an inappropriate combination of sentences can be most appropriately described as 'wrong in principle'. That a sentence passed is 'manifestly excessive' is the basis that is most commonly used in the modern appeal process. An **appeal will succeed only if the sentence was excessive in the sense of being outside the appropriate range for the offence and offender in question, as opposed to being merely more than the Court of Appeal itself would have passed**. A sentence of nine months' imprisonment for stealing £1,000 from employers was too long by three months. **The Court held that a sentence of six months would not have been wrong, but to reduce the sentence by such a small amount would have been 'tinkering' with the judge's decision and the appeal was dismissed**. Although the sentence was 'excessive' in one sense, it was not so excessive as to be outside the appropriate range. **Equally, where a sentence was not manifestly excessive at the time that it was passed, the Court of Appeal will not interfere with the level of that sentence just because the 'tariff' for that offence is reduced after the sentence is passed or legislation alters the level of sentence to be imposed.** **The failure of a judge to follow the correct procedure may lead to a variation in the sentence by the Court of Appeal. But that is by no means necessarily the case.** The failure of a sentencing judge to secure a pre-sentence report before passing sentence in circumstances where one was required will not necessarily lead to a reduction in sentence, but the Court of Appeal will secure such a report before dealing with the appeal. Similarly, where information about an offender's antecedents has been inappropriately given to the court of sentence, the Court may either reduce the sentence or maintain it as the correct sentence in all the circumstances The **failure of the judge to hold a Newton hearing when asked to do so is more likely to result in a reduction in sentence, as the sentencing judge may well have proceeded on a basis adverse to D.** The **Court of Appeal will intervene when the appellant has a justifiable sense of grievance at the sentence imposed following events preceding sentence.** In practice, this principle applies most often **when a sentencing judge orders pre-sentence reports and indicates that, if the reports are satisfactory, a non-custodial sentence will be passed, but then proceeds to send the offender into custody despite positive reports** Moreover, **if an indication of a non-custodial sentence is given privately to an advocate and a guilty plea follows, any subsequent judge will be bound by the indication of the first judge** (Moss (1983) 5 Cr App R (S) 209). But **if a judge indicates that the fact of ordering reports should not be taken as any indication that a non-custodial sentence would eventually be passed, or indicates that he or she is 'making no promises'**, then the Court will not be moved to vary the sentence imposed if a custodial sentence follows, as the appellant's hopes could not be said to have been legitimately raised. **Where D had received a sentence which itself was not objectionable but, for no apparent good reason, was more severe than that of his co-accused, the Court could intervene if the disparity was serious.** - Would right-thinking members of the public, with full knowledge of all the relevant facts and circumstances, learning of this sentence consider that something had gone wrong with the administration of justice? The fact that offenders who are sentenced at roughly the same time as an appellant in the same Crown Court have received more lenient sentences for comparable offences can never be relied on as a ground of appeal. The **failure of the court of sentence to distinguish between offenders when one has powerful mitigation and the other does not can give rise to a successful ground of appeal against sentence.** ***[What is the procedure of appealing to the COA Criminal Division? ]*** *[Notice of an appeal -- ]* Notice of appeal (if the trial judge has granted a certificate that the case is fit for appeal) or notice of application for leave to appeal (required in all other cases) must be lodged in the prescribed manner. Under s. 18(2), **the notice must be lodged within 28 days of either conviction or sentence, depending on which is being appealed.** By virtue of s. 18A, the same rule applies in respect of cases of contempt of court**. If a conviction is the subject of appeal, then time runs from the date of conviction and not sentence (if the sentence hearing takes place at a later date).** **Advocates are reminded that the appeal documents should not be uploaded to the Digital Case System.** When a case is on the Digital Case System in the Crown Court, CrimPR 36.8(1)(a) requires the Crown Court officer to ensure, as soon as practicable, that all digitally stored material is available to the Registrar and provide the Registrar with any document, object or information for which the Registrar asks, within such period as the Registrar may require. Numerous required contents of a notice of appeal. - They **include a requirement that the notice should include or attach an electronic link to each such document that has been made available to the Registrar** under r. 36.8(1)(a) - Must **include or attach an electronic copy of any authority identified by the grounds of appeal and if two or more such authorities are identified, electronic copies of each must be provided together in a single electronic document**. - Immediately following the conclusion of the case, **the legal representatives should see the defendant and advocates should orally express their final view as to the prospects of an appeal against conviction and/or sentence**. If **there are reasonable grounds of appeal, they should be drafted, signed and sent to instructing solicitors as soon as possible**. The solicitors should then immediately send a copy to the accused. *[Drafting the appeal -- ]* - It is stated that grounds of appeal should be sufficiently detailed to enable the Registrar and the Court of Appeal to identify clearly the matters relied on. - a separate list of authorities must be provided which should contain the appellant's name and refer to the relevant paragraph numbers in each authority. - **Court of Appeal requires the grounds of appeal and relevant facts to be set out in one document**. Counsel **should not submit separate grounds and advice**. The purpose of the document is to enable the single judge easily to identify the facts and issues in the case, and its intended readership is not the lay or professional client. The grounds of appeal first lodged may be varied or amplified within such time as the Court of Appeal will allow. When **grounds of appeal are lodged, it is necessary to identify any transcripts which are needed to perfect the grounds of appeal**. If the Registrar agrees, the transcripts are secured and sent to counsel. **When the Registrar's office sends the transcripts, counsel has 14 days within which to perfect the grounds**. In the absence of any response from counsel, the grounds are placed before the single judge. **If counsel does not wish to perfect the grounds, the transcript should be returned with a note to that effect** (para. A8-4). **If counsel is not able to perfect the grounds within 14 days, it is advisable to contact the office of the Registrar as soon as possible**. The purpose of perfection of the grounds is two-fold: first, to save judicial time by enabling the Court to identify the relevant parts of the transcript; secondly, to enable counsel to reconsider the grounds in the light of the transcript. The **perfected grounds should comprise a fresh document which includes references to the appropriate part of the transcript by page number and letter.** If, **having read the transcript, the advocate forms the view that the appeal is no longer arguable, the solicitors should be informed of that in an appropriate advice**. The Registrar should also be informed **but not sent a copy of the advice.** If the **advocate advises abandonment and the applicant for leave continues with the appeal, the applicant is at risk of a direction that time served does not count.** An applicant may be at risk of a loss of time order or costs even when advised by lawyers that the grounds of appeal are arguable. **Advocates should not settle or sign grounds unless they consider that they are properly arguable'**. Counsel should not settle grounds he or she is unable to support just because 'instructed' to do so by a lay client. It is not unknown for counsel to be criticised for grounds of appeal that the Court of Appeal considers improper. Ordinarily, once the grounds have been perfected, **the case is referred to a single judge for the consideration of whether leave to appeal should be granted.** **Although the time period for lodging the notice of application for leave to appeal is 28 days, that period may be extended either before or after its expiry.** *[Hearing of an appeal -- ]* The **Registrar to give as much notice as reasonably practicable of the date on which the Court will hear any appeal or application.** The notice must be served on a. the parties, b. any party's custodian, and c. any other party the Court requires to be notified. As is made plain in r. 36.7(3), **notice should not ordinarily be given of public interest immunity hearings.** If a representation order is to be granted for an appellant for any hearing, it is normally granted either by the Registrar or by the single judge at the same time as leave to appeal is given. In most cases, a representation order will be granted only if the single judge grants leave. The representation order is usually limited to an advocate, but if necessary it will be extended to provide for the services of a solicitor. The Registrar will forward the necessary papers to counsel and will try to agree a date for the hearing with counsel's clerk. The **Registrar will forward the necessary papers to counsel and will try to agree a date for the hearing with counsel's clerk**. It is usual for various dates to be offered to counsel's clerk. Traditionally, the respondent was not usually represented at an appeal against sentence. **However, it is increasingly common for the respondent to be present**. Moreover, the respondent will **frequently submit a 'Respondent's Notice' setting out a reply to the applicant's grounds of appeal**. At an appeal against conviction, the respondent is invariably represented. Advocates **must ensure that the Court and any other party has a single document containing all of the points that are to be argued.** On **an appeal against conviction, a skeleton argument must be served if the appeal notice 'does not sufficiently outline the grounds of the appeal, particularly where a complex or novel point of law has been raised'.** On a **sentencing appeal, a skeleton argument 'may be helpful if a complex issue is raised'.** The **'appellant's skeleton argument, if any, must be served no later than 21 days before the hearing date, and the respondent's skeleton argument, if any, no later than 14 days before the hearing date'**, unless otherwise directed. **Any skeleton argument should contain a numbered list of the points the advocate intends to argue and should be as succinct as possible.** **If it is not necessary to refer to a previous decision of the Court, it is necessary not to refer to it.** Similarly, **if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it**. If it is necessary to cite an authority within a skeleton argument, CrimPD XII, para. D.18, now requires that the author state the **proposition of law the authority demonstrates, and identify but not quote the parts of the authority that support the proposition**. If **more than one authority is cited in support of a given proposition, para. D.19 stipulates that the skeleton argument must briefly state why**. ***[Renewal of grounds on appeal]*** If the **single judge grants leave on a particular ground without deciding the issue of leave in respect of the other grounds, the appellant is free to argue the other grounds at the substantive hearing of the appeal**. But *if the single judge grants leave on one ground but refuses leave on others, the appellant must renew the application for leave in relation to those other grounds, having previously informed the respondents and the Registrar's office of that intention, before the appellant is allowed to argue them at the substantive hearing* A renewed application for leave to appeal is heard by the Court. **The Court will be comprised of at least two judges and usually three.** **The applicant has no right to attend, so if in custody the applicant will not be present.** Even though legal aid is not available for representation at such hearings, **it is common for counsel to provide their services free of charge (and for applications to be fully argued) and for counsel to submit written skeleton arguments for renewed applications for leave to appeal.** If **counsel is to appear on behalf of an applicant at a renewed application for leave, whether on a privately paid or pro bono basis, the Court of Appeal Office should be informed of that in writing as soon as possible** (para. A15-3 of the Guide). Where **counsel does not appear, renewed applications for leave to appeal are often placed in a 'non-counsel list'**. Such hearings then simply involve the calling on of the case followed by one member of the Court giving judgment in the case. ***[What about directions Concerning Loss of Time and Frivolous and Vexatious Appeals? ]*** Court of Appeal to direct that all or part of the time an applicant for leave to appeal has spent in custody since the commencement of the appeal proceedings shall not count in relation to the sentence the applicant is required to serve. the procedure for directions in relation to loss of time served after service of the notice of appeal and include a reminder of the warning given by the Court of Appeal, that it may order that time be lost even where counsel has advised that there are good grounds for appeal. Six weeks of the time spent by D in custody should not count towards his sentence after he had renewed his application for leave to appeal against conviction following the refusal of leave by the single judge. It was emphasised that the fact that counsel or solicitors have associated themselves with such a renewal will be relevant, but it will not necessarily avoid such an order if there was no justification for continuing the case. **A single judge refusing permission under s. 31 is now asked to identify on Form SJ cases without merit where the court should consider using the power under s. 29 should the refused application be renewed to the full court**. There is also a box for the applicant to indicate why such an order should not be made, whether or not an indication has been given by the single judge. where the single judge had indicated on Form SJ that the application was without merit, the would-be applicant must expect that the Court will order that the time served should not count. ***[Rules concerning the Court of Appeal hearing fresh evidence]*** At any appeal against conviction, the Court of Appeal may admit evidence which is relevant to that appeal by virtue of s. 23. Section 23(1)(b) was amended by the CJIA 2008, sch. 8, so as to **extend the power of the Court (or a judge or the Registrar) to issue a witness order to anyone whom it is thought may be able to give relevant evidence**. The former qualification that t**he witness was compellable in the proceedings below has been repealed. The principal effect of this amendment is that both jurors and, subject to waiver of privilege, legal representatives can be compelled to appear at the hearing of an appeal.** In appropriate cases, **evidence may be introduced in the interests of justice at the request of the respondents and is not limited to rebuttal of fresh evidence adduced by the appellant.** - **However, it will not be admitted where its purpose is to advance a basis for conviction not argued previously and not put before the jury** The admission of evidence under s. 23 is a **matter of discretion.** The Court will admit evidence if it is necessary or expedient in the interests of justice (s. 23(1)). **while there may be exceptional cases in which the interests of justice would require evidence of an alternative defence to be received, what cannot be permissible is to advance one defence at trial and then, after conviction, seek to advance an alternative defence, such as diminished responsibility, on appeal**, endorsing Lord Judge's statement in Erskine that 'there is one trial, and that trial must address all relevant issues relating to guilt and innocence'. The renewed application for permission to appeal was based upon the contents of a report from an expert which was secured post-conviction and sought to criticise the way in which DNA evidence was dealt with at trial. **The Court observed (at \[15\]) that it has become not uncommon to try to persuade the Court to reconsider the DNA evidence given at trial by adducing a new report. While there are occasions when this is justified, such as where there has been an advance in DNA science**, it is for the defence to call their expert evidence at trial and it is not the function of the Court of Appeal to permit expert evidence to be re-litigated on appeal. Court of Appeal quashed the conviction **on the basis of the impact advances in the science of gunshot residue detection might have had on the trial judge's summing-up.** Examples of the admission of fresh medical evidence. **The Court of Appeal reiterated the principles to be applied and refused to admit fresh evidence which was argued to be relevant to a potential partial defence of diminished responsibility.** Court of Appeal strongly criticised 'a growing and unwelcome tendency of convicted defendants to dismiss their original counsel and then to bring in new counsel to criticise their predecessors'. **The Court described this as an attempt to circumvent the restriction on calling fresh evidence contained in s. 23 and deplored this strategy.** ***[Statutory Basis of Determination of Appeal]*** Subject to the provisions of this Act, the Court of Appeal--- a. shall allow an appeal against conviction if they think that the conviction is unsafe; and b. shall dismiss such an appeal in any other case. ***[EFFECT OF SUCCESSFUL APPEAL AGAINST CONVICTION]*** In **the case of an appeal against conviction the court shall, if they allow the appeal, quash the conviction.** **An order of the Court of Appeal quashing a conviction shall, except when under section 7 below the appellant is ordered to be retried, operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal**. 7\. --- Where the Court of Appeal allow an appeal against conviction and it appears to the court that the **interests of justice so require, they may order the appellant to be retried**. A **person shall not under this section be ordered to be retried for any offence other than---** a. the **offence of which he was convicted at the original trial and in respect of which his appeal is allowed as mentioned** in subsection (1) above b. an **offence of which he could have been convicted at the original trial on an indictment for the first mentioned offence; or** c. an **offence charged in an alternative count of the indictment in respect of which no verdict was given in consequence of his being convicted of the first-mentioned offence.** The factors which the Court will take into account when deciding whether or not to order a retrial will include the **length of time which has elapsed** between the appellant's original conviction and the successful appeal and the extent to **which any fresh evidence received** undermines the strength of the case against the appellant. Occasionally, **a retrial will not be ordered because of considerable publicity surrounding the alleged offences which is adverse to D** (Taylor (1994) 98 Cr App R 361). But, it is submitted, **an application that D should not be retried because of prejudicial publicity is highly unlikely to succeed**. The Court of Appeal **will allow such an application only if it is satisfied on the balance of probabilities that, as a result of the publicity, one or all of the verdicts returned by a jury would be unsafe**. The Court may take account of **the time between the publicity and the retrial and can seek to minimise its effect by a change of trial venue and suitable questions to the jury.** A case involving serious prosecutorial misconduct, the Supreme Court ruled (by a majority) that the **Court of Appeal was entitled to order a retrial notwithstanding the abuse of process that had been revealed to have** taken place prior to the original trial. The 'interests of justice' test in s. 7 called for an exercise of judgement and in the instant case (involving a grave crime and an admission of guilt) it would be wrong to override the exercise by the Court of Appeal of its discretion. ***[What about a partially successful appeal? ]*** This section applies on an appeal against conviction, **where the appellant has been convicted of an offence to which he did not plead guilty and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.** The **Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity.** Section 3 allows the Court of Appeal to substitute a verdict of guilty for an offence other than that of which the appellant was convicted if it appears to the Court that: a. the **jury could on the indictment have found the appellant guilty of the substituted offence, the allegation of which was expressly or impliedly included in the allegation in the particular count in the indictment**, and b. the **jury must have been satisfied of facts which proved the appellant guilty of the substituted offence** following a conviction for murder, fresh evidence as to diminished responsibility allowed the substitution of a conviction for manslaughter. The **second category of case is where there are counts charged in the alternative and the jury have convicted on a count which is not supported by the evidence**. The **Court may substitute the alternative count provided the jury have not already entered a not guilty count in relation to that count.** ***[Reference on a Point of Law Following Acquittal]*** Section 36 **provides for the reference of a point of law to the Court of Appeal by the A-G. The use of the power is confined to circumstances following the acquittal of an accused where the A-G requires the opinion of the Court of Appeal on a point of law**. There is no provision for the referral of points of law that do not arise from proceedings resulting in an acquittal. The procedure should not be used simply for very heavy questions of law but should be used for short but important points requiring a quick ruling. **Whatever the opinion of the Court of Appeal, the acquittal is unaffected.** Nevertheless, the acquitted defendant is entitled to be represented at the hearing. ***[Reference of lenient sentence -- ]*** **The scope of the power to refer now extends beyond indictable only offences to include a number of offences, and combinations of offences**, set out in the Criminal Justice Act 1988. An **offence is deemed to be triable only on indictment for the purposes of s. 35 if it is so for an adult and it is irrelevant that a youth can be tried summarily on such an allegation.** It is for the A-G to consider whether leave should be sought for a reference to the Court of Appeal on the basis that the sentence was unduly lenient and if appropriate to apply for leave **If leave is granted, the reference proceeds according to the facts before the sentencing judge, and the Court of Appeal will not alter the sentence on the grounds of new material that was not before the sentencing judge** but will decide whether the sentence was unduly lenient on the basis of what was before the sentencing judge. if the **Court concludes that the sentence was unduly lenient, it may receive fresh material, either favourable or adverse to the offender,** in reaching its conclusions as to the correct new sentence. ***[APPEALS BY THE PROSECUTION AGAINST ADVERSE RULINGS]*** **Appeals by the prosecution against rulings of the Crown Court in relation to trial on indictment.** These can be divided into two broad categories: a. **appeals against terminating rulings** (ss. 58 to 61); b. **appeals against evidentiary rulings which significantly weaken the prosecution case** (ss. 62 to 67). the prosecution to **challenge rulings of the Crown Court which would otherwise bring proceedings in a particular case to an end, in such a way that, if the ruling in question was found to have been in error, it would be possible for the proceedings to continue**. **Prosecution may appeal in relation only to certain counts of the indictment.** **Allows the prosecution to appeal other rulings made during the course of the trial in addition to the court's ruling in response to a submission of no case to answer**. Such an appeal requires leave either from the trial judge or the Court of Appeal. The Court accepted that the **prosecution could appeal against the refusal of an adjournment to allow them to secure the attendance of the principal witness, without whose evidence the case was unsustainable.** Court **recognised that a ruling as to the admissibility of evidence was capable of both representing an evidential ruling (within the meaning of s. 62) and a terminating ruling** (within s. 58) where its effect was to make the continuation of the case impossible. Court **went one step further, and found that even a ruling as to the exclusion of evidence which was less obviously determinative of the prosecution case could be made the subject of an appeal under s. 58 if the prosecution chose to make it a terminating ruling** by entering into an acquittal agreement, pursuant to s. 58(8). *[Series of stages for the appeal -- ]* The **first step to be taken in relation to such an appeal is for the prosecution, pursuant to the CJA 2003, s. 58(4), either to inform the court that it intends to appeal or to request an adjournment** (s. 58(4)(a)(ii)) to consider whether or not to appeal against the ruling of the court. - In the latter event **the prosecution must, in accordance with CrimPR 38.2, make the request to the judge of the court immediately following the relevant ruling**. **That there was no requirement for the notification by the prosecution of their intention to appeal to be made orally in court.** The procedural time-limits in s. 58, and in CrimPR 38.2, were to avoid undue delay, and it was wholly consistent with this for it to be possible for **the prosecution to give notice of their intention to appeal, or to request an adjournment to consider whether to appeal, by email. Any such email would have to go to the parties and the court, and would have properly to address the formalities contained in s. 58** The **court must grant the adjournment** (s. 58(5)), which will normally be **until the next business day** (r. 38.2(2)). While the general rule was that where the **court grants the adjournment for the prosecution to consider their position permitted by s. 58(5)), this would be until the next business day** (CrimPR 38.2(2)), there will be cases where the factual position and the interests of justice require and permit a longer adjournment. The 'general rule' that **an adjournment of 24 hours be permitted connoted exceptions, although there would have to be 'a real justification for an extension of time at all and that expedition is always required'** it was made clear that there can, within the meaning of the section, be more than one adjournment). Following the adjournment (if any) or immediately after the ruling, **the prosecutor must inform the judge whether there is an intention to appeal.** This notification may be made by email, but the formalities in the CJA 2003, s. 58 (see D16.87), would still have to be met. Any such email would have to go to the parties and the court. If the prosecutor does intend to appeal, **the prosecutor must either serve a notice of appeal on the court, the Registrar and the accused (which must take place either by the next day if the appeal is expedited or within five days if it is not** (r. 38.3)) or apply orally to the judge for leave to appeal. The **prosecution, in advancing a terminating ruling appeal**, **were limited to matters and counts on the indictment that they had indicated at the time that they informed the Court that they were going to appeal** in accordance with the CJA 2003, s. 58(6)(b). The judge must hear representations from the defence before deciding whether to grant leave, but must make the decision on the same day as the oral application for leave is made unless it is in the interests of justice to take longer. before leave was granted, **consideration should be given to whether the appeal was in the interests of justice, in the sense that the Court of Appeal would allow the prosecution of the accused to proceed.** When appealing against a terminating ruling, **the prosecution must undertake to offer no evidence against the accused in the event that the appeal is either abandoned or refused** A **ruling that is to be subject to appeal ceases to have effect once notice has been given, the Court of Appeal criticised a judge at first instance for proceeding to invite the jury to acquit following notification that the prosecution sought to appeal against his ruling that there was no case to answer.** ***[What are references by Criminal Cases Review commission? ]*** **CCRC may at any time refer a conviction on indictment or any sentence imposed in relation to that conviction (unless it is a sentence fixed by law) to the Court of Appeal**. Under s. 11, the CCRC **may refer any summary conviction or associated sentence to the Crown Court.** For the **CCRC to refer a case, there must be a real possibility that the Court of Appeal or Crown Court will quash the original conviction or sentence**. The **reference will ordinarily only be made in respect of an argument or information not available in the court of first instance or on appeal** (s. 13). However, **in exceptional circumstances, the CCRC may refer a case without any such development in the proceedings.** **When a reference is made, the Registrar must serve the reference on the appellant and must treat it as the notice of appeal unless a notice of appeal is given under r. 39.2** (see D27.3). The **reference or notice must then be served on the respondent**. The respondent **may then serve a respondent's notice and must do so if it wishes to make representations or is directed to serve a respondent's notice by the court or Registrar** *CCRC may require any public body to produce any document or information*. Section 18A provides for the **Crown Court, on an application by the CCRC, to order any person to give the CCRC access to a document or other material that is in the person's possession or control if it thinks that the document or other material may assist the CCRC** in the exercise of any of its functions. ***[What about appeals to the Supreme Court? ]*** Sections 33 and 34 of the Criminal Appeal Act 1968 allow **either the prosecution or defence to appeal a decision of the Court of Appeal to the Supreme Court, but only if the Court of Appeal or the Supreme Court itself considers that the appeal involves a point of law** of general public importance which should be considered by the Supreme Court. The **Court of Appeal must certify that the appeal involves a question concerning a point of law of general public importance**. An **application to the Court of Appeal for leave to appeal to the Supreme Court must be made by the party seeking to appeal no more than 28 days after the decision**, or the date on which the court gives the reasons for its decision, whichever is later. **Time begins to run on the day of the decision and not the day following the decision.** The Supreme Court has no power to grant representation orders and **an application for appropriate representation before the Supreme Court should be made to the Court of Appeal.** Where the Court of Appeal is of the view that the prospective appeal raises no point of law of public importance, it may decide so on the papers. A refusal by the Court of Appeal to certify a question cannot be appealed. Court of **Appeal considered whether there is jurisdiction to grant a certificate in circumstances when leave to appeal against conviction and sentence has been refused by the Court of Appeal**. As a **matter of statutory construction, the Court decided that the Criminal Appeal Act 1968 provided for an appeal to the Supreme Court only by appellants and not applicants**. Therefore, **it was not open to the Court of Appeal to certify a question when an applicant had been refused leave to appeal to the Court of Appeal**. The **consequence of that first refusal is that applicants never attain the status of appellants (unless a renewed application for leave to appeal is made and the Court grants leave but dismisses the appeal**).