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Appeals, Retrials & Co Defendants Notes

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This is an extract of our Appeals, Retrials & Co Defendants document, which we sell as part of our Criminal Procedure and Evidence Notes collection written by the top tier of Oxford students.

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• Criminal appeals exist to remedy 2 ills: miscarriage of justice & failure of due process

• The 2 are obviously linked but factual guilt is important & procedure too for moral legitimacy

• A widely criticised area of law!

• Criminal Appeal Act 1968 s.1 gives D only a right of appeal (against conviction)
from Crown Court to CA

• Must get leave from Crown Court (else everyone would do it) within 28 days of being convicted

• note if out of time, can show in the interests of justice to hear case out of time
(before applying s.2 as usal) - an extra hurdle to get CA consider it

• note courts reluctant to grant leave to appeal out of time where the basis is a subsequent change/development in the common law which would be made a difference to earlier trial

• Will grant leave only where substantive rules of common law/judicial interpretation of statutes developed

• Bentley 01 no ground of appeal where new legislation passed nor where D wants to say could've used certain evidence under new understanding of law - we're more concerned with where the law now better understood!

• Here D must also show would be substantial injustice if appeal not heard

• Ordu 17 a possibly wrong conviction is not enough - here denied leave to appeal already been released from prison & conviction spent (ERs wouldn't see), prison sentence 'no longer affected him' (just remains guilty - controversial!)

• Substantial injustice best understood in light of joint enterprise changes - fear when
Jogee decided that would prompt many appeal convictions out of time

• Also, normally CA will decide if error & if may have affected convictions

• but Johnson 16/Crilly 18 held that for those out of time (in addition to the interests of justice test) must show that the new difference in approach meant the jury would (!) have reached diff decision

• Appeal will usually be on law, not fact

• The test for appeal changed in 1990s - now in CAA 1968 s.2: CA shall allow appeal against conviction if they think the conviction is unsafe

• Generally unsafe where error by trial judge or new evidence

• Effect: quash conviction

• CAA s.11: provisions about appeal on sentence - can quash & replace sentence but not impose harsher sentence

• Then, P & D can appeal to SC if CA/SC give leave & point of law of general public importance (CAA s.33)

• Unlike summary appeals, not a rehearing rather review of what done before

• Cooper 69: suggested allow an appeal where 'lurking doubt' over conviction but criticised since

• AG for Jersey v Edenand O'Brien 06: PC said no - chastised CA for looking at evidence of doubt - these are matters for jury

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• Pope 12: CA said constitutionally, responsibility for verdict is with jury - hunch they got it wrong won't suffice - need reasoned analysis of evidence to show unsafe
(needs be on basis of judicial error or new evidence)

• Is this consistent with ECHR? Haven't had English case but have had a Scottish one….

• Judge v UK 11: said Scottish system ok - they have ground of appeal where no properly directed jury would have reached decision but has only succeeded twice anyway - suggests our system probably ok

a) Tribunal not independent/impartial

• If biased person on jury - Hanif & Khan v Uk 12

• Judge essentially took control of P case - quashed Grafton

• Judge directed jury convict - quashed - Wang 05 b) Incompetent legal representation

• Ullah: need serious misconduct - something like Weds unreasonableness

• McCarthy 15: lawyer disregard pro guidelines - didn't explain offence - appeal allowed c) Refusing stop case at half time (if no case answer)

• Smith: obvs CA must ignore D's case after that rejected because shouldn't have had to d) Misdirection by judge

• Only where it would have made difference to conviction

• e.g Docherty 99 wrongfully rejected evidence of prior conviction - CA upheld

• but Eriemo 95 - D pleaded guilty after erroneous ruling on law - appeal!
e) Formal irregularity on indictment

• Usually no - Hodgson & Pollin

• but some examples of quashing e.g Newland 88 - couldn't lawfully be joined f) Judge should have stopped case for abuse of process (see abuse of process notes?)
g) Jury misconduct - see jury notes - only likely if external (not in jury room)
h) Wrong Offence? CA has power substitute conviction under s.3 CAA 68

• Where jury could have, on indictment, found him guilty of same other offence &
appears fact would have satisfied - though can't make sentence more severe

• s.3A added by CJA 03 to cover situations where D plead guilty to wrong offence

• Chalkey 98: said 'unsafe' only relates to factual accuracy

• Togher 01: said courts must ensure fair process & factual accuracy for it to be
'safe' - something of a tendency to quash for procedural irregularities

• Reflects a tension between competing aims of factual accuracy & procedural fairness

• Gov unhappy at trend so 06 announced intention change law so CA couldn't quash on 'purely procedural grounds' - favour law-abiding majority & protect victims ultimately nothing changed

• Spencer: Crim appeals not just about punishing guilty but also upholding rule of law

• Conviction only acceptable if it carries moral authority

• Also said unnecessary- operates on belief D escapes punishment because quash on procedure

• CA normally upholds if clear evidence of guilt or quashes & orders retrial

• Only rarely retrial impossible - where misconduct taints anything that follows e.g
Mullen (Zimbabwe extradition)
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