Appeals — SQE1 FLK2 Criminal Law and Practice

A woman is convicted of assault by beating in the magistrates' court and made the subject of a twelve-month community order. She tells her solicitor the order is more than the incident deserved and instructs him to appeal against sentence to the Crown Court. She adds that she has nothing to lose, because the worst the Crown Court can do is leave the order where it is.

She is wrong. The Crown Court can give her a heavier sentence than the magistrates did. And higher up the system, renewing a hopeless application can cost you days off your sentence. Appeals carry downside risk, and saying so is part of the advice. This is Appeals, the sixteenth topic in Criminal Law and Practice. Keep her in mind.

Here is the route. Appeals from the magistrates to the Crown Court first. Then the two ways of taking a magistrates' decision to the High Court: case stated, and judicial review. Then appeals from the Crown Court to the Court of Appeal, leave, the unsafe test and the powers. And last, unduly lenient sentences, the Commission, and two shortcuts.

Before you advise anybody, two questions. Which court made the decision? And what is being appealed: conviction, sentence, or both? Those two answers pick the route, and the routes differ in almost every respect. Whether you need permission. What the court can look at. How long you have. And what it costs your client to try.

Start at the bottom. Under s.108 of the Magistrates' Courts Act 1980, a person convicted by a magistrates' court may appeal to the Crown Court against conviction, sentence or both. No leave is needed. The right is automatic. The notice must be served within fifteen business days, and the Crown Court then hears the case afresh.

Afresh means what it says. It is a complete rehearing, not a review. Witnesses are called again, evidence can be heard that was not called below, and the Crown Court reaches its own decision. Which is exactly what a client needs when the complaint is that the bench believed the wrong person.

And it is why our woman is wrong. Section 48 of the Senior Courts Act 1981 lets the Crown Court award any punishment, more or less severe than the one below. So long as it is one the magistrates could themselves have awarded. She can walk out of the Crown Court worse off than she walked in. Warn the client before they decide, not afterwards.

The Crown Court's other powers are what you would expect. Affirm the conviction. Quash it. Vary the sentence up or down or change its type. Order a rehearing before the magistrates. Or substitute a conviction for a lesser offence.

One limit catches people out. Section 108 confines a defendant who pleaded guilty to an appeal against sentence. But that assumes a plea which was a real acknowledgement of guilt. A plea qualified by words denying an element of the offence is equivocal, and the bench should have inquired before accepting it. Where the Crown Court is satisfied the plea was equivocal, it remits the case with a direction that a not guilty plea be entered.

Now the two routes upwards to the High Court, and the first is case stated. Under s.111 of the 1980 Act, any party to the proceedings may question a determination on the ground that it is wrong in law. Or in excess of jurisdiction. Note who that includes. The prosecution can use it too, which is how an acquittal founded on a legal error gets corrected.

The mechanics are unusual. You apply to the magistrates to state a case. They set out the facts they found and the question of law. The Divisional Court then answers that question on those facts. It hears no evidence and no witnesses, and it cannot revisit a finding of fact. Hold on to a man convicted on a statutory defence. He comes back at the quick check.

Watch the deadline. You have 21 days to apply for the case to be stated, and that period cannot be extended. Compare the fifteen business days for a Crown Court appeal, which can be extended with good reason. Same topic, opposite rules, and only one of them forgives you.

The Divisional Court's powers are wide. Under s.28A of the Senior Courts Act 1981 it may reverse, affirm or amend the determination. It may remit the matter to the magistrates with its opinion, and make any other order it thinks fit. So where the bench applied the wrong test but guilt still turns on a finding nobody has made, the usual disposal is to remit with the correct legal direction.

Route two upwards is judicial review, and it is not an appeal at all. It is the High Court's supervisory jurisdiction. It asks whether the decision was reached lawfully, not whether it was right. And it is a remedy of last resort: where a statutory appeal route exists, the court expects you to use it.

Know which courts it can reach. The magistrates' court, yes. The Crown Court, yes, but only in matters that do not relate to trial on indictment, under s.29 of the Senior Courts Act 1981. So its appellate and licensing work is reviewable and its trial work is not. The Court of Appeal, never, because it stands above the High Court.

Which answers a question that comes up a lot. The Court of Appeal has refused leave, and something new has surfaced since. There is no judicial review of that refusal. The route is an application to the Criminal Cases Review Commission.

Test the grounds. A woman is convicted of assault by a bench. Her solicitor has three complaints. The bench believed the complainant rather than his client about who struck first. The fine was far too high for a first offence. And one of the magistrates lives next door to the complainant, said nothing about it, and then sat on the case and helped fix the fine. Which complaint can be judicially reviewed?

Only the third. The first two attack the merits, and judicial review does not do merits. The neighbour magistrate is different: sitting without disclosing that connection raises apparent bias, which goes to the fairness of the hearing itself. That is procedural impropriety, and it is a recognised ground.

The grounds come from Lord Diplock's classification in Council of Civil Service Unions v Minister for the Civil Service. There are three. Illegality, where the decision-maker exceeded their powers or misapplied the law. Irrationality, where no reasonable authority could have reached that decision. And procedural impropriety, which covers unfairness and bias.

One thing to be clear about. Proportionality is not a free-standing ground of review. It is the standard applied where a Convention right is engaged. And the timing rule has two limbs: a claim must be brought promptly, and in any event within three months. A claim filed inside the three months can still be refused permission for want of promptness.

Now up to the Court of Appeal. Under s.1 of the Criminal Appeal Act 1968 a person convicted on indictment may appeal against conviction. But only with the leave of the Court of Appeal, or on a certificate from the trial judge that the case is fit for appeal. Leave is the gate, and most applications stop there.

The clock is 28 days under s.18. On an appeal against conviction it runs from the conviction; on an appeal against sentence, from the day sentence was passed. Where sentence is adjourned, those two periods end on different days. The court may extend under s.18, before or after the period expires, but not as a matter of course: you must give cogent reasons, and the merits will be weighed.

Leave works in two stages. A single judge considers the application on the papers, without a hearing. If leave is granted the appeal proceeds to a full hearing. If it is refused, the applicant may renew the application before the full court.

And here is the second half of our warning. Try one. A single judge has refused leave, found no arguable ground, and warned the applicant against renewing. He renews anyway. What does he risk?

Time. Under s.29 of the 1968 Act, where an application for leave is without merit, the court may make a loss of time direction. Some or all of the days spent in custody as an appellant then do not count towards the sentence. He serves longer for having tried. That is why a single judge's warning is a warning and not a formality.

The test on conviction is one word. Under s.2, the Court of Appeal allows the appeal only if it thinks the conviction is unsafe. It is a broad test, covering fresh evidence, a wrong ruling on admissibility, a misdirection to the jury, procedural irregularity, and incompetent representation. But it is not a re-run of the verdict.

The powers follow. Quash the conviction under s.2. Substitute a conviction for another offence under s.3, where the jury could have convicted of it on the indictment and must have been satisfied of the facts proving it. Or order a retrial under s.7, where the interests of justice require it, which turns on whether a fair trial is still possible.

Sentence appeals go under s.9, and the test is narrower than clients expect. The Court interferes only where the sentence was wrong in principle or manifestly excessive. A few months more than another judge might have passed, still inside the guideline range, does not qualify. And s.11 provides that the appellant must not be more severely dealt with on appeal, so on his own appeal the sentence cannot go up.

Fresh evidence has its own gate. Under s.23 the court may receive evidence where it is necessary or expedient in the interests of justice, having regard in particular to four things. Whether it is capable of belief. Whether it may afford a ground for allowing the appeal. Whether it would have been admissible at the trial. And whether there is a reasonable explanation for the failure to adduce it.

No one of those is decisive. A weak explanation weighs heavily against receiving the evidence, but it does not by itself shut the door. And above the Court of Appeal, under s.33, an appeal lies to the Supreme Court only on two conditions together. The Court of Appeal certifies a point of law of general public importance, and leave is granted by one court or the other.

Two more routes, and the first runs the other way. Under s.36 of the Criminal Justice Act 1988 the Attorney General may refer a Crown Court sentence to the Court of Appeal as unduly lenient. It covers indictable-only offences and certain either-way offences specified by order, and it is the only way a sentence goes up when the defendant has not appealed.

Unduly lenient means a great deal more than lenient. The sentence must fall outside the range which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. A judge who categorised the offence, gave plea credit and weighed serious ill health has used the discretion the guideline leaves him.

And the deadline is absolute. The reference must be made within 28 days of the day sentence was passed. Contrast the 28 days allowed to an appellant, which the court may extend. This one it cannot, however strong the case and whoever was at fault.

Then the safety net. The Criminal Cases Review Commission was established under the Criminal Appeal Act 1995. It is independent, and it is the only body that can send a conviction or sentence back to the Court of Appeal once the ordinary routes are exhausted. There is no time limit for applying, which is why it can look at very old cases.

Its threshold is the real possibility test. The Commission refers only where there is a real possibility that the conviction would not be upheld, or the sentence not upheld, if the reference were made. Note what that is not. The Commission does not decide guilt or innocence. It decides whether the Court of Appeal would realistically change the outcome.

And two shortcuts to finish with, because they save everybody a journey. Under s.385 of the Sentencing Act 2020, the slip rule, the Crown Court may vary or rescind a sentence within 56 days of passing it. Miscategorising the offence or overlooking plea credit is exactly what it exists to cure. After 56 days, it is the Court of Appeal or nothing.

In the magistrates' court, s.142 of the 1980 Act does a similar job. The bench may set a conviction aside and order a rehearing before different justices, where the interests of justice require it. A conviction entered in the defendant's absence because the notice went to an old address is the textbook case.

A word on how SQE1 tests this. You will not be asked to recall a case name. You get a scenario, five answers, and one instruction. Pick the best. What the scenarios actually turn on is routes, tests and deadlines, so those are what to learn.

If you keep only three, keep these. Section 108 of the Magistrates' Courts Act 1980, an automatic right of appeal and a complete rehearing. Section 2 of the Criminal Appeal Act 1968, where the single question is whether the conviction is unsafe. And Council of Civil Service Unions v Minister for the Civil Service, which gives judicial review its three grounds and no more.

Four traps. One: leave. There is none needed going from the magistrates to the Crown Court, and it is always needed going from the Crown Court to the Court of Appeal. Candidates import the permission stage into the wrong route constantly.

Two: which way the sentence can move. Up on a Crown Court appeal, because that is a rehearing. Not up on the defendant's own appeal to the Court of Appeal. Up on an Attorney General's reference. Three routes, three answers.

Three: deadlines, and whether they bend. Fifteen business days, and the 28 days allowed to an appellant, can be extended on good reasons. The 21 days for case stated cannot. The 28 days for an Attorney General's reference cannot. And the Commission has no deadline at all.

Four: judicial review is about process, not merits, and it has three grounds. Illegality, irrationality, procedural impropriety. Proportionality is not a fourth ground; it is a standard for Convention rights. And an argument that the bench believed the wrong witness is not a ground at all.

Quick check, and here is that man. He is convicted in the magistrates' court of a summary offence. He relied on a statutory defence and the bench accepted every fact he gave in evidence. The magistrates then said a defendant advancing that defence must establish it beyond reasonable doubt, and that he had not. His solicitor wants to challenge only the standard they applied. The man will not give evidence a second time.

Three answers. One: appeal to the Crown Court under s.108, which is a full rehearing. Two: judicial review of the conviction in the High Court. Three: ask the magistrates to state a case for the Divisional Court under s.111. Pause here if you want a moment.

The answer is three. Section 111 lets a party question a conviction on the ground that it is wrong in law. The magistrates state the facts they found and the question of law, and the Divisional Court answers it on those facts, hearing no evidence. The facts are agreed. The only complaint is that the bench made him prove a defence to the criminal standard, when a legal burden is discharged on the balance of probabilities.

Why the other two fail. Option one would work, but it makes him give his evidence all over again to fix a pure point of law. Option two ignores that judicial review is a last resort, and a statutory route is available here. Remember the 21 days, and that they cannot be extended.

Five things to take away. One: pick the route from which court decided and what is appealed. Two: s.108 to the Crown Court is automatic and is a complete rehearing, which is why the sentence can go up. Three: case stated is law only, on the magistrates' findings, in 21 days that cannot be extended.

Four: to the Court of Appeal you need leave, the clock is 28 days, and the test on conviction is unsafe. On sentence it is wrong in principle or manifestly excessive, and it cannot go up on your client's own appeal. Five: judicial review is process not merits, three grounds, and a last resort.

And our woman with the community order? Two things to lose. The Crown Court could raise her sentence, and pushing a hopeless application further could cost her time off it. Next time, Youth Court and Welsh Language.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.