The appeals system exists to correct wrongful convictions and ensure sentences are fair. It is a crucial safeguard against miscarriages of justice. Without it, errors made at first instance would be final, no matter how serious.
Criminal appeals are not automatic. In most cases, you need leave (permission) to appeal. The route you take depends on which court made the original decision. Appeals from the magistrates' court go to the Crown Court or the High Court. Appeals from the Crown Court go to the Court of Appeal (Criminal Division). Each route has different rules, time limits, and grounds.
Before you advise a client on appeal, always ask two questions: which court made the decision, and what are they appealing (conviction, sentence, or both)? The answers determine which route is available and what test applies.
Under s.108 Magistrates' Courts Act 1980, a person convicted by a magistrates' court has an automatic right to appeal to the Crown Court against conviction, sentence, or both. You do not need leave (permission) to appeal. This is a broad right - you can appeal even if you pleaded guilty, but a guilty plea limits what you can challenge.
A person convicted by a magistrates' court may appeal to the Crown Court against his conviction or against the sentence, or against both.
The notice of appeal must be given within 21 days of the decision being made. Time starts running from the date of conviction or sentence, whichever is being appealed. The court can extend this time in certain circumstances, but you should not rely on this. If your client wants to appeal, act quickly.
The 21-day time limit is strictly applied. If your client approaches you after 21 days, you will need to apply for an extension. The court will only grant this if there is good reason for the delay and the appeal has merit. Being busy or forgetting is not a good reason.
The Crown Court hears the appeal afresh (a re-hearing). This means it considers the evidence again from scratch. Witnesses can be called and new evidence can be introduced. The Crown Court is not limited to reviewing the magistrates' decision - it makes its own decision on the evidence before it.
Be very careful before advising your client to appeal against sentence. The Crown Court has the power to increase the sentence. If your client is already serving a sentence, they could end up worse off. Always warn the client about this risk before they decide to appeal.
If your client pleaded guilty, they can only appeal against conviction on limited grounds. They would need to show that the plea was not made voluntarily or was a mistake. This is a high bar - the court will not easily allow someone to withdraw a guilty plea.
A case stated is a different route for challenging magistrates' court decisions. Unlike a s.108 appeal, it only deals with points of law - not questions of fact. It goes to the Queen's Bench Divisional Court (two High Court judges) rather than the Crown Court. Either the defendant or the prosecution can use this route.
Any person who was a party to any proceeding before a magistrates' court may question the validity of any determination, order, conviction, or sentence on the ground that it is wrong in law.
The process works like this: you apply to the magistrates' court to state a case. The magistrates set out the facts found and the question of law to be determined. The case is then sent to the Divisional Court. The Divisional Court reviews the legal question based on the facts as found by the magistrates. It does not hear evidence or re-evaluate facts.
The Divisional Court has broad powers when dealing with a case stated. It can: quash the conviction or order, remit the case back to the magistrates with its opinion on the correct legal position, or substitute its own decision. The Divisional Court can also make any order that the magistrates could have made. Importantly, it can only deal with the point of law identified - it cannot revisit findings of fact.
The case stated procedure is not a rehearing. The Divisional Court cannot hear witnesses or consider new evidence. It is bound by the facts as set out by the magistrates. If the problem is that the magistrates got the facts wrong, a s.108 appeal to the Crown Court is the correct route, not a case stated.
Choose case stated when the issue is purely legal (e.g., the magistrates applied the wrong legal test). Choose s.108 when the issue is factual (e.g., the magistrates should not have believed a witness). Sometimes both routes are available, and you need to advise your client on which is more appropriate.
Judicial review is not an appeal in the traditional sense. It is the High Court's power to review the lawfulness of decisions made by public bodies, including courts. In criminal cases, it is used when there is no other adequate appeal route. It focuses on whether the decision-making process was lawful, not whether the decision itself was correct.
There are three main grounds for judicial review: illegality (the decision-maker exceeded their powers or applied the law incorrectly), irrationality (the decision was so unreasonable that no reasonable person could have made it), and procedural unfairness (the decision-making process was unfair or biased). These grounds are distinct from the grounds for a normal appeal.
Judicial review should be a last resort. The court will expect you to have used any available statutory appeal route before seeking judicial review. If there is a proper alternative remedy, the court may refuse judicial review on the grounds that it is premature.
Judicial review claims must be filed promptly and in any event within three months of the decision being challenged (under CPR 54.5). The court can extend time in exceptional circumstances, but delay will count against your client. Act quickly if you think judicial review may be needed.
The Court of Appeal (Criminal Division) hears appeals against convictions and sentences from the Crown Court. It is the highest court for most criminal appeals (the Supreme Court only hears points of law of general public importance). The court usually sits with a Lord or Lady Justice of Appeal and two High Court judges.
A person convicted on indictment may appeal to the Court of Appeal with the leave of the Court of Appeal or the judge who passed the sentence.
The Court of Appeal can only allow an appeal against conviction if it considers the conviction is "unsafe" (s.2 CAA 1968). This is a broad test. It covers miscarriages of justice, but also cases where the trial process was flawed. The court asks: is it safe for this conviction to stand? If there is any real doubt, the appeal will be allowed.
Notice of appeal or application for leave to appeal must be given within 28 days of conviction or sentence. This is stricter than the magistrates' court time limit. The Court of Appeal can extend time, but only in exceptional circumstances. The clock starts from the date the sentence was passed.
Unlike appeals from the magistrates' court, you need leave (permission) to appeal to the Court of Appeal. This is a gatekeeping mechanism. A single judge first considers the application. If refused, the applicant can renew the application before the full court. This prevents unmeritorious appeals wasting court time.
The first stage is an application to a single judge (a High Court judge or Lord Justice of Appeal). The judge considers the papers without a hearing. If the judge grants leave, the appeal proceeds to a full hearing. If the judge refuses leave, the applicant can renew the application orally before the full Court of Appeal.
The Court of Appeal has wide-ranging powers under s.2 and s.4 CAA 1968. It can quash a conviction, substitute a conviction for a lesser offence, order a retrial, or vary a sentence. The court exercises its discretion based on what is just in all the circumstances of the case.
| Power | Description | Key Provision |
|---|---|---|
| Quash conviction | Overturn the conviction entirely | s.2 CAA 1968 |
| Substitute conviction | Replace with conviction for a lesser offence | s.3 CAA 1968 |
| Order retrial | Send the case back for a new trial | s.7 CAA 1968 |
| Vary sentence | Increase, decrease, or change the sentence | s.4 CAA 1968 |
| Affirm | Uphold the original decision | General discretion |
If the Court of Appeal finds the conviction unsafe, it will quash it. This means the conviction is treated as if it never happened. The court will not quash a conviction simply because it disagrees with the jury's verdict. There must be a legal basis for concluding the conviction is unsafe.
Under s.3 CAA 1968, the Court of Appeal can substitute a conviction for a different offence if it appears to the court that the jury must have been satisfied of facts proving the lesser offence. For example, if someone was convicted of murder but the defence of provocation should have succeeded, the court might substitute a conviction for manslaughter.
Under s.7 CAA 1968, the Court of Appeal can order a retrial if it considers that the interests of justice require it. This might happen where the original trial was seriously flawed but there is still evidence to support a prosecution. The court must consider whether a fair retrial is possible and whether it is in the public interest.
Under s.4 CAA 1968, the Court of Appeal can vary a sentence if it appears to the court to be too lenient or too severe. Unlike a s.108 magistrates' court appeal, the Court of Appeal is more cautious about increasing sentences. But it has the power to do so, and the prosecution can apply for leave to refer an unduly lenient sentence (see below).
Fresh evidence can be admitted on appeal, but only with leave of the court. The test is whether the evidence is "capable of belief" and "might have affected the decision of the jury" if it had been available at trial. The court will also consider why the evidence was not available at the original trial.
The Attorney General has the power to refer sentences to the Court of Appeal that are considered unduly lenient. This is not an appeal by the defence - it is a prosecution-initiated process. It applies to sentences imposed in the Crown Court for indictable or either-way offences. The Attorney General must act within 28 days of the sentence.
Where it appears to the Attorney General that the sentence passed by the Crown Court was unduly lenient, the Attorney General may refer the case to the Court of Appeal for review.
"Unduly lenient" does not just mean lenient. The sentence must fall outside the range of sentences that a reasonable judge could have imposed. It must be seriously below what any competent judge would consider appropriate. This is a high threshold. The Court of Appeal respects the sentencing judge's discretion and will not interfere just because it would have passed a different sentence.
The Attorney General must refer the case to the Court of Appeal within 28 days of the sentence being imposed. This is a strict deadline. After 28 days, the opportunity to refer is lost. The prosecution should act quickly if it considers a sentence to be unduly lenient.
If the Court of Appeal agrees the sentence was unduly lenient, it can quash the sentence and substitute a more severe one. The defendant must be given the opportunity to make representations before the court varies the sentence. If the court does not consider the sentence unduly lenient, it will affirm it.
The Criminal Cases Review Commission (CCRC) is an independent body set up to review suspected miscarriages of justice. It was established under the Criminal Appeal Act 1995. The CCRC can investigate cases where someone claims they have been wrongly convicted or sentenced. It is the only body that can refer a conviction or sentence back to the Court of Appeal after normal appeal routes have been exhausted.
The CCRC can only refer a case to the Court of Appeal if there is a "real possibility" that the conviction would not be upheld, or the sentence would be varied, if the referral were made. This is the key threshold. The CCRC does not decide guilt or innocence - it decides whether there is a realistic prospect that the Court of Appeal would change the outcome.
Unlike normal appeals, there is no strict time limit for applying to the CCRC. This means it can consider very old cases. However, the CCRC expects applicants to explain any delay. Historic cases are often harder to investigate because evidence may have been lost and witnesses may have died.
The CCRC has significant investigative powers. It can obtain documents from courts, the police, and the prosecution. It can commission expert evidence. It can interview witnesses. However, it cannot compel witnesses to give evidence or force disclosure of documents that would normally be protected. Its role is to assemble material that may support a referral to the Court of Appeal.
| Appeal Route | Time Limit | Can Be Extended? |
|---|---|---|
| s.108 appeal to Crown Court | 21 days | Yes, with good reason |
| Case stated | 21 days | Yes, with good reason |
| Appeal to Court of Appeal | 28 days | Yes, in exceptional cases |
| AG's reference (unduly lenient) | 28 days | No - strict deadline |
| Judicial review | Promptly, max 3 months | Yes, in exceptional cases |
| CCRC application | No time limit | N/A - but explain any delay |
Missing a time limit can be fatal to your client's appeal. Always calculate the deadline on the day you receive instructions and diary it. If your client approaches you late, advise them immediately about the risk. It is far better to apply for an extension with a strong explanation than to miss the deadline entirely.