Appeals in Criminal Cases
Appeals from the Magistrates' Court
Depending on the circumstances there are two possible appeal routes from the Magistrates' Court.
Appeals to the Crown Court
This is the normal route of appeal and is only available to the defence (i.e. not available to the prosecution). If a defendant pleaded guilty at their hearing in the Magistrates' Court then they can only appeal against sentence. If they pleaded not guilty and were convicted in the Magistrates' Court then they can appeal against conviction and/or sentence. In either circumstance the defendant has a right to appeal (i.e. they do not need to get leave (permission) to appeal).
At the Crown Court the appeal takes the form of a complete rehearing of the original case, by a judge and two lay magistrates. They may uphold the conviction or reverse the decision of the Magistrates' Court and sometimes they may find the defendant guilty of a different, lesser offence. where the appeal is against the sentence given by the Magistrates' Court the Crown Court can confirm the sentence, or they can increase or decrease it. If an issue concerning a point of law needs to be decided this may either be decided by the Crown Court or they can refer the point of law to the High Court (to the Queen's Bench Divisional Court), by way of case stated, for a decision to be made.
Case Stated Appeals
These are appeals on a point of law heard by the Queen's Bench Divisional Court (part of the High Court). These appeals are open to both the defence and the prosecution and they can be made direct from the Magistrates' Court or following an appeal to the Crown Court. The Magistrates' Court or Crown Court are asked to state the case by setting out their findings of fact and their decsion. The appeal is then argued on the basis of what the law is based on those facts. No witnesses are called in this type of appeal. The appeal will be heard by a panel of two or three High Court Judges from the Queen's Bench Division.
This route is only used by the defence against a conviction or by the prosecution agaainst an acquittal. It can't be used as a way of appealing against the sentence imposed. This type of appeal is made because it is claimed that the Magistrates came to the wrong decision based on the fact that they made a mistake as to the law. The Divisional Court may confirm, vary or reverse the original decision or send the case back (remit) to the Magistrates' Court for the magistrates to implement the decision on the law.
Further Appeal to the Supreme Court using the Leapfrog Procedure
Following a decision by the Queen's Bench Divisional Court there is a possible further appeal to the Supreme Court. This further appeal can only be made if;
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The Divisional Court certifies that a point of law of general public importance is involved
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The Divisional court or the Supreme Court gives leave (permission) to appeal because the point is one which ought to be considered by the Supreme Court
A very important case which used this appeal route was C v DPP (1994). This case concerned the legal point about the presumption of criminal responsibility of children from the age of 10 to 14. Until this case, it was considered that a child between the ages of 10-14 could only be found guilty of a crime if it could be shown they had mischievous discretion i.e. they knew what they were doing was wrong. The Divisional Court decided that society had changed and children were more mature 'these days' and this rule was no longer needed. They held that children of this age were presumed to know the difference between right and wrong and that the prosecution no longer needed to prove mischievous discretion. The case was then appealed to the House of Lords (now the Supreme Court) who overruled the Divisional Court. The House of Lords held that the law was still that a child between 10-14 was presumed not to know he or she was doing wrong and therefore not to have the necessary intention to commit any criminal offence. The prosecution must disprove this presumption by bringing evidence to show the child knew what they were doing was seriously wrong. The decision of the House of Lords was on the basis that it was for Parliament to make such major changes to the law not the courts.
Appeals from the Crown Court
Both defendants and the prosecution are able to appeal from the Crown Court to the Court of Appeal.
Appeals by the Defendant
The defendant may appeal against conviction and/or sentence to the Court of Appeal (Criminal Division). In order to appeal a notice of appeal must be filed at the Court of Appeal (Criminal Division) within 28 days of conviction. The rules are set out in the Criminal Appeal Act 1995 and in every case the defendant must get leave from the Court of Appeal, or a certificate from the trial judge that the case is fit for an appeal. Only in about 30% of cases is leave granted. The Criminal Appeal Act 1995 simplified the grounds under which the court can allow an appeal, the Act states that the Court of Appeal;
(a) shall allow an appeal against conviction if they think that the conviction is unsafe, and,
(b) shall dismiss such an appeal in any other case
Any new evidence must be capable of belief and would afford a ground for an appeal and it should be considered whether it would have been admissible at the original trial and why it wasn't presented at that trial.
The Court of Appeal can allow a defendant's appeal and quash their conviction or they can vary the conviction to a lesser offence which the jury could have convicted the defendant of in the original trial. The Court of Appeal can decrease a sentence but cannot increase it when hearing a defendant's appeal. If the appeal is unsuccessful then the court will dismiss the appeal. Since 1988 the Court of Appeal also has the power to order a re-trial of the case in front of a new jury.
Appeals by the Prosecution
The general rule is that the prosecution cannot appeal against a finding of not guilty by a jury. The exception is for cases where acquittal was the result of a witness or a jury being nobbled i.e. where they are threatened or offered a bribe.
The prosecution can refer a case on a point of law. This is under the Criminal Justice Act 1972 where the Attorney General can refer a point of law to the Court of Appeal in order to get a ruling. The decision of the Court of Appeal does not affect the acquittal but it will create a precedent for future caes involving the same point of law.
The Attorney General can also apply for leave to refer an unduly lenient sentence to the Court of Appeal for possible re-sentencing.
For more information about the Court of Appeal (Criminal Division) click here
Appeal to the Supreme Court
Both the defence and the prosecution can appeal from the Court of Appeal to the Supreme Court (formerly the House of Lords). It is necessary to ahve the case certified as involving a point of law of general public importance and to get leave from either the Court of Appeal or the Supreme Court.
For more information about the Supreme Court visit their website by clicking here
References (Appeals) to the European Court of Justice (ECJ)
Where a point of European law is involved in a case it is possibel to refer it to the ECJ. However it is very rare for this to happen in criminal cases as our criminal law is a completely domestic matter.
The Criminal Cases Review Commission
Following a number of high profile miscarriages of justice cases such as the Birmingham six and the Guildford four, which various Home Secretaries had failed to refer to the Court of Appeal, there was increasing demands for an independent review body to be established. Following the Runciman Commission the Criminal Cases Review Commission (CCRC) was finally set up under the Criminal Appeal Act 1995. They started investigating miscarriages of justice in April 1997. The CCRC has the power to investigate possible miscarriages of justice and to refer cases back to the courts. The Court of Appeal may also instruct the CCRC to investigate and report to the court on any matter which comes before it in an appeal if it feels an investigation is likely to help the court resolve the appeal. One criticism of the Commission is that most of the re-investigation work is carried out by the police and not by an independent body. One of the first cases the CCRC investigated was the case of Derek Bentley who had been hanged for murder in 1953. More information about this sad case can be found here. Some more recent high profile cases which have been investigated by the CCRC are the cases of Barry George, Sally Clark and Sion Jenkins. To read more about these cases just click on the name of the case you are interested in.
To visit the very informative website of the Criminal Cases Review Commission click here
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