POWER OF THE MAGISTRATES TO RECTIFY MISTAKES

D22.72 – Setting Aside a Conviction for Rehearing Before Differently Constituted Bench
MCA 1980, s. 142(2) – enables an accused who was convicted in a magistrates' court (whether as a result
of a guilty plea or of a finding of guilty after a trial) to ask the magistrates to set the conviction aside.
 Can be considered by the same magistrates who convicted the accused or by a different bench.

If the conviction is set aside, the case is reheard by different magistrates from those who convicted.

An application under s. 142(2) may be appropriate if the magistrates made an error of law or there was
some defect in the procedure which led to the conviction.

Croydon Youth Court, ex parte DPP [1997] 2 Cr App R 411 – McCowan LJ said that the purpose of s.
142(2) is most accurately described as a 'power to rectify mistakes', and that it is generally and correctly
regarded as a 'slip rule'.

Zykin v CPS [2009] EWHC 1469 (Admin) – Bean J quoted from R (Holme) v Liverpool Magistrates' Court
[2004] EWHC 3131 (Admin), and said (at [16]) that s. 142 'does not confer a wide and general power on a
magistrates' court to re-open a previous decision on the grounds that it is in the interests of justice to do so';
rather, it is 'a power to be used in a relatively limited situation, namely one which is akin to mistake or the
slip rule'.

DPP v Chajed [2013] EWHC 188 (Admin) – Hickinbottom J, with whom Laws LJ agreed, said (at [25])
that, where there has been a simple mistake (or something akin to such), s. 142 enables a magistrates' court
to rectify it, if necessary by directing the case be reheard by different justices.

Once a guilty verdict has been pronounced by magistrates, it does not enable a convicted accused to
make further submissions with a view to persuading the bench to change its mind and substitute a not
guilty verdict.

If the magistrates have reached the wrong decision on the merits of submissions which have been made
to them, the appropriate course for the accused is to appeal to the Crown Court or by way of case stated
to the High Court.

CrimPR 44.3(2) – provides that the court may exercise its power to set aside a conviction under s. 142
on application by a party, or on its own initiative.

An application under s. 142 may be dealt with in a public or private hearing, or without a hearing.
CrimPR 44.3(3) ––––
 The court must not exercise its power in the absence of a party unless the court makes a decision
proposed by that party, or the party has agreed in writing to that decision, or the party has had an
opportunity to make representations at a hearing.

 An application for a conviction to be set aside should be made in writing as soon as reasonably
practicable after the conviction, and should be served on the court and on each other party.

 The application must explain why the conviction should be set aside, and must identify any
witness that the accused wants to call, and any other proposed evidence.

s. 142(2) makes it clear that it is not a general 'slip rule'.

 Applies only after conviction, enabling the court to set that conviction aside.
 s. 142 cannot be used to set aside a pre-trial ruling.

Pre-trial rulings take effect pursuant to the MCA 1980, s. 8A; such rulings may be varied if (and only if)
there has been a material change of circumstances since the ruling was made (s. 8B).
D23.23 – Variation of Sentence Under the Magistrates' Courts Act 1980, s. 142
MCA 1980, s. 142(1) – allows a magistrates' court to vary or rescind its decision as to sentence if it is in
the interests of justice to do so.
 The power is similar to that in respect of setting aside a conviction.

The magistrates can reopen the case under s. 142 regardless of whether the accused pleaded guilty or was
found guilty.

s. 142 cannot operate where the accused was acquitted

Coles v East Penwith Justices (1998) 162 JP 687 – where the Divisional Court held that there was no power
under s. 142(1) to revoke a defendant's costs order where the prosecution had withdrawn the charges.

Guidance on the use of s. 142(1) was given in Holme v Liverpool City Justices [2004] EWHC 3131
(Admin) ––––––
D pleaded guilty to dangerous driving, a pedestrian having sustained serious injuries. A community sentence
was imposed. The magistrates agreed to a request from the CPS to reopen the case under s. 142, on the basis
that the original counsel for the prosecution had not addressed the extent of the pedestrian's injuries and that
the difference between the sentence imposed and the custodial sentence that would probably have been
imposed had the court known all the facts offended the principles of justice.

On appeal to the Divisional Court, Collins J (at [30]) said that:

…the power under s. 142 is to be used in a relatively limited situation, namely one which is akin to
mistake or, as the court says, the slip rule. But there is no reason, on the face of it, to limit it further. It
seems to me that if a court has been misled into imposing a particular sentence, and it is discovered that it
has been so misled, then the sentence may properly be said to have been imposed because of a mistake;
the mistake being the failure of the court to appreciate a relevant fact. That may well give power to the
court to exercise the jurisdiction conferred by s. 142, but it does not indicate that that power should
necessarily be used.

s. 142 can be used to increase sentence only in exceptional circumstances.

His lordship went on (at [33]) to say that the sort of case which is appropriate for use of the power under
s. 142 is one 'where the mistake is quickly identified and it is accepted on all sides that a mistake had been
made'. At [42]–[43], his lordship said that it was possible to envisage circumstances in which the failure
of the court to be aware of factors which would be relevant to sentence could properly mean that it would
be appropriate to resort to s.142, but:

…it would only be in very rare circumstances that it would be appropriate to resort to s. 142 to consider
an increase in sentence, particularly if that increase…brought the possibility of custody as opposed to
another form of disposal.

The facts of the instant case, said the court, did not come anywhere near justifying such a use of s. 142.
 GENERAL RIGHT OF APPEAL FROM MAGISTRATES COURT TO
CROWN COURT
D29.1 – Routes of Challenge of Decisions of Magistrates' Courts
A person aggrieved by a decision of the magistrates' court has three means of challenge to that decision
available. They are as follows:
(a) appeal to the Crown Court;
(b) appeal to the High Court by way of case stated;
(c) application to the High Court for judicial review.

Any person convicted by a magistrates' court may appeal against either the conviction and/or sentence.

If the offender pleaded guilty in the magistrates' court then the offender may also appeal against conviction
and sentence to the Crown Court.

An appeal to the High Court by way of case stated or an application for judicial review is available to either
party in the magistrates' court if they are aggrieved at the outcome of proceedings.

An appeal by way of case stated or application for judicial review is heard by a Divisional Court of the
King's Bench Division of the High Court.
D29.3 – Appeals against Conviction and Sentence
Appeals to the Crown Court – MCA 1980, s. 108, and CrimPR Part 34.

Criminal Procedure (Amendment) Rules 2016 – widen its application beyond applications to introduce
further evidence so as to cover applications about case management, or any other question of
procedure, or the introduction or admissibility of evidence, or any other question of law that has not
been determined before the hearing of the appeal begins.

CrimPR r. 34.11 – on the composition of a panel to hear an appeal was substituted to allow for greater
flexibility in the hearing of appeals, especially during the course of case management (when it is permissible
for no justices to be involved).

An appeal from the youth court must be heard by a judge or recorder of the Crown Court sitting with
two lay justices who are authorised to sit in the youth court.

Exceptionally, the Crown Court may include only one justice of the peace if the presiding judge decides
that the hearing of the appeal will otherwise be unreasonably delayed or one or more of the justices
who started hearing the appeal is absent (r. 34.11(1) and (2)).

The broad definition of 'sentence' contained within s. 108(3) mirrors that in the equivalent provision for the
Court of Appeal (Criminal Division) in s. 50 of the Criminal Appeal Act 1968.
 PROCEDURE APPEAL TO CROWN COURT

PROCEDURE

CrimPR 34.2(1) and (3) – require notice of appeal to be given in writing to the relevant magistrates' court
officer and every other party within 15 business days of sentence being passed or sentence being
deferred.
 The appellant has 15 business days from the date of sentence, even if that is after the date of
conviction, to appeal only against conviction.

The time-limit is also 15 business days where the appeal is against an order, or failure to make an order.
 To be contrasted with the position in respect of an appeal against conviction from the Crown Court
to the Court of Appeal (Criminal Division).

The notice should state whether the appeal is against conviction or sentence or an order or failure to
make an order.

The notice of appeal must also summarise the issues and in an appeal against conviction must specify the
witnesses whom the appellant will want to question and state how long the trial lasted in the magistrates'
court and how long the appeal is likely to take.

In an appeal against a finding that the appellant insulted someone or interrupted proceedings in the
magistrates' court, the magistrates' court's written findings of fact and the appellant's response to those
findings must be attached to the notice.

Any notice must also stipulate whether the appellant has asked the magistrates' court to reconsider the
case and identify all those upon whom the notice has been served.

CrimPR r. 34.10(d) – the Crown Court may allow an appeal notice to be in a form other than the specified
form, or to be presented orally.

If a notice is served within time, no leave to appeal is required.

CrimPR r. 34.3 – an application for an extension of time must be served with the appeal notice and must
explain why the appeal notice is late.

CrimPR r. 34.10(a) – the Crown Court may shorten or extend (even after it has expired) any time-limit
under Part 34.
CrimPR r. 34.7 applies where a party wants to introduce further evidence relating to bad character or
previous sexual history, or hearsay evidence or evidence involving the use of special measures; notice of an
application to introduce such evidence must be made not more than 15 business days after service of the
appeal notice.

An appeal is heard by a circuit judge or recorder who must normally sit with two lay magistrates who
were not involved with the original proceedings (Senior Courts Act 1981, s. 74).

Prior to the hearing, the defence may request a copy of the clerk's notes of evidence of the summary
trial.

Any request the appellant might make for a copy should be 'viewed sympathetically'.
 HEARING

APPEAL AGAINST CONVICTION APPEAL AGAINST SENTENCE

s. 79(3) – the appeal proceeds by way of complete An appeal against sentence is a fresh sentencing
rehearing. hearing.

Counsel for the respondent (i.e. the prosecution) The prosecution open the facts and antecedents
makes an opening speech and calls evidence, of the appellant, and defence counsel then
after which counsel for the appellant may make a mitigates.
submission of no case to answer.

The court then decides the sentence to be imposed.

If that fails, defence evidence is called, counsel
makes a closing speech, and the court announces
its decision. Crown Court should not ask itself whether the
sentence was within the discretion of the
magistrates (as would be the appropriate question
The parties may call evidence which has only in judicial review proceedings)
become available to them since the trial, or
evidence they decided not to use in the BUT should consider whether, in the light of all
magistrates' court. the matters which the Crown Court had heard,
the sentence passed by the magistrates was the
correct one.
The information on which the appellant was
convicted may not be amended by the Crown Court
If what the court thinks is the appropriate sentence
differs significantly from the sentence imposed by
Swansea Crown Court, ex parte Stacey [1990] RTR the magistrates, the appeal should be allowed and
183 – It was held that the judge erred in allowing a the sentence of the Crown Court substituted for that
prosecution application to amend the information in of the magistrates
respect of the date of the alleged offences.

Crown Court is not entitled to increase the

Crown Court cannot strike out an amendment sentence on appeal from the magistrates' court on
made by the magistrates (Fairgrieve v Newman the basis that the magistrates ought to have
(1985) 82 Cr App R 60). committed the offender to the Crown Court for
sentence in the first place

Crown Court may, however, increase the

sentence to the maximum that could be imposed
by the magistrates' court.
 POWER OF CROWN COURT ON APPEAL
Senior Courts Act 1981, s. 48 – the powers of the Crown Court when disposing of an appeal
 Decision of the Crown Court may be a majority decision.
 Lay justices can out-vote the judge.
 Lay justices must, however, accept any decisions on questions of law made by the judge.

Senior Courts Act 1981, s. 48(2) – following an appeal from the magistrates' court, the Crown Court:
(a) may confirm, reverse or vary any part of the decision appealed against, including a determination not
to impose a separate penalty in respect of an offence; or
(b) may remit the matter with its opinion thereon to the authority whose decision is appealed against; or
(c) may make such other order in the matter as the court thinks just, and by such order exercise any
power which the said authority might have exercised.

Senior Courts Act 1981, s. 48(4) & (5) – provide that:

(4) … if the appeal is against a conviction or a sentence, the preceding provisions of this section shall be
construed as including power to award any punishment, whether more or less severe than that awarded by
the magistrates' court whose decision is appealed against, if that is a punishment which that magistrates'
court might have awarded.

(5) This section applies whether or not the appeal is against the whole of the decision.

s. 48 allows the Crown Court to:

(a) quash the conviction;

(b) remit the case to the magistrates' court (e.g., in the case of an equivocal plea);

(c) vary the sentence imposed by the magistrates (this includes the power to increase the sentence, but
not beyond the maximum sentence which the magistrates' court could have passed: s. 48(4)).
CrimPR 34.9 – sets out the procedure for abandonment of an appeal under the MCA 1980, s. 109.

The appellant may abandon the appeal by giving notice in writing to that effect to the magistrates' court, to
the appropriate officer of the Crown Court and to the prosecution and to any other party to the appeal (r.
34.9(1)(a)).

The appeal may be abandoned without permission if it is done before the hearing commences.

Once the hearing has started, the appeal may be abandoned only with the permission of the Crown
Court.

As with a notice of appeal, under r. 34.10(d), the Crown Court may allow the notice of abandonment to
be given in a form other than that specified or to be given orally.

Crown Court has a discretion to award costs in an appeal from a magistrates' court in all cases (even
where a timely notice of abandonment has been served).

An appeal cannot be abandoned simply by an appellant failing to attend or failing to instruct an

advocate.

Upon the abandonment of an appeal, the Crown Court has no power to increase sentence

Once an appeal has been abandoned, the Crown Court has no power to reinstate the appeal unless the
abandonment was a nullity
 APPEAL TO THE HIGH COURT – JUDICIAL REVIEW
Appeal from the magistrates' court by way of case stated is provided for in the MCA 1980, s. 111(1),
and the procedure is governed by ss. 111 to 114 of that Act, CrimPR Part 35 and the Civil Procedure Rules,
Part 52.
 The appeal is to a Divisional Court of the King's Bench Division of the High Court.
 The essence of the procedure is an appeal on a point of law which is identified by the lay bench or
district judge in a document known as the 'case'.

Features of the 'case stated' process which emerge from s. 111 include:
(a) The remedy is available to both the prosecution and defence.

(b) The remedy operates only in relation to an error of law or a decision taken in excess of
jurisdiction.

A decision as to a question of fact will ordinarily not give rise to an appeal by way of case stated but
may do so if the finding of fact is alleged to be such that no reasonable bench could have properly
reached that factual conclusion on the evidence

Oladimeji v DPP [2006] EWHC 1199 (Admin) – the Divisional Court stated that any defendant who
believes that the justices should not have arrived at a finding for which there was evidence because,
for example, it was against the weight of the evidence, has a remedy in an appeal to the Crown Court
and not to the High Court. Under s. 111(4), any appellant who employs the case stated procedure
forfeits the right to appeal to the Crown Court.

K v CPS [2013] EWHC 1678 (Admin) – the Divisional Court observed that questions framed by a
district judge such as 'Was I right to assert that criminal proceedings are about a search for the truth?'
should never form part of a case stated as they are not the proper subject of s. 111.

(c) The remedy is available only after the final determination of proceedings in the magistrates'
court.

If trial proceedings are adjourned the procedure cannot be employed during the period of adjournment

(d) The remedy is available in respect of errors made in relation to sentence as well as conviction.

Such appeals have often been successfully established by the prosecution where the court has wrongly
held that there were 'special reasons' for not disqualifying a driver

A defendant may use the case stated procedure if the bench has passed a sentence which is so far
beyond the usual level of sentence for such an offence that it is 'harsh and oppressive' (Tucker v DPP
[1992] 4 All ER 901).
D29.24 – Determination by Divisional Court of an Appeal by Way of Case Stated
Divisional Court which hears an application by way of case stated will be comprised of at least two judges,
and often three.

If a two-judge court cannot agree, the appeal is unsuccessful.

No evidence is called at the hearing as all evidence which needs to be referred to will be contained in the
stated case
 The appeal is conducted by way of submissions from the parties.

 If the facts contained within the case give rise to a point of law which was not argued before the
magistrates but would have provided the defendant with a defence, the court may consider the
point provided no further evidence is necessary

Food Standards Agency v Bakers of Nailsea Ltd [2020] EWHC 3632 (Admin) – consideration by the
Divisional Court of an attempt to appeal a ruling which the appellant had agreed to at first instance.

s. 28A(3) Senior Courts Act 1981 – the court may 'reverse, affirm or amend' the decision of the
magistrates' court, or remit the case with its opinion, or make any other order (including an order as to
costs) as it sees fit.

Divisional Court may quash an acquittal with a direction that the magistrates' court convicts and
sentences.
 Court may simply substitute a conviction for the previous acquittal and proceed to sentence.
 If the appeal concerns sentence only, the court may substitute the appropriate sentence.

An appellant may abandon an appeal by way of case stated without leave

Divisional Court is entitled to order a retrial before the same bench or a different bench where a fair
trial is still possible
D29.25 – Prerogative Orders Generally
High Court polices the decision-making of inferior public bodies by way of judicial review.

Decisions of the magistrates' court and some of those of the Crown Court (those which are not concerned
with matters relating to trial on indictment) are susceptible to review.

High Court does so by means of prerogative orders, foremost of which are quashing orders, mandatory
orders and prohibiting orders.

The application for judicial review is dealt with by a Divisional Court of the King's Bench Division of the
High Court.

The principal grounds upon which judicial review may be sought are:
(a) error of law on the face of the record — i.e. an error disclosed by the court records;
(b) excess of jurisdiction;
(c) breach of natural justice.

The concept of breach of natural justice has frequently been litigated and has been widely drawn. It has
been held to include:
(i) failing to give D adequate time to prepare a defence (Thames Magistrates' Court, ex parte
Polemis [1974] 2 All ER 1219);

(ii) failing to grant an adjournment to allow for the attendance of a witness (Bracknell Justices, ex
parte Hughes [1990] Crim LR 266; and see R (Parashar) v Sunderland Magistrates' Court [2019]
EWHC 514 (Admin), for a detailed examination of the authorities bearing on this issue);

(iii) the prosecution failing to call or disclose the statement of a witness who might assist the
defence (Leyland Justices, ex parte Hawthorn [1979] QB 283);

(iv) the prosecution failing to disclose the previous convictions of prosecution witnesses
(Knightsbridge Crown Court, ex parte Goonatilleke [1986] QB 1);

(v) making an order as to costs against D without inquiring as to D's means (Newham Justices, ex
parte Samuels [1991] COD 412).
D29.42 – Choice Between Judicial Review and Case Stated
Both judicial review and the case stated procedure set aside the decision of the court below, and a choice
must be made as to which route to pursue.

R (P) v Liverpool City Magistrates [2006] EWHC 887 (Admin), Collins J stated:
(a) the normal route for an appeal against a decision of justices where it is alleged there has been an
error of law is by way of case stated;

(b) it would be wrong to seek judicial review where case stated was appropriate, merely in order to
avoid the more stringent time-limit;

(c) however, judicial review is more appropriate where there is an issue of fact to be raised and
decided which the justices did not decide themselves;

(d) judicial review may also be appropriate where it is alleged that there has been unfairness or
bias in the conduct of the case by the justices but, where it is alleged that there has been a
misdirection or an error of law, case stated is the appropriate remedy.

North Essex Justices, ex parte Lloyd [2001] 2 Cr App R (S) 15 (86) – Divisional Court said that judicial
review should be pursued where the inferior court has acted in excess of jurisdiction.

Judicial review is the only remedy available where the defence wish to challenge a committal for
sentence, as the case stated procedure is not available where there has not been a final determination of the
case.

D29.44 – Appeal from the Divisional Court

Any appeal from the High Court in a criminal cause or matter, either in relation to an appeal by way of
case stated or a judicial review, is direct to the Supreme Court.
 APPEAL FROM CROWN COURT
With applications by way of case stated from the magistrates' court, an application to appeal by way of
case stated from the Crown Court may be made in respect of an error of law or where it is alleged that the
Crown Court acted in excess of jurisdiction.

There can be no challenge on the basis that a decision is against the weight of the evidence.

As with appeals by way of case stated from the magistrates' court, the proceedings in the Crown Court
must have been finally decided before the case stated procedure may be employed

s. 28(1)(a) – no appeal by way of case stated is possible in respect of matters relating to trial on
indictment
 The means of challenge is plainly available in respect of any decision of the Crown Court relating to
an appeal against conviction or sentence from the magistrates' court.
D29.40 – Application for Judicial Review
s. 29(3) Senior Courts Act 1981 – it is possible to challenge a decision of the Crown Court by way of
judicial review provided that that decision does not concern a matter relating to trial on indictment.

Re Smalley [1985] AC 622 – House of Lords held that the phrase 'relating to trial on indictment' covered all
decisions relating to the conduct of the trial.

The decision to stay any part of an indictment as an abuse of process is a matter relating to trial on
indictment, as is an order that counts should lie on the file in the usual way, a decision as to the order in
which indictments are tried and decisions as to disclosure.

It has also been held that the decision to hold a trial on the issue of fitness to plead is a matter relating to
trial on indictment, as is the imposition of a mandatory life sentence.

Matters which do not relate to trial on indictment include forfeiture of a surety, forfeiture of property
used in the course of an offence belonging to a third party, binding over of an acquitted accused and
restrictions on the publication of the identity of a convicted youth.

s. 81(1)(e) Senior Courts Act 1981 – bail may be granted pending judicial review of a decision of the
Crown Court.

If a defendant convicted in the magistrates' court appeals to the Crown Court, any further appeal to the High
Court on a point of law should be by way of case stated and not judicial review