Appeals to the Crown Court
- Right of Appeal
- Notice of Appeal
- Equivocal Plea
- Defective Summons
- Abandonment of Appeal
- Appeal is by way of Re-hearing
- Appellant who fails to attend and give instructions
- Reasons for Dismissing Appeal
- Effect of other Decisions
Appeals to the Crown Court are governed by Part 63 Criminal Procedure Rules 2010 ('the Rules'). The Crown Court deals with appeals from magistrates' courts against:
- conviction and sentence in the Magistrates Court or Youth Court (section108 Magistrates Courts Act 1980);
- hospital or guardianship orders (section 45(1) Mental Health Act 1983);
- failure to comply with a supervision order (paragraph 11, schedule 3 Powers of Criminal Courts (Sentencing) Act 2000);
- failure to make a football banning order (section14A(5A) Football Spectators Act 1989);
The Crown Court also has the power to alter a sentence or other order made by the Crown Court within 56 days of the date on which it was made (section 155 Powers of Criminal Courts (Sentencing) Act 2000 (as amended by section 47 and schedule 8 paragraph 28 Criminal Justice and Immigration Act 2008).
This allows time for the correction of errors that would otherwise require an appeal to the Court of Appeal.
Right of Appeal
The Prosecutor has no right of appeal to the Crown Court against conviction or sentence other than the right to appeal against the failure to make a football banning order.
A person convicted by a Magistrates' or Youth Court may appeal against sentence.
A person may appeal against conviction provided he did not plead guilty. (See section 108 Magistrates' Courts Act 1980; (Stones 1 - 2177 Archbold 2 - 161).
Notice of Appeal
An appeal must be commenced not later than 21 days after the making of the decision appealed against by the appellant giving written notice of appeal in accordance with Part 63 Criminal Procedure Rules. (Archbold 2 - 181)
Any defect in the notice of appeal, or service out of time should be drawn to the attention of the appeal tribunal before the appeal is heard.
An appellant may not appeal to the Crown Court and also seek the Magistrates' Court to state a case. See section 111(4) Magistrates' Courts Act 1980. (Stones 1 - 2180)
If this does occur the prosecutor must immediately notify the appellant and the Courts so that the position can be clarified.
There is no right of appeal against conviction following a plea of guilty. (Stones 1 - 2177) (Archbold 2 - 161)
If the issue of equivocal plea is raised the Crown Court is entitled to enquire into the position.
However, the CPS must help the Crown Court to determine what occurred at the Magistrates' Court. Witnesses can be called to give evidence or an affidavit can be obtained from the Justices' Chief Executive or the Chairman of the bench.
If an affidavit is required it is better for the approach to be made by an officer of the Crown Court rather than by the respondent.
With respect to equivocal pleas there is a considerable body of case law. See: (Archbold 2 - 194, 2 - 195, 2 - 196, 2 - 197, Stones 1 - 462).
The Crown Court has the power to correct any error or mistake in the order or judgement incorporating the decision which is the subject of appeal, but it has no power to amend a summons or charge upon which an appellant has been convicted. (R v Swansea Crown Court on the application of Stacey (1990), R.T.R. 183 DC, Archbold 2 - 184). See also section 48 Senior Courts Act 1981 (Archbold 2 - 178).
A distinction can be drawn however when the defect is a mere technicality. If the magistrates' court could properly correct the defect under section 123 of the Magistrates' Court Act 1980 then the Crown Court may proceed likewise. (Stones 1 - 2206 Stones 1 - 424).
If the reviewing lawyer considers that the defect is more than a mere technicality, steps should be taken at the earliest opportunity to inform the appellant and the Court that the appeal cannot be responded to and that no evidence will be offered.
Abandonment of Appeal
An appeal may be abandoned by giving notice in writing at least three days before the hearing to the same parties upon whom the Notice of Appeal was served. See Criminal Procedure Rules Part 63.5. (Archbold 2 - 176).
If the notice of abandonment is less than three days, the respondent can insist that the matter is listed.
The main purpose in the CPS insisting that the matter be listed would be to seek costs.
Unless the costs incurred in the preparation of the appeal are substantial it will not normally be in the overall interests of the CPS to insist on an abandoned appeal being listed.
Appeal is by way of Re-hearing
An appeal to the Crown Court is by way of a re-hearing. See section 79(3) Senior Courts Act 1981. (Archbold 2 - 184).
Statements originally tendered under Section 9 Criminal Justice Act 1967 must be re-served, or the appellant's solicitors should be asked whether they agree to the statements being read at trial.
The respondent may call any witnesses deemed necessary including any not called at the Magistrates' Court.
Where an appellant has been properly convicted, the CPS is under a duty to respond to the appeal. It is a matter for the Court whether the circumstances are such that the sentence should be varied.
Appellant who fails to attend and give instructions
Failure on the part of the appellant to appear does not amount to notice to abandon the appeal. See R v Guildford Crown Court on the application of Brewer 87 Cr App R 265 (Archbold 2 - 187).
When an appellant has been given proper notice of the appeal hearing but fails to attend, Counsel for the respondent should be instructed to apply for the appeal to be dismissed. It is normal practice for the CPS to seek an order for costs in such circumstances in accordance with the provisions of section 109 Magistrates' Courts Act 1980 and Part 63 of the Rules.
Reasons for Dismissing Appeal
The Crown Court should give reasons for its decision. See R v Harrow Crown Court on the application of Dave 99 Cr App R 114 (Archbold 2 - 202).
A refusal to give reasons might amount to a denial of natural justice and a breach of Article 6 ECHR which would provide grounds for judicial review. If necessary Counsel should be instructed to remind the Court that reasons for the decision should be given.
Reasons should be given contemporaneously with the decision so that the losing party can be sure that there was no rationalisation after the event. R v Snaresbrook Crown Court on the application of Input Management, 163 J.P. 533, DC.
Effect of other Decisions
Sometimes a superior court will give judgement on a point of law which will cast doubt on a past conviction. This may lead to the Crown Court granting a convicted person leave to appeal out of time, possibly months or years after the expiry of the time limit. (Archbold 7 - 182).
The decision of a superior court that a point of law was wrongly decided will not automatically mean that the Crown will concede that a conviction was wrongful. Consideration should be given to:
- Consistency of approach;
- the importance of the point of law; and
- the length of the delay.
In R v Ramsden (1972) Crim L.R. 547 the Court of Appeal refused to allow an appeal out of time. The Court said that alarming consequences would flow from a policy of permitting the re-opening of cases by granting a substantial extension of time on the ground that a Superior Court had removed a widely held misconception as to the prior state of the law.
Before deciding to offer no evidence in appeals which arise in such circumstances, guidance should be sought from Strategy and Policy Directorate at CPS Headquarters.
The content of the brief will be broadly similar to the content of the trial brief. Regard must be had to the principle of continuity as set out above, to ensure that Counsel has all available information concerning the hearing at the Magistrates' Court.
Appeals to the Crown Court from the magistrates' court will normally be dealt with locally. As a general rule there is no need to refer cases to CPS Headquarters.