In this issue
Welcome
Appeals to the Crown Court in road traffic cases
The increasing responsibilities of appellate lawyers
Financial Crime Appeals
Remedies for wrongly convicted refugees
Relying on fresh evidence as a ground of appeal
Gunshot Residue and The Cardiff Innocence Project
Last in series of Appeals Seminars on 3rd February
Appeals to the Crown Court in road traffic cases
 
Ben Newton
Ben Newton

by

Ben Newton


Shocking as it may be to suggest, magistrates courts do sometimes get it wrong, and in road traffic cases the consequences can be loss of livelihood for the defendant.


An appeal against conviction to the Crown Court lies of right (s108(1) Magistrates Court Act 1980) as long as the defendant did not plead guilty (in which case  it is necessary to show that the plea was equivocal). If the application is lodged more than twenty-one days after sentence, however, then a full written application for leave to appeal out of time is necessary, applying established principles in terms of extensions of time for appealing. (R (on the Application of HM Customs and Excise v Maidstone Crown Court [2004] EWHC 1459). Whilst the Crown Court has the discretion to grant an oral hearing, it is equally entitled to decide the application on the papers and does not have to give reasons for refusal so it is vital that the written application does justice to the case.


Where the appellant was disqualified they can apply to the magistrates court and/or the Crown Court (ss39 and 40 Road Traffic Offenders Act 1988) to suspend the disqualification pending appeal.


The critical factors in deciding whether to appeal are sentence and costs. Sentence is at large even if the appellant seeks only to challenge the conviction, which means that an increase in sentence is possible on any appeal to the Crown Court – although the sentence has to remain within the magistrates court’s sentencing powers. It is also likely that the CPS will seek greater costs in the Crown Court than they did in the magistrates court.


In the event of a mixed outcome the Court may still order costs (e.g. if the conviction is upheld but the sentence reduced) so each aspect of the appeal needs to be evaluated as to prospects of success. This is even more challenging in road traffic cases because there will often be an assortment of charges – e.g. different parts of a vehicle may be overloaded resulting in different charges, or there may be issues as to the quality of the driving and the status or documentation of the driver. Given that individual fines are relative to the appellant’s income, the cumulative effect of sentencing in such cases can become weighty when the appellant is of significant means.


There may be occasions when a client who has already lodged an appeal seeks advice, or their case develops, and as a consequence it becomes appropriate to abandon the appeal. This only requires service of a notice of abandonment before the hearing begins, but simply failing to attend is insufficient and the appeal may well proceed in absence (with all adverse consequences of failure a possibility). Time is still of the essence, however, as the prosecution can apply for costs within fourteen days of the notice being served.


The appeal hearing itself is a full re-hearing and so evidence can be challenged or called that was not challenged or called at the first hearing, and mitigation proceeds afresh. Of course any assertions or admissions made by the appellant in the lower court could potentially be raised if inconsistencies emerge and so when acting anew it is prudent to obtain the notes of the previous representatives and the magistrates court clerk (if necessary see R v Highbury Corner JJ ex p. Hussein [1986] 1 WLR 1266). It is also important to ensure that the correct prosecution witnesses are warned for a conviction appeal.


Where possible it can be tactically advantageous to explicitly establish any new element on the appeal so as to ease the criticism of the lower court’s decision (particularly given the presence of lay magistrates in both courts).


For its own part, the Crown Court can convict on a different basis to the magistrates court, but it cannot go so far as to amend the charge (Garfield v Maddocks [1974] QB 7). In terms of sentence, it is not bound by the sentence passed below, but if the difference is insignificant then the original sentence should stand. The Crown Court does, however, remain bound by any legitimate expectation that arose in the lower court.


From a practical perspective, a key consideration when preparing a conviction appeal in relation to road traffic offences is likely to be the presentation of defence evidence. Is an expert report necessary (if one wasn’t prepared for the summary trial)? Can any lessons be learned from the performance of defence witnesses in the lower court? Would photographs of the location assist the presentation of the defence case? Of course all of these factors occur in something of a case management vacuum, which is why it is important in minimising costs for all parties to establish effective communication with the prosecution and with the case progression office of the Crown Court.


Given that there is no further comeback from what are still, in essence, summary proceedings (unless a legal issue arises during the appeal that gives rise to an appeal to the High Court by way of case stated) it is vitally important that the appeal is prepared meticulously if the right outcome for the appellant is to be achieved.


Ben Newton

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