27.5 Appeals in Criminal Practice

Appeals, youth court, and the Welsh language in criminal proceedings share one FLK heading. Appeals are about which court corrects which error, on what papers, and with what risk that the outcome gets worse. Youth court is about jurisdiction, hearings, and a different sentencing scheme, including youth rehabilitation orders. The Welsh-language bullet is a criminal-proceedings point for hearings in Wales, not the civil practice direction taught in dispute resolution. Treat them in turn, then notice the overlaps: a youth convicted in the youth court uses the magistrates' appeal routes; a youth sent to the Crown Court uses the Court of Appeal.

Appeals from the magistrates' court

Conviction and sentence to the Crown Court

Section 108 of the Magistrates' Courts Act 1980 gives a convicted defendant an appeal to the Crown Court. If the plea was not guilty, the appeal may be against conviction, sentence, or both. If the plea was guilty, the appeal is against sentence, unless the plea was equivocal or there is a true issue about whether a lawful plea was entered. There is no leave filter on a timeous defendant's appeal of this kind. The prosecution cannot use section 108 to appeal an acquittal.

Procedure. Notice is served on the magistrates' court and the prosecution. Under the Criminal Procedure Rules the usual time limit is 15 business days from sentence (if only conviction is appealed before sentence, time is tied to the relevant decision as the Rules provide). The Crown Court can extend time. The appeal is a full rehearing. Witnesses may be called again. The Crown Court is not confined to errors of law. It decides the case afresh, then exercises sentencing powers limited to those the magistrates had. It may confirm, reverse, or vary. It may increase sentence. That last point is the advice point: an appeal against a moderate community order can become custody up to the magistrates' maximum. The appellant can abandon the appeal, with the court's permission if it has begun.

Case stated to the High Court

Section 111 of the Magistrates' Courts Act 1980 lets a party — prosecution or defence — question whether the magistrates' decision is wrong in law or in excess of jurisdiction. This is not a rehearing of the facts. The magistrates find the facts and state a case; the High Court (King's Bench Division, Administrative Court) answers the questions of law. The usual time limit is 21 days from the decision. The High Court may reverse, affirm, or amend the decision, or remit with its opinion. The prosecution can use case stated to challenge an acquittal that rests on a misdirection of law. A defendant who wants findings of fact re-tried should use the Crown Court appeal, not case stated. You generally cannot run both as a tactical stack on the same complaint: choose the route that matches the error. After a Crown Court appeal from the magistrates, a further case-stated or judicial-review challenge is tightly confined to law.

Appeals from the Crown Court

Appeals against conviction or sentence after trial on indictment go to the Court of Appeal (Criminal Division) under the Criminal Appeal Act 1968. Leave is required, from the trial judge (rare) or, almost always, from the Court of Appeal. A single judge usually filters the papers. If the single judge refuses, the application can be renewed to the full court. Unmeritorious conviction appeals risk a loss of time direction: time in custody pending appeal does not count toward the sentence.

Grounds — conviction. The Court of Appeal shall allow an appeal against conviction if the conviction is unsafe. It shall dismiss the appeal in any other case. Unsafeness includes a material misdirection, wrongful admission or exclusion of evidence, serious jury irregularity, a plea entered in ignorance of a defence that should have been left, or fresh evidence admitted under section 23 where it is capable of belief, may afford a ground, and there is a reasonable explanation for not adducing it at trial. Fresh evidence is not a second go at the same expert. A tactical decision to keep a witness off the stand rarely qualifies.

Grounds — sentence. The appellant argues that the sentence was wrong in law, wrong in principle, or manifestly excessive. Mere disagreement with a sentence inside the guideline range is not enough. Failures to follow a relevant guideline without an interests-of-justice reason, double-counting, or exceeding the statutory maximum are orthodox grounds.

Procedure. Notice of appeal or application for leave is lodged, with grounds, usually within 28 days of conviction (for conviction appeals) or of sentence (for sentence appeals). The Criminal Procedure Rules set the forms. The Registrar lists the case. For conviction appeals the court sits with an uneven number of judges, at least three on a contested conviction. Sentence appeals can be heard by two judges in some circumstances.

Powers. On conviction, the court may quash the conviction, order a retrial, substitute a conviction for another offence of which the jury could have convicted, or dismiss the appeal. On sentence, it may quash the sentence and substitute any sentence the Crown Court could have passed, but on a defendant's appeal it must not deal with the appellant more severely. An increase comes only through an Attorney General's unduly lenient sentence reference for specified offences, which is a different jurisdiction. That contrast with Crown Court appeals from the magistrates' court is a favourite exam comparison: the Crown Court can go up; the Court of Appeal on a defendant's appeal cannot.