The judiciary and the court system - The appeal system

Learning Outcomes

This article outlines the appeal system in England and Wales, including:

• the structure of the civil and criminal court hierarchy and how different courts exercise original and appellate jurisdiction;
• the main appellate routes from magistrates’, Crown, County and High Courts to the Court of Appeal and Supreme Court, with attention to common SQE1 fact patterns;
• the statutory and procedural framework governing appeals, including CPR Part 52, Criminal Procedure Rules, and second-appeal restrictions;
• recognised grounds of appeal, the “real prospect of success” and “compelling reason” tests, and the significance of time limits;
• the doctrine of stare decisis and how appellate courts create, follow, distinguish, and overrule precedent;
• the difference between binding and persuasive authority and between ratio decidendi and obiter dicta in appellate judgments;
• the typical steps in an appeal (notice, permission stage, hearing, and judgment) and the usual scope of appellate review of law and fact;
• the principal powers of appellate courts to affirm, reverse, vary, or remit decisions, or order a retrial, and how these outcomes feature in exam scenarios;
• policy justifications for an appeal system, including error correction, consistency, development of the law, and maintenance of public confidence.

SQE1 Syllabus

For SQE1, you are required to understand the appeal system in England and Wales, with a focus on the following syllabus points:

• the hierarchy of courts and jurisdictional roles in civil and criminal matters, including which courts act as appeal courts for which first-instance decisions
• the routes and procedures for appeal in civil and criminal cases, including distinctions in appellate functions and appeal destinations
• grounds and procedural requirements for appeals (for example, permission to appeal, test for real prospect of success, time limits, standard of review)
• the doctrine of stare decisis, including the status and effect of binding and persuasive precedents for appellate courts and lower courts
• the significance and operation of ratio decidendi and obiter dicta within appellate judgments
• rules regarding review of law and fact on appeal, and exceptional cases allowing a re-hearing of evidence
• the practical and policy justifications for having an appeal system, including the assurance of consistency, error correction, and the development of precedent
• the powers and outcomes open to appellate courts (e.g., affirm, reverse, vary, remit, order a retrial)
• how appellate decisions influence the development and clarification of the law

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which court is the final appellate court for civil and criminal cases in England and Wales?
2. What is the main difference between a binding precedent and a persuasive precedent?
3. What are the usual grounds for an appeal in civil or criminal proceedings?
4. In which circumstances is permission to appeal required, and who can grant it?

Introduction

The appeal system is a foundational safeguard within the legal order of England and Wales. It allows higher courts to review decisions of lower courts in both civil and criminal matters, providing opportunities for the correction of legal errors, ensuring fairness, and promoting public trust in the justice system. Appellate mechanisms are embedded into the structure of the court hierarchy, with the routes, procedures, and grounds for appeal carefully defined by substantive law and procedural rules. The appeal system also supports the doctrine of judicial precedent (stare decisis), allowing higher courts to establish authoritative guidance for lower courts and contributing to the maintenance of a clear and consistent legal order.

Key Term: appeal system
The structured process by which parties may seek a review of decisions made by lower courts, typically by a higher ranking appellate court, to correct errors or clarify the law.

The Court Hierarchy and Appellate Routes

The English and Welsh court system operates as a strict hierarchy, with each court fulfilling both original and appellate roles as prescribed by law. Understanding the structure of this hierarchy, and where each court fits in, is essential to determining the routes of appeal for both civil and criminal cases.

Supreme Court

The Supreme Court serves as the highest appellate court for England, Wales, and Northern Ireland (but not Scotland for criminal cases). It hears appeals only in exceptional cases raising points of general public importance, and always by permission (leave), typically after a two-stage appeal process. Its judgments are binding on all lower courts and play a significant role in the development and clarification of national law.

Key Term: Supreme Court
The final appellate court in the UK for civil cases and for criminal cases (except Scottish criminal cases), dealing with points of law of general public importance only.

Court of Appeal

The Court of Appeal is an important court for appeals and is divided into two divisions:

• Civil Division: Hears appeals from the High Court, County Court (in serious or complex cases or where a senior judge heard the case), and some tribunals. Permission to appeal (leave) is generally required, and will only be granted where there is a real prospect of success or another compelling reason.
• Criminal Division: Hears appeals by those convicted in the Crown Court (usually on conviction and/or sentence), as well as appeals by the prosecution in specified circumstances (e.g., unduly lenient sentences with Attorney General’s consent, points of law via Attorney General’s Reference).

Key Term: Court of Appeal
The major appellate court immediately below the Supreme Court, split into Civil and Criminal Divisions, hearing appeals from specialist and lower courts.

High Court

The High Court is divided into three divisions: Queen’s Bench, Chancery, and Family. It acts primarily as a court of first instance for higher-value or complex civil cases but also has appellate jurisdiction, particularly via its Divisional Courts (for example, the Administrative Court in judicial review and case stated appeals from the Magistrates’ Court or County Court). Appeals from a High Court judge usually lie to the Court of Appeal (Civil Division), and at times, a “leapfrog” appeal may go directly to the Supreme Court if a point of law of great public importance is involved and a certificate is granted.

Crown Court

The Crown Court is mainly a trial court for indictable criminal cases but also has jurisdiction to hear appeals from decisions of the Magistrates’ Court. Such appeals are usually heard by a Crown Court judge sitting with two justices of the peace. The Crown Court does not act as a further appellant court from the Magistrates’ Court's appeal jurisdiction.

County Court and Magistrates’ Courts

The County Court is primarily a civil court of first instance for lower or medium-value matters and handles the majority of civil cases. For appeals, decisions of a District Judge are generally appealed to a Circuit Judge (County Court). Serious or complex cases may be appealed to the High Court. The County Court does not typically act as an appellate court except as prescribed (e.g., certain insolvency appeals).

The Magistrates’ Court is the court of first instance for most criminal prosecutions (especially summary and either-way offences) but also handles some civil matters such as licensing or family cases. Criminal appeals from the Magistrates’ Court are usually heard by the Crown Court (for conviction or sentence) or by way of “case stated” to the High Court where a point of law arises.

Key Term: county court
The principal first-instance civil court for the majority of claims, especially of modest value and complexity; it also deals with certain family and insolvency matters.

Key Term: magistrates’ court
The main first-instance criminal court in England and Wales, also handling minor civil and family matters.

Key Term: high court
The senior court with original jurisdiction over serious or complex civil matters and appellate and supervisory roles, divided into three Divisions: King’s Bench, Chancery, and Family.

Key Term: crown court
The major criminal trial court for indictable offences and appellate court for appeals from the Magistrates’ Court.

Routes of Appeal in Civil and Criminal Cases

Appellate routes differ according to whether the case is criminal or civil and the type and level of decision-maker.

Civil Appeals

• From a District Judge (County Court): appeal lies to a Circuit Judge (County Court).
• From a Circuit Judge (County Court): generally to a High Court Judge (Civil/District Registry) or, in defined circumstances, directly to the Court of Appeal.
• From a High Court Judge: appeal is normally to the Court of Appeal (Civil Division). In rare cases, leapfrog appeals may go directly to the Supreme Court (Administration of Justice Act 1969).
• From County or High Court Masters: the initial appeal is within the High Court.

Criminal Appeals

• From a Magistrates’ Court conviction/sentence: appeal on fact or law is to the Crown Court. Appeal on a point of law (case stated) is to the Divisional Court (King’s Bench, High Court).
• From a Crown Court conviction/sentence: appeal to the Court of Appeal (Criminal Division) (leave required).
• From a Court of Appeal (Criminal Division): further appeal to the Supreme Court, but only where the appeal raises an arguable point of law of general public importance and leave is granted by the Court of Appeal or Supreme Court.

Judicial Review and Other Specialized Appeals

Specialized matters (including claims of a public law nature, judicial review, or “case stated” procedures) may be reviewed by the Administrative Court (part of the King’s Bench Division of the High Court) or may, for devolution or constitutional issues, reach the Supreme Court directly or via the Court of Appeal.

Grounds and Permission for Appeal

Appeals are an exceptional, not automatic, remedy. Grounds and procedure are tightly circumscribed.

Grounds for Appeal

Valid grounds for civil and criminal appeals include:

• Errors of law (incorrect legal principle or misapplication of the law)
• Serious procedural or other irregularity in the proceedings
• Findings unsupported by the evidence (unreasonable verdict)
• New evidence or material circumstances not available at the trial (if certain strict criteria are satisfied)
• In some cases, decisions unjust due to irregularities of fact or law

Key Term: grounds for appeal
The legally recognized basis for challenging a lower court’s decision, such as misapplication of the law, procedural irregularity, or relevant new evidence.

Permission to Appeal

Most appeals require permission (leave) either from the court below or the appellate court. The standard test is whether the appeal has a “real prospect of success” or another “compelling reason” for the court to hear it. This requirement prevents unmeritorious appeals from progressing and fosters finality and efficiency.

For second appeals (e.g., from the County Court to the Court of Appeal in civil matters), the test is even more stringent: permission will be granted only where the appeal raises an important point of principle or practice or there is another compelling reason.

Time Limits

There are strict time limits to initiating appeals. In civil cases, a notice of appeal must typically be lodged within 21 days of the date of the decision to be appealed unless the court otherwise orders. In criminal cases, deadlines are set by statute and court rules, and late appeals require an extension, which will only be granted for good reason.

Key Term: stare decisis
The doctrine mandating that courts follow precedent as a means of ensuring consistency and predictability in the law.

Key Term: permission to appeal
The requirement to obtain consent from a court to bring an appeal, based typically on whether there is a realistic prospect of success or a compelling reason for permission to be given.

The Doctrine of Judicial Precedent

The appeal system supports and is supported by the doctrine of judicial precedent (stare decisis). Appellate court decisions, especially those of the Supreme Court and Court of Appeal, form binding precedents for lower courts and play the central role in the development of English law.

Key Term: judicial precedent
The rule that earlier legal decisions of higher courts are binding on lower courts in future cases with materially similar facts and legal issues.

Binding and Persuasive Precedent

• Binding precedent: A previous decision that must be followed by the court considering a similar legal or factual question, provided the earlier decision was by a higher (or same-level) court and was part of the binding ratio decidendi.
• Persuasive precedent: Previous decisions which are not binding (e.g., from a lower court, another jurisdiction, or obiter dicta from a higher court) but may be followed where their reasoning is found to be compelling.

Key Term: binding precedent
A precedent which a lower court must follow if it is relevant and from a superior or same-level court making the decision.

Key Term: persuasive precedent
A precedent which may influence the court’s decision but is not strictly binding.

Ratio Decidendi and Obiter Dicta

Every reported judgment contains essential reasoning and possibly additional observations.

• Ratio decidendi: The legal reasoning or principle which forms the basis of the court’s decision and creates binding precedent.
• Obiter dicta: Comments or statements made by a judge that are not necessary to decide the case; these are not binding but may be treated as persuasive authority.

Key Term: ratio decidendi
The critical legal principle or rule in a case forming the binding element of a judicial decision.

Key Term: obiter dicta
Remarks or observations not essential to the decision, carrying persuasive but not binding value.

The rules of precedent establish that only decisions relating to the essential legal issue—ratio decidendi—create a rule for future cases, while obiter dicta can offer helpful guidance.

The Relationship Between the Appeal Process and Precedent

Appellate courts shape the case law of England and Wales. Appeals give higher courts opportunities to clarify or develop areas of law and thus decisions of, e.g., the Supreme Court or Court of Appeal become binding for the whole legal system. It is a core function of appellate review that significant legal points are authoritatively settled.

Where the facts of the current case are sufficiently different from those of a precedent, the court may distinguish the earlier case, thereby not following the precedent.

The Appeal Process: Steps and Powers

Appeals follow a structured process, governed by Civil Procedure Rules (CPR) Part 52 for civil matters and Criminal Procedure Rules (CrimPR) for criminal procedure, as well as statutory provisions.

Steps in an Appeal

• Notice of Appeal: The appellant must file a notice specifying the grounds for appeal and comply with time limits and procedural requirements.
• Permission Application: The court (either lower or appellate, according to context) considers whether to grant permission to appeal based on whether there is a real prospect of success or another compelling reason.
• Hearing of the Appeal: If permission is granted (or not required), the appellate court hears the case. Most appeals are limited to a review of the lower court’s decision on points of law rather than a full rehearing of the evidence. Exceptionally, a complete rehearing may be ordered, especially in factual disputes of particular cases.
• Appellate Court Judgment: The appellate court delivers its decision, which may affirm (uphold), reverse (quash/set aside), vary, remit the case back to the lower court, or order a new trial if appropriate.

Key Term: appeal system
The structured legal process allowing dissatisfied parties to challenge decisions of lower courts before higher courts, by grounds set out in law.

Powers of Appellate Courts

Appellate courts are vested with wide-ranging powers, including:

• Affirming (upholding) the decision of the lower court
• Reversing or setting aside the decision in whole or in part
• Varying the decision or substituting a new order
• Remitting the case back to the lower court for reconsideration or a new trial
• Ordering re-hearings or new trials, where the interest of justice so requires
• On occasion, making orders as to costs or other remedies as if hearing the case at first instance

Appellate courts are not ordinarily permitted to admit new evidence, except where it serves the interest of justice and strict criteria are satisfied. The general rule is that appeals are conducted as a review rather than as a rehearing, but the rules provide exceptions for unusual cases.

The Role of Appellate Decisions

Appellate decisions serve the important functions of correcting legal error, ensuring fairness, clarifying and developing the law, and promoting legal certainty and predictability. Appellate judgments often address points of law of wider significance, providing guidance for future cases and assisting in the uniform application of legal principles.

Where a higher court departs from an existing precedent, this can lead to the development of new legal principles and may prompt legislative modification, thereby contributing to orderly legal progress.

Worked Example 1.1

A defendant is convicted in the Crown Court of theft. His lawyer believes the trial judge misdirected the jury on the meaning of dishonesty. What is the correct appellate route and likely outcome?

Answer:
The defendant can appeal to the Court of Appeal (Criminal Division) on the ground of error of law. If the court finds the judge misdirected the jury, it may quash the conviction, order a retrial, or substitute a different verdict as justice requires.

Worked Example 1.2

A claimant loses a contract dispute in the High Court. The judge’s interpretation of a key contractual term is controversial and could affect many similar cases. What is the next step?

Answer:
The claimant may seek permission to appeal to the Court of Appeal (Civil Division). If the case raises a point of law of general public importance, the Court of Appeal may grant permission and, if it overturns the decision, its judgment will set a binding precedent.

Worked Example 1.3

A claimant in the County Court before a District Judge is dissatisfied with the outcome of a low-value contract claim. What is the appropriate route of appeal?

Answer:
Usually, the first appeal would be to a Circuit Judge in the County Court, who would review the District Judge’s decision. Any further appeal would be subject to the test for a second appeal and would generally need to involve an important point of law or practice.

Worked Example 1.4

A party wishes to appeal a High Court judgment on a matter of statutory interpretation directly to the Supreme Court, skipping the Court of Appeal. What process allows this and in what circumstances might it apply?

Answer:
This is the "leapfrog" procedure, available in cases where the High Court judge certifies the matter as suitable, usually due to the case involving a point of law of general public importance and where it is in the interests of justice for the Supreme Court to consider the appeal directly. The Supreme Court must subsequently grant permission.

Worked Example 1.5

A party loses in the Magistrates’ Court and seeks to appeal on a point of law. What is the correct appellate route?

Answer:
The party may seek an appeal by way of case stated to the Divisional Court (King’s Bench Division). This process allows review on the basis of incorrect legal interpretation or a decision in excess of jurisdiction.

Key Point Checklist

This article has covered the following key knowledge points:

• The appeal system enables higher courts to review, affirm, reverse, or vary decisions of lower courts, ensuring correction of errors and fostering the consistent application of law.
• The court hierarchy determines first-instance, appellate, and final appellate courts for civil and criminal matters, with clear jurisdictional and procedural roles.
• Appellate routes and procedures, including permission for appeal, time limits, and scope of appellate review, are foundational to the fair and effective administration of justice.
• appeals must be brought on specified legal grounds such as errors of law, procedural irregularity, or new evidence not available at trial and nearly always require permission to appeal
• Judicial precedent and the doctrine of stare decisis support the binding effect of appellate decisions, promoting certainty and predictability, while providing for the principled development of law by appellate courts.
• Appellate courts possess significant powers in respect of cases before them, including affirming, reversing, varying, remitting, or ordering new trials, with appellate decisions frequently shaping or clarifying the law.

Key Terms and Concepts

• appeal system
• Supreme Court
• Court of Appeal
• high court
• county court
• magistrates’ court
• crown court
• judicial precedent
• binding precedent
• persuasive precedent
• stare decisis
• ratio decidendi
• obiter dicta
• grounds for appeal
• permission to appeal