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Appeals 2 - challenging decisions of the Crown Court
Power to rectify mistakes at sentence???
Crown Court version of 'slip rule', s155(1) PCC(S)A 2000
? judge can vary or rescind a sentence or other order within 56 DAYS of it being passed or made.
o Must be the same judge who passed sentence to make the variation (though if he was accompanied by justices on the first occasion, they need not be present for the variation).
The power to rectify mistakes is extinguished if an appeal against it, or application for leave to appeal against it, has been determined, i.e. if you proceed with an application for leave to appeal to CA and it is determined by the single judge or by the court ? then the power is extinguished because a superior court has determined the matter.
Purpose of slip rule = to save time and money; and removing need for either party to seek redress from a higher court where a recognisable error has been made in the sentence.
The word 'varied' has a wide meaning, not restricted to changing the length of a sentence, Can be used to replace one form of sentence with a quite different form,
o Replace a six-month prison sentence with a hospital order plus restriction order without time-limit;
o Replace an unlawful sentence of 30 months' youth custody passed on a juvenile, with an equivalent term of detention.
And can be used to add an extra order to the sentence already passed.
Can be used to make a correction to the period which the court has allowed for time spend in custody on remand.
The Court of Appeal (Crim Div)CA (Crim Div) has jurisdiction to hear certain types of case from Crown Court. We are primarily concerned with (non-exhaustive) list. Jurisdiction to:
a) Determine appeals against conviction on indictment (ss1-2 Criminal Appeal
b) Determine appeals against sentence passed following conviction on indictment (s9 & 11 CAA).
c) Determine appeals against sentence passed on committal for sentence
d) Give opinions on points of law referred to the court by the AG following acquittal on indictment (s36 CJA 1972)
e) To increase sentence on references by AG of unduly lenient sentences for offences triable only on indictment and some either-way offences specified by Home Sec (ss35-36 CJA 1988)
f) determine appeals against rulings made at preparatory hearings in serious fraud causes (s9(11)-(14) CJA 1987). ?
g) determine appeals on a reference by the CCRC (Criminal Cases Review
Commission) (CAA 1995, s9).
NB, no power for CA to hear an appeal against a refusal to make a football banning order
Matters dealt with by the Full Court
-A CA of an uneven number of judges, no fewer than 3, is required to determine:
o (a) an appeal against conviction;
o (b) a review of sentence under AG's references for unduly lenient sentence,
Part IV CJA 1988
(c) an appeal against a finding of unfitness to plead (s4 Crim Procedure
(Insanity) Act 1964)
o (d) an application for leave to appeal a verdict of not guilty by reason of insanity or a finding under s4 19864 Act which has not previously been refused by a single judge
(e) application for leave to appeal to Supreme Court.
-Normally, will be 3 judges: exceptionally, 5 or even 7 judges, when:
o the matter is v important and would benefit from the authority of such a court;
o or where there have been conflicting decisions of the CA on the same point.
Matters dealt with by a 2-judge court
-a 2 judge court may deal with any matter other than those above.
-Including: appeal against sentence (not by way of AG's reference for unduly lenient sentence).
Appeal against conviction (NB, only accused can appeal, not prosecution)
-S1 CAA 1968: a person convicted of an offence on indictment may appeal to the CA
against his conviction, IF:
o (b) trial judge, within 28 days of conviction, grants a certificate that case is fit for appeal (exceptional circumstances).
o (a) with leave of the CA.
-[i.e. you need leave to appeal to CA, unless trial judge has exceptionally granted certificate of fitness for appeal, see below].
Appeal against conviction following a GUILTY PLEA:
-The fact that a guilty plea has been entered does not preclude an appeal against the resultant conviction (CF magistrates' court s108 appeal to crown Court, if guilty plea can appeal against sentence only).
-If the conviction is found to be unsafe, despite the guilty plea ? conviction will be quashed, court can rule the plea a nullity.
-However, it will be highly relevant to the consideration of whether the conviction is safe, that: the appellant was fit to plead; had received expert advice; had been aware of what he was doing; and had intended to plead guilty.
-Most common basis upon which an unequivocal plea of guilty is challenged ? where there has been an incorrect ruling on a point of law by trial judge which allows the appellant no escape from a guilty verdict. ??
But conviction not normally held unsafe if an appellant has simply been influenced to enter a plea of guilty because of a decision to admit evidence which meant his prospects of acquittal were hopeless.
o Highly unlikely an appeal would be entertained where a D pleaded guilty following a decision to admit evidence of bad character
CA may quash a conviction arising from a guilty plea following the admission of fresh evidence on appeal (under s23 CAA 1968).
A conviction may also be held unsafe where the guilty plea flowed from inappropriate legal advice
Eg, where D was not advised as to a possible defence ? if the conviction is regarded as unsafe, but is an exceptional course; only where the CA believes the overlooked defence would quite probably have succeeded, or that there was a reasonable prospect of the defence succeeding.
Common grounds of appeal
Common grounds for appeal against a conviction:
a) fresh evidence b) wrongful admission/exclusion of evidence
-wrongful exclusion or wrongful inclusion of inadmissible evidence -? will lead to quashing of conviction if error means conviction is unsafe.
-Even if the appellant's advocate failed to object to the admission of the evidence when it was adduced.
-But the fact that the advocate did not object will be a factor in determining whether its admission rendered the conviction unsafe.
c) Erroneous exercise of discretion
-CA has often said it will not interfere to quash a conviction on basis of an erroneous exercise of discretion except in very limited circumstances.
-Appeal might succeed if there has been a failure to exercise the discretion, or a failure to take relevant factors into account, or judge took irrelevant factors into account in exercising discretion.
-The review is not limited to cases in which a trial judge had erred in principle, or where there was no material on which the decision he reached could properly have been arrived at.
-If necessary, court could examine afresh the relevant facts &
circumstances in order to exercise a discretion by way of review where the judge's ruling may have resulted in injustice to the appellants.
d) misdirection on law/facts in the course of summing up
-Errors in summing up -? quashed conviction if conviction unsafe.
-(1) Misdirection on Law
-quashing only if misdirection causes conviction to be unsafe.
-Eg, where judge failed to direct jury as to the standard and/or burden of proof, but ONLY IF causes conviction to be unsafe.
-Eg, for robbery, if judge fails to direct jury that it was necessary for the force used to be for the purpose of stealing, which was crucial to distinguish between robbery and theft. (2) wrongful withdrawal of issues from jury
-If a judge fails to direct a jury as to an issue of fact going to an element of the offence ? may be quashed if unsafe.
-Where evidence on a particular issue is agreed, can be appropriate for judge to direct a jury that they may draw adverse inferences against accused on that issue.
-But if judge removes all issues of fact and law from the jury so that they are effectively directed to convict ? likely quashed (but not inevitably if a not guilty verdict from a properly directed jury would have been perverse).
-(3) misdirection on facts
-A misstatement or omission of a fact in summing-up may lead to quashing if the fact was of such importance that, if correctly stated, the jury may not have reached the same verdict.
-Eg, where judge told jury that the accused had first mentioned his defence when the trial had commenced.
-CF, no quashing if the misdirection on facts was not sufficiently central/significant.
-(4) improper comments on facts or defence case
-Judge can comment on facts and express opinions as to those facts, so rare for a successful appeal based on such judicial comments.
-Only when a judge exhibits blatant unfairness and proprosecution bias that conviction may be quashed.
-Eg where judge repeatedly described the defence case as 'absurd'.
-Eg where judge described allegations put by the defence to a prosecution witness as 'really monstrous' and 'wicked'.
-(5) comment on failure of accused to testify
-a direction on failure of accused to testify is important, error in that direction may give rise to arguably ground.
-(6) Comments on the accused's character
-may lead to quashing if inappropriate direction.
-Where an accused is entitled to a good character direction and the judge fails to give it in proper form ? conviction will be quashed as a matter of course.
-Appellate court should only interfere if it was not properly open to the judge to reach the conclusions he did.
e) conduct of the trial judge
-Excessive judicial intervention during course of accused's evidence ?
could lead to quashing of conviction. An accused must be allowed to give evidence without being badgered and interrupted.
-Dismissive remarks about the prospects of acquittal, albeit in absence of the jury, when accused was in course of giving evidence ? would have same inhibiting effect on an accused as interruption ? could quash conviction.
-Safety of a conviction depends not only on strength of evidence, but also on observance of due process: where judge had been rude andf)
discourteous to counsel; and delayed a change of clothes for accused after he had been withdrawn from bail. ? due to judge's conduct,
appellant had been inhibited in the course of his defence.
-Quashed where trial judge had made inappropriate interventions and treated defence counsel's questions and submissions with hostility,
where he sent a note to defence counsel headed 'Prior planning prevents piss poor performance'.
defects in the indictment
-where the indictment charges an offence not known to law ? quashed
(even if accused pleads guilty or no point is taken at trial)
-where the indictment is preferred and signed without jurisdiction ? the proceedings will be a nullity. To be a valid indictment, a bill of indictment must be duly signed by the proper officer of the court. Without such an indictment, there can be no valid trial on indictment.
-Where an indictment is duplicitous ? conviction may be quashed if duplicity results in conviction being unsafe (whether objection was taken at trial or not).
-When counts are improperly joined or included in an indictment contrary to CrimPR 3.12(4) ? the conviction will be quashed.
-If the joinder of counts falls fall of s2(2) Admin of Justice Act 1933 ?
conviction will be quashed, but application must be made at trial to quash the indictment.
-If counts are improperly joined contrary to CrimPR 10.2 or s40 ?
conviction in relation to the wrongly joined count will be quashed.
inconsistent jury verdicts and jury irregularities
-A conviction based on apparently inconsistent verdicts -> will be quashed
ONLY IF those verdicts are such that no reasonable jury applying its mind to the evidence could have reached the conclusions that it did.
-Important of scrutinising the facts of a case in applying this rule.
-It is for applicant to show a logical inconsistency between the verdicts criticised, and then to demonstrate that it is not possible to postulate a legitimate chain of reasoning which could explain the apparent inconsistency.
-Where verdicts were reached on some counts whilst a jury failed to agree on others ? it is possible an appeal could succeed, where it is logically inexplicable as to how a jury could not reach a verdict on one count when set against a verdict of guilt on another count; but will be a rare case where it is 'logically inexplicable'.
-The verdicts must not merely be inconsistent, but so inconsistent as to demand interference on appeal.
Jury irregularities/misconduct by jurors
-In various forms ? can lead to quashing of conviction.
-Eg, where jurors consulted a Ouija board whilst in retirement, some jurors may have influenced by it.
-Downloading by jurors of information from the internet (which is now a criminal offence).
wrongful withdrawal of issues from the jury j) wrongful rejections of a submission of no case to answer
-wrongful rejection of submission of no case to answer at close of prosecution case ? conviction unsafe.
-Even when the appellant has given evidence and admitted his guilt in
XX. -The failure of an experienced advocate to make a submission of no case to answer will not preclude the quashing of a conviction on basis that there was in fact no case to answer; but the CA will presume the advocate had reason to not make the submission, and will look at whole of the evidence.
-Court will not ordinarily interfere if a submission would have succeeded but was not made, and evidence of guilt emerged later in the trial.
k) conduct of lawyers
Common grounds for appeal against sentence a) Wrong in law
when the sentence imposed could not legally be passed ? CA will interfere.
b) Sentence wrong in principle
CA will interference if sentence was outside the broad range of appropriate penalties.
o The fact that a sentence is merely severe is not sufficient. Must be wrong in principle.
o Sentences 'wrong in principle':
o If a sentence is not of the appropriate form (eg an offer was not eligible for the custodial sentence imposed upon him)
o An inappropriate combination of sentences c) Sentence 'manifestly excessive'
o Most common ground.
o Appeal will succeed only if the sentence was excessive in the sense of being outside the appropriate range for the offence & offender in question (as opposed to being merely more than the CA itself would have passed).
o Where a sentence was not manifestly excessive at the time it was passed,
CA will not interfere with the level of sentence just because the 'tariff' for that offence is reduced after the sentence is passed, or legislation alters the level of sentence.
o A judge must follow the sentencing guidelines.
d) Incorrect factual basis e) Improper considerations f) Failing to take account of relevant matters g) Legitimate expectation h) Judge's sentencing remarks
If the sentencing remarks tend to reveal that judge has taken irrelevant factors into account in deciding sentence, CA may allow the appeal.
o But if CA thinks the sentence is appropriate despite flaws in judge's decision-making, it may uphold the sentence.
Eg, where CA might reduce sentence:
o Where judge implies that he has increased the sentence because the offender elected trial on indictment, pleaded not guilty, or made attacks on the character of prosecution witnesses.
i) Procedural errors
Failure of judge to follow the correct procedure may lead to variation of sentence by CA, but not necessarily.
o Eg failure to secure a PSR before passing sentence where one was required ? may, but not necessarily, lead to reduction in sentence by
CA. the CA will itself secure such a report before dealing with the appeal.
o Where info about the offender's antecedents has been inappropriately given to the court of sentence, CA may reduce the sentence or maintain it as the correct sentence in the circumstances.
o Failure of judge to hold a Newton hearing ? likely to result in reduction of sentence, as the sentencing judge may well have proceeded on a basis adverse to D.
j) Sense of grievance (eg legitimate expectation raised re sentence)
o When appellant has a justifiable sense of grievance at the sentence imposed, CA will intervene.
o Eg, where judge orders PSR and indicates that a non-custodial sentence will be passed (legit expectation raised) (if the reports are satisfactory),
but then proceeds to send offender to custody despite positive reports.
o Eg, where judge gives indication of a non-custodial sentence privately to an advocate, and a guilty plea follows ? any subsequent judge is bound by the indication of first judge.
o But CA will not vary sentence if a judge indicates that the fact of his ordering reports should not be taken as any indication that he would eventually pass a non-custodial sentence, or indicates that he is making
'no promises'? then the appellant's hopes could not be said to have been legitimately raised.
k) Disparity of sentence between co-accused
Inconsistency in CA approach.
o Scarman LJ, Stroud: disparity can never in itself be a sufficient ground of appeal; question is whether sentence received was wrong in principle or manifestly excessive. If not appeal should be dismissed, even if the coaccused was treated with undue leniency.
o CF, Fawcett, CA: where offender received a sentence which itself was not objectionable, but for no apparent good reason was more severe than that of co-accused, court could intervene if the disparity was serious.
Question is: would right-thinking members of public, will full knowledge of relevant facts & circumstances, learning of this sentence consider that something had gone wrong with the administration of justice?
o Recently, Fawcett was been followed.
o The fact that offenders (not co-accused) sentenced at roughly the same time as an appellant in same Crown Court have received more lenient sentences for comparable offences, can never be relied on as a ground of appeal.
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