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Appeals to the Court of Appeal

Principle

This guidance deals with defendants appeals against conviction and/or sentence in the Crown Court. For interlocutory appeals against rulings of a Crown Court judge see guidance on Prosecution Right of Appeal elsewhere.

The law relating to appeals from the Crown Court against conviction or sentence is largely contained in the Criminal Appeal Act 1968, the Criminal Appeal Act 1995, Criminal Procedure Rules Parts 65 and 68 and the Consolidated Criminal Practice Direction.

The Crown Court has the power to alter a sentence or other order made by the Crown Court within 56 days of the date on which it was made, (Section 155 Powers of Criminal Courts (Sentencing) Act 2000, as amended by section 47 and schedule 8 paragraph 28 Criminal Justice and Immigration Act 2008). This allows time for the correction of errors that would otherwise require an appeal to the Court of Appeal.

Leave to Appeal

Leave to appeal to the Court of Appeal is required in all cases in relation to conviction or sentence (except in relation to contempt) save where a certificate has been issued by the trial judge that the case is fit for appeal, (Archbold 7-36; section 1(1) Criminal Appeal Act 1968, as amended by section 1(1) Criminal Appeal Act 1995).

There is a time limit of 28 days within which a judge may grant a certificate of fitness for appeal, (section 1(2)(b) Criminal Appeal Act 1968, as amended by section 47 and schedule 8 paragraphs 2-5 Criminal Justice and Immigration Act 2008).

Similar provisions exist in relation to findings of not guilty by reason of insanity, findings of disability and findings of unfitness to be tried.

Section 2 of the 1968 Act, as amended, provides that the Court of Appeal shall allow an appeal against conviction if they think the conviction is unsafe, and shall dismiss an appeal in any other case, (Archbold 7-43, 7-45 and 7-46).

When it quashes a conviction, the Court of Appeal may re-sentence the appellant for any other offence for which he was sentenced at the same time by the court below. This is so, whether the counts were on the same or different indictments, (Section 4 Criminal Appeal Act 1968, as amended by section 47 and schedule 8 paragraph 6 Criminal Justice and Immigration Act 2008).

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Commencement of appeals

An appellant must serve an appeal notice (Form NG Notice and Grounds of appeal) on the Crown Court office not more than 28 days after the conviction, sentence or order in accordance with Criminal Procedure Rules 68.2. There is no requirement for the appellant or his solicitor to serve notice on the respondent of an intention to appeal.

When the Form NG is lodged at the Crown Court, a notification slip is sent to the prosecuting authority by the Crown Court officer.

Prosecutor's Response to applications for leave to appeal

Procedures outlined in the Criminal Procedure (Amendment No.2) Rules 2007 (SI 2007 No. 2317) make formal provision for a Respondents Notice (Rule 68.6(1)) to be served at an early stage in proceedings.

This provision enables the early involvement of the prosecution when the Court of Appeal (Criminal Division) is considering granting or refusing leave to appeal to the Appellant. It requires prosecutors to provide a written response to the defence grounds of appeal.

The purpose of this provision is to assist the single judge in making the decision in determining the merit of the appellants application.

The prosecutors response will not be invited in every case; it will be limited to those cases where it is believed the single judge would benefit from a response, or where the prosecution themselves identified they would wish to respond.

The need for a prosecution response to the appellants grounds of appeal could be initiated by:

  • the CPS indicating they would wish to provide a prosecution response to inform the single judges decision on whether leave should be granted; or
  • where in the judgment of the Registrar or his staff, a response from the prosecutor would be of assistance to the single judge.

The Court of Appeal Office has proposed a list of issues where they might require a response from the prosecutor. This includes:

  • a complaint about matters which were the subject of Public Interest Immunity (PII);
  • where questions are raised about the competence of expert witnesses (especially where there is a review underway about a specific expert and there may be a relevant disclosure pack);
  • allegation that the complainant (especially in sex cases) is retracting the allegation and solicitors request funding to take a statement, where it is far more appropriate for the Crown to investigate;
  • where it appears that a Crown witness has said something (falling short of a retraction) casting doubt on his or her evidence at trial. Often (although probably not exclusively) witnesses who retract totally are those in sex cases, but those who resile somewhat from their evidence tend to happen in all sorts of cases;
  • where the applicant submits the grounds in person (unless there is waiver of privilege);
  • where grounds allege lack of disclosure or other impropriety on the Crowns behalf;
  • where jury irregularity is alleged;
  • where there is criticism of the judge (e.g. bias).

Additionally, procedural breaches, new legislation, sentence guidelines cases and complex or novel issues of law will also be considered.

To facilitate this, the Registrar will serve the appeal notice from the Applicant and an invitation to respond, on the prosecution. The prosecutors name and Branch details will be drawn from the Plea and Sentence Document that must be served in accordance with the Attorney Generals revised Guidelines on the Acceptance of Pleas and the Prosecutors role in Sentencing Exercise. For a copy of the guidelines see Sentencing - Overview elsewhere in the Legal Guidance. Prosecutors completing the Plea and Sentencing Document must ensure that their contact details are included.

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Actions of the Criminal Appeal Office (CAO)

The Consolidated Criminal Practice Direction Part II.1 provides for the CPS to be notified by the Criminal Appeal Office when leave to appeal against sentence is granted or referred to the full court. In practice, the CAO notify the CPS of all sentence applications and appeals.

As soon as an appellant has been granted leave to appeal against conviction the Criminal Appeal Office (CAO) will forward to the CCP of the relevant Area written notification of the granting of the leave to appeal. This will be accompanied by a copy of the appeal papers, for immediate onward transmission to the CPS office dealing with the case.

Similar notification will be sent to the advocate who appeared for the prosecution at trial. If the appeal is not to be dealt with by the trial advocate the prosecutor must inform the CAO immediately in writing.

Skeleton arguments and Respondents Notice

The appellant must lodge a skeleton argument with the Registrar within 14 days of the grant of leave.

Rule 68.6(2) Criminal Procedure Rules requires any party who wants to make representations to the Court to serve a respondents notice.

The respondent must lodge a skeleton within 14 days of receipt of the appellants skeleton argument, (Consolidated Practice Direction II.17.) In practice, it is accepted that the skeleton argument and respondents notice will be conjoined.

Hearing new evidence

The Court of Appeal may hear new evidence that was not adduced in the original proceedings (section 23(1)(c) Criminal Appeal Act 1968), if:

  • it appears capable of belief;
  • it may afford any ground for allowing the appeal;
  • it would have been admissible;
  • it is an issue which is the subject of the appeal;
  • there is a reasonable explanation for the failure to adduce it.

The court can call persons who were not called at trial but may be able to give relevant evidence to the Court of Appeal such as jurors or lawyers.

The court has power to compel the production of documents and the attendance of witnesses. These powers extend to hearings of applications for leave to appeal as well as the appeal itself, (section 23 Criminal Appeal Act 1968, as amended by section 47 and schedule 8 paragraph 10 Criminal Justice and Immigration Act 2008).

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Appeals against sentence - Jurisdiction

The jurisdiction of the Court of Appeal is statutory. In relation to an appeal against sentence, its powers are to be found in section 9(1) and 11 of the Criminal Appeal Act 1968. Section 9 provides:

"(1) A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings."

In the case of James Hughes v R [2009] EWCA Crim 841, the Court of Appeal held that the fact of a previous referral by the Attorney General pursuant to section 36 Criminal Justice Act 1988, on the grounds that the sentence passed in the Crown Court was unduly lenient, did not effectively extinguish the right of an appellant to the statutory right of appeal pursuant to section 9 Criminal Appeal Act 1968, where that right had not yet been exercised.

Notice arrangements - appeals against sentence

Notice arrangements in relation to appeals against sentence are contained in Practice Direction (Criminal Proceedings: Consolidation) paragraph II.1. The practice direction contains details on the provision of notice to the prosecution when:

  • leave to appeal against sentence is granted;
  • an application for leave to appeal is referred to the full court;
  • the full court is to hear a renewed application for leave to appeal against sentence; where counsel for the applicant is to address the court.

The provisions contain short time limits. The prosecution only has 7 days from the granting of leave to appeal by a single judge or referral by the Registrar to notify the Registrar that it wishes to be represented at the hearing or request sight of the grounds of appeal. If the latter, the prosecution then has a further 7 days in which to notify the court if it wishes to be represented.

If counsel is appearing at a renewed application for leave, the time limits, from notification by the Registrar are reduced to 72 and 48 hours, the latter if the case is listed.

The types of cases in which it may be appropriate for the prosecution to be represented at the sentence appeal include:

  • sexual offences;
  • homicide;
  • cases with a national profile;
  • where particular issues arose during the course of the trial or sentencing hearing (such as an unwarranted attack on the credibility of the victim or derogatory remarks made about the victim in the course of mitigation - in relation to this category reference was made to the Code of Practice for Victims of Crime being promoted by the Home Office);
  • violence / domestic violence;
  • racially or religiously aggravated crime;
  • ASBOs;
  • football banning orders;
  • cases where there has been a previous referral by the Attorney General pursuant to section 36 Criminal Justice Act 1988, on the grounds that the sentence passed in the Crown Court was unduly lenient.

The Court of Appeal will expect to see a copy of the Plea and Sentencing document required by the Attorney Generals revised Guidelines on the Acceptance of Pleas and the Prosecutors Role in Sentencing Exercise. For a copy of the guidelines see Sentencing - Overview elsewhere in the Legal Guidance.

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Area Responsibility

Areas handle their own cases in the Court of Appeal; instructing advocates, dealing with correspondence and arranging for CPS representation at the hearing. In exceptional cases, the Appeals Unit, Special Crime and Counter Terrorism Division may intervene, give advice or, following consultation, take over the conduct of the case.

When preparing the appeal for the hearing, early consideration should be given to whether the Court of Appeal will be requested to certify a point of law of general public importance for the House of Lords to decide (section 33 Criminal Appeal Act 1968). If so, the advocate must be instructed to inform the Court before judgement. This will enable the Court to decide whether other grounds of appeal should be resolved at the hearing.

In the brief to the advocate for the appeal hearing, the advocate should be expressly instructed in relation to section 37 Criminal Appeal Act 1968 in relation to the continued detention of the defendant in the event that the Court of Appeal allows the appellants appeal. If the Court grants a certificate that a point of law of public importance is involved, and if the advocate is informed that the Director is considering a petition to the House of Lords for leave to appeal, an application under section 37 of the Criminal Appeal Act 1968 should be made (Archbold 7-328). Failure to invite the court to make such an order will mean that if the House of Lords subsequently allow a prosecution appeal, any custodial sentence imposed by the Crown Court cannot be restored (Archbold 7-330).

Referrals to Appeals Unit, Special Crime Division, Serious Crime Group

Appeals Unit, Special Crime and Counter Terrorism Division (SCCTD) has responsibility for monitoring Court of Appeal cases. This is necessary because some cases will result in a change in the law, which will have a national impact on the CPS generally or on national policy. Some may result in a further appeal to the Supreme Court or attract national publicity.

All appeals to the Court of Appeal must be notified to the Appeals Unit, SCCTD (SCD.Appeals@cps.gsi.gov.uk). Areas should ensure that local mechanisms are in place to ensure notification takes place.

When providing information to SCCTD, Areas should bear in mind the possible consequences of the judgement of the Court and the need that the CPS has to have a co-ordinated approach where points of law of general importance are concerned.

For example:

  • the outcome of any appeal which may involve alteration to current national policy guidance;
  • any appeal which may involve the CPS having to disclose the contents of national guidance other than the Code for Crown Prosecutors or any other public document;
  • any appeal which may involve CPS staff being required to explain any CPS action or omission;
  • any appeal, the outcome of which is likely to result in a change of statutory interpretation or case law which has national implications; and

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Appeals Unit Responsibilities

The Appeals Unit is responsible for informing Private Office and/or the Press Office of cases of significance which are likely to affect the policy of the Service or attract media attention.

The Appeals Unit maintains a record of Court of Appeal cases referred to it by Areas and Casework Divisions and provides a central reference point for the Criminal Appeal Office. The responsibilities of the Appeals Unit in the monitoring of appeal cases are:

  • advising on the consolidation of cases;
  • co-ordination of related appeals;
  • ensuring a consistent application of settled policy;
  • giving appropriate advice and guidance; and
  • giving information, including the results of significant cases, to Areas.

Procedure

The responsibility for preparing the brief to the advocate rests with the Head of Unit or lawyer who dealt with the Crown Court case.

The CCP, DCCP or other lawyer delegated by him/her, has overall responsibility for ensuring that the Appeals Unit is informed of Court of Appeal cases, particularly any case which may have a serious national impact or media interest.

Areas should submit to the Appeals Unit a Court of Appeal Notification Form NFR/CA.1 on all appeals against conviction, together with the grounds of appeal.

Areas should update the Appeals Unit about any developments in the cases and about hearing dates.

Whether the Appeals Unit will have a presence at court will depend on the overall significance of the case, i.e. the result may require immediate dissemination of Advice to Areas.

In cases where the Appeals Unit has an interest, but does not attend court, Areas should forward details of the result as soon as possible after the hearing using the Notification of Result Form NFR CAR 1. This form should also be used to notify the Appeals Unit of the results of cases in which they were not involved.

Westlaw and/or the British and Irish Legal Information Institute (BAILII) to find case reports and transcripts. In cases of national importance the Appeals Unit will obtain a copy of the transcript.

Victims and Witnesses

A Victim Notification Form containing information concerning the granting of bail to the appellant, the date of the appeal hearing and the result will be sent by the Criminal Appeal Office (CAO) via the Appeals Unit to the appropriate Witness Care Unit in all cases where an individual has been directly affected by the crime.

This procedure will apply in all cases where the victim has expressed a wish to be kept advised of such developments, or where the case involves a death or a sexual offence.

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