Appeal from the Magistrates Court to the Crown Court
An appeal can be made from any decision of the Magistrates Court to the Crown Court. This is an appeal ‘as of right’, which means that permission is not required. Appeals of this kind are governed by Part 34 of the Criminal Procedure Rules.
Rule 34.2 states as follows:
1.1.—(1) An appellant must serve an appeal notice on—
- the magistrates’ court officer; and
- every other party.
- The appellant must serve the appeal notice—
- as soon after the decision appealed against as the appellant wants; but
- not more than 15 business days after—
- sentence or the date sentence is deferred, whichever is earlier, if the appeal is against conviction or against a finding of guilt,
- sentence, if the appeal is against sentence, or
- the order or failure to make an order about which the appellant wants to appeal, in any other case.
- The appellant must serve with the appeal notice any application for the following, with reasons—
- an extension of the time limit under this rule, if the appeal notice is late;
- bail pending appeal, if the appellant is in custody; or
- the suspension of any disqualification imposed or order made in the case, where the magistrates’ court or the Crown Court can order such a suspension pending appeal.
The appellant must serve a notice of appeal (whether the usual form or the easy read form both of which have been prescribed by the LCJ) on the court and the CPS (i.e. the respondent)not more than 15 business days after the sentence or date the sentence was deferred, (whichever is earlier) or after the order or failure to make an order about which the appellant wants to appeal. . The time period may be extended. The appellant must also give reasons for an extension of time, bail pending appeal or suspension of any disqualification imposed.
The CPS must serve a respondents notice (RN) (this is a prescribed form) on the court and the appellant not more than 15 business days after service of the appeal notice unless the CPS agrees that the court should allow the appeal. The RN is required where there is an appeal against conviction or a finding of guilt and not against sentence. The purpose of this change to the rules is to require the appellant and respondent to give the Crown Court as much information as possible about the appeal. The objective is to help the Crown Court arrange an effective appeal hearing.
Rule 34.3 sets out the requirements of what the RN should contain. It must identify the witnesses who gave oral evidence and those whose statements were read; which witnesses the respondent proposes to call; notice of any special arrangements or measures required for the witnesses; identify the issues and how long the magistrates’ court trial lasted and a time estimate for the appeal. This information should be easily obtained from the CPS Case Management System (CMS).
Importantly, where evidence was introduced in the magistrate court that required an application such as hearsay, bad character etc. and the CPS wants to reintroduce it or to renew the application it must be included in the respondent notice rule 34.3(3) and (4). The result of this is that no new application need be made rule 34.7(2) (a). The same applies for any notice of objection served by the defence in the magistrates’ court rule 34.7(2) (b) unless within 15 business days the defence serves notice withdrawing it
However, if it is not included in the RN then an application must be made within 15 business days after receiving the appeal notice. Where the CPS wants to make an application for an order or to introduce evidence which was not given in the court below then it must be made within 15 business days of receiving the appeal notice rule 34.7(4).
The time limits may be extended by the Court rule 34.10.
The Crown Court, presided over by a judge and lay magistrates (not a jury), hears the case afresh.
Whilst the trial is heard afresh, the process provides you and you lawyers a valuable opportunity to review what might have gone wrong at the first trial and take steps to remedy any failures.
Your lawyers can also examine what other evidence ought to the gathered on your behalf, or what lines of attack they might usefully deploy against the prosecution case.
Appeal by way of case stated
An appeal by way of case stated is limited to appeals relating to matters of law (specifically cases where it is argued that the Magistrates or District Judge were wrong in how they applied the law or that they acted in excess of their jurisdiction, i.e. they did not have the power to act as they did). This type of appeal is not suitable for cases which depend on an assessment of the evidence, such as the reliability of witnesses.
The High Court has wide-ranging powers and may reverse the decision appealed against, affirm it or amend it. The High Court can also send the case back to the Magistrates’ Court with its opinion on the point of law concerned which the Magistrates or District Judge would then have to apply to the case in question. The powers of the High Court are contained in section 28A(3) of the Senior Courts Act 1981 (see Further Information below).
The process begins by applying to the Magistrates to state a case for the opinion of the High Court and the procedure is contained in Part 35 of the Criminal Procedure Rules (see this and the form to be used in the Further Information section below). The application must be made in writing, not more than 21 days after the decision on which the appeal is based. The application sets out the decision complained about, the question(s) of law for the High Court to answer and sets out the grounds of appeal (i.e. the specific arguments advanced as to why the Magistrates or District Judge made an error of law or acted in excess of their powers). The application is served on the court and every other party involved in the case (e.g. if it is a defence application it must be served on the court, the prosecution and any other defendant). These other parties then have a right to reply within 14 days.
The Magistrates or District Judge are entitled to refuse to state a case for the opinion of the High Court where they consider the application is ‘frivolous’ (i.e. futile, misconceived, hopeless or academic). It will be rare for this to happen, but where it does the aggrieved party can seek to challenge an unreasonable refusal to state a case by way of an application for Judicial Review.
Court of Appeal
Section 1 of the Criminal Appeal Act of 1968 gives power to appeal against a conviction on indictment. Can only appeal with ‘leave’ or if Crown Court judge grants certificate that this is suitable for appeal. Therefore, there are two stages of Court of Appeal proceedings. Obtaining leave and the substantive appeal.
Section 2 sets out grounds for allowing an appeal under section 1. The Court will allow the appeal if they consider that the conviction is ‘unsafe’. If the conviction is unsafe the Court will quash the conviction (section 2 (2)).
Under section 2 (3) where there is no order for a retrial the quashing of the conviction will operate as a direction to the Court below to enter a not guilty verdict. Section 3 contains a power to substitute conviction for conviction for alternative offence. Where the appellant has been convicted of an offence 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.
Section 18 provides for time limits. An Appellant ‘shall give notice of the appeal or notice of application to appeal within 28 days from the date of the conviction verdict or finding appealed against or, in the case of an appeal against sentence, from the date on which sentence was passed.
CPR 39.2 states that an Appellant must serve an appeal notice on the Crown Court about which they intend to appeal 28 days after conviction or sentence. Trial counsel will be funded to prepare an advice on appeal which will include grounds if it is thought that any grounds are arguable.
Rule 39.3. Sets out the information that the Court will require. The form NG will be filled out sent to the Crown Court with Counsel’s advice/grounds. This is Governed by Criminal Procedure Rule 36. Cases are run by the registrar who has responsibility for case management. The Registrar has the power to make directions including directing things to be done by certain dates (3.5) certificate of readiness or indicate intentions and requirements (3.62)
Rule 39.6. Respondent’s notice. Document prepared by the Crown. Respondent must serve notice a) not more than 14 days after the Registrar serves— (i) the appeal notice, or (ii) a direction to do so; or (b) not more than 28 days after the Registrar serves notice that the Commission has referred a conviction. Leave will then be granted or refused by single Judge.
HOWEVER Consider Section 29 CJA 1968. Loss of time orders. (1)The time during which an appellant is in custody pending the determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject. (2)Where the Court of Appeal give a contrary direction under subsection (1) above, they shall state their reasons for doing so; and they shall not give any such direction where— (a)leave to appeal has been granted; or (b)a certificate has been given by the judge of the court of trial So, the Court of Appeal has the power to deduct the time spent awaiting the determination of an appeal from sentence. Counsel’s advice that there are grounds is not determinative as to whether such a loss of time order should be made R v Gray and others [2014] EWCA Crim 2372 R v Jeffers [2015] EWCA Crim 1435.
It’s important to remember that between October 2010 and September 2014, roughly 90% of appeals against conviction, and 80% of appeals against sentence, were refused. In October 2014, The judgment in Gray has had a notable and immediate impact in the Court of Appeal: in the 300 days prior to the decision in Gray, loss of time directions were made in 12 reported cases that we have identified; in the 300 days following the judgment, loss of time directions have been given in 34 identifiable cases. Gray is repeatedly cited in support of the stricter approach to deter unmeritorious appeals, and the more than 150% increase in the number of loss of time directions is plainly indicative of a renewed effort on the part of the appellate judiciary to “get tough” with such cases.
Safety
Before 1995 there were three circumstances in which the Court of Appeal would overturn a conviction. These were a) where the verdict was ‘unsafe or unsatisfactory’, b) that the judgement of the Court below should be set aside on the ground of a wrong decision of any question of law or c) that there had been a material irregularity in the courts of the trial. There was considerable overlap.
Now there is a single basis for allowing an appeal which is that a conviction is unsafe. A conviction would not be regarded as unsafe because it was possible to point to some drafting or clerical error. If however it was clear that the particulars of the offence specified in the indictment could not, even if established, support a conviction of the offence of which the defendant was accused a conviction for such an offence should be considered unsafe.
Fresh evidence
In section 23 of the 1968 act provides that “(2) The court of appeal shall, in considering whether to receive any evidence, have regard in particular to— (a) Whether the evidence appears to the court to be capable of belief; (b) Whether it appears to the court that the evidence may afford any ground for allowing the appeal; (c) Whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) Whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.” and So the key issues for us to face are: 1. Whether the evidence is capable of belief 2. Whether the evidence may afford a ground for allowing the appeal 3. Whether the evidence would have been admissible in the proceedings on an issue the subject of the appeal 4. Whether there is a reasonable explanation for the failure to adduce evidence .
Stafford and Luvaglia and R v Pendleton. Question following admission of fresh evidence is whether it renders conviction unsafe. It does not need to consider what effect the evidence would have had on a jury but it is not the primary decision and secondly it can only ever have an imperfect and incomplete idea of what led the jury to convict. This was confirmed in Dial v State of Trinidad 2005 and R v Noye in 2011, rejecting unanimously the proposition that the questions should be what impact it would have had on the jury. In R.v Erskine; R.v. Williams [2009] 2 cr. app. r. 461, ca, the court said that the decision whether to admit fresh evidence is case and fact specific; the discretion to receive such evidence is a wide one focusing on the interests of justice, with the considerations listed in section 23 (2) (a) to (d) being matters that require specific attention, but being neither exhaustive nor conclusive; the fact that the issue to which the fresh evidence relates was not raised at trial does not automatically stop its reception; but unless a reasonable and persuasive explanation for the omission is offered, it is highly unlikely that the “interests of justice” test will be satisfied
It was held in R. v. Beresford, 56 cr.app.r. 143, ca, that there is a “reasonable explanation” for a failure to adduce evidence at trial if the evidence could not with reasonable diligence have been obtained for use at the trial The existence or otherwise of a reasonable explanation for not calling the evidence at trial is, however, but one factor to be taken account of in deciding whether it is necessary or expedient in the interests of justice to receive the evidence:
Criminal Case Review Commission
The CCRC is the body which is responsible for remedying miscarriages of justice in England and Wales. It was established under Criminal Appeal Act 1995. Members of the commission are appointed by Her Majesty the Queen on the recommendation of the Prime Minister. At least one third of the members of the Commission shall be persons who are legally qualified; and for this purpose a person is legally qualified if— – (a)he has a ten year general qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990, or – (b)he is a member of the Bar of Northern Ireland, or solicitor of the Supreme Court of Northern Ireland, of at least ten years’ standing. Section 9 of the 1995 Criminal Appeal Act gives the power to refer cases back to the Court of Appeal for reconsideration.
The CCRC does not have any power to quash convictions themselves. They must make a reference back to the Court of Appeal and then the Court of Appeal will consider whether or not to quash the conviction.
13 Conditions for making of references.
Section 13 provides the circumstances in which the CCRC will refer a case back to the Court of Appeal for reconsideration. The section says:
(1) A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 to 12 unless— (a)the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made, (b)the Commission so consider— (i)in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or (ii)in the case of a sentence, because of an argument on a point of law, or information, not so raised, and (c)an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.
(2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.
Supreme Court
Appeals to the Supreme Court in criminal proceedings in England and Wales are regulated by sections 33 and 34 of the Criminal Appeal Act 1968 and sections 1 and 2 of the Administration of Justice Act 1960 as amended (in each case) by section 88 of the Courts Act 2003 and section 40 of, and Schedule 9 to, the Act. All such appeals may be made at the instance of the accused or the prosecutor. Section 13 of the Administration of Justice Act 1960 (as amended) extends the scope of sections 1 and 2, with some qualifications, to appeals relating to contempt of court (civil or criminal). Sections 36 to 38 of the Criminal Appeal Act 1968 (as amended) contain ancillary provisions about bail, detention and attendance at appeal hearings.
Any appeal under these provisions requires the permission of the court below or the Supreme Court, which may be granted (except for a first appeal in a contempt of court matter) only if (i) the court below certifies that a point of general public importance is involved and (ii) it appears to the court below or to the Supreme Court that the point is one which ought to be considered by the Supreme Court. Section 36 of the Criminal Justice Act 1972 (as amended) permits the Court of Appeal to refer a point of law to the Supreme Court where (after an acquittal) the Attorney-General has referred the point of law to the Court of Appeal.