10.3 Crown Court Appeals (Court of Appeal Criminal Division & Supreme Court)

10.3 Crown Court Appeals (Court of Appeal Criminal Division & Supreme Court)

Trials on indictment in the Crown Court are conducted before a Circuit Judge or High Court Judge and a 12-person jury. Challenges to Crown Court rulings, jury verdicts, and sentences do not lie to the High Court, but are governed by specific statutory mechanisms culminating in the Court of Appeal (Criminal Division) (CACD) and, on points of law of general public importance, the Supreme Court of the United Kingdom (UKSC). This section details the statutory framework governing defence appeals, prosecution interlocutory appeals, Attorney General references, Criminal Cases Review Commission (CCRC) referrals, and Supreme Court certification.

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1. Appeals to the Court of Appeal (Criminal Division)

Defence appeals against conviction or sentence imposed by the Crown Court are governed by the Criminal Appeal Act 1968 (CAA 1968) as amended, and Part 39 of the Criminal Procedure Rules (CrimPR).

Leave Requirements & The Single Judge Procedure

• Requirement of Leave: Under Section 1 CAA 1968, a person convicted on indictment may appeal against conviction only if they obtain leave to appeal from the Court of Appeal (or if the trial judge grants a certificate that the case is fit for appeal, which is exceptionally rare).
• Notice & Grounds (Form NG): Under CrimPR 39.2, an application for leave to appeal must be served within 28 days of the date of conviction (or 28 days from sentence for sentence appeals). Trial counsel has a professional obligation under the Code of Conduct to draft perfected grounds of appeal if arguable grounds exist.
• The Single Judge Procedure: The application is initially considered on paper by a Single Judge of the Court of Appeal under Section 31 CAA 1968. The Single Judge may grant leave, refuse leave, or refer the application directly to the Full Court.
• Renewal to Full Court: If the Single Judge refuses leave, the applicant has a statutory right under CrimPR 39.6 to renew the application for leave to the Full Court (comprising three Lord Justices of Appeal / High Court Judges) within 14 days of receiving notification of refusal.

Deterring Unmeritorious Renewals: Loss of Time Orders

Under Section 29 CAA 1968, where an applicant renews a frivolous or unmeritorious application for leave to appeal to the Full Court after refusal by a Single Judge, the Full Court possesses statutory power to order that time spent in custody while appealing (typically between 28 and 56 days) shall not count towards sentence.

PRACTICE NOTE: Single Judges routinely issue explicit Loss of Time warnings when refusing leave on paper to discourage unmeritorious renewals that consume judicial resources.

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2. Grounds of Appeal: The 'Unsafe' Conviction Test & Fresh Evidence

The Sole Test for Conviction Appeals (Section 2 CAA 1968)

Following amendments introduced by the Criminal Appeal Act 1995, Section 2(1) CAA 1968 sets out a single, uniform test:

$\text{Test for Conviction Appeal: The Court of Appeal } \mathbf{shall} \text{ allow an appeal if they think that the conviction is } \mathbf{unsafe}\text{, and dismiss in any other case.}$

• Scope of 'Unsafe': Unsafeness encompasses any error of law, wrongful admission or exclusion of evidence, misdirection in the judicial summing-up, severe procedural irregularity, or jury misconduct (e.g., independent internet research under R v Dallas).
• Provisos Abolished: The statutory proviso permitting the court to dismiss an appeal where no miscarriage of justice occurred despite an error was repealed by the 1995 Act; the court simply evaluates whether the error renders the conviction unsafe.

Fresh Evidence Admissibility (Section 23 CAA 1968)

Under Section 23 CAA 1968, the Court of Appeal has discretionary power to receive evidence that was not adduced at trial if it is expedient in the interests of justice. In exercising its discretion, the court must have regard to four statutory criteria:

1. Whether the evidence appears capable of belief (credibility);
2. Whether it appears that the evidence may afford any ground for allowing the appeal;
3. Whether the evidence would have been admissible at trial on an issue which is the subject of the appeal; and
4. Whether there is a reasonable explanation for the failure to adduce the evidence at trial.

Appeals Against Sentence (Section 9 CAA 1968)

Under Section 9 CAA 1968, a defendant may appeal against a Crown Court sentence with leave. The Court of Appeal will interfere only if the sentence was:

• Wrong in principle (e.g., imposing an unlawful disposition or misapplying Sentencing Council guidelines); or
• Manifestly excessive (outside the broad range of sentences open to the judge).
• No Sentence Increase on Defence Appeal: Under Section 11(3) CAA 1968, the CACD cannot increase a sentence on a defence appeal; the overall sentence imposed on appeal cannot be more severe than that passed at trial.

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3. Prosecution Appeals & Attorney General References

While the prosecution cannot appeal against a jury verdict of acquittal, specific statutory mechanisms enable legal clarification, correction of lenient sentences, and interlocutory challenges.

Attorney General's References on Points of Law (Section 36 CJA 1972)

Where a defendant is acquitted following a trial on indictment, Section 36 of the Criminal Justice Act 1972 (CJA 1972) empowers the Attorney General to refer a point of law arising in the case to the Court of Appeal for clarification.

PROTECTION OF ACQUITTAL: Under s.36(7) CJA 1972, the outcome of an Attorney General's Reference on a point of law has no effect on the acquittal. The acquitted defendant cannot be re-tried or convicted; the CACD ruling provides authoritative legal precedent for future trials only.

Attorney General's References for Unduly Lenient Sentences (Section 36 CJA 1988)

Under Section 36 of the Criminal Justice Act 1988 (CJA 1988), the Attorney General may refer a sentence imposed in the Crown Court for an offence triable only on indictment (or specified either-way offences) to the Court of Appeal if the sentence appears unduly lenient.

• Time Limit: The reference must be lodged within a strict 28-day statutory limit from the date of sentence (which cannot be extended).
• Standard: A sentence is unduly lenient if it falls below the minimum sentence that a judge could reasonably have passed after properly applying Sentencing Council guidelines.
• Power: The CACD may quash the original sentence and substitute a heavier sentence.

Prosecution Interlocutory Appeals (Criminal Justice Act 2003)

Under Sections 58 to 61 of the Criminal Justice Act 2003 (CJA 2003), the prosecution possesses a right of appeal against a terminating ruling made by a Crown Court judge prior to or during trial (e.g., a ruling of no case to answer or an evidentiary ruling under s.78 PACE that effectively terminates the prosecution case).

• Condition Precedent: The prosecution must give an immediate undertaking that if leave to appeal is refused or the appeal fails, the prosecution agrees that the defendant be acquitted of the relevant counts.

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4. The Criminal Cases Review Commission (CCRC)

The Criminal Cases Review Commission (CCRC) is an independent statutory body established under the Criminal Appeal Act 1995 (CAA 1995) to review alleged miscarriages of justice.

Statutory Powers & The 'Real Possibility' Test

• Reference Power: Under Section 9 CAA 1995, the CCRC has statutory authority to refer any Crown Court conviction or sentence to the Court of Appeal. Once referred, the case is treated by the CACD as a standard appeal under s.1 CAA 1968.
• The Real Possibility Test (Section 13 CAA 1995): Under s.13 CAA 1995, the CCRC shall not refer a case unless it considers that there is a 'real possibility' that the conviction or sentence will not be upheld by the CACD.
• Requirements: The real possibility must ordinarily arise from new argument or fresh evidence not raised at trial or direct appeal. Where an appeal has already been dismissed, the CCRC will refer the case only if there are exceptional circumstances.

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5. Appeals to the Supreme Court of the United Kingdom

An appeal lies from the Court of Appeal (Criminal Division) to the UK Supreme Court (UKSC) pursuant to Sections 33 and 34 CAA 1968 at the instance of either the defence or the prosecution.

The Two-Stage Certification & Leave Requirement

An appeal to the UK Supreme Court can proceed only if two strict cumulative requirements are met:

1. CACD Certification: The Court of Appeal must certify that a point of law of general public importance (JPGPI) is involved in the decision; AND
2. Leave to Appeal: Leave to appeal must be granted either by the Court of Appeal or by the Supreme Court itself.

Procedure & Time Limits

• Application to CACD: An application for certification and leave must be made to the CACD within 28 days of the CACD decision.
• Application to UKSC: If the CACD certifies a point of law of general public importance but refuses leave, the applicant must file a petition for leave to appeal in the UK Supreme Court within 28 days of the CACD refusal.

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Summary of Crown Court Post-Trial Appellate Framework