We looked last week at the case of Rhodri Phillips, the 4th Viscount St Davids, who was jailed for 12 weeks on 13th July 2017 following his conviction for racially offensive Facebook postings.
On 19th July 2017 Viscount St Davids was back in Court, this time the Crown Court at Southwark. Appearing by video link, he was making an application for ‘bail pending appeal’ – bail until his appeal against conviction can be heard.
This was granted, and so he is now regained his liberty. He is due back at Southwark Crown Court on 10th August for a two day appeal against conviction.
What happens at the appeal.
We have a factsheet on appeals here.
Unusually, this will be a complete re-hearing of the case. The Prosecution will call their evidence, and be cross-examined, followed by any defence evidence.
Although there will be judges and advocates wearing their usual outfits (wigs and gowns), there will be no jury. It will be a Crown Court Judge and two magistrates who decide.
If he is found guilty again, then he will be re-sentenced. This is ‘at large’ – in other words the Crown Court can pass any sentence that the Magistrates’ Court could, including a higher sentence (up to the 6 months maximum).
Although an increase in sentence is possible therefore, it is very rare. If sentences were regularly increased then it may act as a deterrence on people properly bringing appeals.
Can the prosecution bring up the charges he was acquitted of?
He has been acquitted of those, and that acquittal is binding, in the sense that the Crown Court cannot consider whether he should have been acquitted.
However, the Prosecution may apply for the Crown Court to hear about them as relevant background material.
How can he get bail?
Anyone sentenced to a custodial sentence in the Magistrates’ Court who is appealing either the conviction or sentence (or both) can apply to the Magistrates’ Court itself for bail (s113 Magistrates’ Court Act 1980 – we do not know if Viscount St Davids applied in this case).
If that is refused, then the person appealing can apply to the Crown Court for bail (s81(1)(b) Senior Courts Act 1981).
The general rule is that someone who comes to the Magistrates’ Court on bail, and is sentenced to a custodial sentence but is appealing, will be granted bail pending the hearing of the appeal.
Is this special treatment for toffs?
No. As said, bail pending appeal is fairly common. In a case such as this where the Viscount, who has never been to prison in the UK, turned up to sentence having been told that a custodial sentence is a good possibility, it would always be the case that he would be granted bail unless there was something very unusual in the circumstances of the case.
This is not just on the usual principles of bail. Given that any sentence imposed by the Magistrates’ Court will be short, if people are not granted bail then there is a very good chance that their sentence will have been served by the time they get to the appeal – not good if they succeed.
Here, Viscount St Davids would have had to serve 6 weeks in prison (half the 12 week sentence), which would expire on 24th August. By the time the appeal is heard, he would therefore have served two thirds of the sentence.
So, contrary to what some have suggested, this is not the case of him getting any special treatment – just the law being applied in the usual way (as boring as that may be).