Summary note of Appeals from the Crown Court PDF

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Appeals from the Crown Court (w/c 15/3)Topic Curriculum/BCP referencesSyllabus Area 28: Appeals from the Crown CourtThe power of the Crown Court to rectify mistakes as to sentencePCC(S)A 2000, s 115(1) and CrimPR 28: a sentence imposed or other order made by the Crown Court may be varied or rescinde...

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Appeals from the Crown Court (w/c 15/3) Topic

Curriculum/BCP references

Syllabus Area 28: Appeals from the Crown Court The power of the Crown Court to rectify mistakes as to sentence

The right to appeal to the Court of Appeal and the requirement to obtain leave

PCC(S)A 2000, s 115(1) and CrimPR 28.4: a sentence imposed or other order made by the Crown Court may be varied or rescinded within 56 days of being passed or made (the Crown Court’s equivalent ‘slip rule’) • The judge who makes the variation must be the judge who originally passed sentence • If the judge was accompanied by justices on the first occasion they need not be present for the variation The power to vary may not be exercised in relation to any sentence or order if an appeal (or leave to appeal) has been determined The power to vary may be used to replace one form of sentence with a quite different form • Sodhi (1978): upon learning that D had been diagnosed as suffering from paranoid psychosis and was dangerous, the court substituted a six-month prison sentence with a hospital order plus restriction order without time limit • Iqbal (1985): an unlawful sentence of 30 months’ youth custody passed on a 16 year old was replaced by detention Varied = wide meaning and the power is not restricted to changing the length of a sentence • May also be used to make a correction to the period which the court has allowed for time spent in custody on remand • May impose a more punitive or lenient sentence and to correct a sentence that is considered to have been wrong in principle Statutory bases of jurisdiction of the CA • Determine appeals against conviction on indictment • Determine appeals against sentence passed following conviction on indictment • Determine appeals against sentence passed on a committal • To give an opinion on a point of law referred to the court by the AG following an acquittal or indictment • Determine appeals against rulings made at preparatory hearings in serious fraud cases • To increase sentence on a reference by the AG following an unduly lenient sentence for an indictment only offence • To determine appeals on a ref by the CCRC S 55 SCA 1981: a court consisting of an uneven number (usually 3, but can exceptionally be 5 or 7 if the matter is very important and would benefit from the authority of such a court or where there have been conflicting CA decisions on the same point) of judges no fewer than three is required to determine • an appeal against conviction • a review of a sentence under the CJA 1988, Part IV (A-G’s references) • an appeal against a finding under the Criminal Procedure

(Insanity) Act 1964, s. 4 (unfitness to plead), that a person is under a disability • an application for leave to appeal a verdict of not guilty by reason of insanity or a finding under s. 4 of the 1964 Act which has not previously been refused by a single judge, and • an application for leave to appeal to the Supreme Court. S 55(4) SCA 1981: a court comprised of two judges may deal with any matter other than those mentioned above Leave to appeal is required unless the trial judge certifies that the case is ‘fit for appeal’ (such certificates should be given only in exceptional cases and so are very rare) • Such a certificate of fitness to appeal against conviction or sentence should be issued only in exceptional circumstances • The certificate removes the need for leave to appeal to be granted by the Court of Appeal but it does not commence the appeal; advocates still need to follow the procedure under CrimPR Part 39 Written grounds of appeal must be submitted to the Registrar of Criminal Appeals within 28 days of the conviction • The decision as to leave may be made by a two-judge or full court at the discretion of the Registrar – will often take place when a unlawful sentence has been passed and the sentence will inevitably need adjusting • It should be noted that time starts to run from the date of conviction even if the defendant has not yet been sentenced • An application to extend time may be made if there is good reason (waiting for sentence to be passed is unlikely to be regarded as a good reason) o Extension will be allowed even where the period of delay is inordinate and unexplained because, if the appeal has merit, the refusal might lead to a referral to the CCRC (delay + cost) o If an appellant has commenced an appeal against sentence and subsequently seeks to commence an appeal against conviction, extension will usually be allowed to avoid any difficulties associated with resolving an appeal against sentence before the conviction appeal is resolved • Application for extension of time must be made at the time of serving of the application or notice and not before • If leave is refused by the single judge, the applicant is entitled to renew the application before a two-judge or full court The fact that a plea of guilty has been entered does not preclude an appeal against the resultant conviction • However, the fact that an appellant was fit to plead, had received expert advice, had been aware of what he or she was doing and had intended to plead guilty would be highly relevant to the consideration of the safety of the conviction • If the conviction is unsafe, then the conviction will be quashed

A conviction may be held to be unsafe when the guilty plea flowed from inappropriate legal advice • The power may also arise following the admission of fresh evidence on appeal The most common basis upon which an unequivocal guilt plea is challenged is where there has been an incorrect ruling on a point of law by the judge which allows the appellant no escape from a guilty verdict • But if an appellant has simply been influenced to enter a plea of guilty because of a decision to admit evidence which meant that the prospects of acquittal were hopeless, the conviction would not normally be held to be unsafe A declaration that a conviction was unsafe = an exceptional course to be taken only when the Court believes that the overlooked defence would quite probably have succeeded and therefore concludes that an injustice has been done If the court had to ask itself whether the defence would quite probably succeed or whether it put the question in terms of being a reasonable prospect of a defence succeeding • Then it is quite satisfied that the appellant would not satisfy either test Under the Criminal Appeal Act 1968, there is a single ground of appeal, namely that the conviction was unsafe There are many ways in which a conviction might be regarded as ‘unsafe • The prospects of an appeal succeeding in relation to a matter in the judge’s discretion are much improved if there has been a failure to exercise the discretion or a failure to take relevant factors into account, or the judge has taken irrelevant factors into account in the exercise of his or her discretion • There may have been defects in the indictment (though any objections to the indictment must be raised before start of trial) o Charges an offence not known to law quashed o Preferred and signed w/o juris nullity o If duplicity results in unsafe conviction quashed o Counts are improperly joined/included quashed • There may have been errors during the course of the trial, such as the wrongful admission or exclusion of evidence • The wrongful rejection of a submission of no case to answer o That can be so even when the appellant has given evidence and admitted guilt in XX o Court will not normally interfere if a submission would have succeeded but was not made and evidence of guilt later emerged • Inappropriate conduct by the trial judge (perhaps preventing the defence from pursuing a line of questioning, though it should be noted that the Court of Appeal is very supportive of active case management by trial judges) o E.g. dismissive comments about the prospects of acquittal even though they were made in jury’s absence o

The more common grounds that can give rise to appeal against conviction and sentence

There may have been errors in the judge’s summing up to the jury, for example a misdirection on law; the wrongful withdrawal of issues from the jury; misdirection on the facts • There may have been improper comments by the judge (for example, comments suggestive of bias in favour of the prosecution and against the defence) • There may have been jury irregularities (such as the jury conducting research into the case on the internet, despite clear warnings not to do so) • The jury may have returned inconsistent verdicts (the argument that acquittal on some counts means that the defendant should have been acquitted on others too will rarely succeed: it will be accepted only if there is no rational explanation for the difference in verdicts) o If the verdicts are such that no reasonable jury applying its mind to the evidence could have reached the conclusions that it did o So inconsistent as to demand interference on appeal Commonly occurring grounds of appeal against sentence • Sentence wrong in law • Sentence wrong in principle or manifestly excessive o An appeal will only succeed if the sentence was excessive in the sense of being outside the appropriate range for the offence and offender in question • Judge’s remarks when sentencing o If the judge’s remarks reveal that irrelevant factors have been taken into account o But if the sentence was appropriate despite the flaws in the decision-making, the court may uphold it • Failure of the judge to follow correct procedure o Failure to secure a pre-sentence report o Info about the offender’s antecedents have been inappropriately given to the judge • Sense of grievance (e.g. custodial sentence when indic o/wise) • Disparity of sentence (i.e. difference in sentence w/ coaccused) o Would right-thinking members of the public, with full knowledge of all the relevant facts and circumstances, learning of this sentence consider that something had gone wrong with the administration of justice? • Failure to distinguish between offenders (i.e. when one has powerful mitigation and the other does not) Notice of appeal (if the trial judge has granted a certificate that the case is fit for appeal) or notice of application for leave to appeal (required in all other cases) must be lodged in the prescribed manner • S 18(2): the notice must be lodged within 28 days of either conviction or sentence, depending on which is being appealed •

The procedural requirements for applying for leave to appeal, including the practical steps that counsel should take when advising and

preparing grounds of appeal

Although the time period for lodging the notice of application for leave to appeal is 28 days, that period may be extended either before or after its expiry • If a conviction is the subject of appeal, then time runs from the date of conviction and not sentence (if the sentence hearing takes place at a later date) The Guide encourages prompt action on the part of counsel and solicitors in the event of a conviction • Para A1-1: immediately following the conclusion of the case, the legal representatives should see the defendant and advocates should orally express their final view as to the prospects of an appeal against conviction and/or sentence • If there are reasonable grounds of appeal, they should be drafted, signed and sent to instructing solicitors ASAP The notice of appeal must • Identify each ground of appeal on which the appellant relies • Concisely outline each argument in support • Summarise the relevant facts • Identify any relevant authorities (statutory provisions, case law) • The grounds of appeal and relevant facts should be set out in one document The grounds of appeal should be set out in a single document. The intended readership of this document is the Court: • Its purpose is to enable the single judge, who will decide whether or not to give to leave to appeal, to grasp the facts and issues in the case quickly • A separate list of authorities must be provided which should contain the appellant’s name and refer to the relevant para numbers in each authority • Counsel should not settle/sign grounds of appeal unless they are reasonable, have some real prospect of success, and are such that counsel is prepared to argue them before Court After the draft grounds of appeal have been submitted to the Registrar of Criminal Appeals, a transcript of the summing up (and of any relevant rulings made by trial judge) will be obtained and sent to the appellant • The grounds of appeal are then ‘perfected’ • When the Registrar’s office sends the transcripts, counsel has 14 days within which to perfect the grounds – otherwise, it is advisable to contact the Registrar office ASAP • If counsel does not wish to perfect the grounds, the transcript should be returned with a note to that effect • The purpose of this is to identify the relevant parts of the transcript, and to give counsel an opportunity to reconsider the original grounds in light of the transcript • In the draft grounds, counsel has to rely on notes taken during the trial. Once the transcript is available, the precise words used by the judge can be quoted. The grounds should cross-refer to the transcript • The perfected grounds should comprise a fresh document •

The hearing of the appeal and powers of the Court of Appeal

which includes references to the appropriate part of the transcript by page number and letter If, having read the transcript, the advocate forms the view that the appeal is no longer arguable, the solicitors should be informed of that in an appropriate advice • The Registrar should also be informed but not sent a copy of the relevant advice • If the advocate advises abandonment and the applicant for leave continues with the appeal, the applicant is at risk of a direction that time served does not count Advocates should not settle or sign grounds unless they consider that they are properly arguable • Counsel should not settle grounds he or she is unable to support just because ‘instructed’ to do so by a lay client Ordinarily, once the grounds have been perfected, the case is referred to a single judge for the consideration of whether leave to appeal should be granted Applications for leave to appeal are usually considered on the papers (i.e. without a hearing) by a single judge (usually a High Court judge) • Refusal of leave to appeal can be challenged by renewing the application to the full Court • If leave is granted on some grounds but refused on others, the grounds upon which leave was refused can be argued only with the leave of the Court • The appeal may be abandoned without leave before any hearing takes place; thereafter, leave is required • A skeleton argument must be served if the case involves a complex or novel point of law. The notice must be served on (a) the parties, (b) any party’s custodian, and (c) any other party the Court requires to be notified • But notice should not ordinarily be given of public interest immunity hearings If a representation order is to be granted for an appellant for any hearing, it is normally granted either by the Registrar or by the single judge at the same time as leave to appeal is given • In most cases, a representation order will be granted only if the single judge grants leave • The representation order is usually limited to an advocate, but if necessary can extend to provide for the services of a solicitor • Traditionally, the respondent was not usually represented at an appeal against sentence. However, it is increasingly common for the respondent to be present • At an appeal against conviction, the respondent is invariably represented • The respondent will frequently submit a ‘Respondent’s Notice’ setting out a reply to the applicant’s grounds of appeal Case summaries: advocates must ensure that the Court and any other party has a single document containing all of the points to be argued • On an appeal against conviction, a skeleton argument must be served if the appeal notice ‘does not sufficiently outline

Renewal of application before full court after a refusal by single judge

the grounds of the appeal, particularly where a complex or novel point of law has been raised’ • On a sentencing appeal, a skeleton argument ‘may be helpful if a complex issue is raised’ • Any skeleton argument should contain a numbered list of the points the advocate intends to argue and should be as succinct as possible • The ‘appellant’s skeleton argument, if any, must be served no later than 21 days before the hearing date • The respondent’s skeleton argument, if any, no later than 14 days before the hearing date Generally if it is not necessary to include a previous decision in the bundle of authorities it is necessary to exclude it If it is necessary to cite an authority within a skeleton argument, the author should state the proposition of law the authority demonstrates and identify but not quote the parts of the authority that support it • If more than one authority is cited in support of a given proposition, para. D.19 stipulates that the skeleton argument must briefly state why Appeals against conviction must be heard by at least three judges; appeals against sentence may be heard by two judges • The appeal usually takes the form of legal argument based on the papers • Fresh evidence is heard only if permitted by the court The Court of Appeal may: • Dismiss the appeal; or quash the conviction • Quash the conviction and order a re-trial, if it is in the interests of justice to do so • Quash the conviction and substitute a conviction for an alternative offence, if the jury could – and would – have convicted of the alternative offence A retrial is unlikely to be in the interests of justice if the original trial took place a long time ago, and so the memories of the witnesses will have faded and some witnesses may no longer be available to testify • Equally, a retrial may not be in the interests of justice if fresh evidence – such as DNA evidence – shows conclusively that the defendant was not the perpetrator of the offence (in such a case, the conviction would simply be quashed) • The power to substitute a conviction for a different offence might be exercised, for example, in a case where the defendant was convicted of burglary; the trial judge misdirected the jury on the trespass element of burglary but the summing up was otherwise legally sound. If the single judge grants leave on a particular ground without deciding the issue of leave in respect of the other grounds • the appellant is free to argue the other grounds at the substantive hearing of the appeal But if the single judge grants leave on one but refuses leave on others • the appellant must renew the application for leave in relation to those other grounds, having previously informed

The power of the court to make a loss of time direction

The rules concerning the Court of Appeal hearing fresh evidence during the appeal

the respondents and the Registrar’s office of that intention, before the appellant is allowed to argue them at the substantive hearing A renewed application for leave to appeal is heard by the Court • The Court will be comprised of at least two judges, usually three • The applicant has no right to attend, so if in custody the applicant will not be present Even though legal aid is not available for representation at such hearings, it is common for counsel to provide their services free of charge (and for applications to be fully argued) and for counsel to submit written skeleton arguments for renewed applications • If counsel is to appear on behalf of an applicant at a renewed application for leave, whether on a privately paid or pro bono basis, the Court of Appeal Office should be informed of that in writing as soon as possible • Where counsel does not appear, renewed applications for leave to appeal are often placed in a ‘non-counsel list’. Such hearings then simply involve the calling on of the case followed by one member of the Court giving judgment in the case This is relevant where the defendant received a custodial sentence • It is a direction that some or all of the time spent in custody as an appellant shall not count as part of the sentence served by the appellant • In other words, part of the sentence has to be re-se...