The procedure by way of case stated is set in motion when either the defendant or the prosecutor makes written application to the Magistrates' Court to 'state a case' for the opinion of the Divisional Court.
The Divisional Court may affirm, reverse or amend the magistrates' decision, or remit the case to the Magistrates' Court with its opinion, or "make such other order" as it sees fit, e.g. order a re-hearing by the same or a different bench.
Both sides also have a right of appeal from a final decision of a Magistrates' Court, or from the Crown Court on appeal from the Magistrates' Court, direct to the Divisional Court of the Queen's Bench Division on points of law by way of case stated. Under this procedure, one or other party or both may challenge a decision or other proceeding of the magistrates on the ground that it is wrong in law or in excess of jurisdiction. This procedure may be used to challenge a sentence that is so harsh or oppressive, or so far outside the normal discretionary sentencing limits, as to be regarded as an error of law. A defendant who applies to appeal straight from a Magistrates' Court to the Divisional Court by way of case stated loses his right of appeal to the Crown Court. But, if he goes first to the Crown Court he can then challenge the Crown Court's decision by way of case stated.
It is important to note that this avenue of appeal is only available where the magistrates have exercised their jurisdiction, reached a final decision and have agreed to state a case.
A further appeal may be taken by either party from the Queen's Bench Divisional Court to the House of Lords. This is so where the case reached the Divisional Court via the Crown Court or direct from the Magistrates' Court. But the appeal to the House of Lords will only be possible if:
(a) the Divisional Court has certified that the case involves a point of law of general public importance; and
(b) the Divisional Court or the House of Lords has given leave to appeal on it appearing that the point is one which ought to be considered by the House of Lords (s1 Administration of Justice Act 1960).
Every appeal to the House of Lords must be heard by at least three judges. In practice, five of them usually sit together to form a court. Each judge may deliver his own separate judgment, called a "speech" or "opinion" in the House of Lords. The hearing of the appeal is not a retrial. No oral evidence is given; the judges read all the documents in the case and listen to counsel's arguments. The majority decision prevails. The House of Lords may exercise the same powers as those exercised by the Court of Appeal.
(Your friend Lenny has just been convicted of an offence in the Magistrates’ Court. He says he did not do it and wants to appeal. Critically analyse the different ways that he may appeal against the decision of the court.) May/June 2004
APPEAL FOLLOWING TRIAL ON INDICTMENT
A) APPEALS BY THE DEFENDANT
A defendant who has been found guilty of an indictable offence and sentenced can appeal against conviction on facts or points of law, and also against sentence, with the leave to appeal (or permission) of the Court of Appeal. The general grounds of appeal are that the conviction is unsafe or sentence too severe. An independent body called Criminal Review Commission was established in 1997 to consider cases where ‘miscarriage of justice’ were alleged (with appeal routes in the legal system have been exhausted) and, where appropriate, to refer these case to the Court of Appeal.
On the other hand, it is open to the prosecution to ask the Attorney General to seek leave from the Court of appeal to consider an unduly lenient sentence. The Court of Appeal has the power to increase the sentence accordingly. The Attorney-General may also refer a point of law to the Court of Appeal following prosecution concern about acquittal.
The defendant may appeal but only with leave of the Court of Appeal or trial judge against conviction in the Crown Court, to the Court of Appeal, criminal division, on a question of law. On a question of fact, or on a mixed question of fact and law, leave of the Court of Appeal is required, unless the trial judges has granted a certificate that the case is fit for appeal.
The Court of Appeal's powers to dispose of an appeal are mainly set out in Criminal Appeal Act 1968 (as amended by the Criminal Appeal Act 1995). The Court of Appeal may allow an appeal against conviction if they think:
(a) that the conviction is unsafe and
(b) shall dismiss such an appeal in any other case.
The Court of Appeal has an additional power. Where the jury could have found the defendant guilty of some other offence, and must have been satisfied of the facts proving him guilty of that other offence, the court may substitute a conviction of that other offence and sentence the defendant accordingly.
The defendant may appeal against the sentence of the Crown Court, to the Court of Appeal with leave of the Court of Appeal.
The actual appeal against sentence only may be heard by two judges. On an appeal by the defendant against sentence, the Court of Appeal cannot increase the sentence but is limited to confirming it, or reducing it, or varying it from one form of detention to another. The Court of Appeal will not interfere with the discretion of the judge below and will only interfere if the sentence is wrong in principle or manifestly excessive.
The prosecution has no right of appeal to the Court of Appeal following an acquittal on indictment, not even on a point of law. There is, however, provision for a "reference" to be made by the Attorney-General in such a case. The Attorney-General may, if he desires the opinion of the Court of Appeal on a point of law which has arisen in the case, refer that point to the court, and the court shall, in accordance with this section, consider the point and give their opinion on it. The acquittal of the defendant is not affected by the opinion of the Court of Appeal. The Attorney-General's reference to the Court of Appeal is a useful procedure for clearing up doubtful points in the criminal law, where certainty is particularly important. The Court of Appeal may refer the point of law to the House of Lords if of the opinion that it ought to be considered there.
From the court of appeal to the House of Lords
A further appeal may be taken by either the defendant or the prosecutor from the Court of Appeal, criminal division, to the House of Lords. But this appeal will only be possible if:
(a) the Court of Appeal has certified that the case involves a point of law of general public importance; and
(b) the Court of Appeal or the House of Lords has given leave to appeal on it appearing that the point is one which ought to be considered by the House of Lords.
Every appeal to the House of Lords must be heard by at least three judges. In practice, five of them usually sit together to form a court. Each judge may deliver his own separate judgment, called a "speech" or "opinion" in the House of Lords. The hearing of the appeal is not a retrial. No oral evidence is given; the judges read all the documents in the case and listen to counsel's arguments. The majority decision prevails. The House of Lords may exercise the same powers as those exercised by the Court of Appeal.
CRIMINAL CASES REVIEW COMMISSION
Before 31 March 1997, any person convicted on indictment could at any time apply to the Home Secretary, under s17 of the Criminal Appeal Act 1968, asking him to refer the case for review by the Court of Appeal. Without such an application, the Home Secretary could still refer the case to the Court of Appeal at any time on his own initiative. The Home Secretary could refer the whole case or "any point arising in the case" (eg, the sentence imposed at first instance). It was possible for the Home Secretary to refer a case for review under this procedure even though there had already been an unsuccessful appeal. Although no such limitation was specified in s17 itself, the Home Office had a practice of referring cases only if there is fresh evidence or a new consideration of substance which might affect the safety of the conviction.
The Criminal Appeal Act 1995 repealed s17. The Criminal Cases Review Commission took over responsibility for referring possible miscarriages of justice to the Court of Appeal, on March 31 1997. The powers of the Commission (under the 1995 Act) include the following:
(a) At any time to refer to the Court of Appeal the conviction and/or sentence of any person tried in the Crown Court (s9).
(b) At any time to refer to the Crown Court the conviction and/or sentence of any person tried by a magistrates' court (s11).
(c) To investigate matters referred to it by the Court of Appeal (s23A, see below).
(d) To consider any matter referred to it by the Home Secretary in connection with the exercise of the prerogative of mercy (s16).
On an appeal against conviction the Court of Appeal is able to direct the Commission to investigate and report on any matter if: (i) the matter is relevant and ought to be resolved before the case is decided; (ii) the matter is likely to be resolved by the court as a result of the investigation; and (iii) the matter cannot be resolved without an investigation (s23A).
