THE RIGHT TO APPEAL IN COMPARATIVE PERSPECTIVE.

• Author: Djukic, Drazan

1. INTRODUCTION

   It has been noted that, in contrast to the extensive appellate procedures of civil law jurisdictions, essential characteristics of the common law variation of criminal procedure can include elements "such as... possibly even the absence of appellate procedure." (1) Indeed, the early criminal procedural systems of neither England and Wales nor South Africa offered the possibility to appeal criminal judgments. (2) Similarly, the right to appeal was not included in the U.S. Constitution. (3) In 1894, the U.S. Supreme Court held that "[i]t is wholly within the discretion of the state to allow or not allow... review" of a criminal judgment. (4)

   However, the evolution of modem common law jurisdictions has led to the introduction of significant rights of appeal. For instance, the Court of Criminal Appeal, the predecessor of the current Court of Appeal (Criminal Division) in England and Wales, was established in response to notorious miscarriages of justice in 1907. (5) Starting from 1879, appellate rights were extended in South Africa, but it was not until 1948 that the Appellate Division, the precursor to the current Supreme Court of Appeal, began hearing appeals. (6) In addition, the federal courts in the U.S. and those of most U.S. states now vest defendants with relatively broad appellate rights. (7)

   Rights of appeal have, therefore, become an indispensable feature of nearly all systems of criminal procedure. Modern jurisdictions almost invariably provide for at least one stage of appellate review of a criminal conviction. Even so, the appellate machineries of common law and civil law jurisdictions, the major legal families of the world, (8) diverge significantly. The various approaches to appellate review have been described as one of "the major differences" between existing common law and civil law systems. (9) However, criminal appeals generally tend to receive limited attention in scholarship. (10)

   Accordingly, this article seeks to place the right to appeal a criminal conviction in comparative perspective by contrasting civil law and common law approaches to appellate review. So as to allow for a meaningful comparison, Section II will put the primary aspects of appellate review at second instance in relation to the most serious crimes recognised in a domestic legal order side by side, (11) on the basis of a sufficiently wide and geographically diverse sample of common law jurisdictions (12) and civil law jurisdictions (13) Subsequently, Section III will identify the underlying reasons for such divergences.

2. APPELLATE PROCEDURES IN CIVIL LAW AND COMMON LAW JURISDICTIONS

   This section will consider the following aspects of common law and civil law appellate processes: prosecutorial rights of appeal; access to appellate review; the scope of appellate review; the admission of additional evidence on appeal; decisionmaking powers of appellate courts; and the functions of appellate review.

   1. Prosecutorial Rights of Appeal

      1. In Common Law Jurisdictions, the Double Jeopardy Doctrine Limits Prosecutorial Rights of Appeal.

      In England and Wales, the double jeopardy rule prevents prosecutorial appeals against acquittals pronounced by a jury. (14)

      However, the prosecution's appellate rights have been noticeably expanded over the years. Three relatively limited legal reforms were enacted from 1972 to 1996. First, the attorney general was given the power to seek the opinion of the appellate court on a point of law in relation to an acquittal. (15) Such a referral may generate limited effects, however, because it cannot "affect the trial in relation to which the reference is made or any acquittal in that trial." Second, in respect of sentencing that appears unduly lenient, the attorney general was endowed with the right to refer such a case to the appellate court. (17) Unlike the first change, this second enactment empowered the appellate court to "quash any sentence passed" and "pass such sentence as they think appropriate for the case and as the court below had power to pass." (18) Finally, the possibility has been created for the prosecution to apply for a retrial for "tainted" acquittals. This concerns the situation "[w]here a person has been convicted of an administration of justice offence involving interference with or intimidation of a juror or a witness (or potential witness) in any proceedings which led to the acquittal." (19) In 2001, reforms were taken further. (20) Prosecutorial rights to challenge rulings during trials on indictment were introduced. In this regard, (21) "the prosecution have the power to appeal practically any ruling in a trial on indictment in the Crown Court up to the point of the summing up," even though it was originally envisaged that such appeals would only concern "terminatory ailings"--those that bring a trial to an end. (22) Most notably, such powers encompass rulings as to "no case to answer," (23) which concern acquittals directed by a judge instead of the jury. (24) Considering that these powers may, in effect, lead to an acquittal being overturned, it introduces a significant inroad into the double jeopardy principle. The most important constraints in this regard (25) concern the need for leave to appeal and the agreement of the prosecution that the defendant will be acquitted should leave to appeal be denied or should the appeal be abandoned. (26) Furthermore, in respect of certain serious offences, (27) the prosecution was empowered to apply for the quashing of an acquittal and a re-trial upon the discovery of "new and compelling evidence." (28)

      According to the U.S. Supreme Court, the Fifth Amendment to the U.S. Constitution bars U.S. prosecutors from appealing acquittals pronounced by juries. (29) This interpretation proceeds from the proposition that a second trial upon a prosecutorial appeal places the defendant twice in jeopardy, because an acquittal terminates the initial jeopardy. (30) Directed acquittals entered by judges have been equated to jury acquittals concerning double jeopardy protection, even when such acquittals go against relevant procedures. (31) In addition, a remand to a lower court is precluded where an appellate court overturns a conviction based on the insufficiency of evidence, (32) because it does not matter whether the reviewing court or the trial court deemed the evidence insufficient. (33) Nonetheless, several exceptions have been carved out. Firstly, where a defendant moves for dismissal on grounds unrelated to the determination of factual guilt, but on the basis of, for example, procedural defects, no claim arises under the double jeopardy doctrine. (34) In this regard, the U.S. Supreme Court has held that double jeopardy protection only attaches to "acquittals," which concern rulings that resolve some or all of the factual elements of the offences charged in favour of the defendant. (35) Secondly, the U.S. Supreme Court has found that "a defendant has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial." (36) Thirdly, a clear exception to the double jeopardy rule is reflected in statutory rights afforded to the prosecution to seek a higher sentence on appeal. (37) According to the U.S. Supreme Court, the essential protection of double jeopardy is to prevent a retrial on guilt, and a sentence appeal does not amount to a retrial. (38) Finally, fraudulently obtained acquittals could possibly constitute another exception. In a case involving an acquittal pronounced by a bribed judge, an appellate court held that the person concerned was never in jeopardy and the U.S. Supreme Court refused discretionary review. (39)

      The rights of appeal of South African prosecutors may be exercised in two ways. First, questions of law may be "reserved" upon request of the prosecutor for determination by the appellate court. (40) This procedure is available

      (1) where there has been an acquittal... , which is a finding whereby the accused is set completely free... ; (2) where a court quashes an indictment... ; (3) where there has been a conviction and the question of law may be to the advantage of the accused... ; [and] (4) where the question of law may have a bearing upon the validity of the sentence imposed... (41) Second, a prosecutor may appeal "against a sentence imposed upon an accused in a criminal case." (42) A challenge to this provision on constitutional grounds has been rejected, on the basis that a sentence appeal does not amount to a trial de novo, the procedure is not unfair, and the accused's right to a fair trial must be interpreted in the context of the rights and interests of the law-abiding persons in society. (43) It follows that a prosecutorial appeal from acquittal on questions of fact is disallowed, in conformity with the double jeopardy principle. (44) However, the South African Law Commission has recommended that such a ban ought to be dispensed with. (45) In the view of the Commission this right "should be limited to those cases where a miscarriage of justice occurred on the evidence before the court." (46) This proposal was mainly grounded in the public interest of preventing judicial error, the absence of a prohibition on state appeals in international and regional agreements on human rights, the possibility of such appeals in some common law and civil law systems, and the consideration that such appeals do not contravene the double jeopardy clause since appellate proceedings are an extension of the original proceedings. (47) Nevertheless, hitherto, no such reforms have been implemented. (48)

      2, In Civil Law Systems, the Appellate Rights of the Prosecution Are Generally on Par with Those of the Accused.

      The current code of criminal procedure in France expressly recognises the right to appeal of both the accused and the prosecution. (49) However, amendments adopted in 2000 allowed prosecutorial appeals from convictions only and, thus...