Act governing criminal appeals: Criminal Appeal Act 1995
The appeal rights of the defendant and the prosecution are completely different.
Originally only the defendant had a right of appeal, but in the last 20 years various rights have also been given to the prosecution.
Appeals from the Magistrates' Court
- Appeal routes from the Magistrates' Court are completely different from the Crown Court.
- Appeal route from the Magistrates' Court will depend upon whether the appeal is only on a point of law, or whether it is for other reasons.
- The two appeal routes are to the Crown Court, or to the Queen's Bench Divisional Court.
Appeals from the Magistrates' Court to the Crown C
- This is the normal appeal route and is only available to the defence.
- If the D pleaded guilty at the Magistrates' Court, then he can only appeal against sentence.
- If the D pleaded not guilty and was convicted, then the appeal can be against conviction and/or sentence.
- In both cases, the D has an automatic right to appeal and does not need to get leave (permission) to appeal.
At the Crown Court
- The Crown Court will completely re-hear the case - this will be done by a Judge and two Magistrates.
- They can come to the same decision as the Magistrates and confirm the decision, or can decide that the case is not proved and reverse the decision.
- In some cases, it is possible for them to vary the decision and find the D guilty of a lesser offence.
If the appeal is against sentence...
- If the appeal is against sentence, the Crown Court can confirm the sentence or they can increase or decrease it.
- Any increase can only be up the Magistrates' maximum powers for the case (21 days?).
Point of Law
- If it becomes apparent that there is a point of law of public importance to be decided, then the Crown Court can decide that point of law.
- There is the possibility of further appeal by way of a case stated appeal being made to the Queen's Bench Divisional Court.
Case Stated Appeals
- These are appeals on a point of law, which go to the Queen's Bench Divisional Court.
- Both the prosecution and the defence can use this appeal route, and it can be direct from the Magistrates' Court or following an appeal to the Crown Court.
At the QBD
- The Magistrates or the Crown Court are asked to state the case by setting out their findings of fact and their decision.
- The appeal is then argued on the basis of what the law is on those facts - no witnesses are called.
- The appeal is heard by two or three High Court Judges from the QBD.
- There are about 100 appeals by way of case stated made each year.
Use of this route
- This route is only used by the defendant against a conviction, or by the prosecution against an acquittal.
- It cannot be used to challenge the sentence.
- The appeal is because they claim that the Magistrates came to the wrong decision by making a mistake about the law.
- The Divisional Court may confirm, vary or reverse the decision or remit (send it back) the case to the Magistrates' Court for the Magistrates to implement the decision on the law.
Further appeal to the House of Lords
- From the decision of the QBD, there is a possibility of further appeal to the House of Lords.
- Such an appeal can only be made if:
1) The Divisional Court certifies that a point of law of general public importance is involved.
2) The Divisional Court or House of Lords gives leave to appeal because the point of law is one which ought to be considered by the House of Lords.
C v DPP
- An example of a case which followed this route was C v DPP and 'doli incapax', which means, 'incapable of crime'.
- The case concerned a legal point about the presumption of criminal responsibility of children from the age of 10 up to their 14th birthday.
European Court of Justice
There is a possibility of further appeal to the European Court of Justice, under article 177 of the Treaty of Rome, wherevby a point of European Law is involved in the case.
Appeals from the Crown Court (Defendant)
Appeals by the Defendant
- The D has the possibility of appealing against conviction and/or sentence to the Court of Appeal (Criminal Division).
- At the end of any trial in which a D has been found guilty, his lawyer should advise him on the possibility of an appeal.
- The appeal must be made within 14 days of trial verbally at court, or in writing.
- It is intended to make sure that each D has advice within the time limits for making an appeal.
- In order to appeal, a notice of appeal must be filed at the Court of Appeal (Criminal Division) within 28 days of conviction.
- D must get leave to appeal.
- The idea of getting leave to appeal is that case which are without merit are filtered out and the court time is ultimately saved.
- Since the European Convention on Human Rights has been incorporated into our law by the Human Rights Act 1998, the Court of Appeal has taken a broad approach to the meaning of 'unsafe'.
- A convention has been held to be 'unsafe' where the D has been denied a fair trial.
Court of Appeal's Powers
- Court of Appeal can allow a D's appeal and quash the conviction.
- Alternatively, it can vary the conviction to that of a lesser offence of which the jury could have convicted the D.
- In relation to sentencing, the court can decrease, but not increase it.
- Where the appeal is not successful, the court can dismiss the appeal.
- Can order a re-trial with a new jury.
Appeals by the Proseuction
- Originally prosecution had no right to appeal against either the verdict or sentence passed in the Crown Court. Gradually, however, some limited rights have been given to them by Parliament.
- Against a ruling: if the trial Judge gives a ruling on a point of law which stops the case against the D, prosecution can appeal against that ruling (given by the Criminal Justice Act 2003).
- There are only two limited situations in which the prosecution can appeal against an acquittal by jury:
1) Where the acquittal was the result of the jury or witnesses being 'nobbled', i.e. where some jurors are bribed or threatened by associates of the D.
- If this is established under the Criminal Procedure and Investigations Act 1996, an application can be made to the High Court for an order quashing the acquittal.
- Once the acquittal is quashed, the prosecution could then start new proceedings for the same offence.
2) Where there is new and compelling evidence of the acquitted person's guilty and it is in the public interest for the D to be retried.
Referring a point of law
- The prosecution have a special referral right in cases where the D is acquitted.
- This is under s.36 of the Criminal Justice Act 1972, which allows the Attorney-General to refer a pointof law to the Court of Appeal, in order to get a ruling on the law.
- The decision by the Court of Appeal on that point of law does not affect the acquittal but creates a precedent for any future cases involving the same point.
- Under s.36 of the Criminal Justice Act 1988, the Attorney-General can apply for leave to refer an unduly lenient sentence to the Court of Appeal for re-sentencing.
- Was initially only for indictable offences, but was extended in 1994 for many Triable Either Way cases provided the trial of the case took place at a Crown Court.
Appeals to the House of Lords
- Both prosecution and defence may appeal from the Court of Appeal to the House of Lords.
- Case must be certified as involving a point of law of general public importance.
- Must have leave to appeal from either the House of Lords or from the Court of Appeal.
The Criminal Cases Review Commission - This topic
- Before 1997, there was no independent body to review possible miscarriages of justice.
- If the D's appeal failed, then there was little that he could do.
The Home Secretary
- The Home Secretary had the power to review cases, but this was not sufficiently independent from the government.
- The Home Secretary only used its power in a small number of cases.
Set up of the CCRC & Powers
- To provide a better system for investigating possible miscarriages of justice, the Criminal Cases Review Commission was set up in 1997 by the Criminal Appeal Act 1995.
- The CCRC has the power to investigate possible miscarriages of justice (including summary offences), and to refer cases back to the courts.
- The Court of Appeal may direct the commission to investigate and report back 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.
- Members of the commission are appointed by the Queen.
- At least 1/3 are legally qualified, and about 2/3 have relevant experience of the criminal justice system.
- They have about 60 support staff.
Use of the Police
- The police do most of the re-investigation work.
- This is felt to be unsatisfactory, as it does not really make such a re-investigation independent.
- Although it is true to say that many of the past miscarriages of justice have come to light as the result of investigation by other police forces.
- The CCRC took over the investigation of miscarriages of justice at the beginning of April 1997.
- The main bulk of cases it investigates are brought to its attention by D's themselves or by their families., though some cases have been referred by the Court of Appeal and others have been identified by the CCRC itself.
- Some of the first cases it investigated were alleged miscarriages of justice from over 40 years ago, such as the case of Derek Bentley.
- Bentley was hanged for murder in 1953, while his co-defendant, Craig, who actually fired the fatal shot, was not hanged due to his youth.
- Over the years, there have been attempts to have the case re-opened but it was not until the CCRC took over the investigation that the case was referred back to the Court of Appeal.
- In July 1998, the Court of Appeal held that the summing-up of the Judge at the trial had not been fair and it quashed the conviction.
Referrals to the Court of Appeal
- By the end of 2007, the CCRC had received over 10,000 applications.
- The CCRC had referred 375 cases to the Court of Appeal - 337 of these have been heard and convictions have been quashed in 235 cases.
- Recent cases included that of Sally Clark of whom, in 2003, had her conviction for murdering her two babies quashed after the scientific evidence was shown to be flawed.
- In 2004, Sion Jenkins' conviction for the murder of his foster daughter was quashed, also because of the flawed scientific evidence.