Appeals, Retrials & Co Defendants Notes

appeals

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!

proceedings of indictment

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

appeal on the basis jury got answer wrong?

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

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

what procedural irregularities will qualify for unsafeness?

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

  Incompetent legal representation

• Ullah: need serious misconduct - something like Weds unreasonableness

• McCarthy 15: lawyer disregard pro guidelines - didn’t explain offence - appeal allowed

  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

  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!

  Formal irregularity on indictment

• Usually no - Hodgson & Pollin

• but some examples of quashing e.g Newland 88 - couldn’t lawfully be joined

  Judge should have stopped case for abuse of process (see abuse of process notes?)

  Jury misconduct - see jury notes - only likely if external (not in jury room)

  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

can factually accurate convictions be rendered ‘unsafe’ by procedural irregularities?

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)

Spencer says current law satisfactory - says 6 due process errors which should automatically quash: no jurisdiction, law applied wrong, breach natural justice, disregard of important procedure (all retrial)m formal bar to prosecution, gross misconduct in course of investigation

but we’ve been assuming Ds originally pleaded not guilty - if did plead guilty, they are taken to...

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