Appeals procedure - Grounds for appeal

Learning Outcomes

This article explains the core grounds and procedural routes for criminal appeals in England and Wales, including:

• distinguishing errors of law, errors of fact, and procedural irregularities, and understanding how each can undermine a conviction or sentence;
• identifying how these grounds operate in appeals from magistrates’ courts to the Crown Court, including the nature of the rehearing and available outcomes;
• describing appeals by way of case stated and judicial review, and recognising when each route is procedurally appropriate;
• explaining the “unsafe conviction” test in Crown Court appeals, and how misdirections, evidential rulings, or bias may satisfy it;
• outlining when fresh evidence will be admitted on appeal, the applicable statutory tests, and how it affects the safety of a conviction;
• analysing the principles governing appeals against sentence, including sentences that are wrong in law, wrong in principle, or manifestly excessive;
• summarising the time limits, leave requirements, and key procedural steps for lodging and progressing appeals in different courts;
• applying appellate principles to short factual scenarios in order to identify arguable grounds and likely appellate remedies.

SQE1 Syllabus

For SQE1, you are required to understand the appeals procedure and the main grounds for appeal in criminal cases, with a focus on the following syllabus points:

• the main grounds for appeal against conviction and sentence in criminal cases
• distinction between errors of law, errors of fact, and procedural irregularities
• operation of these grounds in appeals from the magistrates’ court and the Crown Court
• role and requirements for fresh evidence in appeals
• the meaning and test for an “unsafe” conviction in the context of Crown Court appeals
• procedural rules for initiating appeals, including time limits and parties’ rights in each court
• the possible outcomes of a successful or unsuccessful appeal, including the powers of appellate courts

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. What are the three main grounds on which a criminal conviction may be appealed?
2. What does it mean for a conviction to be “unsafe” in the context of an appeal to the Court of Appeal?
3. Can a sentence be appealed simply because it is severe? What must be shown?
4. What is the difference between an error of law and an error of fact as a ground for appeal?

Introduction

Appeals are a fundamental safeguard in the criminal justice process. They serve to correct miscarriages of justice, ensure the law is applied correctly, and maintain public confidence in criminal verdicts and sentences. The grounds on which an appeal can be brought are strictly defined to prevent endless re-litigation and to respect the finality of trial court decisions. Understanding these grounds—in particular, the distinctions between errors of law, errors of fact, and procedural irregularity—is essential for the effective practice of criminal litigation, as well as for success in demonstrating functioning legal knowledge as required in SQE1.

Key Term: error of law
An error of law occurs where the trial court has misapplied, misinterpreted, or failed to correctly state the law relevant to the case.

Key Term: error of fact
An error of fact arises when the trial court makes findings of fact that are unsupported, contradicted by the evidence, or ignores significant evidence, leading to an unsafe verdict.

Key Term: procedural irregularity
A procedural irregularity is a serious departure from the rules and required processes for conducting trials, including breaches of rules of evidence, unfairness in the hearing, or judicial bias.

Grounds for Appeal: Overview

Appeals against conviction and sentence require a valid legal basis. The main grounds for appeal are:

• error of law
• error of fact
• procedural irregularity

These grounds are not exhaustive, but they underpin the majority of appeals. A party may also appeal on further grounds such as the discovery of fresh evidence or, in relation to sentence, that it is manifestly excessive or wrong in law.

The appellate court’s role is corrective, not supervisory: it does not substitute its own view lightly for that of the trial court or jury, but intervenes only where a material wrong has affected the proceedings or their outcome. The question that ultimately guides appellate review, especially against conviction, is whether the conviction can stand as “safe.”

Key Term: unsafe conviction
A conviction is "unsafe" if the Court of Appeal, after reviewing the trial process and the evidence, is not satisfied that the guilty verdict is trustworthy—often due to legal, factual, or procedural errors or the emergence of fresh evidence relevant to guilt.

Statutory and Common Law Framework

• The primary statutory frameworks governing appeals include the Magistrates’ Courts Act 1980 (for appeals from magistrates’ courts) and the Criminal Appeal Act 1968 (for appeals from the Crown Court).
• Practice directions and the Criminal Procedure Rules 2020 set out key procedural steps, rights of the parties, and the conduct of appeals.

Appeals from the Magistrates’ Court: Grounds for Appeal

A defendant convicted or sentenced in the magistrates’ court may appeal to the Crown Court. The available grounds include:

• The conviction is wrong in law: for example, the magistrates misapplied a legal test or failed to properly direct themselves as to the law.
• The conviction is wrong in fact: for example, a finding of guilt is inconsistent with the available evidence, or important exculpatory evidence was ignored.
• The sentence imposed is wrong in law, or is manifestly excessive—i.e. it exceeds the sentencing powers of the court, contradicts statutory limits, or demonstrably fails to take account of mitigating circumstances and relevant sentencing guidelines.
• There was a significant procedural irregularity impacting the fairness of the proceedings: such as denying the defendant the right to call witnesses, prohibiting cross-examination without lawful basis, or allowing improperly admitted evidence to play a decisive role.

On appeal from the magistrates’ court, the Crown Court conducts a full rehearing. This is not limited to the record or reasoning of the lower court, but permits the calling of new evidence and the re-examination of witnesses, giving scope for new factual and legal arguments. The Crown Court is not restricted to reviewing the lower court’s decision-making, but is required to reach its own conclusions based on all the material before it.

The powers of the Crown Court include upholding the conviction or sentence, overturning them, substituting a verdict, imposing a different sentence (within the powers that were available to the magistrates), or, in limited circumstances, ordering a retrial.

If the defendant pleaded guilty in the magistrates’ court, the right of appeal is narrower: appeal is principally available against sentence, not conviction, unless the plea was equivocal or entered in circumstances that render it a nullity (for example, where the defendant did not understand the nature of the charge or did not actually admit guilt).

Worked Example 1.1

A defendant is convicted in the magistrates’ court after pleading not guilty. He believes the magistrates misunderstood the law on self-defence. Can he appeal?

Answer:
Yes. The failure to correctly direct themselves regarding self-defence is an error of law. The defendant may appeal to the Crown Court, which will consider both fact and law, rehearing the case and addressing the proper legal direction on self-defence.

Worked Example 1.2

A defendant pleads guilty in the magistrates’ court but receives a sentence he believes is too harsh. What must he show to appeal the sentence?

Answer:
He must show that the sentence is wrong in law (for example, it exceeds the statutory maximum for the offence) or is manifestly excessive—so disproportionate that it falls outside the range of sentences that a reasonable sentencing court could have imposed.

Important Practical Notes

• There is a strict time limit for appeals from the magistrates’ court—typically 21 days from sentence.
• The right to appeal does not usually extend to prosecution: the prosecution may appeal by way of case stated (see below), but not against acquittals or sentences as of right.

Appeals by Way of Case Stated and Judicial Review

Both prosecution and defence may appeal (or challenge) a decision of the magistrates’ court to the High Court by way of case stated. Grounds are limited to errors of law or jurisdiction—no issues of factual evaluation are relevant here. There is no rehearing of the evidence; the High Court will determine whether the magistrates made a legal or jurisdictional error based on the stated case.

A further challenge—distinct from an appeal—can be brought before the Administrative Court by way of judicial review, but only in exceptional cases where there has been illegality, irrationality, or procedural impropriety not addressable by ordinary appeal.

Appeals from the Crown Court: Grounds for Appeal

A person convicted after trial in the Crown Court may appeal to the Court of Appeal (Criminal Division). The principal ground for appeal against conviction is that the conviction is “unsafe." This safety test encompasses a range of errors and circumstances:

• Misdirection of the jury by the trial judge, whether on the law relating to the offence elements, defences, or the burden and standard of proof (error of law).
• Inadmissible evidence being wrongly admitted, or significant evidence being wrongly excluded, including confessions obtained unfairly (procedural irregularity).
• Judicial bias, or serious and prejudicial conduct by the judge, counsel, or other court officers affecting the fairness of the trial (procedural irregularity).
• The verdict not being supported by the evidence, for example, where the evidence is tenuous, inconsistent, contradicted by reliable material, or cannot support the conclusion reached (error of fact).
• Discovery of fresh evidence which, had it been available at trial, might reasonably have affected the verdict.

Appeals against sentence from the Crown Court are available on the following grounds:

• The sentence is wrong in law—e.g., exceeds the statutory maximum for the offence, or is of a type not authorized by law.
• The sentence is wrong in principle—where fundamental sentencing principles (including guideline adherence and proportionality) have been overlooked.
• The sentence is manifestly excessive—that is, so severe that it falls outside any acceptable sentencing range for the offence and circumstances.

The Court of Appeal’s powers include quashing the conviction and acquitting the defendant, ordering a retrial, substituting a conviction for a lesser offence, reducing the sentence, or upholding the original conviction or sentence.

An appeal against conviction from the Crown Court always requires leave (permission), either from the trial judge or from the Court of Appeal itself. Application for leave must be made within 28 days of conviction (or, for appeals against sentence, within 28 days of sentencing).

Worked Example 1.3

A defendant is convicted in the Crown Court. After trial, new evidence emerges that casts doubt on his guilt. What is the ground for appeal?

Answer:
The ground for appeal is fresh evidence. Fresh evidence is admissible if it is credible, relevant, and either was not available at trial or, with reasonable diligence, could not have been. The Court of Appeal will only allow the appeal if the evidence is likely to have affected the safety of the conviction.

Practical Notes on Crown Court Appeals

• The Court of Appeal is not a court of second trial—it determines whether the conviction can stand in light of the arguments and materials advanced for appeal. It does not lightly substitute its view for that of a jury, but will intervene where there are sound legal reasons.
• Appeals against sentence will only succeed if the sentencing judge departed so far from statutory, guideline, or normal sentencing practice that the sentence cannot be supported.

Fresh Evidence and the Interests of Justice

Where the ground for appeal is fresh evidence, the Court of Appeal will consider:

• Whether the evidence is credible and central to the issues at trial.
• Whether it would have been admissible, and if there was good reason it was not produced earlier.
• If, in the interests of justice, the court is satisfied the evidence ought to be received and its impact weighs in favour of allowing the appeal.

Errors of Law

Errors of law are a frequent and significant ground for appeal, often occurring where there has been a misdirection to the jury, an application of an incorrect legal principle, a failure to consider relevant legal issues (such as an available defence), or the judge’s failure to put the defendant’s case properly to the jury. These errors may also include:

• Applying an irrelevant provision or failing to apply a statutory or common law test as required.
• Placing the burden of proof on the wrong party, especially in the context of defences.
• Omitting to direct the jury on key issues—e.g., failing to mention that self-defence is judged subjectively based on the defendant’s belief, rather than by a purely objective test.

If the error could have influenced the outcome—a “material misdirection”—the appeal will likely succeed; where the error is “immaterial” and could not realistically have affected the verdict, the appeal may be dismissed.

Worked Example 1.4

During a Crown Court trial, the judge fails to direct the jury on an important defence raised by the accused. Is this a ground for appeal?

Answer:
Yes. The failure to direct the jury properly on a live defence is an error of law and may render a conviction unsafe. The appeal may succeed if the omission is found to have affected the verdict.

Errors of Fact

Errors of fact are distinct from errors of law. Here the appellate court is asked to consider:

• Whether the verdict is supported by the evidence adduced at trial.
• Whether relevant exculpatory evidence was ignored or disbelieved without proper basis.
• Whether the factual findings made by the trial court or jury were so perverse or unreasonable that they could not be supported by any reasonable tribunal taking account of all the evidence.

Errors of fact rarely succeed unless the evidence was so lacking, contradictory, or misconstrued that the verdict is fundamentally unreliable. Essentially, the appellate courts are slow to overturn findings of fact by a jury or bench, unless satisfied that a miscarriage of justice has resulted.

Worked Example 1.5

The magistrates convict a defendant after finding the identification evidence “conclusive” despite serious discrepancies and no supporting evidence. Is this a good ground for appeal?

Answer:
Yes. If the factual finding is plainly contradicted by the evidence as a whole, is perverse, or ignores significant discrepancies, it may amount to an error of fact justifying appellate intervention.

Procedural Irregularities

A procedural irregularity is any significant departure from the requisite criminal procedure, in a way that prejudices the fairness of the trial or the safety of the conviction. Examples include:

• Failing to permit the defendant to cross-examine witnesses or call material witnesses.
• Failing to ensure that the defendant understood the proceedings, such as when a vulnerable or non-English-speaking defendant proceeds without adequate assistance.
• Judicial bias or conduct giving rise to unfairness or the perception of unfairness.
• Admitting evidence obtained in breach of PACE or contrary to the defendant’s fair trial rights.
• Failing to comply with the rules on the disclosure of unused prosecution material, or misleading the defence as to the existence or quality of evidence.

Even minor procedural errors may give rise to an appeal if, viewed in the context of the trial as a whole, they undermine the fairness of the proceedings or the reliability of the conviction.

Worked Example 1.4

A defendant is convicted after the judge refuses to permit the defence to challenge the reliability of the complainant’s identification evidence. A witness who saw the incident is not called. Is this a procedural irregularity?

Answer:
Yes. Denying the opportunity to challenge key evidence, or preventing the defence from adducing material evidence, can be a procedural irregularity rendering the conviction unsafe.

Article 6 ECHR: The Right to a Fair Trial

Serious procedural irregularities may also breach Article 6 of the European Convention on Human Rights, which codifies the right to a fair trial. Common breaches include:

• Denial of adequate time or facilities to prepare a defence.
• Denial of the right to legal representation.
• Exclusion of the defendant from critical parts of the trial.
• Unjustified restrictions on cross-examination or access to material evidence.

Such breaches are likely to result in the conviction being held unsafe or the sentence being set aside, often following reference to Strasbourg jurisprudence.

Fresh Evidence

Fresh evidence is a technically demanding ground for appeal. It must satisfy the following criteria:

• The evidence could not, with reasonable diligence, have been adduced at trial.
• It is credible, relevant, and potentially decisive—capable of affecting the result of the case.
• There is a reasonable explanation for its absence from the original trial.

The appellate court will consider whether the interests of justice require the evidence to be admitted. If so, and if the evidence significantly undermines the safety of the conviction, the appeal will usually be allowed.

Key Term: fresh evidence
Evidence unavailable at trial but which, if put before the original tribunal, might have led to a different verdict. It must be credible, material, and its non-production at trial must be explained.

Worked Example 1.7

After a conviction for arson, credible new forensic evidence is discovered showing that the defendant could not have set the fire. How would the Court of Appeal treat this?

Answer:
The new evidence is fresh, credible, and goes to the heart of the prosecution case. If it could reasonably have affected the jury’s verdict, and its absence is explained, the conviction may be declared unsafe and quashed.

Sentence Appeals

Appeals against sentence rest primarily on two major grounds:

• The sentence is wrong in law (for example, it exceeds the statutory maximum, or is of an impermissible form).
• The sentence is manifestly excessive—so disproportionate that no reasonable sentencing court could have imposed it.

Other grounds include cases where the judge failed to take into account relevant factors (such as guidelines or mitigation), failed to hold a Newton hearing where necessary, or created unjustified disparity between co-defendants. In general, appellate courts show deference to sentencing judges, only intervening where a clear departure from the law or sentencing principle has occurred.

The appellate court has the power to reduce or substitute the sentence, but cannot increase it on a defence appeal. However, the Attorney General may refer an unduly lenient sentence to the Court of Appeal.

Worked Example 1.5

A defendant is sentenced beyond the statutory maximum for the offence in question. On what basis can this be appealed?

Answer:
This is an error of law. Any sentence that exceeds the lawful maximum is automatically wrong in law. The defendant may appeal to have the sentence reduced to within the permissible range.

Notable Practical Points

• Appeals against sentence normally require that the defendant first seek leave.
• The time limit for appeal is typically 28 days following sentence.
• The appellate court may affirm, reduce, or substitute any sentence which could have been lawfully imposed at first instance.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The main grounds for appeal in criminal cases are error of law, error of fact, and procedural irregularity.
• Appeals from magistrates’ courts to the Crown Court may address errors of law, fact, or procedure; the Crown Court rehears the case.
• Appeals from the Crown Court to the Court of Appeal focus on the “safety” of the conviction, targeting errors of law, fact, unfairness, or the emergence of new evidence.
• The notion of “unsafe” conviction is central to the Court of Appeal’s jurisdiction; if the court is not satisfied of the reliability of the verdict, it must quash the conviction.
• Fresh evidence may justify allowing an appeal if it is credible, relevant, and there is a reasonable explanation for its absence at trial.
• Sentence appeals succeed only if the sentence is unlawful, manifestly excessive, or unjustifiable on principle; not simply for severity alone.
• The appellate courts possess the power to order retrials, substitute verdicts, re-sentence, or set aside convictions as justice requires.
• Only serious errors that affect the fairness or reliability of the trial outcome will justify appellate intervention.

Key Terms and Concepts

• error of law
• error of fact
• procedural irregularity
• unsafe conviction
• fresh evidence