Docstoc

Prosecution Appeals

Document Sample
Prosecution Appeals Powered By Docstoc
					Prosecution Appeals

Introduction

Part 9 Criminal Justice Act 2003 (CJA 03) provides an interlocutory
prosecution right of appeal against two categories of ruling made by a Crown
Court judge:

    •   a ruling that has the effect of terminating the trial made either at a pre-
        trial hearing or during the trial, s58 CJA 03;

    •   an evidentiary ruling or series of rulings made in qualifying offences
        listed in Sch 4 CJA 03. This right of appeal is limited to those rulings
        that significantly weaken the prosecution case and may only be
        exercised up to the opening of the defence case.

The provisions regarding terminating rulings were implemented on 4th April
2005, and are effective in respect of all cases committed, transferred or sent
to the Crown Court on or after the commencement date.

The provisions regarding evidentiary appeals will be implemented following a
period of monitoring of the use of the power to appeal terminating rulings.
The Head of Assurance will notify the Attorney General (AG) of all cases that
go to appeal under these provisions at the routine meetings that are held
between SFO and the AG.

General Right of Appeal

The rights are available only in relation to trials on indictment. Appeal lies to
the Court of Appeal. The appeal may only be brought with the leave of the
judge or the Court of Appeal.

The rights do not extend to:

    •   a ruling that a jury should be discharged;
    •   a ruling that can be appealed to the Court of Appeal by virtue of any
        other enactment, such as a ruling made in a preparatory hearing under
        the Criminal Procedure and Investigations Act 1996 or the Criminal
        Justice Act 1987.

There is no right of prosecution appeal against a judge misdirecting a jury in
the summing up or resulting acquittals.

The prosecution may appeal a ruling by a judge in relation to a trial at an
“applicable time”, and where the ruling relates to one or more offences in the
indictment. This allows the prosecution to appeal a ruling that is made either



[Version WEB 1, Published January 2010]
at a pre-trial hearing or during the trial, at any time until the start of the judge’s
summing up.

The prosecution can appeal against the refusal of an adjournment to allow
them to secure the attendance of the principal witness, without whose
evidence the case was unsustainable (Clarke [2007] EWCA Crim 2532).

A ruling as to the admissibility of evidence is capable of both representing an
evidential ruling and a terminating ruling where its effect was to make the
continuation of the case impossible (Y [2008] 2 All ER 484).

A ruling as to the exclusion of evidence could be made the subject of an
appeal under s58 if the prosecution chose to make it a terminating ruling by
entering into an acquittal agreement, pursuant to s58(8) (R [2008] EWCA
Crim 370).

Types of Rulings

Stays for Abuse of Process/No Case to Answer

An application to stay proceedings as an abuse of process, is in effect, a plea
in bar and should be considered as a preliminary issue before plea, although
there is nothing to prevent its being raised at a later stage.

Disclosure of Sensitive Material

A ruling ordering the disclosure of sensitive material may be treated as
terminating where the prosecution is not willing to disclose the material and so
the prosecution has no other option but to drop the case.

Severance and Joinder

Following CJA 03 amendments, from 4th April 2005 a decision on severance
and joinder falls within the statutory preparatory hearing regime. The
preparatory hearing regime has also been amended to include serious
offences.

Prosecutors should apply for preparatory hearings where there are issues of
severance and joinder of the indictment and the case is serious, rather than
treating them as terminating rulings, s310 CJA 03.

The advantage of preparatory hearings is that they have their own appeal
procedure and if the prosecution is not successful on the appeal, the
prosecution does not have to agree an acquittal as it does under the general
right of appeal.




 [Version WEB 1, Published January 2010]
Where the proceedings are not conducted under the preparatory hearing
regime, it would not, generally, be appropriate for the prosecution to appeal a
ruling under s58 CJA 03 where it relates to questions of joinder, whether of
offences or offenders. This is because such questions are matters of practice
for the courts and the Court of Appeal will not interfere with the ruling unless
there has been a miscarriage of justice.

The court has discretion to order separate trials of defendants who have
properly been joined in one indictment. The Court of Appeal will only interfere
with the exercise of the judge’s discretion if it can be shown that the judge
took account of irrelevant considerations, or ignored relevant ones, or arrived
at a manifestly unreasonable decision. These types of cases will be very rare
and great care should be taken before such a ruling is appealed.

If the judge refuses to order a preparatory hearing then an appeal under s 58
CJA 03 may be the only option to pursue. However, if the appeal is not
successful before the Court of Appeal or the appeal is abandoned or leave to
appeal is refused, the defendant will be acquitted on the charge which is the
subject of the appeal.

Quashing the Indictment

Rulings quashing the indictment have the effect that a defendant may not be
tried on the indictment (or a particular count, if the motion does not relate to
the whole), but is not acquitted and further proceedings may be brought for
the same offence. The use of s58 CJA 03 is therefore not appropriate where
an indictment is quashed.

The options open to the prosecution are:

   •   to institute fresh committal proceedings;
   •   to apply for a voluntary bill of indictment;
   •   to ask the judge to stay (but not quash) the defective indictment and at
       the same time prefer a fresh indictment correcting the error.

Procedures Relating to Appeal

The Director must be informed of any possible appeal and kept up to date
with developments. The decision concerning appeal should normally be taken
by the case manager in consultation with the Head of Domain.

Application for an Adjournment

S58(4) CJA 03 provides that following the ruling the prosecution must either
inform the court that it intends to appeal or request an adjournment to
consider whether to appeal. The prosecution must decide this immediately.




[Version WEB 1, Published January 2010]
The prosecution must tell the trial judge of any decision to appeal immediately
after the ruling against which the prosecution wants to appeal. However, if the
prosecution wants time to decide whether to appeal, they must ask the judge
immediately after the ruling. The general rule is that the judge must not
require the prosecution to decide there and then but instead must allow until
the next business day (Rule 67.2 of the Criminal Procedure Rules 2005).

In Crown Prosecution Service v (1) C(2) M (3) H [2009] EWCA Crim 2614 it
was held that Counsel must inform the court immediately at the end of the
hearing that the prosecution want to appeal the terminatory ruling and that the
defendants will be acquitted if the appeal fails. Failure to do so by Counsel
estopped the Crown from appealing the ruling.

Decision to Appeal

It is possible to appeal immediately after the ruling where it has been
anticipated, providing the necessary decision has been taken in advance by
the Case manager in consultation with the Head of Domain.

Transcript of Ruling

As soon as reasonably practicable after the prosecutor informs the judge of
the decision to appeal or requests an adjournment to consider an appeal, the
Crown Court shall provide a transcript of the ruling which is subject to the
proposed appeal to the prosecutor, the defendant and any interested party.
An interested party means a party other than the defendant who is a party to
the proceedings, namely a co-defendant.

No Case to Answer Nominated Rulings

The effect of s58 CJA 03 is that the prosecution may only appeal a single
ruling. If the prosecution does not immediately inform the court that it intends
to appeal or request an adjournment to consider appealing, the prosecution
will have lost the right to appeal that particular ruling.

A statutory exception to this is where there is a ruling of no case to answer.
The prosecution may, when informing the court of its intention to appeal or
request an adjournment to consider whether or not to appeal, nominate other
rulings relating to the offence for the Court of Appeal to consider. These other
nominated rulings will also be regarded as subject to the appeal.

Rulings in Association with More than One Offence

Where the ruling relates to more than one offence, it is the responsibility of the
prosecution to decide which offence or offences are to be appealed.




[Version WEB 1, Published January 2010]
The judge’s ruling has no effect in relation to the offence(s) that are subject of
an appeal or potential appeal while the prosecution is considering an appeal
or is pursuing an appeal.

Decision to Appeal

The case manager will consult the Head of Domain, either in anticipation of
expected terminating rulings, or as soon as possible after any unexpected
ruling having sought the necessary adjournment.

Before launching an appeal, the prosecution will have to concede that should
the appeal be lost, whether by refusal of leave or abandonment of the appeal,
or if the Court of Appeal confirms the ruling, the accused will be acquitted.

The right of appeal should not be exercised automatically where the ruling is
wrong or the judge’s discretion is incorrect but should be exercised sparingly
and judiciously in order to prevent unmeritorious appeals.

Appeal Criteria

In deciding whether to appeal a ruling, the following criteria must be met:

   •   the ruling meets the statutory requirements set out in s67 CJA 03;
   •   there is a likelihood of the Court of Appeal reversing the ruling, and
       regardless of whether the Court of Appeal find that the ruling is wrong
       or unreasonable, the public interest requires the prosecution to
       continue; and
   •   the court is likely to grant leave.

S67 requirements

The ruling has to meet one of the statutory criteria set out in s67 CJA 03. This
provides that the Court of Appeal may not reverse a ruling unless it is satisfied
that:

   •   the ruling was wrong in law;
   •   the ruling involved an error of law or principle;
   •   the ruling was a ruling that was not reasonable for a judge to have
       made.

A ruling may be wrong in law where, for example, the judge rules that the
facts of the case do not amount to an offence.

Where the ruling involves an error of principle, or a ruling that it was not
reasonable for the judge to make, the Court of Appeal will not reverse the
ruling of the judge, even if they would have exercised their discretion




[Version WEB 1, Published January 2010]
differently, unless it is ‘Wednesbury unreasonable’. In these circumstances,
the Head of Domain should only consider an appeal where the judge:

   •   has failed to exercise any discretion;
   •   has failed to take into account a material consideration;
   •   has taken into account an immaterial consideration; or
   •   has exercised his discretion in a way that no sensible person would
       believe came within his authority.

A ruling of no case to answer may be based on either of two limbs as laid
down in Galbraith [1981] 1 WLR 1039. The first limb is a point of law, namely
that there is no evidence that the alleged offence was committed by the
defendant. The second limb involves the judge coming to a conclusion that
the prosecution evidence, taken at its highest, is such that a jury properly
directed could not properly convict on it. An appeal under the second limb of
Galbraith will be very unusual because the Court of Appeal has given trial
judges considerable latitude when reviewing rulings grounded in an
assessment of the evidence given at trial. An appeal will only be appropriate
where the judge’s ruling is manifestly unreasonable.

Public Interest

Once one of the statutory criteria has been satisfied, then consideration is
required as to whether it is likely that the Court of Appeal will reverse the
ruling. If so, it is then necessary to decide whether the public interest requires
the prosecution to continue.

There may be cases where there is no basis for deciding the likelihood of the
Court of Appeal reversing the ruling, for example a new point of law or no
similar precedent. In such cases, in deciding whether or not to appeal,
consideration should be given to whether there is a point of law of general
public importance.

Interests of Justice Test

Under s61 CJA 03 where the Court of Appeal reverses or varies the ruling it
must do any of the following:

          (a) order that proceedings for that offence may be resumed in the
              Crown Court,
          (b) order that a fresh trial may take place in the Crown Court for that
              offence,
          (c) order that the defendant in relation to that offence be acquitted
              of that offence.

The Court of Appeal may only make an order under (c) above if it considers
that the defendant could not receive a fair trial if an order was made under (a)
or (b) above.



[Version WEB 1, Published January 2010]
Factors that may be taken into account when deciding whether to appeal a
ruling include:

   •   the nature and extent of the error of law or principle or the
       unreasonableness of the ruling;
   •   whether or not public confidence in the criminal justice system might be
       damaged or undermined, if there were no appeal;
   •   the nature and seriousness of the offence;
   •   in cases where there are other counts to which the ruling does not
       apply, the likelihood of securing convictions on those counts, and the
       sentencing powers of the court to reflect the criminality of the offences
       not subject to the ruling.

Public interest factors such as the seriousness of the offence may or may not
be appropriate to consider. Each case must be considered in the light of its
own particular facts.

The factors should not be considered cumulatively but may need to be
weighed against each other.

Attorney General’s Reference

In deciding whether or not to appeal, consideration may need to be given to
whether the case involves a point of law of general public importance. If there
is a point of law of general public importance, then as long as the criteria
above are met, there may be an appeal under s58 CJA 03.

While there may be cases where the Attorney is still asked to refer cases to
the Court of Appeal under the Criminal Justice Act 1972, it is likely that, in the
light of these new provisions, the number of referrals will be reduced.

It will be necessary to balance the need to clarify the law against the needs of
the particular case where there is more than one offence on the indictment not
affected by the ruling. It will also be necessary to consider the effect on
witnesses of a delay in the trial caused by an appeal.

Application for Leave

Immediately following the ruling or the adjournment, the prosecutor must
inform the judge of the intention to appeal and at the same time may apply
orally for leave to appeal.

On the same day as the oral application, the judge must decide whether or
not to grant leave. If leave is granted the judge must issue a certificate and
send it to the registrar of criminal appeals.

The procedures for appeal are contained in Part 67 of the Criminal Procedure
Rules 2005.



[Version WEB 1, Published January 2010]
Relevant forms which should be used can be found at: [Link] (PDF versions).
For Word versions please see http://www.hmcourts-
service.gov.uk/HMCSCourtFinder/FormFinder.do


Expedited and Non-Expedited

The CJA 03 provides two alternative procedural routes:

   •   expedited; and
   •   non-expedited.

The trial judge will determine which route to follow and will base this
determination on consideration of complexity, number of witnesses, length of
trial and so on.

In an expedited appeal the trial may be adjourned. In a non-expedited appeal
the judge may adjourn the proceedings or discharge the jury if one has been
sworn.

It is likely that rulings made pre-trial will follow the non-expedited route similar
to an appeal against a ruling made at a statutory preparatory hearing. Rulings
made during the trial, particularly if a jury has been empanelled, are more
likely to follow the expedited route.

Both the judge and the Court of Appeal have power to reverse the decision to
expedite an appeal and transfer the case to the non-expedited route. If this is
done the court has power to discharge the jury.

The prosecutor, when informing the judge of the intention to appeal, must also
make oral representations as to whether or not the appeal should be
expedited. Before deciding the issue the judge must hear representations
from the defence and any interested party. The intention is that before making
a ruling, the court will consult with the Criminal Appeal Office to ascertain their
views on expediting the appeal.

The judge must then decide whether or not the appeal should be expedited
and give written reasons to the prosecutor, defendant and any interested
party. The judge has power to reverse the decision that the appeal should be
expedited at any time before notice of application or application for leave is
served by the prosecutor on the Crown Court and if so written reasons must
be given.

The prosecutor and the defendant, but not an interested party, may invite the
Court of Appeal to reverse the judge’s decision to expedite the appeal after
notice of appeal or leave to appeal has been served on the registrar. This
must be in writing and served on all parties.




 [Version WEB 1, Published January 2010]
Notice of Appeal/Application for Leave

Usually a notice of appeal or application for leave to appeal must be served
by the prosecutor on the Registrar, the Crown Court officer, the accused and
any interested party. If the judge decides to expedite the appeal, that notice
must be served on the day after the prosecutor states his intention to appeal.
In any other case, the prosecutor has five days (Rule 67.3).

The application must specify the grounds of the appeal, summarising any
arguments to be put before the Court of Appeal and specifying any authorities
to be cited. When appealing a ruling of no case to answer, the prosecutor
must specify the relationship between that ruling and any earlier rulings that
have been nominated.

A transcript of the ruling, any skeleton arguments provided to the judge by the
parties in respect of the issue which gave rise to the ruling and, if the appeal
is expedited, a copy of the reasons provided by the judge must be sent with
the notice of appeal or application for leave.

Where the notice of appeal or application for leave to appeal relates to a
ruling concerning public interest immunity then the giving of notice of the
appeal or application and the service of any documents on the parties is
subject to Rule 67.8 of the Criminal Procedure Rules 2005.

Leave to appeal may be granted by the single judge. Where the single judge
has refused leave, the prosecution may apply to the full court by serving
notice of renewal,

Defendant’s Response

A defendant on whom the prosecution serves an appeal notice may serve a
response, and must do so if the defendant wants to make representations to
the court or if the court directs the defendant to do so. The response must be
served not later than the next business day after the prosecution serves the
appeal notice or a direction to do so if the judge expedites the appeal. If the
judge does not expedite the appeal then the defendant must serve the
response not more than 5 business days after the prosecution serves the
appeal notice or a direction to do so.

The defendant’s response must be served on the prosecution, the Crown
Court officer, the Registrar and any other defendant on whom the prosecution
served the appeal notice.

Public Interest Rulings

Under Rule 67.8 a prosecutor need not describe the material that is the
subject of a public interest ruling in the notice of appeal or application for
leave to appeal. Neither does the prosecutor have to describe the category of
material if it would have the effect of disclosing material which the prosecutor


[Version WEB 1, Published January 2010]
considers should not be disclosed. The prosecutor need not serve notice of
appeal or application for leave to appeal on the defendant or interested party
if the fact that a public interest ruling has been made would have the effect of
disclosing material which the prosecutor considers should not be disclosed.

Where the prosecutor withholds the notice of appeal or application for leave
and the public interest material from the defence and interested party, the
notice served on the registrar must be accompanied by a confidential annex
indicating the reasons for the prosecutor’s decision. Where the prosecutor
does not serve a notice of appeal or application for leave to appeal, to keep
secret from the defence or interested party the fact that a public interest ruling
was made, the defendant is not entitled to be present at the hearing unless
otherwise directed by the Court of Appeal.

Abandonment of Appeal

An appeal or application for leave to appeal may be abandoned before it is
heard by the Court of Appeal by serving notice on the registrar.

Appeal Powers

Powers of the Single Judge

The single judge may exercise, in the same manner as the Court of Appeal,
the following powers:

   •   give leave to appeal;
   •   reverse a decision of the judge that the appeal is expedited;
   •   extend time for service of the notice of appeal or an application for
       leave;
   •   extend time for service of the defendant’s response;
   •   direct that the defendant in custody be present at the hearing of the
       appeal or the application;
   •   order the acquittal of the defendant, and where appropriate, his or her
       release from custody and order payment of costs where the
       prosecution has served a notice of abandonment.

If the single judge exercises any power, the registrar must serve notice of that
decision on all parties.

Powers of the Registrar

The registrar may exercise, in the same manner as the Court of Appeal, the
following powers:

   •   extend time for service of the notice of appeal or application for leave;
   •   extend time for service of the defendant’s response.


[Version WEB 1, Published January 2010]
The registrar, in exercising those powers, must give notice of the decision to
all parties. If the registrar refuses an application to exercise these powers, a
party making the application may have it determined by the single judge by
serving a renewal notice.

Determination by the Full Court

Where the single judge has refused an application to exercise any of the
powers set out above, the party making the application may appeal to the full
court by serving a renewal notice.

The applicant has 14 days to notify his intention to renew the application
before the court. The time for notification may be extended either before or
after that 14 day period has expired upon application by the applicant, but the
applicant must have good reason for not being able to comply with the
deadline. That reason cannot be to do with the merits of the case.

If the notice of renewal is not served within the period or such extended period
as granted by the Court of Appeal, the application shall be treated as refused
by the court.

Hearing at the Court of Appeal

A defendant in custody is entitled to appear by way of live television link at the
hearing of an appeal or application for leave to appeal.

A defendant in custody is not entitled to be present in person, unless the
Court of Appeals so directs. In deciding whether the defendant in custody
should be present, the Court of Appeal must take into account:

   •   any representations of the prosecutor and the defendant;
   •   any practical difficulties relating to the live link which may cause delay
       or disruption;
   •   practical difficulties with the defendant attending in person;
   •   whether or not the appeal is expedited.

The registrar must give notice of the hearing date to all parties as far in
advance as possible.

The registrar must serve notice of the decision of the Court of Appeal on all
parties as soon as reasonably practicable.

Other Offences not Subject to the Appeal

The judge has discretion to continue with proceedings in relation to any
offence to which the appeal does not apply. A ruling may affect several
offences, but the prosecutor may only wish to appeal against a ruling insofar


[Version WEB 1, Published January 2010]
as it affects one or more of those offences. Thus proceedings may continue
against any offences affected by the ruling but not by the appeal.

Other Defendants Not Subject to the Appeal

Where two or more defendants are charged jointly with the same offence,
they are to be treated as charged with separate offences. This means that an
appeal will be possible against a ruling so far as it relates to only one of the
defendants.

Court of Appeal Powers

The Court of Appeal may:

    •   confirm the ruling,
    •   reverse the ruling; or
    •   vary the ruling.

If it confirms the judge’s ruling it must order that the defendant be acquitted of
the offence(s) the subject of the appeal. If it reverses or varies the ruling it
must decide whether to:

    •   order resumption of the Crown Court proceedings;
    •   order a fresh trial; or
    •   order the acquittal of the defendant for the offence(s) subject to
        appeal.

The Court of Appeal may only order a resumption of proceedings or a fresh
trial if it is necessary in the interests of justice to do so.

The Court of Appeal may not reverse a ruling on appeal unless it is satisfied
that the ruling was wrong in law, involved an error of law or principle, or was a
ruling that was not reasonable for the judge to have made.

With leave of the court, an appeal may lie to the Supreme Court.

Custody Time Limits

Custody time limits do not apply where proceedings for an offence are
adjourned pending the determination of an appeal. However, custody time
limits resume after the appeal has been determined. Prosecutors must
ensure that all dates relating to the appeal process are recorded accurately so
that there are no custody time limit failures. [See “Custody Time Limits”].




[Version WEB 1, Published January 2010]

				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:59
posted:2/3/2011
language:English
pages:12