Summary of Appeals from the Magistrates’ Court PDF

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Appeals from the Magistrates’ CourtTopic ContentAppeals from the magistrates’ courts and from the Crown Court in its appellate capacity1. The power of the magistrates to rectify mistakesS 142, Magistrates’ Courts Act 1980 contains a provision which enables a magistrates’ court to set aside a convict...

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Appeals from the Magistrates’ Court Topic

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Appeals from the magistrates’ courts and from the Crown Court in its appellate capacity 1. The power of the magistrates to rectify mistakes

S 142, Magistrates’ Courts Act 1980 contains a provision which enables a magistrates’ court to set aside a conviction or vary a sentence • The application is made to the magistrates’ court (but it does not have to be to the original bench) • If a conviction is set aside, there will usually be a re-trial by a different bench • An application to vary sentence can be made whether the defendant pleaded guilty or was found guilty S 142(2), MCA 1980: An accused who was convicted in a Mags Court (regardless of plea) can ask the magistrates to set the conviction aside • Can be considered by the same magistrates or a diff bench • If set aside, the case is reheard by diff magistrates • Known as the ‘power to rectify mistakes’ and generally regarded as the ‘slip rule’ But it does not confer a general power to re-open a previous decision on the grounds that it is in the interests of justice to do so • It is a power to be used in a relatively limited situation i.e. one which is akin to mistake or the ‘slip rule’ • Does not enable an accused to make further submissions with a view to persuading the bench to change its mind • If the Mags have reached the wrong decision on the merits of submissions then the appropriate course is to appeal to the Crown Court or by way stated to the High Court This power to rectify mistakes applies only where there has been an error of law or obvious mistake (referred to as a ‘slip rule’) • An example would be where a defendant is convicted of an offence under a statutory provision that was not in fact in force on the date of the alleged offence • Another example would be where the court, sentencing for several offences, inadvertently imposed a total of more than 300 hours’ unpaid work under a community order • Collins J: If a court has been misled into imposing a particular sentence, and it is discovered that it has been so misled, then the sentence may properly eb said to have been imposed of a mistake; the mistake being the failure of the court to appreciate a relevant fact. The sort of case which is appropriate for use of power under s 142: • Collins J: “where the mistake is quickly identified and it is accepted on all sides that a mistake had been made” An application under s 142(2) is appropriate where • The magistrates made an error of law • There was a defect in the procedure which led to the conviction The court may exercise its power to set aside a conviction on application by a party or on its own initiative

The court must not exercise its power in the absence of a party unless the court makes a decision proposed by that party or the party has agreed to that decision in writing or has had the opportunity to make representations at a hearing • An application to set aside should be made in writing as soon as reasonably practicable after conviction and should be served on the court and on each other party • The application must explain why the conviction should be set aside and identify any witness that the accused wants to call + any other proposed evidence • There is no time limit for making the application to the magistrates’ court, but delay is relevant in deciding whether to grant the application An application may be dealt with in a public or private hearing • Or without a hearing Applies only after conviction • Cannot be used in a pre-trial ruling • ^ Rulings may only be varied if and ONLY IF there has been a material change of circumstances since the ruling was made The power in s 142 can be used to increase sentence only in exceptional cases, particularly where the increase involves a custodial sentence Where the power to rectify mistakes does not provide a solution • A defendant who pleaded not guilty but was convicted by a Mags’ Court may appeal to the Crown Court against conviction and/or sentence A person aggrieved by a decision of the magistrates’ court has three means of challenge to that decision available. They are as follows: a) appeal to the Crown Court; b) appeal to the High Court by way of case stated; c) application to the High Court for judicial review. A defendant who pleaded guilty can appeal only against sentence, unless the guilty plea was ‘ambiguous’ or ‘equivocal’ as a result of something said by the defendant when the plea was entered or before sentence was passed • Examples of ‘ambiguous’ pleas are, firstly, where the defendant, when asked to enter a plea says, ‘guilty but …’ • Say it is a charge of theft, and the defendant says ‘guilty, but I thought the property was mine’ • A second example is where the plea itself in unambiguous but, before sentence is passed, the defendant says something that casts doubt on it. Perhaps in mitigation, the defendant says, ‘please be lenient, as I thought the property was mine’ • In both ^ instances, the defendant is in fact putting forward a defence to theft, namely a lack of honesty Where the plea is or becomes ambiguous, the court should explain the situation and take the plea again • If that is not done, appeal against conviction to the Crown Court would not be prevented by the fact of the guilty plea Appeals to the Crown Court are governed by the MCA 1980, s. 108, and CrimPR Part 34 •

2. The general right of appeal from the magistrates’ court to the Crown Court

CrimPR (Amendment) Rules 2016 amended r.34.7 to widen its application to include – introducing further evidence, case management, any other question of procedure, introduction or admissibility of evidence, any other question of law that has not been determined before the hearing f the appeal begins • It remains the case that, generally, an appeal from the youth court must be heard by a judge or recorder of the Crown Court sitting with two lay justices (one man and one woman) who are authorised to sit in the youth court • Exceptionally, the Crown Court may include only one justice of the peace and need not include both a man and a woman if the presiding judge decides that the hearing of the appeal will otherwise be unreasonably delayed or one or more of the justices who started hearing the appeal is absent The Crown Court may, if necessary, conduct a ‘preparation for appeal hearing’, to give directions for the effective determination of the appeal CrimPR 34.2(1) and (3) (see Supplement, R34.2) require notice of appeal to be given in writing to the relevant magistrates’ court officer and every other party within 15 business days of sentence being passed or sentence being deferred • The time-limit is also 15 business days where the appeal is against an order, or failure to make an order • If a notice is served within time, no leave to appeal is required • r.34.3: an application for an extension of time must be served with the appeal notice and must explain why the appeal notice is late The notice should • State whether the appeal is against conviction or sentence or an order or failure to make an order • Summarise the issues • Stipulate whether the appellant has asked the Mags court to reconsider the case under s 142(2) • Identify all those upon whom the notice has been served An appeal against conviction must specify • The prosecution witnesses the defendant will want to question if they are called to give evidence • Identify the likely defence witnesses • Explain whether the issues in the Crown Court differ from the issues in the magistrates’ court, and (if so) how • How long the trial lasted in the magistrates’ court • How long the appeal is likely to last in the Crown Court In an appeal against sentence, the notice must • Identify any information the defendant wants to be taken into account and explain its relevance to the issues • The notice must also say whether the defendant has asked the magistrates’ court to reconsider the case (under the ‘slip rule’) In an appeal against a finding that the appellant insulted someone or interrupted proceedings in the magistrates’ court • the magistrates’ court’s written findings of fact and the appellant’s response must be attached to the notice •

3. The procedure in the Crown Court for dealing with the appeal

4. The powers of the Crown Court on appeal, including

The respondent (i.e. the prosecution) must serve a respondent’s notice Crim PR r.34.7: applies where a party wants to introduce further evidence relating to • Bad character or previous sexual history • Hearsay evidence involving the use of special measures Notice of an application to introduce such evidence must be made not more than 14 days after service of the appeal notice The appeal is heard by a judge (a Circuit Judge or Recorder), sitting with two to four lay justices • The appeal takes the form of a re-hearing. This means that an appeal against conviction will take the form of a full trial • Similarly, an appeal against sentence takes the form of a full sentencing hearing (with the prosecutor summarising the facts and the defence presenting a plea in mitigation) S 79(3), Mags Court Act 1980: the appeal proceeds by way of complete rehearing and an appeal against sentence is, in essence, a fresh sentencing hearing • Counsel for the respondent (i.e. the prosecution) makes an opening speech and calls evidence counsel for the appellant may make a submission of no case to answer and if that fails, defence evidence is called counsel makes a closing speech • The prosecution open the facts and antecedents of the appellant defence counsel then mitigates • The parties may call evidence which has only become available to them since the trial, or evidence they decided not to use in the magistrates’ court (fresh evidence) The information on which the appellant was convicted may not be amended by the Crown Court • Equally, the Crown Court cannot strike out an amendment made by the magistrates When dealing with an appeal against sentence, the Crown Court should not ask itself whether the sentence was within the discretion of the magistrates (as would be the appropriate question in judicial review proceedings) but should consider whether • In the light of all the matters which the Crown Court had heard, the sentence passed by the magistrates was the correct one • If what the court thinks is the appropriate sentence differs significantly from the sentence imposed by the magistrates, the appeal should be allowed and the sentence of the Crown Court substituted for that of the magistrates • The Crown Court is not entitled to increase the sentence on appeal from the magistrates’ court on the basis that the magistrates ought to have committed the offender to the Crown Court for sentence in the first place • The Crown Court may, however, increase the sentence to the maximum that could be imposed by the magistrates’ court. S 48, Senior Courts Act 1981: the Crown Court may • Dismiss the appeal (i.e. uphold the conviction and/or sentence)

the power to increase sentence

Appeal to the High Court by case stated

Quash the conviction (so the defendant stands acquitted) Vary the sentence (the court should form an independent view as to the correct sentence, not simply consider whether the sentence imposed by the magistrates’ court was reasonable) S 48(2): The Crown Court: a) may confirm, reverse or vary any part of the decision appealed against, including a determination not to impose a separate penalty in respect of an offence; or b) may remit the matter with its opinion thereon to the authority whose decision is appealed against; or c) may make such other order in the matter as the court thinks just, and by such order exercise any power which the said authority might have exercised. The decision of the Crown Court may be a majority decision • The lay justices can out-vote the judge • The lay justices, must, however, accept any decisions on questions of law made by the judge It should be noted that the Crown Court can increase the sentence up to the maximum the magistrates’ court could have imposed, and that the Crown Court can alter the sentence even if the defendant appeals only against conviction • Comparatively few appeals to the Crown Court even though leave to appeal is not required The appeal can be abandoned without permission if notice is served before the hearing has started • The appellant may abandon the appeal by giving notice in writing to that effect to the magistrates’ court, to the appropriate officer of the Crown Court and to the prosecution and to any other party to the appeal • Otherwise, permission of the Crown Court is needed • An appeal cannot be abandoned simply by an appellant failing to attend or failing to instruct an advocate Upon the abandonment of an appeal • The Crown Court has no power to increase sentence • The Crown Court has no power to reinstate the appeal unless the abandonment was a nullity The Crown Court has a discretion to award costs in an appeal from a magistrates’ court in all cases (even where a timely notice of abandonment has been served) An appeal by way of case stated or application for judicial review is heard by a Divisional Court of the Queen’s Bench Division S 111(1) MCA 1980: The essence of the procedure is an appeal on a point of law which is identified in a document known as the ‘case’. Features of the case stated include • The remedy is available to both prosecution and defence • Applies to appeals for conviction and sentence • The remedy operates only in relation to an error of law or a decision taken in excess of jurisdiction – a decision as to a q of fact will ordinarily not give rise to an appeal by way of case stated but may do so if the finding of fact is alleged to be such that no reasonable breach could have properly reached that factual conclusion on the evidence o E.g. the Divisional Court stated that any defendant • •

Appeal to the High Court by judicial review

who believes that the justices should not have arrived at a finding for which there was evidence because, for example, it was against the weight of the evidence, has a remedy in an appeal to the Crown Court and not to the High Court • The remedy is available only after the final determination of proceedings in the magistrates’ court (i.e. acquittal or conviction or sentence) • The remedy is available in respect of errors made in relation to sentence as well as conviction o Such appeals have often been successfully established by P where the court has wrongly held that there were ‘special reasons’ for not disqualifying a driver The appellant asks the magistrates to state a case (specifying the proposed question(s) of law or jurisdiction). This must be done within 21 days of the final determination • The stated case sets out the findings made by the magistrates’ court, their decision on any relevant points of law (and the reasons for their decision), and poses one or more questions for the High Court to answer The appeal is heard by a Divisional Court (that is, at least two High Court judges, sitting in open court) • The appeal takes the form of legal argument based on the stated case: no evidence is called • Instead, the appeal is conducted by way of submissions • If the facts contained within the case give rise to a point of law which was not argued before the magistrates but would have provided the defendant with a defence, the court may consider the point provided no further evidence is necessary S 28A(3), SCA 1981: The Divisional Court may reverse, affirm or vary the decision, or else remit the case to the magistrates’ court with its opinion • This means that the court may quash the conviction or acquittal; remit the case to the magistrates’ court with a direction to re-try the case, or to convict and pass sentence; replace an acquittal with a conviction and proceed to sentence; or quash the sentence and re-sentence, or remit to the mags’ to re-sentence An appellant may abandon an appeal without leave The Divisional Court is entitled to order a retrial before the same bench or a different bench where a fair trial is still possible The High Court polices the decision-making of inferior public bodies by way of JR • It does this by means of prerogative orders, foremost of which are quashing orders, mandatory orders, prohibitory orders (remedies available from the HC) • Dealt with by a Divisional Court of the QBD The other form of appeal to the High Court is by way of judicial review • An app for judicial review has to be based on an error of law • This includes cases where the magistrates’ court acted in excess of jurisdiction (in other words, did something they were not permitted to do), or acted in breach of the rules of

natural justice (the rule against bias, and the rule that both sides must be heard)) • Judicial review is open to both the defence and the prosecution The concept of breach of natural justice has been held to include • Failing to give the accused adequate time to prepare a defence • Failing to grant an adjournment to allow witness attendance • P failing to call or disclose the statement of a witness who might assist the defence • P failing to disclose D’s previous convictions • Making an order as to costs against D w/o inquiring D’s means The procedure for seeking judicial review is governed by the Civil Procedure Rules (see Part 54 and the accompanying Practice Direction) • A claim form must be filed promptly and, in any event, not later than three months after the decision complained of • The first step is to seek permission to proceed. This is normally considered ‘on the papers’ by a High Court judge • If permission to proceed is granted, the application is heard by a Divisional Court Alternatively, where a decision is quashed on the ground that there was an error of law and, without that error, there would only have been one decision which the court could have reached The Court may substitute its own decision for the decision in question In deciding whether to appeal by way of case stated or judicial review, it should be remembered that judicial review is usually regarded as a remedy of last resort • Moreover, judicial review is particularly appropriate where a procedural error is alleged (for example, unfairness in the way the justices conducted the case) • JR should also be pursued where the inferior court has acted in excess of jurisdiction • If D appeals to the Crown, any further appeal on a point of law should be by way of case stated and not by JR • Case stated, on the other hand, is more appropriate where it is alleged the justices have misdirected themselves in law (for example, that they have misconstrued a statutory provision or have misunderstood the effect of a line of case law R (P) v Liverpool City Magistrates: a) The normal route for an appeal against a decision of justices where it is alleged there has been an error of law is by way of case stated b) It would be wrong to seek JR where case stated was appropriate, merely to avoid the more stringent time-limit c) However, judicial review is more appropriate where there is an issue of fact to be raised and decided which the justices did not decide themselves d) Judicial review may also be appropriate where it is alleged that there has been unfairness or bias in the conduct of the case by the justices but, where it is alleged that there has

Appeals from the Crown Court

been a misdirection or an error of law, case stated is appropriate Judicial review is the only remedy available where the defence wish to challenge a committal for sentence • The case stated procedure is not available where there has not been a final determination of the case Any appeal from the HC in a criminal cause or matter (either by way of case stated or JR) is direct to the Supreme Court Turning to further appeals, where the Crown Court was acting in its appellate capacity, it is possible to appeal to the Divisional Court by way of case stated or application for judicial review • But only on points of law/jurisdiction • There can be no challenge on the basis that a decision is against the weight of the evidence Proceedings must be finally decided No appeal by way of case stated is possible in respect of matters relating to trial on indictment • The means of challenge is ...