10.4 CACD Procedure: Rectification, Leave, Renewal, Loss of Time & Fresh Evidence
Key Takeaways
- The Crown Court may vary or rescind a sentence within 56 days of it being passed under section 385 of the Sentencing Code, and there is no power to extend that period.
- Notice of appeal or of application for leave to appeal, with grounds, must be served within 28 days of conviction or sentence, and the Court of Appeal may extend that time.
- Where a single judge refuses leave on the papers, the applicant may renew the application to the full court by notice served within 14 days.
- Under section 29 of the Criminal Appeal Act 1968 the court may direct that time spent in custody pending appeal shall not count towards sentence, a sanction reserved for applications that are wholly without merit.
- Fresh evidence is received under section 23 of the Criminal Appeal Act 1968 only where it is capable of belief, may afford a ground of appeal, would have been admissible at trial, and there is a reasonable explanation for the failure to adduce it.
10.4 CACD Procedure: Rectification, Leave, Renewal, Loss of Time & Fresh Evidence
An appeal to the Court of Appeal (Criminal Division) is not a rehearing. It is a review of the safety of a conviction or the correctness of a sentence, reached through a procedure with unforgiving deadlines.
1. Before appealing: the Crown Court's own power
Section 385 of the Sentencing Code allows the Crown Court to vary or rescind a sentence or other order made when dealing with an offender, provided it does so within 56 days beginning with the day on which the sentence or order was made.
- The power may be exercised by the judge who passed the sentence or, if that judge is unavailable, by another judge of the same court;
- There is no power to extend the 56 days, and it is not open to the court to list the case within the period and then adjourn beyond it in order to re-sentence;
- The power is the natural remedy for an unlawful sentence, an arithmetical error, or a sentence passed without a necessary ancillary order — and it is far quicker and cheaper than an appeal.
The first question in any SBA about a defective Crown Court sentence is therefore: are we still within 56 days?
2. Notice, grounds and leave
| Step | Requirement |
|---|---|
| Form | Form NG, with grounds of appeal, served on the Crown Court officer |
| Time | 28 days from conviction (for an appeal against conviction) or from sentence (for an appeal against sentence). Where leave is required for a conviction appeal following a trial, time runs from conviction even if sentence is later |
| Extension | The Court of Appeal may extend the time limit, before or after it has expired, but requires a good explanation for the delay and will consider the merits |
| Leave | Required, unless the trial judge grants a certificate that the case is fit for appeal (a certificate is rarely given) |
Counsel's duty on grounds. Grounds must be settled with sufficient particularity to enable the court to identify clearly the matters relied on. Counsel should not settle or sign grounds unless they consider them properly arguable, and where advising that there are no grounds, should say so in writing. Grounds may be perfected — supplemented by reference to the transcript once it is available — within the time the Registrar directs. Adding new grounds later requires leave.
Appeal following a guilty plea. An appeal against conviction after a guilty plea is possible but difficult: it succeeds only where the plea was equivocal, was entered under improper pressure, followed an erroneous ruling of law that left no defence, or where the facts could not in law amount to the offence.
3. The single judge, renewal and loss of time
The single judge. An application for leave is normally considered on the papers by a single judge of the Court of Appeal, without a hearing. The single judge may grant leave (in whole or in part), refuse it, or refer the application to the full court. A single judge who refuses leave may also make ancillary directions (bail, a representation order, the production of transcripts).
Renewal. Where leave is refused, the applicant may renew the application to the full court — normally three judges. The renewal notice must be served within 14 days of service of notice of the single judge's decision (CrimPR r.36.5). The full court considers the application afresh.
Loss of time. Renewal is not risk-free. Section 29 of the Criminal Appeal Act 1968 empowers the court to direct that some or all of the time spent in custody pending the appeal shall not count towards sentence. The Practice Direction confines the sanction to applications that are wholly without merit, and it will not ordinarily be made where the application was settled and signed by counsel on the basis that the grounds are properly arguable, or where the single judge has expressly indicated that a loss of time order would not be appropriate. A defendant renewing against advice must be warned.
4. Fresh evidence — s.23 Criminal Appeal Act 1968
The Court of Appeal may, if it thinks it necessary or expedient in the interests of justice, receive evidence that was not adduced at trial. In deciding whether to do so it must have regard in particular to:
- Whether the evidence appears capable of belief;
- Whether it may afford any ground for allowing the appeal;
- Whether it would have been admissible at the trial on an issue which is the subject of the appeal; and
- Whether there is a reasonable explanation for the failure to adduce it at the trial.
The last is the usual battleground. A tactical decision not to call a witness at trial is not a reasonable explanation, and the court is reluctant to allow a defendant to run a different case on appeal. The overall question remains whether, in the light of the fresh evidence, the conviction is unsafe.
5. Determination and powers
The test — s.2(1) CAA 1968. The court shall allow an appeal against conviction if it thinks that the conviction is unsafe, and shall dismiss it in any other case. There is a single test. A material irregularity or misdirection does not automatically make a conviction unsafe: the court asks what effect it had. Conversely, a conviction may be unsafe even where no specific error is identified, if the court has a lurking doubt.
Powers on allowing an appeal against conviction:
| Power | Provision |
|---|---|
| Quash the conviction and direct a verdict of acquittal | s.2(2)–(3) |
| Substitute a verdict of guilty of an alternative offence of which the jury could have convicted, and pass a sentence not more severe than the original | s.3 |
| Order a retrial, where "the interests of justice so require" | s.7 |
Where a retrial is ordered, the defendant must be arraigned on a fresh indictment within 2 months (s.8); after that period, leave of the Court of Appeal is required and will only be given where the prosecution has acted with all due expedition and there is a good and sufficient cause for a retrial in the interests of justice.
Appeals against sentence. The court asks whether the sentence is wrong in law, wrong in principle or manifestly excessive — not whether it would itself have passed a different sentence. Established grounds include a failure to follow a guideline without reasons, a procedural error, a legitimate sense of grievance (for example where an indication was given and departed from), and disparity with a co-defendant so marked that right-thinking members of the public would think something had gone wrong. On an appeal against sentence the court may not pass a sentence more severe than that passed below (s.11(3)).
Exam traps in this section
- 56 days for the Crown Court's own variation power under s.385 — and it is not extendable.
- 28 days to serve Form NG and grounds; 14 days to renew after refusal by the single judge.
- Loss of time is reserved for applications wholly without merit and is unlikely where counsel settled the grounds.
- The s.23 factors are mandatory considerations, not conditions; the ultimate question is safety.
- On a retrial, arraignment must follow within 2 months or leave is needed.
- The Court of Appeal cannot increase a sentence on the defendant's own appeal.
A Crown Court judge imposes a sentence that both counsel later realise is unlawful because it exceeds the statutory maximum. Forty days have passed. What is the quickest correct remedy?
A single judge refuses leave to appeal against conviction on the papers, observing that the grounds are hopeless. Counsel has advised that there is nothing properly arguable, but the defendant insists on renewing. What must counsel advise about the risk?
On an appeal against conviction the defence seeks to call a witness who was available at trial but whom trial counsel deliberately chose not to call for tactical reasons. What is the position under section 23 of the Criminal Appeal Act 1968?