PastPaperHero | The judiciary and the court system

Learning Outcomes

This article outlines the appeals process and appellate court practice in England and Wales, including:

Structure and functions of the appellate court hierarchy, and jurisdiction and processes specific to each appellate forum
Legal tests for allowing appeals in criminal and civil cases, including "unsafe" convictions, "manifestly excessive" sentences, and criteria for first and second civil appeals
Doctrine of precedent in appellate courts, including binding and persuasive authority and the distinction between ratio decidendi and obiter dicta
Statutory interpretation methods used by appellate courts—literal, golden, mischief, and purposive approaches—and the use of internal and external aids
Application of these principles to SQE1 problem scenarios

SQE1 Syllabus

For SQE1, you are required to understand the appeals framework in England and Wales, including the court hierarchy, legal tests for appeals, and the operation of precedent and statutory interpretation, with a focus on the following syllabus points:

the structure and hierarchy of appellate courts in England and Wales, including specific jurisdiction and routes of appeal
the legal tests and statutory thresholds for appeals in criminal and civil cases (e.g., “unsafe conviction,” “wrong,” “unjust”)
the distinction and interaction between first appeals and second appeals, and when permission is required
the doctrine of precedent and its application in appellate courts, including when appellate courts can depart from their own decisions
the meaning and effect of ratio decidendi and obiter dicta in judgments
the methods and aids used in statutory interpretation by appellate courts
the differentiation between binding and persuasive precedent, and their practical consequences for appellate decision-making
the interaction of English domestic law with “retained EU law” and ECtHR jurisprudence where relevant

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.

Which court hears an appeal from a conviction in the Crown Court?
What is the main test for allowing an appeal against conviction in criminal cases?
What is the difference between ratio decidendi and obiter dicta in appellate judgments?
When can the Supreme Court depart from its own previous decisions?

Introduction

Appeals play a fundamental role within the English legal system, enabling parties to challenge decisions and ensuring legal errors are corrected and the law develops coherently. Effective operation of the appeals process relies on a clear court hierarchy, rigorously defined legal tests for allowing appeals, and the consistent application of binding precedent. Appellate courts are central to upholding justice by correcting mistakes, clarifying legal principles, and unifying the law. Their judgments shape not only the resolution of disputes but also the development of case law and statutory interpretation, making accurate understanding of appellate reasoning and the appeals test essential for SQE1.

The Appellate Court Hierarchy

The English appeals system is structured in a strict hierarchy. Each appellate court has defined roles, powers, and routes for hearing appeals in both civil and criminal law. These routes reflect not only the need for review and error correction but also the allocation of judicial resources and the public interest in the finality of litigation.

Magistrates’ Court

Hears minor criminal offences (summary offences) and some limited civil matters (e.g., licensing).
Appeals from factual or sentencing decisions in the magistrates’ court are made to the Crown Court, where the matter is typically reheard by a judge and magistrates.
Appeals on points of law or where the court is alleged to have erred as to its jurisdiction are by way of "case stated" to the High Court (King’s Bench Divisional Court).
Magistrates’ factual findings have no further avenue of appeal beyond the Crown Court except in highly exceptional circumstances.

Crown Court

Deals with serious criminal offences (either-way and indictable-only) and hears appeals from the magistrates’ court.
Appeals against conviction or sentence from the Crown Court next go to the Court of Appeal (Criminal Division).
Appeals on points of law from criminal cases in the Crown Court are rare and generally only available to the defence, with further appeals tightly restricted.

High Court

Organised into three divisions: King’s Bench, Chancery, and Family.
Hears serious and complex first-instance civil cases, appeals from the County Court, and special civil and criminal appeals (e.g., by way of case stated or judicial review).
Appeals from the High Court typically go to the Court of Appeal (Civil Division), except in rare "leapfrog" cases where direct appeal to the Supreme Court may be possible if exceptional legal significance is involved.

Court of Appeal

Consists of two divisions: Civil and Criminal.
The Civil Division hears appeals from the High Court, some County Court cases, and certain tribunals.
The Criminal Division hears appeals from the Crown Court following trial on indictment.
Further appeals from the Court of Appeal are only possible to the Supreme Court and require permission, with the subject matter being "of general public importance."

Supreme Court

The final appellate court for England, Wales, and Northern Ireland in both civil and criminal matters (except Scottish criminal cases).
Only hears cases involving arguable points of law of general public importance, with permission.
Its rulings are binding on all lower courts and set national legal precedent.

Key Term: appellate court
An appellate court is a court with the authority to review, affirm, reverse, or modify decisions made by lower courts, usually on points of law, not fact.

Additional Routes: Tribunals and the Role of the Privy Council

Specialist tribunals handle appeals for areas such as employment, immigration and tax. Tribunal appeals may move through the Upper Tribunal to the Court of Appeal. The Judicial Committee of the Privy Council remains the final appellate court for certain Commonwealth countries and a limited range of UK matters, but its decisions are not binding on English domestic courts, though often persuasive.

Legal Tests for Appeals

Appellate courts apply express legal criteria—known as the "appeal test"—to determine whether a decision should be overturned or varied. The proper understanding and application of these legal tests is essential to the function of the appeals process.

Criminal Appeals

Appeals Against Conviction

The predominant appeal test: is the conviction "unsafe"?

The Court of Appeal (Criminal Division) has power under the Criminal Appeal Act 1968 (as amended) to quash a conviction if, having reviewed the evidence and any new material, it considers that the conviction is unsafe. This encompasses not only legal errors but also material irregularities at trial, misdirections, and the emergence of fresh evidence that could have affected the verdict.
The focus is not on the appellant’s guilt or innocence but on the safety and reliability of the conviction in light of all circumstances.
The threshold for "unsafe" may be met by serious procedural irregularities, judicial misdirection, significant new evidence not reasonably available at trial, or demonstrably flawed conduct of the case.
Applications for leave to appeal are initially considered by a single judge; if refused, the applicant can renew the application before the full court.

Key Term: unsafe conviction
An unsafe conviction is one where, after reviewing all evidence and procedure, the appellate court concludes the verdict cannot be regarded as reliable due to error, irregularity, or significant new evidence.

Appeals Against Sentence

The test is whether the sentence was "manifestly excessive," "wrong in principle," or outside the permissible statutory range.
The appellate court may reduce or vary the sentence if satisfied the original sentence was plainly unjust or imposed by reference to an error of law, facts not found, or irrelevant considerations.

Appeals by the Prosecution

The prosecution’s rights to appeal are strictly limited. The most significant are “Attorney General’s References” regarding lenient sentences or points of law after acquittal, both designed to clarify legal principles for future cases rather than alter a specific acquittal.

Other Criminal Appeals

Appeals from the magistrates’ court to the Crown Court are by way of rehearing, not limited to error of law.
Appeals by way of case stated or judicial review are reserved for questions of law or jurisdiction.

Civil Appeals

First Appeals

Civil appeals follow the "appeal test" set out in the Civil Procedure Rules (CPR 52.21).
The appeal court may allow the appeal if the lower court’s decision was "wrong," or "unjust because of a serious procedural or other irregularity."
"Wrong" may mean an error of law, a manifest error of fact, or a misapplication of established legal principles, but not simply a different assessment of the evidence where reasonable minds could differ.
The appellate court primarily reviews documents and legal arguments rather than re-hearing witnesses, unless necessary.
Permission to appeal is generally required and only granted where there is a “real prospect of success” or some “other compelling reason.”

Key Term: appeal test
The appeal test is the set of legal standards an appellate court must apply to decide whether to allow an appeal, including whether a decision was "wrong," "unsafe," "unjust," or outside the proper discretionary range.

Second Appeals

Second appeals, such as from the County Court to the Court of Appeal after a first appeal, are strictly limited to cases raising an "important point of principle or practice," or where there is "some other compelling reason" for a further appeal (CPR 52.7; s. 55 Access to Justice Act 1999).
This restriction prevents serial relitigation and protects the finality of judgments except in serious situations.

Further Appeals

Appeals from the Court of Appeal to the Supreme Court are only possible in truly exceptional cases—permission for appeal will only be granted if the appeal involves a point of law of general public importance that ought to be considered.

Other Controls

The Criminal Cases Review Commission (CCRC) exists to refer cases to the appellate courts where there is a “real possibility” that a conviction, verdict, finding or sentence would not be upheld due to previously unavailable evidence or arguments.

Precedent in Appellate Courts

The principle of stare decisis ensures the legal system remains predictable and orderly by requiring courts to follow earlier decisions—especially those made by higher appellate courts. Precedent thus shapes the operation of appeals and appellate decision-making.

Key Term: precedent
Precedent is an earlier judicial decision which serves as an authority that must (if binding) or may (if persuasive) be followed in future cases with materially similar facts or issues.

Key Term: stare decisis
Stare decisis is the doctrine that courts must stand by and follow previous decisions to ensure consistency and legal certainty.

Binding and Persuasive Precedent

Binding precedent: Appellate decisions of a higher court (or, in some cases, the same court) which must be followed by the lower courts (and sometimes the same court) in subsequent cases with materially similar facts.
Persuasive precedent: Legal decisions which may influence but do not obligate a court to follow them; includes non-binding decisions of the same court, decisions from other jurisdictions, and, for domestic UK law, decisions of the Judicial Committee of the Privy Council and the ECtHR.

Key Term: binding precedent
A binding precedent is a prior judicial decision that a court must follow where the material facts are sufficiently analogous and the precedent is from a higher or equivalent court.

Key Term: persuasive precedent
A persuasive precedent is a previous decision which the court is not obligated to follow but may consider in reaching a decision.

Ratio Decidendi and Obiter Dicta

Key Term: ratio decidendi
The ratio decidendi is the legal principle or rule of law which was essential to the reasoning and outcome of a judicial decision; only the ratio is binding in later cases.

Key Term: obiter dicta
Obiter dicta are statements, comments, or hypothetical examples made by a judge that are not necessary for the decision in the particular case; these are not binding, but may be persuasive in future cases.

Accurately identifying the ratio decidendi in a judgment requires analysis. Only the essential reasons supporting the actual outcome (not all judicial remarks) constitute basis for binding precedent.
Obiter dicta can provide information on judicial thinking and may be adopted as persuasive precedent by later courts confronting new issues.

Precedent and the Appellate Court Hierarchy

The Supreme Court is the ultimate source of binding precedent, except in certain Scottish criminal matters.
The Court of Appeal (Civil and Criminal Divisions) is bound by the Supreme Court and by its own previous decisions, subject to exceptions.
The High Court and lower courts must follow binding precedent from all appellate courts above them.
Exceptions to the Court of Appeal following its own previous decisions are established in Young v Bristol Aeroplane Co Ltd and include where:
- There are conflicting prior Court of Appeal decisions.
- A previous decision has been overruled by the Supreme Court.
- The prior decision was made per incuriam (without reference to relevant law).
The Court of Appeal (Criminal Division) has a slightly wider discretion due to the liberty interests at stake in criminal cases and may depart from its own decisions to prevent injustice or uphold liberty.

Departing from Precedent

The Supreme Court, by its 1966 Practice Statement and under s. 41 Constitutional Reform Act 2005, may depart from its prior decisions "when it appears right to do so", considering the need for certainty and flexibility.
The Court of Appeal may only depart from its earlier decisions within the exceptions above; lower courts may not depart from binding judgments of higher courts.

Precedent and International/European Law

Since the UK's departure from the EU, the Supreme Court and Court of Appeal are no longer bound, but may have regard to, CJEU case law only in respect of “retained EU law,” and are not bound by new CJEU decisions, but may treat them as persuasive.
UK courts must "take account" of ECtHR jurisprudence as guidance when applying Convention rights, but such decisions are not binding.

Statutory Interpretation in Appeals

Appellate courts are frequently required to interpret legislation, clarify the meaning of statutory terms, and determine the application of legal principles. Understanding the approaches taken to statutory interpretation is fundamental to the appellate process.

Key Term: statutory interpretation
Statutory interpretation is the process by which courts ascertain the meaning and scope of words, phrases, or provisions within legislation.

Methods of Statutory Interpretation

Literal rule: Courts give words their ordinary and plain meaning, even if the result is harsh or contrary to the legislature’s presumed intent.
Golden rule: Courts modify the ordinary meaning only to avoid an absurd or repugnant outcome, applying the wording as far as possible literally, but with necessary flexibility.
Mischief rule: Derived from Heydon’s Case (1584), this approach asks what “mischief” (problem) the statute was intended to remedy and interprets its provisions so as to suppress that mischief.
Purposive approach: Courts consider the broad purpose or legislative intent of a statute, often supplemented by reference to parliamentary material (e.g., Hansard) where ambiguity or absurdity arises (as permitted by Pepper v Hart).

Use of Aids to Interpretation

Internal aids: Textual aids found within the statute itself, such as headings, long/short titles, preambles, schedules, and interpretation sections.
External aids: Materials outside the statute, including dictionaries, Explanatory Notes, Hansard (parliamentary debates), earlier statutes, case law, and reputable academic writings.

Courts are permitted to consult Hansard in limited circumstances if the statute is ambiguous, obscure, or leads to absurdity, and if the material consists of a clear statement by a minister or promoter of the Bill. This is known as the Pepper v Hart rule.

Courts may also adopt the principle of construction consistent with Convention rights per s. 3 Human Rights Act 1998, so far as it is possible to do so. Where not possible, the appellate court may issue a declaration of incompatibility.

Presumptions in Statutory Interpretation

Courts commonly presume that statutes:

do not operate retrospectively unless expressly stated
do not remove established rights of access to courts unless clear words are used
require proof of mens rea for criminal offences unless expressly made strict liability
do not alter the common law more than necessary

Worked Example 1.1

A defendant is convicted in the Crown Court of robbery. Subsequently, new evidence comes to light that was not available at trial and casts doubt on the reliability of a key witness. The defendant applies to the Court of Appeal for leave to appeal.

Answer:
The Court of Appeal (Criminal Division) will apply the "unsafe conviction" test. If the new evidence is capable of harming the reliability of the conviction to the extent that the court cannot conclude the jury would have convicted had it been available, the court may regard the conviction as unsafe and quash it.

Worked Example 1.2

A claimant loses a tort claim in the County Court. The trial judge appears to have applied a misunderstanding of the burden of proof. The claimant seeks to appeal the judgment.

Answer:
The claimant must show that the decision was "wrong" (an error of law or manifest error of fact), or "unjust because of a serious procedural or other irregularity" (such as misapplication of the burden of proof) to succeed on appeal.

Worked Example 1.3

The Supreme Court is asked to overturn one of its previous judgments on a point of contract law due to a fundamental change in commercial context and ongoing uncertainty.

Answer:
The Supreme Court may depart from its own previous decision "when it appears right to do so," especially if the previous decision is shown to be unjust, unworkable, or is preventing the coherent development of the law.

The Appeals Process in Practice

Appealing a case involves a series of procedural and substantive steps, each governed by court rules, statutes, and the appellate court's overriding objectives.

Permission to appeal: Except for exceptional circumstances (e.g., appeals from magistrates’ courts to the Crown Court on conviction/sentence), permission to appeal is required. Permission may be sought from the court below or from the appellate court.
Grounds of appeal: An appellant must specify the precise legal, procedural, or factual errors that are alleged to have affected the decision’s fairness or correctness.
Appellate hearing: Written submissions typically take priority, supported by arguments on points of law. Oral hearings may revisit factual findings only in rare cases, usually where fresh evidence is available.
Decision: The appellate court may affirm, reverse, or vary the decision below, set aside the decision or verdict, order a new trial, or quash a conviction or sentence. It may substitute a judgment if appropriate, always applying the established legal tests for allowing appeals.

The process demonstrates the system’s commitment to correcting errors and ensuring justice is administered according to law, not merely fact.

Worked Example 1.4

A judge in the High Court applies the literal rule to interpret a statutory term in a way that leads to a manifestly absurd result. The losing party appeals, arguing for a purposive reading.

Answer:
The appellate court may apply the golden or purposive approach to avoid an absurd outcome. If the original judgment failed to address the statute’s wider purpose or context, and the result offends established principles, the appellate court may depart from the literal reading to achieve the intention behind the legislation.

Worked Example 1.5

The Court of Appeal (Civil Division) is faced with two previous conflicting decisions from its own earlier cases, each supporting one party’s position.

Answer:
The Court of Appeal can choose which decision to follow under the Young v Bristol Aeroplane Co Ltd exceptions. It must acknowledge and resolve the conflict, selecting the decision that is most consistent with principle, or apply the most recent Supreme Court authority if such exists.

Interaction of Precedent and Statutory Interpretation in Appeals

Appellate courts often face the challenge of reconciling established precedent with evolving statutory meaning, and, where possible, statutory interpretation is conducted in a way that is consistent with governing case law at the highest level. Departures from precedent are made with caution and only per express authority.

Binding precedent will trump conflicting lower-court interpretations, and the Supreme Court has authority to provide definitive guidance. The interaction of precedent with statutory construction enforces both the predictability of legal outcomes and the necessary adaptability of the law to new situations.

Key Point Checklist

This article has covered the following key knowledge points:

The appeals system is structured in a rigorous hierarchy, with appellate courts having defined routes and powers, ensuring proper review of decisions.
Criminal appeals rely on the concepts of "unsafe conviction" and "manifestly excessive" sentence, with a focus on correcting miscarriages of justice.
Civil appeals are determined by whether the original decision was "wrong" or "unjust" due to procedural or other irregularity, with further appeals strictly limited to matters of significant legal importance.
Precedent—binding and persuasive—shapes appellate decision-making. The doctrines of stare decisis, ratio decidendi, and obiter dicta ensure that legal developments are consistent yet adaptable.
Appellate courts use various methods of statutory interpretation (literal, golden, mischief, and purposive), deploying internal and external aids as appropriate, to clarify and apply statutory language.
The Supreme Court may depart from its own previous decisions when it is right to do so; the Court of Appeal may only do so under tightly defined exceptions.
Judicial reasoning in appeals always reflects the interplay between precedent, statutory interpretation, and correctly applying the established legal tests for appeals.

Key Terms and Concepts

appellate court
unsafe conviction
appeal test
precedent
stare decisis
binding precedent
persuasive precedent
ratio decidendi
obiter dicta
statutory interpretation

The judiciary and the court system - The appeals test