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Expert Legal Adviser MILTON FIRMAN asks: How do I appeal to the Crown Court?
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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.
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. (Section 111(4) Magistrates' Courts Act 1980.)
There is no right of appeal against conviction following a plea of guilty.
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.
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.
If the notice of abandonment is less than three days, the Respondent can insist that the matter is listed.
An appeal to the Crown Court is by way of a re-hearing. See section 79(3) Senior Courts Act 1981.
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 Parties 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.
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.
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.
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.
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.
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) 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.
For more information, here is the deal. Call Milton on 0161 485 1100 or 07909 900449 at any time or him at firstname.lastname@example.org
Write to him at 24 Byrom Street, Altrincham WA14 2EN.
He will always be pleased to speak to you at any time. In confidence. With confidence.
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