Appeals from the magistrates and CC in its appelate capacity .docx

***[Appeals from the magistrates' courts and from the Crown Court in it\'s appellate capacity -- 3 Q's]*** ***[What are the power of the magistrates to rectify mistakes? ]*** - An **accused who was convicted in a magistrates' court (whether as a result of a guilty plea or of a finding of gui...

***[Appeals from the magistrates' courts and from the Crown Court in it\'s appellate capacity -- 3 Q's]*** ***[What are the power of the magistrates to rectify mistakes? ]*** - An **accused who was convicted in a magistrates' court (whether as a result of a guilty plea or of a finding of 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 is set aside, the case is reheard by different magistrates from those who convicted.** An application under s. 142(2) may be appropriate if, for example, **the magistrates made an error of law or there was some defect in the procedure which led to the conviction**. Purpose of s. 142(2) is most accurately described as a 'power to rectify mistakes', and that it is generally and correctly regarded as a 'slip rule'. s\. 142 '**does not confer a wide and general power on a magistrates' court to re-open a previous decision on the grounds that it is in the interests of justice to do so';** rather, it is 'a power to be used in a relatively limited situation, namely one which is akin to mistake or the slip rule'. **Where there has been a simple mistake (or something akin to such), s. 142 enables a magistrates' court to rectify it, if necessary by directing the case be reheard by different justices.** However, **once a guilty verdict has been pronounced by magistrates, it does not enable a 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.** s\. 142(1), **allows a magistrates' court to vary or rescind 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 under s. 142 regardless of whether the accused pleaded guilty or was found guilty.** However, **s. 142 cannot operate where the accused was acquitted** the **Divisional Court held that there was no power under s. 142(1) to revoke a defendant's costs order where the prosecution had withdrawn the charges.** ***[How to use 142 (1)? ]*** D pleaded guilty to dangerous driving, a pedestrian having sustained serious injuries. A community sentence was imposed. The magistrates agreed to a request from the CPS to reopen the case under s. 142, on the basis that the original counsel for the prosecution had not addressed the extent of the pedestrian's injuries and that the difference between the sentence imposed and the custodial sentence that would probably have been imposed had the court known all the facts offended the principles of justice. The power under **s. 142 is to be used in a relatively limited situation, namely one which is akin to mistake or, as the court says, the slip rule. But there is no reason, on the face of it, to limit it further. It seems to me that if a court has been misled into imposing a particular sentence, and it is discovered that it has been so misled, then the sentence may properly be said to have been imposed because of a mistake**; the mistake being the failure of the court to appreciate a relevant fact. That may well give power to the court to exercise the jurisdiction conferred by s. 142, but it does not indicate that that power should necessarily be used. **s. 142 can be used to increase sentence only in exceptional circumstances**. His lordship went on (at \[33\]) to say **that the sort of case which is appropriate for use of the power under s. 142 is one 'where the mistake is quickly identified and it is accepted on all sides that a mistake had been made'** It **would only be in very rare circumstances that it would be appropriate to resort to s. 142 to consider an increase in sentence, particularly if that increase ... brought the possibility of custody as opposed to another form of disposal.** The **facts of the instant case, said the court, did not come anywhere near justifying such a use of s. 142.** ***[What is the general right of appeal from the magistrates' court to the Crown Court? ]*** A person aggrieved by a decision of the magistrates' court has three means of challenge to that decision available. They are as follows: a. appeal to the Crown Court b. appeal to the High Court by way of case stated c. 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 guilty in the magistrates' court then the offender may also appeal against conviction (in the limited circumstances set out in D29.4) 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. An appeal by way of case stated or application for judicial review is heard by a **Divisional Court of the Queen's Bench Division of the High Court.** ***[What are Appeals against Conviction and Sentence? ]*** - 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 The **composition of a panel to hear an appeal was substituted to allow for greater flexibility in the hearing of appeals** (see Supplement, R34.11), **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.** Exceptionally, **the Crown Court may include only one justice of the peace if the presiding judge decides that the hearing of the appeal will otherwise be unreasonably delayed or one or more of the justices who started hearing the appeal is absent.** Broad definition of 'sentence' contained within s. 108(3) mirrors that in the equivalent provision for the Court of Appeal. ***[What is the procedure in the Crown Court for dealing with the appeal? ]*** **Notice of appeal to be given in writing to the relevant magistrates' 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 only against conviction**. The **time-limit is also 15 business days where the appeal is against an order, or failure to make an order.** The **notice 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' court's written findings of fact and the appellant's 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**. **Crown Court may allow an appeal notice to be in a form other than the specified form**, or to be **presented orally.** **If a notice is served within time, no leave to appeal is required.** By virtue of r. 34.3 **an application for an extension of time must be served with the appeal notice and must explain why the appeal notice is late**. Under r. 34.10(a), **the Crown Court may shorten or extend (even after it has expired) any time-limit under Part 34**. Rule 34.7 applies **where a party wants 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** (Senior Courts Act 1981, s. 74). Prior to the hearing, **the defence may request a copy of the clerk's notes of evidence of the summary trial.** Any request the appellant might make for a copy should be 'viewed sympathetically'. ***[Hearing -- ]*** Under s. 79(3), **the appeal proceeds by way of complete rehearing**. Thus, at an **appeal against conviction**, counsel for the respondent (i.e. **the prosecution) makes an opening speech and calls evidence, after which counsel for the appellant may make a submission of no case to answer. If that fails, defence evidence is called, counsel makes a closing speech, and the court announces its decision**. The **parties may call evidence which has only become available to 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 be amended by the Crown Court. the **judge erred in allowing a prosecution application to amend the information in respect of the date of the alleged offences**. Equally, **the Crown Court cannot strike out an amendment made by the magistrates** An **appeal against sentence is, in essence, a fresh sentencing hearing**. - The prosecution **open the facts and antecedents of the appellant, and 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) **but should consider whether, in the light of all the matters which the Crown Court had heard, the sentence passed by the magistrates was the correct one.** If **what the court thinks is the appropriate sentence differs significantly from the sentence imposed by the magistrates, the appeal should be allowed and the sentence of the Crown Court substituted for that of the magistrates** (Swindon Crown Court, ex parte Murray (1998) 162 JP 36). The Crown Court is **not entitled to increase the sentence on 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** (R (Lees-Sandey) v Chichester Crown Court (2004) The Times, 15 October 2004 ). The **Crown Court may, however, increase the sentence to the maximum that could be imposed by the magistrates' court.** ***[What are the powers of the Crown Court on appeal? ]*** The **decision of the Crown Court may be a majority decision**. This means that the **lay justices can out-vote the judge.** The **lay justices must, however, accept any decisions on questions of law made by the judge.** following an appeal from the magistrates' court, the Crown Court: a. may **confirm, reverse or vary any part of the decision appealed against**, including a **determination not to impose a separate penalty in respect of an offence**; or b. **may remit the matter with its opinion thereon to the authority whose decision is appealed against; or** c. **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**. d.  **if the appeal is against a conviction or a sentence, the preceding provisions of this section shall be construed as including power to award any punishment, whether more or less severe than that awarded by the magistrates' court whose decision is appealed against, if that is a punishment which that magistrates' court might have awarded.** e. This section applies **whether or not the appeal is against the whole of the decision**. allows the Crown Court to: a. **quash the conviction** b. **remit the case to the magistrates' court** (e.g., in the case of an equivocal plea) c. **vary the sentence imposed by the magistrates (this includes the power to increase the sentence, but not beyond the maximum sentence which the magistrates' court could have passed**: s. 48(4)). The **appellant may abandon the appeal by giving notice in writing to that effect to the magistrates' court, to the appropriate officer of the Crown Court and to the prosecution and to any other party to the appeal** (r. 34.9(1)(a)). 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**. As with a notice of appeal, under r. 34.10(d), the **Crown Court may allow the notice of abandonment to be given in a form other than that 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 an advocate. Upon the abandonment of an appeal, the Crown Court has no power to increase sentence (Gloucester Crown Court, ex parte Betteridge (1997) 161 JP 721).** **Once an appeal has been abandoned, the Crown Court has no power to reinstate the appeal unless the abandonment was a nullity** ***[What about appeal to the High Court by case stated and by judicial review? ]*** The appeal is to a Divisional Court of the Queen's Bench Division of the High 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'.** a. The **remedy is available to both the prosecution and defence.** b. The **remedy operates only in relation to an error of law or a decision taken in excess of jurisdiction.** **A decision as to a question of fact will ordinarily not give rise to an appeal by way of case 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**. the Divisional Court stated that **any defendant who believes that the justices should not have arrived at a finding for which there was evidence because, for example, it was against the weight of the evidence, has a remedy in an appeal to the Crown Court and not to the High Court**. Under s. 111(4), **any appellant who employs the case stated procedure forfeits the right to appeal to the Crown Court**. the Divisional Court observed that questions framed by a district judge such as **'Was I right to assert that criminal proceedings are about a search for the truth?' should never form part of a case stated as they are not the proper subject of s. 111.** c. 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** d. The **remedy is available in respect of errors made in relation to sentence as well as conviction. 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 oppressive' (**Tucker v DPP \[1992\] 4 All ER 901). ***[Determination by Divisional Court of an Appeal by Way of Case Stated]*** Divisional Court **which hears an application by way of case stated will be comprised 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 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 as to costs) as it sees fit. Thus, the **Divisional Court may quash an acquittal with a direction that the magistrates' court convicts and sentence**s. Alternatively, **the court may simply substitute a conviction for the previous acquittal and proceed to sentence**. Similarly, **if the appeal concerns sentence only, the court may substitute the appropriate sentence.** **An appellant may abandon an appeal by way of case stated without leave** (Collet v Bromsgrove District Council (1996) 160 JP 593). The Divisional Court is entitled to order a retrial before the same bench or a different bench where a fair trial is still possible. ***[Judicial Review -- ]*** **High Court polices the decision-making of inferior public bodies by way of judicial review**. Consequently, **decisions of the magistrates' court and some of those of the Crown Court (those which are not concerned with matters relating to trial on indictment) are susceptible to review.** The **[High Court does so by means of prerogative orders,]** foremost of which are quashing orders, mandatory orders and prohibiting orders The application for judicial review is dealt with by a Divisional Court of the Queen's Bench Division of the High Court. The principal grounds upon which judicial review may be sought are: a. **error of law on the face of the record --- i.e. an error disclosed by the court records** b. **excess of jurisdiction** c. **breach of natural justice.** The **concept of breach of natural justice has frequently been litigated and has been widely drawn.** It has been held to include: i. **failing to give D adequate time to prepare a defence** ii. **failing to grant an adjournment to allow for the attendance of a witness** iii. **the prosecution failing to call or disclose the statement of a witness who might assist the defence** iv. **the prosecution failing to disclose the previous convictions of prosecution witnesses** v. **making an order as to costs against D without inquiring as to D's means** ***[How to choose 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 -- a. the normal route for **an appeal against a decision of justices where it is alleged there has been an error of law is by way of case stated** b. it would be wrong to seek judicial review where case stated was appropriate, merely in order to avoid the more stringent time-limit c. 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** d. 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, case stated is the appropriate remedy.** judicial review should be pursued where the inferior 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. ***[Any appeal from the High Court in a criminal cause or matter, either in relation to an appeal by way of case stated or a judicial review, is direct to the Supreme Court. ]*** ***[Appeals from the Crown Court]*** In **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** (see D29.40 for the meaning of '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 the magistrates' court**. ***[Application for judicial review from CC? ]*** It is **possible to challenge a decision of the Crown Court by way of judicial review provided that that decision does not concern a matter relating to trial on indictment.** **Phrase 'relating to trial on indictment'** covered all decisions relating to the conduct of the trial. - It **has thus been held that the decision to stay any part of an indictment as an abuse of process is a matter relating to trial on indictment** - **as is an order that counts should lie on the file in the usual way** - **a decision as to the order in which indictments are tried** - **decisions as to disclosure** - **It has also been held that the decision to hold a trial on the issue of fitness to plead is a matter relating to trial on indictment** - **as is the imposition of a mandatory life sentence** Matters **which do not relate to trial on indictment include forfeiture of a surety** - forfeiture of property used in the course of an offence belonging to a third party - binding over of an acquitted accused - restrictions on the publication of the identity of a convicted youth bail may be granted pending judicial review of a decision of the Crown Court. If **a defendant 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.**