Criminal Law and Practice - Appeals - Appeal: crown court decision

what is the slip rule?

- empowers a judge to vary or rescind a sentence (or other order) within 56 days of it being made

- the judge who passed sentence must be the judge who makes the variation

- can be used to follow sentence on appeal from MC h/e in this instance the lay magistrates do not need to attend the slip rule hearing

what is the purpose of a slip rule?

- to save both time and money in removing the need for with party to appeal in cases where a recognisable error has been made in the sentence

- therefore it an appeal, or application for leave to appeal, has been decided by the CoA then the slip rule can no longer be used

does the slip rule have the power to rectify mistakes at sentence?

permits amending the type of sentence or requirements attached to a community based sentence

does CoA criminal division have jurisdiction to hear appeals?

yes to hear certain types of case from CC

can you appeal against conviction or sentence for the CC or CoA?

- leave is required to appeal to the CoA

- appellants from the CC need to convince a single judge that their appeal is arguable on the merits before it can proceed to an oral hearing before a 2 judge court (sentence appeal) or 3 judge (conviction appeal)

- if leave is refused by single judge a party may renew an application for leave orally before the relevant panel

what is 1. time limit for appeal against conviction or sentence?

- notice of appeal (form NG) must, be served on the Registrar of the Criminal Division of the CoA

- the notice may be served within 28 days of conviction or sentence

- can be extended and should be applied serving form NG giving reasons for delay

- whether to permit this matter of the court's discretion

- in practice if court finds merit on the ground of appeal they are more likely to grant extension

what happens in 2. advising on appeal?

- counsel should advise promptly

- oral advice should be given immediately after conviction/ sentence

- if there are no grounds a negative advice should be prepared and sent to the D's solicitor

- if there are grounds, they should clearly and precisely be drafted and sent to D's solicitor

- counsel must draft and Advice, setting out their advice on the merits of an appeal and Grounds, setting out the proposed grounds on which they advise an appeal has merit

in what format should advise from counsel follow?

- drafted as 1 document

- should identify any transcripts which are necessary

- also list of authorities they seek to reply upon

- should only draft reasonable grounds which have some prospect of success and that they are prepared to argued before the court

- unmeritorious appeals risk a 'loss of time' order and counsel's positive act does not guarantee protection from this

what happens once solicitor has received Advice and Grounds from counsel?

- they should be sent to D for approval

- form NG can be signed by the solicitor on the D's behalf, if they have instruction to do so

- form NG will be sent to the Registrar, along w// Counsel's Advice and Grounds

- the CC will send the relevant papers from their file to CoA along w// defence appeal documents

- this enables the Registrar to confirm what happened @ lower court

what happens at 4. certificate of trial judge?

- trial judge may certify the case of 'fit for appeal'

- this is unusual as it would require the judge to consider that they made an error

- if certificate is granted, then leave is not required but counsel do have to comply w// the appeal procedure in the usual way

what happens at 5. transcripts?

- all CC proceedings are digitally recorded; transcripts are ordered by the Registrar if they are required in order to resolve an appeal

- in conviction cases, the summing up and proceedings up to and including the verdict are usually obtained as a matter of course

- in sentence cases, the sentencing remarks are obtained and any prosecution opening of facts where the sentence takes place following a guilty plea

what happens at 6. perfecting grounds?

- when transcripts are received, counsel will send a copy and invited to 'perfect' grounds within 14 days ie adding references to transcripts to support arguments etc

- if counsel does not wish to perfect, they should notify the Registrar

- perfected grounds should be in a fresh document and clearly marked as such

- if counsel decides that the appeal is no longer arguable, counsel should advise the appellant's solicitors of this in writing

- the advice should not be sent to the Registrar but the Registrar should be informed

what happens at 7. the respondent's notice?

- Registrar may direct that the prosecution serve a response to assist the single judge in form RN

- the single judge may also order that the Respondent's Notice be obtained if it was not previously ordered by the Registrar

- it may be directed e.g., in cases of public interest or invited e.g, incases such as fraud

what happens at 8. consideration of leave to appeal by the single judge?

- usually the application, including any bail application, will be considered by the CoA on papers alone, w//o oral argument by 1 judge sitting alone

- the single judge will consider the merits of the application for leave and come to a decision giving reasons

- the single judge may:

- grant an application wholly or in part;

- refuse an application

- refer it to the full CoA w//o granting leave

what happens at 9. renewal?

- if leave is refused by a single judge, or granted on some grounds but not others, the appellant can renew the application for leave to appeal

- must serve form on CoA in 10 business days of receipt of the notification of the single judge's decision

- can be extended in a similar way to the application of leave

- new application will be heard orally of a full court of 2 to 3 judges

- no representation order is available but counsel may appear either privately or on a pro bono basis

- if they intend to so, must notify the court as soon as possible

- form SJ is notification of the single judges decision and it may indicate that the single judge found the application to be wholly w//o merit and that the full court should consider 'loss of time order' is the application is renewed

what happens at 10. referral to the court?

- Registrar can refer case to full court instead of single judge, effectively bypassing the single judge and asking the full court to decide the application for leave

- the power is used where:

- unlawful sentence which must be amended

- novel point of law

- may be used where the matter requires expidition e.g., elderly appellant

- the single judge may also refer to the full court if the single judge identifies an issue requiring full court's attention

can you appeal a plea of guilty?

- yes

- open to the court to rule a plea as a nullity and quash a conviction

- the most common such ground is if the guilty plea was entered following a legal ruling by the trial judge which left no option but to plead guilty; if that ruling is appeal and held to be incorrect then the guilty plea will be quashed

- can also be mounted on basis of incorrect legal advice,

who will grant a representation order when leave is granted?

- the Registrar or single judge

- if work is necessary it may be extended to cover a solicitor, the registrar will send a brief to counsel

is the respondent represented at sentence/ conviction appeal?

respondent is not usually represented at a sentence appeal but will only be on a conviction appeal

what does Criminal Appeal Office Lawyer do?

they will prepare a summary to assist the court

when must a skeleton be used and when must it be served?

- served where the appeal notice does not sufficiently outline the grounds

- in practice, skeleton commonly needed in cases involving a novel point of law or complex issues are raised which require additional input from counsel

- if skeleton to be served, appellant must serve 21 days before hearing and respondent 14 days before

- unless otherwise directed

- authorities are to be used sparingly and must be justified

what is the general rule on the appellants presence at hearing appeal?

- the appellant is entitled to be present, if the appellant wishes, at the hearing if the appeal

- there are some exception, if the appellant is in custody, whereby the court's permission is required

what is the test on appeal?

- if leave is granted (on paper or at oral hearing) the court must proceed to consider the merits of the appeal

- in an appeal against conviction the court can allow an appeal only if they think that the conviction is unsafe

- in an appeal against sentence the appeal can be allowed if the court thinks the D should have been sentenced differently

what are the powers of appeal on conviction?

- quash the conviction

- if it appears to the court that the interests of justice so require they may order the appellant to be retired

- court may substitute a verdict of guilty for an alternative offence if:

- the jury would have been able to convict of the alternative offence at trial; and

- the jury must have been satisfied of facts which proved him guilty of the offence

- sentence may need to be amended to reflect this

what is the powers of appeal of a sentence?

- quash any sentence or order which is the subject of the appeal; and

- in place of it pass any such sentence or make such order as they think appropriate, but which the court below had power to pass or make; and

- they must ensure that, taking the case as a whole, the appellant is not more severely dealt w// on appeal than he was in the court below

what is a loss of time order?

- the CoA can direct that some or all of the time spent in prison between the date of lodging the appeal and the date of tis dismissal may be ordered not to count towards the appellant's sentence

- may be imposed where the application is considered to be wholly w//o merit; can be made by a single judge but this is unusual , usually full court following refusal of a renewed application for leave, especially, where the single judge has marked the appropriate box on Form SJ

can fresh evidence be admitted on appeal?

- yes, for sentence but more likely to be used for conviction

- CoA, if they think it necessary or expedient in the interest of justice to:

a) order the production of any document, exhibit or thing connected w// the proceedings if it is necessary for the determination of the case

b) order any witness to attend for examination (regardless if they were called in the original proceedings)

c) receive any evidence which was not adduced in the proceedings from which the appeal lies

to consider whether to receive any evidence; what will the court have regard to?

- non-exhaustive list:

a) whether the evidence appears to be capable of belief?

b) whether is appear 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 subject of an appeal?

d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings?

what does the provisions of fresh evidence mean for jurors and legal representatives?

that (subject to waiver of privilege) can be compelled to attend and give evidence on appeal; furthermore, it applies equally to the respondent (ie the prosecution) who can therefore call new evidence, except where its purpose is to argue new basis for conviction