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Appeals from the Magistrates’ Court

How to appeal from the magistrates’ court

The right to a trial by a jury is considered a fundamental right in English law, and a protection for the individual against oppression by the state. Jurors bring the values of ordinary, reasonable people into the courtroom, meaning that defendants who have a jury trial are tried by their equals. Unfortunately, over 90% of criminal cases never reach a jury.  Instead they are tried in the magistrates’ court, by either three magistrates, or a single district judge.  For a whole series of reasons, magistrates are considerably more likely to convict defendants than juries are. So what can you do if you are wrongly convicted in the magistrates’ court?

Appeal to the Crown Court

If you were convicted after trial or sentenced in a magistrates’ court, you have the right to appeal to the Crown Court against either your conviction and sentence, or your sentence alone.  It is not possible to appeal only against your conviction. Your appeal has to be filed within 21 days of sentence. If the appeal is filed late then you can apply for an extension of time to appeal, but this might not be granted by the court.

The appeal in the Crown Court is heard by a judge and two magistrates. Despite this being a Crown Court, there is no jury. If you appealed against conviction and sentence, then the Crown Court holds a complete re-trial, just like the trial in the magistrates’ court. At the end of the trial, you can be found guilty or not guilty. If you are found not guilty then the case comes to an end.

If you are found guilty on an appeal against conviction and sentence, or if you only appealed against sentence, then the Crown Court will re-sentence you from scratch. That means you can be given a lower sentence, the same sentence, or even a higher sentence than what you received in the magistrates’ court. The maximum sentence that can be imposed in the Crown Court on appeal is the same as the maximum sentence that could have been imposed in the magistrates’ court. This means that appealing can sometimes be a big risk, if you got a good sentence in the magistrates’ court.

Appeal by way of case stated or appeal through judicial review

If the reason you want to appeal is because the magistrates’ court got the law wrong, or because the Crown Court on appeal got the law wrong, then you can apply to have your “case stated” to the High Court. This application has to be filed within 21 days of the decision appealed against.

If the court which convicted you, or which refused your appeal, declines to state a case to the High Court, then you can apply directly to the High Court for a judicial review of the refusal to state a case, and at the same time you can pursue the arguments you would want to run in the appeal by way of case stated. If the application to state a case is filed late then you can apply for an extension of time, but this might not be granted by the court.

A case stated only looks at the law. If you want to challenge any of the evidence, this can only be done by a re-hearing in the Crown Court.

It is important to be aware that if the magistrates’ court makes an error of law, and you then appeal to the Crown Court, you cannot then appeal by way of case stated against the decision of the magistrates’ court. If the Crown Court did not make the same error of law, then you would lose your right to appeal by way of case stated.

Apply for bail pending appeal

People who have been sent to prison by the magistrates’ court can apply for bail pending appeal. This is rarely granted, but it is almost always worth asking for it. This is because it can take many weeks or months for an appeal to be heard. If you don’t ask for bail, then you can spend your whole sentence in prison waiting for an appeal.

Costs consequences of appeals

If you lose an appeal you can be made to pay the costs of the prosecution. In appeals to the Crown Court the costs are normally about the same as in the magistrates’ court. However, appeals by way of case stated can often be very expensive, with several thousand pounds of costs.

However, if you win an appeal, then if you have paid anything (whether that is fines or costs) then you will get this back. You should also get back from the state any fees that you have paid for your own lawyers.

Apply to the Criminal Cases Review Commission

If you have appealed from the magistrates’ court already and your appeal was refused, then you can apply to the Criminal Cases Review Commission (CCRC) for a review of your conviction or sentence. You can also apply to the CCRC for a review of your conviction if you tried to appeal out of time and an extension of time was refused, or if you pleaded guilty in the magistrates’ court. The CCRC is an independent body which investigates alleged miscarriages of justice. In appropriate cases it can refer cases back to the Crown Court for a new appeal.

However, applications to the CCRC take a long time, often years, to resolve. It is always important to exhaust other options before you go to the CCRC. The advantage of an application to the CCRC though is that it is free, and you do not have to pay anyone’s costs if you lose.

Conclusion

If you were convicted in a magistrates’ court, you have more options open to you than if you were convicted in the Crown Court.  Sentences imposed by the magistrates’ court are shorter than those that the Crown Court can impose, but that doesn’t mean that you should not make use of the available options to overturn a wrongful conviction.

Before relying on any matter set out in this article, make sure to consult an expert to check that it is still up to date and how it applies to your case.

Appeals against Sentence

When a defendant is convicted, the sentence a judge passes is determined by many factors.  The judge will consider the type of offences a defendant was convicted of, what the facts of the case were, and what a particular defendant’s involvement was.  They will look at the sentencing guidelines for the offence, and apply the facts of the case to them, to ensure that similar offences are punished similarly, and different offences are punished differently. They will then look at any factors about the individual defendant that mean the defendant should get a more or less serious sentence.  Finally, if the defendant pleaded guilty or gave assistance to the prosecution authorities, the judge will apply a percentage reduction to the sentence.

This may appear simple in theory.  But what about when judges get it wrong?

Appeals from magistrates’ courts

Under s 108(1)(b) Magistrates’ Courts Act 1980 there is an automatic right of appeal from the magistrates’ court to the Crown Court.  This means that if a defendant is dissatisfied with their sentence they can try again in front of a Crown Court judge and two lay magistrates, in a complete re-hearing: they do not have to show that the sentence imposed by the magistrates’ court was wrong.  However, the Crown Court sentences from scratch.  This means that on appeal from the magistrates’ court to the Crown Court a sentence can be made more serious.

Despite this, there are limits to the sentence the Crown Court can impose.  Firstly, the Crown Court cannot pass a sentence which is higher than the statutory maximum sentence that the magistrates’ court could have passed.  In particular, the High Court held in the case of R v Bullock [1964] 1 Q.B. 491 that in “either-way” cases (cases that can be tried in the magistrates’ court or the Crown Court) the Crown Court cannot commit a person to itself for sentence, in order to be able to use the higher powers of sentence that the Crown Court would have if the trial had taken place in the Crown Court.  Secondly, unlike the Court of Appeal, the Crown Court cannot make a “loss of time” direction.

Appeals from the Crown Court

Unlike an appeal from the magistrates’ court to the Crown Court, there is no automatic right of appeal from the Crown Court to the Court of Appeal.  Instead, an appellant will have to show that they have grounds of appeal.  There are two broad grounds on which sentences might be overturned: where the sentence is “manifestly excessive”, and where the sentence is otherwise wrong in law.

It is worth noting at the outset that, in the eyes of the Court of Appeal, most judges get it right, most of the time.  However, there is a recognition that sometimes they do not.  So what should people do if they think their sentence is too long?

Sentences that are wrong in law

Appeals to the Court of Appeal in cases where a sentence is said to be wrong in law are often quite clear cut: either the sentence is wrong in law or it is not.  Examples may be where a judge has imposed a sentence which is higher than the statutory maximum; where a judge has imposed an extended determinate sentence despite the conditions not being met; or where a judge has imposed a sentence of imprisonment for public protection (“IPP”) for an offence committed before IPPs were introduced.  In these cases, the prosecution may even agree that the sentence was wrong in law, and may support the appeal.  The Court of Appeal will then look at how to restructure the sentence to make it right in law.

Sentences that are manifestly excessive

Appeals to the Court of Appeal in cases where a sentence is said to be manifestly excessive are more complicated.  In the old case of Nuttall (1908) 1 Cr App R 180, which the Court of Appeal continues to follow, Mr Justice Channell said:

This court will… be reluctant to interfere with sentences which do not seem to it to be wrong in principle, though they may appear heavy to individual judges.

In the later case of Gumbs (1926) 19 Cr App R 74, Lord Hewart, the Lord Chief Justice, made the point even more clearly:

“…this court never interferes with the discretion of the court below merely on the ground that this court might have passed a somewhat different sentence; for this court to revise a sentence there must be some error in principle.

As such, harsh sentences given out by Crown Court judges may well not be overturned on appeal.  However, sometimes the Court of Appeal recognises that sentencing judges do go too far, or do make mistakes.  In such cases, there is a right of appeal, which can result in a sentence being reduced.

Risks of appealing to the Court of Appeal

Before filing an appeal against sentence it is important to bear in mind that if the Court of Appeal considers that the appeal is plainly without merit, it can make a “loss of time” order, meaning that some of the time spent in custody will not count towards sentence.  It can alternatively make a costs order, meaning the appellant has to pay the costs of the appeal.  Although this power has rarely been used in practice,  its use is becoming more common.  Even if an appellant has been advised by their lawyers that they have grounds of appeal, the power can still be used.  As such, it is important that appellants receive expert advice before they appeal, and are aware of the risks.  However, in contrast to appeals to the Crown Court, the Court of Appeal cannot increase sentences if they refuse an appeal against sentence.

Before relying on any matter set out in this article, make sure to consult an expert to check that it is still up to date and how it applies to your case.

Appeals based on R v Jogee

The Mistake in the Law

The case of R v Jogee [2016] UKSC 8 corrected a mistake in the law made decades ago in the case of Chan Wing-Siu [1985] AC 168. In summary, in Chan Wing-Siu the courts had wrongly widened the scope of “joint enterprise”, a legal doctrine which makes one person liable for a crime committed by another person.

The classical example of this is a bank robbery. Two robbers walk into a bank, and a getaway driver waits outside. All three of them have agreed to rob the bank, and so all of them are guilty of conspiracy to rob. However, one of the robbers carries a shotgun with him. The other two know about this. When a security guard tries to stop the robbery, the robber with the shotgun shoots and kills the guard. The robber who fired the shot is obviously guilty of murder (unless an unusual defence such as diminished responsibility or insanity applies). But what of the other robbers? Are they also guilty?

Under Chan Wing-Siu, if they had foreseen the possibility of a person being caused serious harm in the course of the robbery, they would have been guilty of murder as well. This would be the case even if they had not agreed to it, and even if they had objected to killing anyone.
Participation in Crime A knowing Crime B was possible meant being guilty of Crime B.

Correcting the Mistake

However, this was corrected by the Supreme Court in Jogee. They agreed that this test was wrong in law, and was not justified as a matter of public policy. The law went back to what it had been before Chan Wing-Siu: for a person to be guilty, they would have to agree to some serious harm being caused, even if this agreement was conditional on something going wrong. For example, if one of the robbers had not agreed to the weapon being used, or even had argued against it being used, they may not be guilty of murder, even if they foresaw that a person might be caused serious harm.

Many hundreds of people have been convicted under joint enterprise principles when they were incorrectly applied. The Supreme Court foresaw that many of them would want to apply to have their convictions overturned. However, they noted that the Court of Appeal may only grant leave to appeal “if substantial injustice be demonstrated”. The Supreme Court did not define “substantial injustice”, so any appeal on those grounds will be specific to an individual’s case.

Substantial Injustice?

The first full set of appeals after the case of Jogee were the linked appeals of Johnson and others [2016] EWCA Crim 1613. The court there dealt with the issue of demonstrating substantial injustice. All appellants in that case were either denied leave to appeal or had their appeals dismissed, and all convictions were therefore upheld. It is not easy then, to get these cases overturned.

To persuade the Court of Appeal that a substantial injustice has occurred an applicant will have to persuade them that they would not necessarily have been convicted even if the correct legal test had been applied. The Court of Appeal did make clear that, “If there was a substantial injustice, it is irrelevant whether that injustice occurred a short time or a long time ago. It is and remains an injustice.

Demonstrating that there was a substantial injustice has proved a difficult hurdle for applicants to overcome, even if the legal direction on joint enterprise was wholly wrong. Only one case has successfully challenged this decision.

In the case of R v Crilly [2018] EWCA Crim 168, the Appellant was convicted of a murder taking place in the course of a burglary. It was agreed by the participants that no weapons were used, and the 71-year-old victim was killed by a forceful blow to the head by Mr Crilly’s co-accused. Mr Crilly understood that the house was empty when he agreed to go with the co-accused to burgle the house and did not intend to cause very serious harm to the victim. The Court of Appeal concluded at para 42 that the evidence against Mr Crilly “was not so strong that we can safely and fairly infer the jury would have found the requisite intent to cause really serious bodily harm”.

Despite all the attention by the Supreme Court and the Court of Appeal, the law of joint enterprise remains as controversial as ever. It may be that a solution lies not through the courts, but through political reform. The community group, JENGbA (Joint Enterprise Not Guilty by Association) have been campaigning hard for new legislation that would limit the number of people who could be prosecuted under the joint enterprise doctrine and would assist those serving long and unjust sentences.

At present, only in the Crilly case has the Court of Appeal found the Appellant’s conviction for joint enterprise murder was unsafe, although there are other cases that merit the Court’s close attention being heard in the coming months. These will test the law further and may clear up some confusion for those thinking of appealing.

This article was updated on 5 September 2018. Thanks go to Sophie Walker for her assistance with the update.

This is an extremely complex and evolving area of law. Before relying on any matter set out in this article, make sure to consult an expert to check that it is still up to date and how it applies to your case.

Appeals Based on Negligence

Clients are sometimes dissatisfied with the representation that they received at trial and wish to make an application to the CCRC based on claims that their legal team, whether barristers, or solicitors, or both, acted negligently in the conduct of their case. This article considers the strength of these cases.

The Strength of Applications

The starting point to be aware of is that applications and subsequent appeals based on the negligence of your previous legal team are very unlikely to succeed.  When you place your case in the hands of a barrister or a solicitor the courts will take the view that you are giving them a very wide discretion on how to conduct your case.

The courts will not simply be interested in determining whether your trial lawyers were negligent.  They will want to know that this has affected the safety of your conviction.  For example, your lawyers could have acted negligently in failing to have evidence excluded, in turning up to court late every day, and then falling asleep in court, but if you then entered a guilty plea without pressure being placed on you to do so your conviction would probably still be regarded as safe.

Indeed, in one case trial counsel has been referred to the Bar Standards Board by the Court of Appeal because of the allegedly incompetent nature of representation, yet the Court of Appeal nonetheless found that the incompetence of the barrister did not affect the safety of the conviction or the fairness of the trial.

You should discuss your case fully and frankly with your new representative before launching an appeal based on the alleged negligence of a legal representative.  In particular, in cases of appeals which are bound to fail due to having no merit whatsoever, the Court of Appeal can make “loss of time directions” meaning you spend more time in prison.  However, this should never discourage you from bringing a case where there is real evidence of negligence.

Evidence of Negligence

Sometimes you will have available to you evidence which shows that your legal team were negligent.  For example, your lawyers’ notes might be available to you in the papers from your trial.  In such circumstances they can be reviewed, and might show that the lawyers fundamentally misunderstood your case, failed to read the papers, or that they ignored your instructions.  Another example of evidence of negligence being immediately available would be where the trial record shows that available witnesses were not called, or that important prosecution witnesses were not cross-examined.

In other cases you will need to ask a lawyer to take a detailed look at the papers from the trial and the court’s records to discover whether suspicions of negligence are correct.  These cases can be extremely time consuming for the lawyers conducting the review, as they will tend to involve a need to understand ever single detail of the case to work out why your previous representatives took the tactical decisions they did.

Finally, in some cases there will be evidence in the form of written “endorsements” between the client and their trial lawyers.  At many stages of a case your lawyer will give you advice and will quite properly ask you to confirm that you have understood this advice, and to make a record of your instructions, which is then signed.  Where you have been provided with advice by your lawyer and you have followed it, even if it is not the best advice, this will usually be a strong defence to any charges that your lawyer has acted negligently.

(As an aside, every client should be aware that the best protection against negligent representation in the first place is to involve yourself in the details of how your trial is being prepared and conducted.  If you don’t understand something, challenge your representative to explain it.  Always make sure that decisions are documented in writing if you have any issues with them.  Your lawyer will be spending hours preparing your case, but always remember that no one will know it as well as you do.  Keep in mind that at the end of the trial, if everything goes wrong, it’s not your lawyer who will end up in prison.)

In an application to the CCRC your new representatives will contact your former representatives, for a number of reasons.  Firstly, they will need to ensure that the former representatives know that an application is being made involving them.  Secondly, they will want to get hold of all records held by the former representatives.  Thirdly, and most importantly, the former representatives will have a right to have their own say about how they conducted their case.  This will allow the CCRC and the Court of Appeal to have the fullest possible picture.

Conclusion

Cases where negligence can be proven against a legal representatives are the exception, and are always difficult to win.  Indeed, there are many cases where a disgruntled client will look for someone to blame, and the easiest person to see is their former representative; that alone does not mean that the former representative really is at fault.  Cases which are simply speculative should be strongly discouraged.

However, the fact that some former clients complain wrongly about their lawyers should not stop you from approaching an expert if you genuinely think that a miscarriage of justice has happened because of negligent representation. No one should suffer a loss of their liberty because of the failures of their representatives.  If this is your situation then you deserve someone who will fight as hard as possible to deliver justice and secure the overturning of your conviction.

Before relying on any matter set out in this article, make sure to consult an expert to check that it is still up to date and how it applies to your case.

The Importance of Litigation Strategy

Pursuing a post conviction appeal is not just about digging up a new piece of evidence and putting it in front of a court.  There are complex strategic decisions which need to be taken to ensure that an appeal has the greatest chance of success.

Knowing when to apply to the CCRC

The risk of applying too early

Every day lost to an unfair conviction is an injustice.  However, launching a premature appeal can throw away perfectly good opportunities to overturn miscarriages of justice.

Where grounds of appeal have been identified based on fresh evidence, it is almost always worthwhile to spend the time to ensure that the evidence stands up to scrutiny, and is as complete as it can be.  For example, launching an application to the CCRC based on a fresh expert’s report which ignores a point of evidence from the case, rather than going back to the expert to ask for a more informed opinion, can lead to that expert being discredited.  This is particularly the case if the CCRC instruct an expert of their own who identifies what your expert has overlooked.

Further, a well-prepared application seriously reduces the risk that an application will be misunderstood or rejected out of hand by the CCRC.  Taking the time to ensure that not only has all evidence been gathered, but that it has been presented in the most favourable light, will often make the difference between a case where the CCRC refers to the Court of Appeal, and where a judicial review is needed to ensure that the CCRC looks again at your application.

The risk of applying too late

Equally, it is possible to make an application too late.  The longer that you wait to bring forward new evidence, the less credible it will appear to the CCRC and to the Court of Appeal.  New evidence is already looked upon with suspicion.  You will be asked to explain why evidence which is now available was not presented at trial.  If you then sit on evidence for too long you are likely to raise suspicions that the evidence has been fabricated, or that the delay is caused by some tactical consideration on your part.  You also run the risk of witnesses’ recollections fading, forensic evidence degrading, or people deciding that they do not want to be involved in your case.

Knowing when to show your hand

In any attempt to overturn a miscarriage of justice you can expect to face opposition.  If your case is considered by the CCRC, the CCRC may exercise its powers to investigate your case.  This can lead to other state bodies, or interested parties, passing it information which is unhelpful to you.  At the Court of Appeal your appeal will almost certainly be contested by the CPS, who will seek to maintain your conviction, or at a minimum push for a re-trial.  If you apply to judicially review the CCRC, they will almost always contest your claim.  Therefore, in almost all cases you will need expert advice on when to make your arguments, and in what way.

For example, in a judicial review of the CCRC it may be apparent from their Acknowledgment of Service that they have misunderstood the nature of the grounds for judicial review.  It is a question of fundamental strategic importance whether to challenge this immediately before a decision is taken by the court on the “permission” stage, or to avoid showing your hand and seek to deploy the point later when it has become apparent that the CCRC has overestimated the strength of their case.  Such decisions can make the difference between a case which ends quickly, and one which drags on for months or even years.

Knowing when to give up – and when not to

Sometimes a case really does reach its end.  Giving up the process of ever finding justice can be a terrible prospect.  However, it is sometimes better than clinging onto false hopes.

Sometimes though, giving up isn’t the right thing to do.  The rejection of a case by the CCRC is considered the end of the road by most clients.  However, it needn’t always be.  There can be evidence or argument which has still been overlooked.  Further, in a surprising number of cases the CCRC’s decision is open to judicial review on the ground that they have not complied with fundamental principles of public law in their decision-making process.

Finally, in some cases people have given up hope only for a change in the law years later to bring the safety of their conviction back into doubt.  This is what happened in the case of R v Jogee, when the Supreme Court reversed a mistake in the law which had existed for three decades, and called into question the convictions of a great number of people tried under “joint enterprise” principles.

In all cases, expert advice will help you understand when to accept your situation, and when to keep fighting.

Before relying on any matter set out in this article, make sure to consult an expert to check that it is still up to date and how it applies to your case.