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BPTC Law Notes BPTC Criminal Litigation Notes

Appeals Notes

Updated Appeals Notes

BPTC Criminal Litigation Notes

BPTC Criminal Litigation

Approximately 1169 pages

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Appeals

Pt63 - Procedure

  • To appeal from MC to CC, a Notice of Appeal must be lodged within 21 days of sentence. Appeal is as of right.

  • May ask Mags to reconsider to correct errors (Eg: unlawful sentence) per s142 MCA 1980.

  • Bail pending appeal is permissible, and can be made in Mags per s113 MCA 1980. BUT presumption of bail doesn't apply as s4 BA says the presumption doesn't aply after conviction. If unsuccessful, can appeal the bail to CC.

  • To appeal from CC to CoA, Notice of Appeal must be lodged within 28 days of conviction/sentence per s18(2) CAA. This date can be extended. Need permission to appeal either by written notice to Judge in CC ("Notice and Grounds") OR ask CC to "certify" case for appeal . Or you can do both. Can apply orally to CC judge with writing 14 days after. A single Lord Justice grants leave on paper, but if you are rejected you have a second hearing before the full court.

  • To appeal a "terminating ruling" in CC, P must say immediately after ruling that he intends to appeal, or request an adjournment to consider. Then serve notice on Court, Appeal Court Registrar and D. Determine whether to expediate appeal (next business day) - Test: Whether you've sworn your jury, as if you don't expedite you'll hold up the jury. If non-expedited, it's 5 business days. CoA treats as any other appeal, Trial judge can grant leave (representations from P and D), and if not a single Lord Justice grants leave.

  • Generally, s29 CAA states that time pending appeal counts towards sentence. However, whilst CoA can't increase sentence, it can hold that time served pending appeal won't count towards sentence (from lodging of appeal to appeal disposed of by court).

  • Key difference between appeal from MC-CC and CC-CoA, from CC, appeal on conviction runs from date of conviction, and sentence runs from date of sentence; in Mags, both run from the date of sentence only.

Presence of D

  • s22 CAA 1968 - D is entitled to be present at appeal if he is in custody and wishes unless:

  • He is in custody and:

    • Appeal is on point of law alone;

    • Leave to appeal only.

    • Proceedings are preliminary or incidental to main appeal;

    • In custody by reason of NG by reason of insanity, or disability;

Unless CoA give him leave to be present.

NB: CoA may make live link direction, but must give parties opportunity to make representations, it may rescind at any time.

To appeal such a decision, Notice of Appeal must be served on Registrar within 7 days after decision (if represented at hearing), or decision served (if unrepresented at hearing) per r68.12.

Powers on Appeal

Conviction Sentence

  • If the court allow the appeal they shall quash the conviction.

  • If they allow an appeal and it appears to the court that the interests of justice so require, they may order the appellant to be retried.

  • The Court may also substitute a verdict of guilty for an alternative offence if either:

    • 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.

  • 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 for the case and as the court below had power to pass or make when dealing with him for the offence.

  • The court shall exercise their powers ensuring that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was in the court below.

Loss of Time

  • All the time between lodging appeal, and date of dismissal, may be ordered not to count to D's sentence. This is where application is "totally without merit". Made either:

  • Where D unsuccessfully applies for leave, and is refused by the Single judge on paper; or

  • Following an unsuccessful renewed application to leave to full Court of Appeal.
Common Grounds of Appeal on Conviction Common Grounds of Appeal on Sentence

  • Wrongful admission/exclusion of evidence

  • Conduct of lawyers;

  • Rejection of Galbraith Submission;

  • Defects in indictment;

  • Inconsistent Jury Verdicts;

  • Misdirection on law/facts in summing up;

  • Improper comment on facts/defence;

  • Wrongful withdrawal of issues from jury.

  • Sentence wrong in law;

  • Incorrect factual basis;

  • Improper considerations, or failure to take account of relevant matters;

  • Legitimate expectation;

  • Wrong in principle;

  • Manifestly excessive;

  • Fresh evidence before CoA unders23 CAA 1968if think it is necessary or expedient in the interests of justice having regard to:

  • Whether evidence is capable of belief;

  • Whether evidence may afford any ground of allowing appeal;

  • Whether evidence would have been admissible in the proceedings;

  • Whether there is a reasonable explanation for failure to adduce in the trial;

the CoA may order:

  • Production of any document, exhibit or thing connected if necessary for determination of case;

  • Order witnesses to attend (whether or not they appeared at trial)

  • Receive any evidence not adduced in the proceedings from which the appeal lies.

Application should be supported by affidavit evidence. There is no need to call oral evidence if it can be resolved in writing. EG: Implicit in R v Connor; Mirza that could call jury to give evidence in cases of jury bias.

"Evidence" includes judgments of other courts -eg: judgment of Family Division judge who considered the case on the civil standard...!

If after conviction material comes available to P which would have had to disclose, but would've made application to non-disclose on public interest, court should examine it Botmehv UK.

If D1 refused to give evidence at trial, but would on appeal, that is not "fresh evidence" as he would've been compellable for D2.

NB: If as a result of advice or decision of D's counsel, and it is alleged that advice was mistaken, the CoA will not admit the evidence unless there is a lurking doubt that injustice had been caused by flagrantly...

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