Criminal Procedure Rules proposal to revise rules on appeal -  invitation to comment

Criminal Procedure Rules proposal to revise rules on appeal - invitation to comment

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CRIMINAL PROCEDURE RULE COMMITTEECRIMINAL PROCEDURE RULES: PART 63A PROPOSAL TO REVISE AND SIMPLIFY THE RULES ON APPEAL FROM MAGISTRATES’ COURTS TO THE CROWN COURT ABOUT CONVICTION OR SENTENCE INVITATION TO COMMENT Contents Paragraph PageIntroduction 1 - 5 1 Background 6 2 General features of the proposed rules 7 - 8 2 Individual rules 9 - 21 2 - 5 Questions for consideration 6 The proposed rules 7 - 12 The current Part 63 rules 13 - 16 List of those invited to comment 17 - 18 CRIMINAL PROCEDURE RULE COMMITTEE A proposal to revise and simplify the rules on appeal from magistrates’ courts to the Crown Court about conviction or sentence Invitation to comment Introduction 1. The Criminal Procedure Rule Committee is considering a proposal to revise and simplify the rules in Part 63 of the Criminal Procedure Rules (appeal to the Crown Court against conviction and sentence). The new rules would be in substitution for the present rules. They would apply to the exercise of all rights of appeal in criminal cases from magistrates’ courts to the Crown Court. The Committee would be grateful for the views of those to whom this invitation has been addressed, and for the views of any others whom those consulted may know to have an interest in the proposal. 2. With this invitation are: a) the proposed new rules; b) the current Part 63 rules; c) a list of those to whom this invitation has been sent. 3. The Committee is the body appointed under ...

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CRIMINAL PROCEDURE RULE COMMITTEE 
CRIMINAL PROCEDURE RULES: PART 63 
A PROPOSAL TO REVISE AND SIMPLIFY THE RULES ON APPEAL FROM MAGISTRATES’ COURTS TO THE CROWN COURT ABOUT CONVICTION OR SENTENCE
INVITATION TO COMMENT
Contents Introduction Background General features of the proposed rules Individual rules Questions for consideration The proposed rules The current Part 63 rules List of those invited to comment
Paragraph 1 - 5 6 7 - 8 9 - 21
Page 1 2 2 2 - 5  6 7 - 12 13 - 16  17 - 18
CRIMINAL PROCEDURE RULE COMMITTEE A proposal to revise and simplify the rules on appeal from magistrates’ courts to the Crown Court about conviction or sentence Invitation to comment
Introduction 1. The Criminal Procedure Rule Committee is considering a proposal to revise and simplify the rules in Part 63 of the Criminal Procedure Rules (appeal to the Crown Court against conviction and sentence). The new rules would be in substitution for the present rules. They would apply to the exercise of all rights of appeal in criminal cases from magistrates’ courts to the Crown Court. The Committee would be grateful for the views of those to whom this invitation has been addressed, and for the views of any others whom those consulted may know to have an interest in the proposal. 2.  With this invitation are: a) the proposed new rules; b) the current Part 63 rules; c) a list of those to whom this invitation has been sent. 3. The Committee is the body appointed under section 70 of the Courts Act 2003 to make rules governing the practice and procedure to be followed in the criminal courts. The first rules to be made by the Committee, the Criminal Procedure Rules 2005, came into force on 4 th April, 2005. Information about the Committee and about the Criminal Procedure Rules, including the full text of the Rules, may be found on the website of the Ministry of Justice at http://www.justice.gov.uk/about/criminal-proc-rule-committee.htm . 4. The Committee invites comments on the proposal generally or on any aspect of it. A list of some questions that those consulted may wish to consider in particular appears at page 6. Please reply to the Criminal Procedure Rule Committee Secretariat at the Ministry of Justice by Friday 22 nd February, 2008. Responses by email may be sent to Jane.Brown@justice.gsi.gov.uk. 5. Although the Committee does not intend to publish a list of those who comment or the content of their comments, respondents are asked to bear in mind that responses will be treated as public documents in accordance with the Freedom of Information Act 2000 and may be made available to enquirers on request.
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Background 6. Earlier this year the Committee revised and simplified the rules in Parts 65 to 70 of the Criminal Procedure Rules, being the rules about appeal from the Crown Court to the Court of Appeal: see the Criminal Procedure (Amendment No. 2) Rules 2007, S.I. 2007 No. 2317. The Committee intends in the near future to revise Part 74, the rules about appeals from the Court of Appeal to the House of Lords, in a similar fashion. The object of this present proposal is to revise the procedure rules that apply to this other tier of appeal so that they correspond broadly with those other appeal rules, with omissions and modifications to ensure that they are appropriate to the nature of these particular rights of appeal and the jurisdiction involved.
General features of the proposed new rules 7. There has been adopted the same basic procedural framework as was adopted in each of Parts 66 to 70 for the Court of Appeal. That arrangement in fact quite closely corresponds with the main features of the existing Part 63 (service and form of appeal notice), although the division of rules differs. In addition, there have been added some general rules modelled on corresponding rules in Part 65 that happen also to correspond with features of the current Part 63 (duty of lower court to supply documents; notice of hearing; abandoning an appeal). However, because other rules, and notably those in Part 3 (case management) and in Part 16 (hearings in public and in private) apply already in the Crown Court, some of the general rules required in Part 65 for the purposes of the Court of Appeal are not required in Part 63 for the purposes of the Crown Court; and other rules in Part 65 are relevant only to the primary legislation governing appeal to the Court of Appeal. 8. There is, however, one marked departure from the main features of the appeal regime that now applies in the Court of Appeal. No provision is proposed for the service of a respondent’s notice. Under section 79(3) of the Supreme Court Act 1981 appeal to the Crown Court is by way of rehearing and not, as in the Court of Appeal, by way of review. Thus on an appeal against conviction the prosecutor must prove the case again, irrespective of what is in issue. For the purposes of case management the appeal notice should suffice. In the event it does not, there are available to the Crown Court all the Part 3 powers of case management. To impose a new requirement for a respondent’s notice in the context of this appeal regime, in the Committee’s provisional view would achieve nothing useful and would impose a disproportionate burden on the respondent.
Individual rules Proposed rule 63.1 - when this Part applies 9. The draft rule lists, as the current Part 63 does not, all the existing rights of appeal to the Crown Court affecting conviction, sentence and kindred orders. Proposed rule 63.2 - service of appeal notice 10. The draft rule adopts the framework of the corresponding rules in Parts 66 to 70. It makes no explicit reference to appeal against conviction. That is because the time
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limit for an appeal against conviction imposed by the current rules and here preserved runs not necessarily from the date of that conviction but, if later, from the date of sentence or deferment of sentence: which feature, in the Committee’s provisional view, should be retained in the interests of simplicity. 11. A question for consideration is whether the time limit for appeal should remain as at present 21 days. That period is prescribed not by statute but only by the Criminal Procedure Rules and therefore it is susceptible to amendment by the Committee. In favour of its extension to 28 days might be the fact that for appeal about conviction or sentence from the Crown Court to the Court of Appeal the time limit is, by statute and rule, 28 days: see Part 68 of the Criminal Procedure Rules. Consistency may be desirable. However, appeal from a magistrates’ court to the Crown Court is procedurally simpler than appeal to the Court of Appeal. To delay the rehearing of witnesses any longer than is absolutely unavoidable seems undesirable. Moreover, under section 111(2) of the Magistrates’ Courts Act 1980 the time limit within which to apply for a case to be stated on an appeal to the High Court is 21 days: and consistency with that latter time limit may be thought more appropriate than consistency with the time limit for appeal to the Court of Appeal. Proposed rule 63.3 - form of appeal notice 12. The draft rule is loosely based on the corresponding rules in Parts 66 to 70. No particular form of appeal notice is required by the current rules but there exists a form that is widely used in practice. That familiar form, suitably amended, might be prescribed by the Practice Direction for use with the proposed rule. 13. The proposed requirements of this rule are less prescriptive than those of the rules in Parts 66 to 70 on which it is modelled. Current rule 63.2(4) requires that an appeal notice state the ‘grounds of’ appeal. In the Committee’s provisional view, for an appeal by way of rehearing it is more appropriate to require ‘reasons for’ appeal, ‘grounds’ being more appropriate to an appeal by way of review. More appropriate also to appeal by way of rehearing, in the Committee’s view, are the comparatively simple requirements substituted for the corresponding requirements that apply in the Court of Appeal. 14. One of the proposed requirements is that an appellant should explain why section 142 of the Magistrates’ Courts Act 1980 has not been used, or not used successfully, to avert an appeal. In the Committee’s provisional view it would be appropriate to draw attention to the availability of the magistrates’ jurisdiction to re-open a case, a jurisdiction that may be more appropriate than appeal in some common instances: for example, after conviction for driving without insurance where evidence of such insurance exists but was not produced at trial for some reason. 15. Although appeal to the Crown Court is by way of rehearing, it is nonetheless an appeal. Therefore in the Committee’s provisional view it is reasonable to assume that the relevant issues and evidence will have been aired, or at least will have had an opportunity to be aired, at trial. It follows that in the interests of furthering the overriding objective in Part 1 of the Criminal Procedure Rules, and in accordance with rules 3.2 and 3.3 (the case management duties of the court and of the parties), it would be appropriate to require the immediate identification of what is in issue – which
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ought to be easier to achieve than may have been the case pre-trial – and it would be appropriate to require the immediate identification of the witnesses required in an appeal against conviction. In the Committee’s provisional view such a requirement in such circumstances would not encroach upon privilege and the recent judgment in R (Kelly) v Warley Magistrates’ Court [2007] EWHC 1836 (Admin), which concerned pre-trial case management, may be distinguished. Proposed rule 63.5 - reference by the Criminal Cases Review Commission 16. This rule corresponds with rule 68.5, a rule which applies in the Court of Appeal. The current Part 63 contains no such provision, but given the possibility of reference by the Commission of a conviction or sentence there seems no good reason to maintain that omission. Proposed rules 63.4 and 63.6 - 63.9 17. The remaining draft rules restate the current requirements of Part 63 supplemented by current paragraph V.52.2 of the Practice Direction, in revised terms that correspond with those of Parts 65 to 70. The table at paragraph 21 beneath indicates from which current Part 63 rule each draft rule derives. 18. Draft rule 63.7(1) (abandoning an appeal) corresponds with rule 65.13(2) that applies in the Court of Appeal. It preserves and makes explicit the existing requirement of current rule 63.5 that at the hearing of the appeal the appellant may abandon it only with the permission of the court, which prevents the appellant unilaterally depriving the Crown Court of its full jurisdiction once the hearing of the appeal has begun. Although costs could be awarded by the Crown Court in the event of an abandonment in such circumstances (that is, at a hearing, but without permission), under the powers conferred by section 52 of the Supreme Court Act 1981 and rule 78.1(4) of the Criminal Procedure Rules, other powers would not be available. 19. However, the draft rule relaxes the existing requirement that a notice of abandonment must be given not later than 3 days before the date fixed for the hearing of the appeal if the appellant is to avoid the requirement for permission. That corresponds with the position in the Court of Appeal. It appears to be consistent with the judgment of the Divisional Court in R v Manchester Crown Court, ex parte Welby and Another 73 Cr.App.R. 248, a case decided under the Crown Court rule from which current rule 63.5 derives, that ‘it would only be in the most exceptional circumstances that the judge would be entitled to decline to give leave to abandon where the application is made before the hearing begins.’ The relaxation of that requirement is nonetheless a question for consideration. 20. In draft rule 63.9 (constitution of the Crown Court) the expression ‘youth justice is proposed in substitution for the current ‘member of a youth court panel’ to take account of the terminology now adopted by the Youth Courts (Constitution of Committees and Right to Preside) Rules 2007, S.I. 2007/1611.
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Destination of current rules 21. The following table shows with which of the current Part 63 rules each proposed rule corresponds:
Proposed rule Current rule(s) 63.1 63.1 63.2 63.2(1), (3), (6) 63.3 63.2(2), (4) 63.4 63.3 63.5 -63.6 63.2(7), 63.4 63.7 63.5, 63.6 63.8 63.2(5) 63.9 63.7, 63.8, 63.9 Pre-appeal case management hearing 22. Unlike Part 65, which applies in the Court of Appeal, the proposed rules make no provision for case management. As indicated above, the reason is that Part 3 applies in any event and gives the Crown Court the same range of case management duties and powers as apply pre-trial - see rules 3.5 and 3.10 in particular. Under those powers the Crown Court may fix and conduct a case management hearing if one is required. However, for the purposes of managing an impending trial in the Crown Court a plea and case management hearing will be conducted in almost all cases, and a question for consideration is whether a corresponding hearing should be required by the rules in all or in some categories of appeal.
Criminal Procedure Rule Committee November, 2007
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Questions for consideration The Criminal Procedure Rule Committee invites those consulted to comment on any aspect of this proposal, general or specific. It seems to raise the following questions in particular: 1) Should the rules provide for a respondent’s notice ?
2) Should the current time limit for appeal (21 days) be retained or changed, and if changed then to what ?
3) Should time for appeal run, as now, from the date of sentence or the deferment of sentence even if the appeal is against conviction ?
4) Are the proposed requirements for the content of the appeal notice appropriate to this type of appeal ?
5) In particular – (a) in an appeal against conviction should the rules require an appellant to identify the required witnesses ? (b) should the rules require an appellant to declare whether he or she has tried to re-open the case in the magistrates’ court, and if so with what result ?
6) Should the rules include special provision for the procedure on a reference by the Criminal Cases Review Commission ?
7) If so, is proposed rule 63.5 suitable ?
8) Should the current time limit for abandoning an appeal without the permission of the Crown Court (3 days before the hearing) be relaxed as proposed ?
9) Should the rules, whether in Part 63 or elsewhere, provide explicitly for a pre-appeal case management hearing (corresponding with a pre-trial plea and case management hearing) – (a) in every case ? (b) in some cases only, and if so then in which ?
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Proposed new Part 63 
Part 63 Appeal to the Crown Court about conviction or sentence When this Part applies Service of appeal notice Form of appeal notice Duty of magistrates’ court officer Reference by the Criminal Cases Review Commission Notice of hearings and decisions Abandoning an appeal Power to vary requirements Constitution of the Crown Court
rule 63.1 rule 63.2 rule 63.3 rule 63.4 rule 63.5 rule 63.6 rule 63.7 rule 63.8 rule 63.9
When this Part applies 63.1(1) This Part applies where -(a) a defendant wants to appeal under -(i) section 108 of the Magistrates’ Courts Act 1980, (ii) section 45 of the Mental Health Act 1983, (iii) paragraph 10 of Schedule 3 to the Powers of Criminal Courts (Sentencing) Act 2000; (b) the Criminal Cases Review Commission refers a defendant’s case to the Crown Court under section 11 of the Criminal Appeal Act 1995; (c) a prosecutor wants to appeal under -(i) section 14A(5A) of the Football Spectators Act 1989, or (ii) section 147(3) of the Customs and Excise Management Act 1979; (d) a person wants to appeal under – (i) section 1 of the Magistrates’ Courts (Appeals from Binding Over Orders) Act 1956, or (ii) section 22 of the Football Spectators Act 1989. (2) A reference to an ‘appellant’ in this Part is a reference to such a party or person. [Note. An appeal to the Crown Court is by way of rehearing: see section 79(3) of the Supreme Court Act 1981. For the powers of the Crown Court on an appeal, see section 48 of that Act. A defendant may appeal from a magistrates’ court to the Crown Court – a) under section 108 of the Magistrates’ Courts Act 1980, against sentence after a guilty plea and after a not guilty plea against conviction or sentence;
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Proposed new Part 63
b) under section 45 of the Mental Health Act 1983, where the magistrates’ court makes a hospital order or guardianship order without convicting the defendant; c) under paragraph 10 of Schedule 3 to the Powers of Criminal Courts (Sentencing) Act 2000, where the magistrates’ court revokes a community order and deals with the defendant in another way. See section 13 of the Criminal Appeal Act 1995 for the circumstances in which the Criminal Cases Review Commission may refer a conviction or sentence to the Crown Court. Under section 14A(5A) of the Football Spectators Act 1989 a prosecutor may appeal to the Crown Court against a failure by a magistrates’ court to make a football banning order. Under section 147(3) of the Customs and Excise Management Act 1979 a prosecutor may appeal to the Crown Court against any decision of a magistrates’ court in proceedings for an offence under any Act relating to customs or excise. Under section 1 of the Magistrates’ Courts (Appeals from Binding Over Orders) Act 1956 a person bound over to keep the peace or be of good behaviour by a magistrates court may appeal to the Crown Court. Under section 22 of the Football Spectators Act 1989 any person aggrieved by the decision of a magistrates’ court making a football banning order may appeal to the Crown Court.]
Service of appeal notice 63.2(1) An appellant must serve an appeal notice on -(a) the magistrates’ court officer; and (b) every other party. (2) The appellant must serve the appeal notice not more than 21 days after -(a) sentence, or the deferment of sentence; or (b) the order, or failure to make an order, about which the appellant wants to appeal. (3) The appellant must -(a) serve with the appeal notice any application for an extension of the time limit under this rule; and (b) in that application explain why the appeal notice is late.
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Proposed new Part 63
Form of appeal notice 63.3(1) An appeal notice must be in the form set out in the Practice Direction. (2) The appeal notice must -(a) specify - (i) the conviction, (ii) the sentence, or (iii) the order, or the failure to make an order  about which the appellant wants to appeal;  (b) explain the reasons for the appeal and summarise the issues; (c) in an appeal against conviction -(i) identify which witnesses the appellant wants to give oral evidence and say why, and (ii) say how long the trial lasted in the magistrates’ court and how long the appeal is likely to last in the Crown Court; (d) say whether the appellant has applied to re-open the case in the magistrates’ court, and if so with what result; and (e) include a list of those on whom the appellant has served the appeal notice. [Note. Under section 142 of the Magistrates’ Courts Act 1980 a magistrates’ court may re-open a case to rectify mistakes, etc. See also rule 3.10.]
Duty of magistrates’ court officer 63.4 The magistrates’ court officer must as soon as practicable serve on the Crown Court officer -(a) the appeal notice and any accompanying application served by the appellant; (b) details of the parties, including their addresses; (c) a copy of the magistrates’ court register entry relating to -(i) the decision under appeal, and (ii) any application for bail pending appeal; (d) any note made by the justices’ clerk or assistant clerk of -(i) any oral evidence received in the magistrates’ court, and (ii) the court’s reasons for any relevant decision; (e) any written evidence received or admissions made in the magistrates’ court; and (f) any report received for the purposes of sentencing.
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Proposed new Part 63
Reference by the Criminal Cases Review Commission 63.5(1) The Crown Court officer must as soon as practicable serve a reference by the Criminal Cases Review Commission on -(a) the appellant; (b) every other party; and (c) the magistrates’ court officer. (2) The appellant may serve an appeal notice on -(a) the Crown Court officer; and (b) every other party not more than 21 days later. (3) The Crown Court must treat the reference as the appeal notice if the appellant does not serve an appeal notice.
Notice of hearings and decisions 63.6(1) The Crown Court officer must give as much notice as reasonably practicable of every hearing to -(a) the parties; (b) any party’s custodian; and (c) any other person whom the Crown Court requires to be notified. (2) The Crown Court officer must serve every decision on -(a) the parties; (b) any other person whom the Crown Court requires to be served; and (c) the magistrates’ court officer and any party’s custodian, where the decision determines an appeal. (3) But where a hearing or decision is about a public interest ruling, the Crown Court officer must not -(a) give notice of that hearing to; or (b) serve that decision on anyone other than the prosecutor who applied for that ruling, unless the court otherwise directs. [Note. See also Part 25.]
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Proposed new Part 63