Criminal Litigation SGS 19 Appeals from the Mags Court

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billsykes
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210492
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Criminal Litigation SGS 19 Appeals from the Mags Court
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2013-03-31 09:10:58
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Criminal Litigation
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Criminal Litigation
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  1. Alex pleaded guilty to 2 offences of assaulting a police officer (a summary only offence) before the Gladbury Magistrates’ Court. The prosecution outline the fact of the 2 offences and reveal that that Alex has 17 previous convictions for offences of violence and has received custodial sentences in the past. Following mitigation the magistrates’ sentence Alex to 11 months imprisonment on each offence to run concurrently.

    Which one of the following is the MOST EXPEDIENT way to appeal the magistrates’ decision to sentence Alex to 11 months imprisonment?

    [A]  Alex should appeal to the Crown Court against sentence.

    [B]  Alex should apply under s.142 Magistrates’ Court Act 1980 to rectify the mistake that the magistrates have made.

    [C]  Alex should challenge the sentence by way of Judicial Review. Arguably,judicial review could be used in this case because the magistrates have passed a sentence that exceeds their powers for dealing with 2 summary only offences. Again, this would certainly not be the most expedient way to dealing with the matter. Whilst it is possible to challenge a sentence by way of judicial review, it is not usually appropriate and the defendant should seek his remedy through appeal to the CC unless there are clear and substantial grounds for proceeding by way of JR. Ditto for appeal byway of case stated (Allen v West Yorkshire Probation Service (2001) 165JP 313 and Tucker v DPP [1992] 4 All ER 901).

    [D]  Alex should appeal by way of ‘Case Stated’ to the Divisional Court as the sentence imposed by the magistrates is clearly wrong in law. The case stated procedure could arguably be used in this situation on the basis that the sentence is wrong in law and that the magistrates have acted in excess of their jurisdiction but it would definitely not be the most expedient way to deal with the matter.
    [A]  Alex should appeal to the Crown Court against sentence. No. Whilst this option is open to Alex under s. 108 Magistrates’ Court Act 1980 (which allows for an appeal against sentence without the need for leave) it is not the most expedient method of dealing with the magistrates’ error.

    [B]  Alex should apply under s.142 Magistrates’ Court Act 1980 to rectify the mistake that the magistrates have made. MOST EXPEDIENT. Defence counsel can apply orally, as soon as the sentence has been passed, for the magistrates to re-open sentence using their power in S.142 Magistrates’ Court Act to rectify the mistake that has been made(passing an unlawful sentence).

    [C]  Alex should challenge the sentence by way of Judicial Review. Arguably, judicial review could be used in this case because the magistrates have passed a sentence that exceeds their powers for dealing with 2 summary only offences. Again, this would certainly not be the most expedient way to dealing with the matter. Whilst it is possible to challenge a sentence by way of judicial review, it is not usually appropriate and the defendant should seek his remedy through appeal to the CC unless there are clear and substantial grounds for proceeding by way of JR. Ditto for appeal byway of case stated (Allen v West Yorkshire Probation Service (2001) 165JP 313 and Tucker v DPP [1992] 4 All ER 901).

    [D]  Alex should appeal by way of ‘Case Stated’ to the Divisional Court as the sentence imposed by the magistrates is clearly wrong in law. The case stated procedure could arguably be used in this situation on the basis that the sentence is wrong in law and that the magistrates have acted in excess of their jurisdiction but it would definitely not be the most expedient way to deal with the matter.
  2. You represent Joanna who was convicted of theft after a trial at Gladbury Magistrates’ Court. The magistrates have adjourned for the preparation of a pre-sentence report. Joanna instructs you that she wants to appeal against her conviction.

    Which of the following statements is WRONG?

    [A]  Joanna may appeal to the Crown Court against her conviction but must do so
    within 21 days of conviction.

    [B]  Notice of appeal must be given to the relevant magistrates’ court officer and
    the prosecution.

    [C]  On appeal defence counsel may call evidence which was not used at the original trial.

    [D]  Joanna may appeal to the Crown Court against her conviction but must do so
    within 21 days of sentence being passed.
    [A]  Joanna may appeal to the Crown Court against her conviction but must do so within 21 days of conviction. WRONG. Rule 63.2(1) and (3) of the CrimPR requires notice of appeal to be given in writing to the relevant magistrates’ court officer and every other party within 21 days of sentence being passed even if the she is appealing only against conviction.

    [B]  Notice of appeal must be given to the relevant magistrates’ court officer andthe prosecution. This is correct. See explanation above.

    [C]  On appeal defence counsel may call evidence which was not used at the original trial. This is correct. Under s.79(3) of the Senior Courts Act 1981,the appeal proceeds by way of a complete re-hearing. At an appeal against conviction, 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.

    [D]  Joanna may appeal to the Crown Court against her conviction but must do so within 21 days of sentence being passed. This is correct. See explanation at [A] above. The 21 day time limit runs from sentence.
  3. Which one of the following statements concerning bail pending appeal is WRONG?

    [A]  An appellant may be granted bail pending appeal to the Crown Court in respect of either conviction or sentence.

    [B]  An appellant may be granted bail by the magistrates’ court that sentenced him to a custodial sentence pending his/her appeal to the Crown Court.

    [C]  The magistrates may grant bail to an applicant for judicial review.

    [D]  The magistrates may grant bail to an appellant appealing to the Divisional Court by way of case stated.
    [A]  An appellant may be granted bail pending appeal to the Crown Court in respect of either conviction or sentence. This is correct. See Magistrates’ Court Act 1980, s. 113.

    [B]  An appellant may be granted bail by the magistrates’ court that sentenced himto a custodial sentence pending his/her appeal to the Crown Court. An appellant refused bail by the magistrates in this situation may apply to theCrown Court for bail. This is correct. See the Supreme Court Act, s. 81(1).

    [C]  The magistrates may grant bail to an applicant for judicial review. WRONG. Bail may be secured through an application to a judge in chambers under the Criminal Justice Act 1948, s. 37(1)(d). The magistrates have no power to grant bail in this situation.

    [D]  The magistrates may grant bail to an appellant appealing to the DivisionalCourt by way of case stated. This is correct. See Magistrates’ Court Act1980, s. 113.
  4. Which one of the following statements concerning the powers of the Crown Court on appeal is INCORRECT?

    [A]  The Crown Court may confirm, reverse or vary any part of the decision appealed against;

    [B]  The Crown Court may increase the sentence but not beyond the maximum sentence that the magistrates could have passed; 

    [C]  The Crown Court may increase the sentence but not beyond the maximum penalty for the offence;

    [D]  The Crown Court may remit the matter with its opinion to the authority whose decision is appealed against.
    [A]  The Crown Court may confirm, reverse or vary any part of the decision appealed against; This is correct. See Senior Courts Act 1981, s.48(2)(a).

    [B]  The Crown Court may increase the sentence but not beyond the maximum sentence that the magistrates could have passed; This is correct. Sees.48(4) SCA 1981.

    [C]  The Crown Court may increase the sentence but not beyond the maximum penalty for the offence; This is incorrect, see answer to [B] above;

    [D]  The Crown Court may remit the matter with its opinion to the authority whose decision is appealed against. This is correct. See Senior Courts Act 1981, s 48(2)(b).
  5. Can the Magistrates’ Court grant bail pending an appeal against conviction and/or sentence to the Crown Court?
    BCP D29.13 - YES: s113 MCA 1980 allows bail to be granted pending appeal on either conviction or sentence. Bail Act 1976 does not apply so no ‘right to bail.’
  6. Can the Crown Court grant bail pending an appeal against conviction and/or sentence in the Magistrates’ Court?
    BCP D29.13 - YES: s81(1) Senior Courts Act 1981, an appellant refused bail by the Magistrates may apply to the CC for bail. There is no High Court appeal route from the CC.
  7. What should an appellant do if he has appealed to the Crown Court but he decides on advice that he no longer wishes to pursue it? What is the procedure?
    BCP D29.10 - Abandon it – s109 MCA 1980.

    BCP D29.10 - Notice in writing to the Magistrates’ Court, appropriate officer of the Crown Court, prosecution and any other party to the appeal. See Crim PR 63.8 for rules on notice of abandonment.
  8. In relation to Q3, does the appellant need permission?
    BCP D29.10. If prior to the Court hearing –no permission required. Once hearing has startedneed Court’s permission.
  9. Can the Crown Court proceed in an appellant’s absence?
    BCP D29.11 - If representedyes. It is not open to the Crown Court to treat the non-attendance as an effective abandonment of the appeal (Rv (Hayes) v Chelmsford Crown Court (2003) 167 JP 65).

    Where neither party appears or is represented, the proper course is to dismiss the appeal (Croydon Crown Court, ex parte Clair [1986] 1 WLR746).
  10. Can an appellant by way of case stated be granted bail pending appeal by the Magistrates’ Court?
    BCP D29.19 - YES s113 MCA 1980. Appellant must surrender to the Magistrates’ Court no later than 10 days after the final determination of the appeal.
  11. Can an applicant seeking judicial review be granted bail pending appeal by the Magistrates’ Court?
    BCP D29.29 - No. Magistrates’ Court has no power to grant bail pending an application for judicial review. Bail may be secured through an application to a judge in chambers under s.37(1)(d) of the CJA 1948.
  12. What procedure can Magistrates’ adopt to correct a mistake?
    BCP D23.19 and D22.47 - S142(1) MCA 1980 – the slip rule.

    This not an appeal but allows the magistrates to rectify mistakes by re-opening matters. Power is to rescind/vary any convictions/orders/sentences. Not time-limited.

    Apply orally or in writing.

    Delay is a legitimate factor in deciding whether to exercise discretion.
  13. What is the time limit for appealing to the Crown Court?
    BCP D29.7 AND CrimPR 63.2(1) and (3). 21 days from date of sentence whether appealing conviction, sentence or both.
  14. What is the time limit for appealing by way of case stated from the Magistrates’ Court to the High Court?
    BCP D29.14. S111(2) and (3) an application to state a case must be made within 21 days ‘of the day on which the court sentences or otherwise deals with the offender.’
  15. What is the time limit for commencing judicial review proceedings?
    BCP D29.28. Claim form must be filed promptly, and in any event, not later than 3 months after the grounds to make the claim first arose.

    Claims have been rejected within the three-month time limit where there has been delay (e.g Independent Television Commission, ex parte TV NI Ltd (1991) The Times, 30 December 1991).
  16. Which court would entertain an appeal from the High Court (case stated or judicial review) in a criminal case?
    BCP D30.3 and D29.34 - The Supreme Court - s1(1) (a) Administration of Justice Act 1980.

    The appeal ‘leap frogs’ the Court of Appeal. The Divisional Court must certify that the appeal involves a point of law of general public importance and leave to appeal must be granted by either the Divisional Court or the Supreme Court.

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