Criminal Litigation SGS 20 Appeals to the Court of Appeal (Crim. Div)

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billsykes
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210495
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Criminal Litigation SGS 20 Appeals to the Court of Appeal (Crim. Div)
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2013-03-31 09:34:49
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Criminal Litigation
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Criminal Litigation
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  1. Amanda Batson is seeking to appeal to the Court of Appeal following her conviction at Gladbury Crown Court for an offence of theft. A sentence of 12 months’ imprisonment was imposed. Counsel has drafted grounds of appeal, but the application for leave to appeal has been refused by the single judge. Which of the following propositions is CORRECT?

    i) The single judge may make an order that the time Batson has spent in custody pending the consideration of the application for leave to appeal will not count towards her sentence.

    ii) Batson can renew her application for leave by serving notice within14 days of receiving the Registrar’s notification that the single judge has refused leave.

    iii) If the application for leave is renewed before the full court, the full court may refuse leave and may make a direction that all the time spent in custody since conviction will not count towards her sentence.

    iv) If Batson renews her application for leave before the full court the court need only consist of two judges.

    [A] i), ii), and iv).

    [B] i), ii), iii).

    [C] All of the above.

    [D] ii), iii), and iv).
    [A] i), ii), and iv). These three propositions are correct.

    [B] i), ii), iii). Proposition (iii) is incorrect as the power to order loss of time relates only to time spent in custody pending consideration of the appeal. Time runs from lodging the appeal not from the date of conviction.
  2. Which one of the following statements, concerning an application for leave to appeal from the Crown Court, is INCORRECT?

    [A]  Notice of application for leave to appeal against sentence must be given within 28 days of sentence.

    [B]  If counsel is of the view that a defendant should appeal against sentence she should send her instructing solicitors her written advice and grounds of appeal within 14 days of sentence.

    [C]  Notice of application for leave to appeal against conviction must be given within 28 days of sentence.

    [D]  An appeal must not be commenced without the defendant's consent.
    [A]  Notice of application for leave to appeal against sentence must be givenwithin 28 days of sentence. Correct – see answer to C below.

    [B]  If counsel is of the view that a defendant should appeal against sentenceshe should send her instructing solicitors her written advice and groundsof appeal within 14 days of sentence. Correct – see the Guide which gives guidelines for best practice.

    [C]  Notice of application for leave to appeal against conviction must be given within 28 days of sentence. This is incorrect. Time runs from the matter to be appealed. 28 days from conviction for an appeal against conviction. 28 days from sentence for an appeal against sentence.

    [D]  An appeal must not be commenced without the defendant's consent. Correct. The right of appeal vests in the appellant.
  3. Joanne Wilson is sentenced to 4 months imprisonment following her plea of guilty to one count of causing grievous bodily harm with intent.The Crown's case was that she stabbed a woman in the stomach with a pen-knife following an argument over a parking space. The Attorney General considers that the sentence is unduly lenient and refers the case to the Court of Appeal for review of the sentence.

    Which of the following is INCORRECT?

    [A] The Court of Appeal can rule that the sentence was unduly lenient and increase it to one of 4 years imprisonment.

    [B] The Court of Appeal can rule that the sentence was unduly lenient but has no power to increase the sentence because Wilson pleaded guilty.

    [C] The Court of Appeal will not alter the sentence on the grounds of new material that was not before the sentencing judge, but will decide whether the sentence was unduly lenient on the basis of what was before the sentencing judge.

    [D] The Court of Appeal may rule that the sentence was not, on the facts unduly lenient.
    [B] The Court of Appeal can rule that the sentence was unduly lenient but has no power to increase the sentence because Wilson pleaded guilty. This is incorrect. The powers under s35 CJA 1988 arise in relation to the passing of a sentence. It does not matter, for the purposes of the act, why the sentence was passed.
  4. You are prosecuting a robbery trial at Inner London Crown Court before a Recorder and a jury. The only issue in the case is identification. The only witness is the complainant who purports to identify the defendant on a drive around after the incident. You have called the complainant togive evidence. Defence counsel was able to make some headway in cross-examination on the issue of identification but has not fatally undermined the witness in your view. The defence make a successful submission of no case to answer and the Judge finds the quality of the identification to be so poor that the evidence should be withdrawn from the jury’s consideration. You think that the Judge has wrongly discounted supporting evidence for the identification and ought to leave the case to the jury.

    1. On what basis can you appeal this ruling? Give reasons for your answer (2 marks)
    The ruling is a ‘terminating ruling.’ Section 58 CJA 2003 allows the prosecution to appeal a ruling by the judge if: (i) It relates to one or more offences included in the indictment; (ii) It was made at any time until the start of the judge's summing up; (iii) It has the effect of terminating the trial.
  5. 2. What is the procedure for challenging the Judge’s ruling? (5 marks)
    The appeal lies to the Court of Appeal and may be brought only with the leave of the trial judge or the Court of Appeal (1 mark).

    Section 58(4) provides that immediately following the contested ruling the prosecution must either (i) inform the court that it intends to appeal or, (ii) request an adjournment to considerwhether to appeal (1 mark)

    The prosecution must apply orally or in writing for leave to appeal (Rule67.5(1)) (1 mark).

    • The prosecution, at the time of applying for
    • leave, if notbefore, must give the guarantee of acquittal required by section 58(8) CriminalJustice Act 2003 (1 mark).

    In any other case, such as a non-expedited appeal, the notice of appeal or application for leave must be served within 5 business days of the prosecutor informing the judge that he intends to appeal (Rule 67.3(2)(b)) (1 mark).
  6. 3. What powers do the court have in relation to the original ruling? (1mark)
    Power to confirm, reverse or vary a ruling (1 mark).
  7. 4. What do the Court of Appeal need to be satisfied of before reversing the ruling? (2 marks)
    The Court of Appeal may not reverse a ruling unless it is satisfied that:

    (a) the ruling was wrong in law;

    (b) the ruling involved an error of law or principle;


    (c) or the ruling was a ruling that it was not reasonable for the judge to have made


    (2 marks available for correctly listing all of the component parts of the test).

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