There are three ways of appealing against the decision of the magistrates:
- Appeal to the Crown Court;
- Appeal to the High Court by way of case stated;
- Application for judicial review.
Appeal to the Crown Court
The defendant may appeal against conviction and/or sentence to the Crown Court. If the defendant has pleaded guilty, he or she may appeal against sentence unless he or she can argue that the plea was equivocal.
Procedure for appealing
- Notice of appeal is given in writing to the clerk of the magistrates’ court and to the prosecution within 21 days of sentence. The 21 days run from the date of sentence, even if the appeal is against conviction and the appellant was convicted and sentenced on different days.
- The notice of appeal must state the grounds of appeal.
- All documents are forwarded to the Crown Court, where the listing officer will place the appeal on the list, and send notice of the time and place to the appellant, the prosecution and the magistrates’ court.
- The appellant may appeal out of time by applying for leave in writing from the Crown Court.
If the appellant is in custody and gives notice of appeal, the magistrates may grant him or her bail. The appellant does not have the right to bail, but bail may well be granted if the sentence is likely to have been served before the appeal is heard.
At the hearing, the judge sits usually with two lay magistrates who have not been concerned with the case in the magistrates’ court. Where the appeal is an appeal against conviction, the hearing itself is a complete re-hearing of the whole case. The lay magistrates must accept the law from the judge, but the decision on the appeal itself is a majority decision. Thus the lay magistrates may outvote the judge. A Crown Court judge giving the decision of the court must give reasons for its decision, and a refusal to do so might amount to a breach of natural justice.
Powers of the Crown Court
The Crown Court may:
- Confirm, reverse or vary any part of the decision appealed against;
- Remit the case to the magistrates with its opinion;
- Make any such order as it thinks just.
Appeals to the High Court by way of case stated
Under the MCA 1980, s111(1):
- …Any person who was a party to any proceeding before a magistrates’ court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or in excess of jurisdiction by applying to the justices to state case for the opinion of the High Court on the question of law or jurisdiction involved…
- The application must be made in writing within 21 days of the sentence, and should state the point of law upon which the opinion of the High Court is sought.
- The application is sent to the clerk of the convicting magistrates’ court.
- The magistrates may refuse to state a case, but this decision is reviewable by the High Court on an application for judicial review.
- The statement itself is usually drafted by the clerk of the magistrates’ court, and exceptionally by the magistrates themselves.
- The draft statement is submitted to the parties for their comments, which must be lodged with the court within 21 days.
- Once the final draft is completed, the magistrates sign it and send it to the appellant.
- The appellant then has 10 days in which to lodge the statement at the Crown Office of the High Court, and a further four days to serve notice on the respondent.
The appellant may be granted bail pending the outcome of the hearing in the High Court. Bail will be granted on the basis that the appellant returns to the magistrates’ court within 10 days of the High Court hearing, unless the conviction is quashed.
The court must consist of at least two judges, though there are usually three. The court acts entirely on the basis of the facts as set out in the case, and no new evidence is adduced.
Powers of the High Court
The High Court may affirm, reverse or vary the decision of the court below, make any other order it thinks fit, or remit it back to the original court with its opinion.
Application for judicial review
Judicial review is the method by which the High Court controls the activities of the inferior tribunals, that is, magistrates’ court and the Crown Court, in matters not relating to trial on indictment. The High Court exercises its control by the use of prerogative orders, namely quashing, mandatory and prohibiting orders.
- A quashing order has the effect of quashing the decision appealed against.
- A mandatory order compels an inferior tribunal to carry out its duties.
- A prohibiting order will be made to stop the court acting in excess of its powers.
The procedure is as follows:
- Within three months of the decision, the applicant must file an application for leave to apply for judicial review. This application must be supported by affidavit evidence.
- The application for leave is heard ex parte, i.e. in the absence of the other side, usually without a hearing.
- If leave is refused, the applicant has 7 days in which to renew his or her application before the Divisional Court.
- If leave is granted, the application is made by originating motion.
- The hearing itself consists of affidavit evidence and argument from counsel.
- The court will reach a decision, and make any appropriate orders.
Magistrates have no power to grant bail for an application for judicial review.