CRIMINAL APPEALS (From the Court of General Gaol Delivery)
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NOTES IN RESPECT OF TALKS TO TRAINEE MANX ADVOCATES [16 September 2019] CRIMINAL APPEALS (from the Court of General Gaol Delivery) C O N T E N T S Pages Jurisdiction..….…………………………………………………………………………………………… 1 Re-hearing or review?.................................................................................... 1 Appeals against conviction....……………………………………………….……………………… 1 - 4 Appeals against sentence …………..…………………………………………………………….. 4 - 8 References on points of law..……………………………………………………………………… 8 References in respect of sentences stated by the Attorney General to be unduly lenient..………………………………………………………………………………………… 8 - 14 Appeals in respect of pre-trial rulings...……………………………………………………….. 14 - 17 Extensions of time……………………………………………………………………………………… 17 - 18 Bail pending appeal……………………………………………………………………………………. 19 Additional evidence………………………………………………………………………………………… 19 - 20 Dealing with appeals in absence of appellant……………………………………………….. 20 - 21 Costs……………………………………………………………………………………………………….. 21 Leave to appeal to the Judicial Committee of the Privy Council ……………………. 21 – 26 Doleance and the Court of General Gaol Delivery………………………………………… 26 - 28 Further reading...……………………………………………………………………………………... 28 CRIMINAL APPEALS Jurisdiction 1. See Hafner 2007 MLR 180 (Appeal Division judgment 31 August 2007) for an outline of the statutory jurisdiction of the Appeal Division in criminal matters. The Appeal Division owes its jurisdiction to statute and it is crucial to consider the relevant statutory framework contained in the Criminal Jurisdiction Act 1993 (the “1993 Act”). 2. In respect of the Appeal Division’s jurisdiction to grant legal aid to an appellant appealing against conviction or sentence, or both, imposed by the Court of General Gaol Delivery, see the Legal Aid Act 1986 (Schedule 3 paragraph 9) and the Criminal Legal Aid Regulations 1993. 3. It would appear that an appeal against conviction or sentence from a court of summary jurisdiction, otherwise than by way of case stated, lies to the Appeal Division rather than the Civil Division (see Rule 14.3 of the High Court Rules and the Appeal Division’s judgment in Douglas Corporation v Bellamy (20 July 2012)). Re-hearing or review? 4. Consider in detail the helpful guidance provided by the Appeal Division (Judge of Appeal Storey QC and Deemster Kainth) in A v Her Majesty’s Attorney General (23 May 2019) in respect of the distinction between appeals by way of review or re-hearing and the evidence the court will consider. At paragraph 20 the Appeal Division “for the purposes of this appeal only” were prepared to accept the relevance of the Rules of the High Court of Justice 2009 to the criminal appeal before it. Reference was made to Rule 14.14. In that appeal neither party had applied to adduce evidence not before the lower court. Both counsel submitted that a “re-hearing” was appropriate in the appeal in respect of a restraint order made under sections 96(2) and 98(1) of the Proceeds of Crime 2008. The Appeal Division was, however, of the view that the “normal practice will be to review” (paragraph 25). The Appeal Division stated that even a “re-hearing” is “limited to an examination by the Appeal Court of transcripts (if applicable) and other documents before the lower court, supported by arguments of counsel” noting that it is the rare exception rather than the rule for fresh evidence to be heard on appeal (paragraph 30). The Appeal Division (at paragraph 31) concluded that it was not in the interests of justice, in that case, to conduct a “re-hearing” with fresh evidence. At paragraph 33 the Appeal Division stated: “This court will therefore review the decision of Deemster Khamisa QC, on the evidence before the lower court.” Appeals against conviction 5. In respect of appeals against conviction see section 30(1) of the 1993 Act. A person convicted on information may appeal to the Appeal Division against his conviction. An appeal may be made: (a) without leave, on any ground which involves a question of law alone; (b) with leave of the Appeal Division, or upon the certificate of the judge who tried him, that it is a case fit for appeal – 1 (i) on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or (ii) on any other ground which appears to the Appeal Division to be a sufficient ground of appeal. 6. The procedure is specified in section 31 of the 1993 Act. An appeal notice must be lodged with the court and served on the Attorney General: (a) in the case of an appeal against conviction (except where paragraph (b) applies), within 28 days beginning with the date of conviction; (b) in the case of an appeal against sentence, or an appeal against conviction made at the same time as an appeal against sentence passed on the conviction, within 28 days beginning with the date of sentence. 7. In R v Long [1998] 2 Cr. App. R 326 it was held that notice of application for leave to appeal against conviction must be given within 28 days of the conviction. The English Court of Appeal appreciated that there was often a gap between conviction and sentence but drew the attention of practitioners to the importance of compliance with the unambiguous statutory provisions. See also R v Hawkins [2010] EWCA Crim 2367. The Appeal Division in McCarthy v HMAG (3 May 2019) at paragraph 21 relying on these English authorities stated: “We take the view that the time for appealing [solely] against conviction probably runs from the date of conviction” [and not from the date of sentence]. See McCarthy also on the issues of the court’s jurisdiction to allow appeals against conviction following a guilty plea, jurisdiction to allow the withdrawal of a plea of guilty and extensions of time to appeal and the law in respect of theft and obtaining money transfers by deception. 8. The Appeal Division (Judge of Appeal Storey QC and Deemster Montgomerie) in Hodgson and McGrath v HMAG (9 July 2019) had a further opportunity to revisit the time within which an appeal against sentence must be lodged. The Appeal Division held, having regard to the unambiguous statutory language of section 31(2) and the English authorities on a similar statutory provision (section 18(2) Criminal Appeal Act 1968 of Parliament) that for the purposes of an appeal against conviction, time runs from the date of conviction, not from the date of sentence, if later. The court robustly dealt with a submission from counsel, that there was an “established culture and practice of the Manx Courts and Manx Criminal Bar” that “the time limit for the filing of an Appeal against conviction is that it runs 28 days from the date of sentencing” (paragraph 12 of judgment), stating: “21. It follows that any prevailing practice amongst counsel not to file an appeal notice to appeal a conviction within 28 days of conviction, believing it is appropriate to delay filing until sentence is passed, should have ceased 20 years ago. Despite Mr Travers and Mr Kermode stating that such a belief persists at the Manx Bar, we cannot accept such assertions. Neither member of this court is aware of such a policy, nor is it mentioned in Doyle’s Manx Criminal Law and Procedure (see e.g. paragraph 969) or in the former First Deemster’s relevant notes on the Law Society website. It is quite contrary to Archbold and 2 Blackstone. We have not been referred to any judicial precedent to support such a policy e.g. an appeal solely against conviction filed over 28 days after the date of conviction where the SGD or the Court of Appeal (Criminal Division) held no extension of time was required.” Also see Hodgson and McGrath (a theft case based on “the full amount”) in respect of the Appeal Division not acting as “a counsel of perfection” (at paragraph 51) when considering criticisms of directions in a summing up, noting at paragraph 37 Mr Robinson’s submission that “there was always scope with the benefit of hindsight to attempt to place a counsel of perfection on the exact wording used by a trial Deemster.” The court also referred in effect to the need for counsel to assist a Deemster in respect of a summing up and not remain silent in respect of errors or omissions in a summing up. The Appeal Division at paragraph 41 stating: “We would not expect counsel to remain silent in similar circumstances in the future.” 9. Section 33(1) of the 1993 Act provides that subject to subsection (2) the Appeal Division on an appeal against conviction shall allow the appeal if it thinks: (a) it is unsafe or unsatisfactory; (b) there was a wrong decision of any question of law; (c) there was a material irregularity in the course of the trial and in any other case it shall dismiss the appeal. 10. The Appeal Division (Judge of Appeal Tattersall QC and Deemster Doyle) in Scambler v AG (judgment 12 January 2004) stated: “8… it is the duty of those representing an appellant to clearly identify what matters are relied upon by the appellant as supporting his contention that his appeal against conviction should be allowed… Furthermore it is incumbent on those representing an appellant to cite, and produce copies of, all authorities relied upon and to identify what propositions of law are to be relied upon from such authorities…” 11. The Appeal Division (Judge of Appeal Tattersall QC and Deemster Doyle) in Patterson and Barber (judgment 12 September 2013) stressed at paragraph 90 that advocates have a responsibility “only to pursue those appeals which have merit.” 12. Section 33(2) of the 1993 Act provides that the Appeal Division, even though it thinks that the point raised in the appeal might be decided in favour of the appellant, may dismiss the appeal if it considers that no miscarriage has actually occurred.