Explain the process of appealing against conviction by a magistrates' court.

There are two different appeal routes from the Magistrates’ Court.

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The first route is for the defence to appeal by way of Case stated on a point of law to the Queen’s Bench Divisional Court, the second method is an appeal to the Crown Court about the sentence or against the conviction or both.

Case stated appeals are appeals on a point of law and these go to the Queen’s Bench Divisional Court, which in effect means the High Court sitting in its appellant jurisdiction.  Such an appeal is usually heard by a panel of two or three High Court judges although on occasions a judge from the Court of Appeal (Criminal Division) may join them and form part of the panel.  There are limits to this route.  It can be used by both the defence against conviction but not sentence and by the prosecution but only against acquittal.

The essence of the appeal is that the Magistrates arrived at the wrong decision because they made a mistake as to the law.  The Divisional Court disposes of the appeal by either confirming the decision, or remitting (send back) the case to the Magistrates’ Court for the Magistrates to implement the decision of the Divisional Court on the point of law.  Such appeals are few and far between.

A further appeal is possible to the Supreme Court (effectively leap-frogging the Court of Appeal Criminal Division) on a point of law of public importance, certifiable by the Divisional Court and that the Divisional Court or the Supreme Court gives permission for the appeal to the Supreme Court. A rare example of a case following this extended appeal procedure was C v DPP (1994). The case concerned the presumption that from the age of 10 to 13, for a conviction to be returned, the prosecution had to show that the child knew that what he was doing was wrong.  The Divisional Court effectively did away with this presumption and reasoned that times had changed.  On appeal on a point of law of public importance the former House of Lords overruled the Divisional Court on the basis that it was for Parliament to give effect to such a major change in the law.

As already mentioned the second right of appeal is to the Crown Court on sentence or conviction or both. If there was a guilty plea the defendant has the right of appeal against the sentence. If there was a not guilty plea there will be a right of appeal against both conviction and sentence. The court must receive notice of appeal within 21 days of the end of the case. An appeal application form is available and must be completed and sent to the magistrates' court where the original trial was held. The magistrates court will note that the defendant has appealed and will send a 'Notice of Appeal' to a local Crown Court. The Crown Court will notify the defendant of a date for the re-hearing, at this time the defendant can decide whether or not to continue. If he does not want to continue he must inform the magistrates' Court which dealt with the initial trial.

This right of appeal is only available to the defence (with the exception that the prosecution can appeal if a football banning order is not made).  Permission to appeal is not required. The appeal against conviction is heard by a judge and two magistrates in the Crown Court without a jury and they will rehear the whole case. If the appeal is against a conviction the defendant can introduce a new witness. Should the appeal against the conviction be successful the sentence will not apply. If the appeal against the length of the sentence is successful the sentence will be reduced and the defendant may be able to get his legal costs back or claim for compensation. Should the appeal against conviction fail, or if the appeal is just against the sentence, the court will look again at the sentence given and can replace this with another up to the maximum available at that court. This means there is a risk that the sentence could be longer than the original one and may mean the defendant has to pay the costs of an unsuccessful appeal.

There is no further right of appeal against the decision of the Crown Court except on a point of law. Such an appeal would go to the Queen’s Bench Divisional Court by way of case stated.
The Crown Court is also the court of trial for more serious crime.  The defendant has a right of appeal and may appeal against conviction, sentence or both to the Court of Appeal (Criminal Division).  Permission is required and leave to appeal must be granted by the trial judge or from the Court of Appeal itself.

The basis for allowing the defendant‘s appeal against conviction is limited.  The Court of Appeal does not attempt to second guess what the jury’s decision ought to have been or whether the jury was right to convict.  This would possibly lead to a situation whereby confidence in the jury system was undermined.  The only ground for allowing an appeal against conviction is that the conviction is unsafe and unsatisfactory in which case the Court of Appeal may order a retrial or quash the conviction.  

The quashing of the conviction means that the defendant walks away free. The recent case of Sally Clark is such an example.  Sally Clark had her conviction for murdering her two babies quashed after scientific evidence was shown to be flawed. At the time she spoke these emotional words 'Today is not a victory. We are not victorious. There are no winners here. We have all lost out. We simply feel relief that our nightmare is finally at an end.'

Whereas if the Court of Appeal orders a retrial they are really saying that there are still issues which need to be addressed by an informed jury.  Such a case was the case of Sion Jenkins in respect of the death of his foster daughter, Billy Jo.  

The Court of Appeal decided that the matter of new defence forensic evidence, which tended to support the defendant’s account, ought to be brought before a fresh jury.  

A quashing of a conviction may mean that the victim’s family and society are left without anyone to blame unless the case is re-opened and the investigation is continued.  There have been a number of significant cases referred back to the Court of Appeal as a result of the work of the Criminal Cases Review Commission which was set up by the Criminal Appeal Act 1995, following the large number of miscarriages of justice.  The Commission has the power to investigate possible miscarriages of justice and refer cases back to the courts.

There are continuing improvements in crime investigation science which may produce new evidence.  Such evidence ought not to be suppressed if it is material and significant.  The Court of Appeal when hearing an appeal can, in the interests of justice, admit new evidence.

Finally the defence have the right of appeal from the Court of Appeal (Criminal Division) to the Supreme Court.  The Court of Appeal has to certify that it involves a point of law of public importance and either the Court of Appeal or the Supreme Court must give permission to appeal.  

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The essay covers appeals by way of case stated and appeals to the Crown Court against the sentence or the conviction or both and the Queen's Bench Divisional Court's role in confirming the decision or remitting (sending the case back).

The essay also mentions appeals to the former House of Lords; 'leap frogging' and points of law of public importance; the case of C v DPP (1995) is provided as an example of a case following the extended appeal procedure;

The essay then goes on to discuss the work of the Crown Court and rights of appeal against conviction, sentence or both to the Court of Appeal (Criminal Division); leave to appeal; 'unsafe and unsatisfactory'; retrial and quashing convictions. It looks at examples such as Sally Clark and Sion Jenkins from recent years.

Finally the essay discusses the work of the Criminal Cases Review Commission set up under the Criminal Appeal Act 1995 and the issue of new evidence.