Appeals

Children under the age of 18 have the same rights of appeal against both conviction and sentence as adult defendants.

The purpose of this guidance is to ensure that Youth Justice Service staff members have an understanding of the process so that they can properly advise the children with whom they work.

Appeal against conviction involves a claim that the court’s decision was wrong because:

• The magistrates or judge misinterpret the law; or
• There was a procedural error which was unfair to the defendant; or
• The child continues to maintain that he or she is innocent on the basis of the facts; or
• An aspect of the trial was in breach of the defendant s human rights.

Appeal against sentence is based on the contention that the sentence was, in the circumstances, unduly harsh. It is therefore possible to appeal against sentence where the child has pleaded guilty.

There are two other means by which the decision of the court can be challenged by both the defence and prosecution, although both are far less commonly applied and will not be discussed further in these guidelines.

• An appeal by way of ‘case stated’ to the Divisional Court of the High Court on the basis that the decision was wrong in law or in excess of jurisdiction. A defendant who appeals through this mechanism loses the right to appeal at the Crown Court;
• An application to the High Court for a judicial review where the applicant considers that the court has acted unreasonably, in excess of its power or contrary to the rules of natural justice.

The defence lawyer is under a duty to advise the client as to any grounds to appeal.

The prosecution can in limited circumstances appeal for a review of a Crown Court sentence which it considers unduly limited. There is no power to review sentences made in the youth court other than by means of case stated or a judicial review.

Parents can, in addition, appeal against orders made against them in youth court proceedings: an order to pay a financial penalty on behalf of their child, a parental bind over or Parenting Order.

Appeals from the Youth/Magistrates court are made to the Crown Court and in the case of a child the right to appeal is more or less absolute. Legal advice with respect to the process is covered by the legally aided representation order granted for the original case.

The notice on intervention to appeal against each sentence or conviction must be logged within 21 days of sentence with both the court and the Crown Prosecution Service. The calculation dates exclude the day of the hearing and includes the 21st day. The notice must state the nature of the appeal i.e. whether it is against conviction or sentence.

If the 21 day period has elapsed it is possible to request leave out of time through a written application to the Crown Court which must also include an explanation as to why the appeal was not lodged within the required timescale.

If the appeal is against a custodial sentence the youth court may grant bail in the interim period however the presumption in favour of bail which exists prior to sentence no longer applies. If bail is refused at the lower court a further application may be made to the Crown Court.

The appeal is heard by a judge sitting with 2 to 4 magistrates. Where the appeal is against conviction the process will include a review of the evidence – including witnesses resubmitting their evidence. It is also possible to introduce fresh evidence. In terms of outcome the court may:

• Confirm the conviction; or
• Question the conviction; or
• Remit the case back to the Youth Court with direction.

Where the appeal is against sentence the court may:

• Confirm the sentence;
• Vary the sentence through imposition of any sentence that could have originally been made by the Youth Court, including an increase in sentence. Comparatively speaking this power to increase the sentence is used relatively rarely.

Appeals from the Crown Court are made to the Court of Appeal. The right to appeal against Crown Court decisions is tightly circumscribed and can only proceed with the leave of the Court of Appeal or where the trial judge grants a certificate to confirm the case is suitable for appeal.

Leave to appeal must be lodged within 28 days of the decision being challenged, that is conviction or sentence, and the written application must include grounds. It is possible to apply for leave to appeal out of time but an explanation of why the application was not made with the required time scale must accompany the application. The written application will be considered by a single judge. It is open to the child to renew the application before a full court consisting of two or three judges although legally aided representation is not available in these circumstances.

Where leave is granted the appeal itself takes the form of legal argument over the written grounds rather than a rehearsing of the evidence.

An appeal against conviction is based on the single ground that the finding of guilt is unsafe and in all other circumstances the court will dismiss the appeal. The court may:

• Confirm the conviction or;
• Quash the conviction and;
• Re-order a re-trial.

For an appeal against sentence to succeed the court must find that the penalty was clearly excessive or wrong in principle. The appeal court may confirm the sentence or vary it however it may not impose a more severe penalty taking the case as a whole, than that imposed by the trial court. It may however rule that any time served on remand in custody or secure accommodation whilst awaiting appeal should not count against the final custodial sentence if the appeal is unsuccessful. Such ‘loss of time’ will not normally be ordered where the appeal was supported by legal advice.

On the basis of past trends, it might be anticipated that a greater use of the right to appeal against custodial sentences in combination with increased resources targeted at the provision of effective community programmes, has the potential to impact upon the current high levels of the incarceration of children. Youth Justice Service staff members are well placed to ensure that children receive appropriate advice on the issue and exercise their right to appeal in appropriate cases.

Section 152 of the Criminal Justice Act 2003 imposes restrictions on the use of custodial sentences including the Detention and Training Order. Such an order cannot be made unless:

• The child is convicted of an offence which is punishable with imprisonment in the case of an adult;
  
  And
• The offence (or the offence in combination with other associated offences) is so serious that neither a fine alone nor a community sentence can be justified for the offence; or
• The defendant fails to consent to a community sentence which requires such consent; or
• The child fails to comply with an order requiring him or her to or her to supply a sample for a pre-sentence drug test.

Case law suggests the following guidelines for approaching sentencing in borderline cases:

• Youth and immaturity will often justify a less rigorous penalty than would be appropriate for an adult;
• Some measure of leniency will ordinarily be extended to defendants of previous good character;
• While a court will not impose custody unless satisfied that it is necessary to do so, there will be an even greater reluctance to impose a Custodial Sentence on an offender who has never before served such a sentence (R v Howells 1999).

What this means in practice is that personal mitigation can lead to a non-custodial disposal where the court has determined that only a custodial sentence could be justified on the basis of the offence alone.

A second consideration is that unlike the custodial sentence for adults, the Detention and Training Order is subject to a statutory minimum of four months. Thus it is not it is not sufficient that the court views the sentence as so serious to pass the custody threshold, the gravity of the offence must also warrant at least the minimum length of sentence available.