Criminal Law and Practice - Appeals - Appeals: magistrates' decisions

what is the power to rectify mistakes?

- reopen the case to rectify mistakes

- if the D is unhappy, w// the decision of the MC the 1st step is consider is whether the magistrates have made an error which they themselves can correct

- s. 142 MCA gives MC power to vary a sentence or set aside a conviction if it is in the interest of justice to do so

- applies to: sentence, other orders or conviction

- whether conviction by magistrates or guilty plea

what is the scope of the appeal of power to rectify mistake?

- narrow and cannot be used to simply re-argue case

- power to rectify mistake in law and procedure; whether at trial or sentencing, and is most likely to be appropriate (and succeed) where all parties agree that a mistake was made

- it is not intended to permit a D to argue that the magistrates decision was wrong; it is appeal

- D usually makes application but court can also make amendment under own volition; application can be heard by same magistrates who convicted D but if the conviction is set aside the case will be re-tried by dif bench

what are the 3 means of challenge open to the D?

(1) appeal to the CC, by way of re-hearing

(2) appeal to High Court, by way of case stated; or

(3) application to the High Court for judicial review of the decision

which appeal route should be used (R v Hereford Magistrates' Court ex p Rowlands [1997])?

(a) where the D complains that the magistrates made an error of fact / law / mixed them, appeal to CC

(b) where D complains magistrates made an error of law or acted in excess of jurisdiction, appeal by way of case stated

(c) where D alleges unfairness, bias or procedural irregularity, the D should apply for judicial review of the decision

what happens at D appeal from MC to CC?

- most common route of the 3 means of challenge

- it is an automatic right that does not require leave

- it provides that a person is convicted by MC to appeal to CC:

- if D pleaded guilty, against a sentence; or

- if the D pleaded not guilty and was found guilty after a trial, against the conviction or sentence

can the prosecution appeal from MC to CC?

the prosecution cannot appeal via this route; its options of redress are limited to the other 2 means of challenge; case stated or judicial review

what happens to Ds sentence on appeal?

- if D appeals against conviction only, the CC can pass any sentence that MC could have passed; which includes more severe sentence

- if D pleaded guilty, an appeal against a sentence is the only option, unless the D can demonstrate that their plea was unequivocal

what is the procedure on appeal to the CC?

- notice of appeal must be lodged within 15 business days of sentence

- must be served on MC and prosecution and must specify:

- the conviction, sentence, order or decision which the appellant wishes to appeal; including the court and date of this

- summarises the issues

- state whether he MC has been asked to reconsider its decisions (under s. 142 MCA) or why this is not applicable

- list the parties on whom the appeal notice has been served

what happens if notice is served outside of the 15 business day limit?

it must be accompanied by an application for an extension of time, with reasons for the delay

what happens at the actual hearing for appeal?

- appeal is by way of re-hearing

- conviction appeal will proceed in precisely the same way as the original trial w// speeches, witnesses giving live evidence and any relevant submissions

- parties are not limited to evidence that was called on during trial

- the info (written charge on which the appellant was convicted) cannot be amended by CC

- the appeal will be heard by a judge of the CC and 2 lay magistrates

- exceptionally, the court can proceed w// a judge and just 1 lay justice if hearing may be unreasonably delayed

- at a sentence, appeal the hearing proceeds as if it is the original sentence hearing, w// the facts presented and mitigation heard

can bail be applied pending appeal?

- can be applied for the MC

- if refused, an appellant may apply for bail from the CC under Bail Act 1976, there is no right to bail pending appeal

can the appellant abandon their appeal and when can they do so?

- they may abandon their appeal at any time

- once abandoned, the CC has no power to vary the magistrates' decisions

- in order to abandon an appeal, the appellant should give notice in writing to the MC and the CC + prosecution

- if the appellant does not attend and is not represented the appeal is treated as abandoned but if they are represented the appeal will go ahead

- permission from CC is required to abandon once the hearing has started

what are the powers of appeal from MC to CC?

- confirm, reverse or vary the decision appealed against or any part of it;

- remit the matter w// its opinion to the magistrates

- make any other order which the court thinks is just, so long as they can exercise only the power the magistrates could have

what is the power of appeal for conviction on appeal?

- the CC will hear the evidence and must give reason for the verdict reached

- the reasons do not involve a formal re-examination of the magistrates decision

what is the power of appeal for sentence appeal?

- the magistrates' sentence is not formally re-examined

- the appeal panel will consider, whether, in light of all they have heard, the sentence imposed by the magistrates was correct

- sentence can be both increased and reduced

what are the costs of appeal?

- a successful appellant may be awarded a defence costs order

- an unsuccessful appellant may be required to pay the prosecutions costs

- where an appeal is abandoned costs can be awarded against the appellant but in practice this usually occurs only where the notice of abandonment is served within 24 hours of the appeal hearing or on the day itself

what is appeal by way of case stated?

- this is a form of appeal to the HC on the basis that the decision made was wrong in law or in excess of jurisdiction

- the D applies to the MC to "state a case" for the opinion of HC

- this will take the form of a question/s about decisions of law or procedure which the D assets were wrongly decided

what is included in the final "case stated"?

will be agreed by all the parties and will include a summary of the evidence heard at trial, legal arguments on the disputed decision and the details of the decisions itself (so not appropriate route if dispute is a matter of facts)

what is the procedure for case stated?

- dealt with once the case has been stated by the magistrates it is treated as a civil matter for procedural purposes

- the appeal is heard by Divisional Court of Queens Bench of HC; 2 judges at least usually 3; no evidence is heard and it is based on legal submissions by the parties

what are the main points of appeal by way of Case Stated?

- prosecution + D can appeal by way of case stated

- can only be used after the final determination of proceedings in MC; if trial proceedings are adjourned the right cannot be exercised in this period

- deadline is 21 days from date of decision sought to be appealed that; save where it is adjourned following conviction the date of decision is deemed to be date of sentence

- magistrates can refuse to state a case if it is considered vexatious

can you achieve bail and which court can you appeal by way of Case Stated?

- bail pending appeal can be granted by the magistrates or, if refused, by the HC

- if appeal by way of case stated, lose your right to appeal to the CC under s. 108

- if you appeal to CC under s. 108 and the CC upholds decision you can appeal by way of case stated from CC

- the powers of the Divisional Court are that it may reverse, affirm or amend the MC decision; remit the case w// an opinion or make any other order as it sees fit

- an appeal from the HC in relation to an appeal by way of case stated is direct to the SC

what is appeal to the HC by way of judicial review?

- JR is the means by which the HC policies inferior tribunals and public bodies

- principal grounds where a review can be applied for are error of law on the face of the records (ie disclosed by court records), excess of jurisdiction and a breach of natural justice

what are the main points for application of judicial review?

- both the prosecution and the defence can apply

- the proceedings should have been concluded before an application is made, although a decision to prosecute can be subject to review

- application must be lodged promptly and in any event, within 3 months after the grounds arose (not doing so promptly can lead to application being rejected even if within 3 months)

- HC has power to grant bail to an applicant for judicial review

can a decision by the CC on appeal from MC be subject to judicial review?

- yes but where it concerns an error of law it should be appealed by way of case stated

- where an exercise of discretion is involved, the standard is 'Wednesdbury unreasonableness'

- an appeal from the HC in relation to JR is direct to SC

R (P) v Liverpool; what was the guidance on whether to use case stated or judicial review?

- the normal route where it is alleged that there has been misdirection or an error of law by way of case stated

- it would be wrong to seek judicial review where case stated was appropriate, merely in order to avoid more stringent time-limit

- h/e judicial review is more appropriate where there is an issue of fact to be raised and decided which the justices did not decide themselves

- 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