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Review/appeal of magistrates decisions
The power to rectify mistakes - s142 MCA 1980, 'slip rule' (for a technical mistake in law or procedure)????First step: consider whether the magistrates have made an error which they themselves are capable of rectifying.
= 'slip rule', s142 MCA - allows a D who was convicted in m' court (whether guilty plea or verdict after trial) to ask magistrates to:
o (1) set aside the conviction [s142(2)]; or
(2) vary or rescind the sentence [s142(1)]
Application can be heard by the same or different bench who convicted the D;
o but if the conviction is set aside, the case will be re-heard by a different bench.
Defence counsel can apply orally as soon as sentence/conviction passed.
NB, cannot operate where the accused was acquitted: no power under s142 to revoke a
D's costs order if the prosecution has withdrawn the charges.
The power is a narrow one, is not an alternative avenue for the D to simply reargue his case
It does not confer a 'wide & general power on m' court to re-open a previous decision'
on the grounds of interest of justice (Zykin v CPS).
Instead, it exists to allow magistrates to 'mop up' any technical mistakes in law or procedure:
o Eg where there is a simple (1) error of law or (2) defect in procedure.
o EG, if exceed max power of sentence by sentencing a D to 7 months imprisonment for common assault, s142 could be used to rectify the sentence to less than 6 months.
o Eg, if court was misled into imposing a particular sentence: that sentence may properly be said to have been imposed because of a mistake (the mistake of failure of court to appreciate a relevant fact).
o Exceptionally/rarely, a sentence could be increased, if, for example, the court was misled of court failed to consider factors relevant to sentence.
Is NOT the way to challenge a decision on the merits of the case ? that is dealt with by appeal to Crown court, below.
Challenging m' court decisions (for wrong decision on the substantive merits)If D feels m' court has reached the wrong decision on the substantive merits -
appropriate course is to APPEAL, 3 means of challenge:
o (a) appeal to Crown Court Available only to the defence.
21 days from sentence (and extra notice within 14 days after that re certain types of evidence)
-Form of appeal: rehearing
(b) appeal to QBD of High Court by 'way of case stated' (heard by Div Court)
-Available to prosecution and defence.
-If (a) wrong in law or (b) error of jurisdiction.
-21 days from decision appealed.
-Only after final determination of proceedings.
-No evidence heard
(c) application to High Court for JR (heard by Div Court).
-Available to prosecution and defence.
-Must be filed promptly; within 3 months.
If a person is convicted by m' court after trial:
o Can appeal against conviction and/or sentence.
If the person pleaded guilty:
o May appeal against sentence only (or conviction only if exceptions apply, eg can show their plea was equivocal).
The choice depends on the decision to be challenged, R v Hereford M Court, ex p
Rowlands, following approach:
o (a) an error of fact, or mixed fact and law ? appeal to Crown Court, s108.
o (b) an error of law, or magistrates acted in excess of their jurisdiction ? appeal by way case stated to QBD.
o (c) where D alleges unfairness, bias or procedural irregularity ? apply for JR.??(a) Appeal from m' court to Crown Court, s108 MCA (not for prosecution)?S108 MCA, general right of appeal from m'court to Crown Court.
Governed by s108 MCA and part 34 CrimPR.
o CrimPR has been amended to widen its application beyond applications to introduce further evidence, to cover applications about case management or any other question of procedure, or introduction or admissibility of evidence, or any other question of law that has not been determined before the hearing of the appeal beings.
o Flexibility re hearing of appeals, especially during the course of case management when it is permissible for no justices to be involved.
Part 63 CrimPR, procedural requirements. A person convicted by m' court may appeal to
Crown court: ?
o (a) if he pleaded guilty, may appeal against sentence only (unless can demonstrate their plea was equivocal)
-[[CF Crown Court appeal to CA, can appeal against conviction even if guilty plea]].
o (b) if he pleaded not guilty and was found guilty after a trial, may appeal against conviction or sentence.
o (1) Prosecutors cannot appeal via this route (can only use the other 2 challenges
-case stated or JR).
o (2) if the appellant appeals against conviction, the sentence is 'AT LARGE' ?
means that the Crown Court can pass any sentence that the m' court could have passed, including one more severe than the original sentence. [This applies whether the appeal is against convection nor sentence].
o (3) if the appeal pleaded guilty ? they can only appeal against sentence (unless they can demonstrate that their plea was equivocal).
Procedure on appeal to Crown Court (CrimPR 34)?
Notice of appeal must be lodged within 21 days OF SENTENCE, (within 21 days of sentence being passed or of sentence being deferred), irrespective of whether the appeal is against conviction or sentence.
o Notice must be given, in writing, to: the relevant m' court and every other party within 21 days of sentence being passed or sentence being deferred.
o So appellant, even if he is appealing only against conviction rather than sentence, has 21 days from the date of sentence, even if that is after date of conviction
Timelimit is also 21 days where the appeal is against an order, or failure to make an order
An application for an extension of time must be served with the appeal notice,
and must explain why it is late.
o The Crown Court may shorten or extend any time limit
There is no requirement for drafted ground of appeal, but the notice of appeal must specify:
a) State whether the appeal is against conviction, sentence, an order, or failure to make an order.
b) Summarise the issues c) in appeals against a conviction: indicate the prosecution witnesses to be called by appellant; state how long the trial lasted in m' court; and how long the appeal is likely to take.
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