Turning Back Time – How to Reopen or Appeal a Motoring Conviction or Sentence

We are frequently contacted by clients in a state of shock as they have received a letter out of the blue telling them that they have been disqualified from driving but they believe a mistake has been made. In some cases, the semi-traumatised caller may know nothing about what has led to this drastic decision being made. Courts can penalize drivers in their absence but there are strict rules on the notice that must be provided before the sentence is decided, especially when the sentence involves a disqualification.

We can certainly help to unravel a conviction or sentence that has been imposed in error or where the decision made by the court is wrong in law or the sentence is excessive.

The decision about the correct course of action to take depends on a number of factors and there may be a time sensitivity to the situation so it is essential that you contact us as soon as possible to seek our input.

The correct process to follow is to make a statutory declaration at court and the matter will be reopened so that the prosecution can start again but with your involvement. This blog outlines all the details you need to know about the process of making a statutory declaration.

If you consider that the Magistrates’ decision was legally incorrect or they did not follow the correct steps, you can apply to the convicting court to re-open your case to rectify the mistake. A re-opening could be the best option if you have missed your trial/hearing but have justifiable reasons why, i.e. a genuine mistake/misunderstanding or illness.

In accordance with section 142 of the Magistrates’ Court Act 1980, the Magistrates have the power to reconsider your conviction, sentence or any other order but only if it appears to the Court to be in the interests of justice to do so. This power is used sparingly and can only be used when a mistake has been made. It will be for the court to determine whether the reasons submitted fall within the interests of justice.

Examples of when a re-opening may be suitable, (this is not an exhaustive list):

• The Court did not apply the law correctly
• The Court did not give proper reasons for its decision against you
• The Court failed to inform you of a court date
• If you have missed a stage in the case proceedings or if you have been found guilty and convicted in your absence.

To make this application, you must urgently apply in writing to the convicting court (and the CPS/Police) and outline the circumstances of the mistake that you believe has been made. This is your opportunity to persuade the Court that they should reopen the case in the interests of justice. The application must cover the following:

1. explain why the conviction should be set aside, or the order varied or rescinded,
2. specify any variation of the order that the applicant proposes,
3. identify any witness(es) that the defendant wants to call, and any other proposed evidence,
4. say whether the defendant waives legal professional privilege, giving any relevant name and date, and
5. if the application is late, explain why.

There is no specific time limit for the application to be made, but the rules say it must be done ‘as soon as reasonably practicable after the conviction’. The Magistrates can take any delay in making the application into account when deciding whether or not to grant it.

Effectively, a full reopening in the Magistrates’ Court will place you back to where you would have been had the hearing not taken place. The Court will usually list the matter for the application to be made, and if accepted, the defendant will be asked to enter their plea (if the conviction is set aside) or will be re-sentenced at the same time.

Where a sentence or order is varied, the varied sentence or other order shall take effect from the beginning of the day on which it was originally imposed or made, unless the Court otherwise directs.

This route should always be considered as a first step, if the aim is to rectify a mistake, before an appeal is made to the Crown Court. Whilst the re-opening is being considered, it is good practice to put the Crown Court on notice of your intentions, and that if you are unsuccessful, an appeal is likely to follow out of time.

This option is only available if you have been found guilty by the Magistrates’ Court, as opposed to pleading guilty. Any person is able to appeal to the Crown Court, following an unsuccessful trial or conviction in absence. An appeal in the Crown Court is effectively a re-trial. Your case will be re-heard by a Crown Court Judge and two lay magistrates. The appeal will not focus on what went wrong, it will just be a re-hearing and will take a similar format to that in the Magistrates’ Court.

Following a guilty plea or the finding of guilt, the Court will impose your sentence. If this sentence is manifestly excessive, an appeal to the Crown Court is available. The Crown Court will be asked to reconsider the sentence imposed. The Crown Court has the power to pass a sentence that is more or less severe than the original or they could consider that the original sentence was appropriate and keep it the same.

An appeal is only likely to be successful if the sentence passed is one considered to be outside the range for the offence and the offender. This requires an assessment of the applicable sentencing guidelines.

When to lodge an appeal

An appeal notice must be completed and lodged with the Magistrates’ Court and any interested party (Crown Prosecution Service) within 15 business days from the date you were sentenced by the Magistrates’ Court or committed by that Court to the Crown Court for sentence, or from the date, the Magistrates’ Court deferred your sentence.

Can I appeal after 15 business days?

Yes but only in very limited circumstances. To appeal outside of 15 business days, a request has to be made to the Crown Court for permission before you can appeal. Only the Crown Court can extend the time limit for an appeal.

Introducing new evidence in your appeal hearing

You can call additional witnesses or refrain from calling witnesses who were unhelpful in the Magistrates’ Court. The prosecution can do the same in order to bolster weaknesses in their own case. Both parties are permitted to serve further evidence in an appeal. Any difference in the evidence presented on appeal, can be raised with the Court.

Suspension of disqualification pending appeal

Once the appeal has been lodged, you are able to apply to have any driving disqualification suspended, pending the outcome of the appeal. The application can be made in both the Magistrates’ Court and the Crown Court. The Court may, if it thinks fit, pending the appeal, suspend the operation of the order. Ultimately, it is a matter for them to determine whether the ban is suspended, taking into account the individual circumstances of each case. There is no automatic right for this to be granted.

Who will hear my appeal against conviction in the Crown Court?

As a general rule, the hearing of the appeal must be heard by a Crown Court Judge and no less than two and no more than four magistrates, none of whom took part in the Magistrates’ Court hearing.

Can I appeal against conviction and sentence?

Yes. On the appeal notice, you can specifically mention that you wish to appeal against both conviction and sentence. However, as mentioned above, you can only appeal against conviction after a not guilty plea. You cannot appeal conviction after a guilty plea hearing.

Can I lodge an appeal and reopen under s.142 simultaneously?

Yes it is possible, but it is not always best practice to do so. It will depend upon the individual facts of the case. The Magistrates’ have the power to determine a re-opening up until the point that the Crown Court has determined the appeal.