Learning Outcomes
This article explains the powers and jurisdiction of the Court of Appeal (Criminal Division) in criminal proceedings, linking doctrine directly to SQE1 assessment needs. It sets out the legal framework for appeals against conviction and sentence from the Crown Court, including the statutory ‘unsafe conviction’ test, the criteria for admitting fresh evidence, and the grounds on which sentences may be challenged as wrong in law, wrong in principle, or manifestly excessive. It details the Court’s principal remedial powers—quashing convictions, substituting alternative verdicts, ordering retrials, applying the proviso, substituting sentences, and making loss-of-time orders—and clarifies their limits, particularly the prohibition on increasing sentence severity. It examines the procedural requirements for obtaining leave to appeal, time limits, and the filtering role of the single judge and Registrar. It also reviews how disclosure failures, procedural irregularities, and breaches of Article 6 ECHR can render a conviction unsafe. Overall, the article provides a structured framework to analyse appeal scenarios, select appropriate grounds, and predict likely appellate outcomes in exam-style problem questions.
SQE1 Syllabus
For SQE1, you are required to understand the powers, jurisdiction, and processes of the Court of Appeal (Criminal Division) in criminal appeals, with a focus on the following syllabus points:
- The structure and jurisdiction of the Court of Appeal (Criminal Division) in criminal matters.
- The grounds and process for appealing against conviction from the Crown Court.
- The test for 'unsafe conviction' and how it is applied.
- Powers available to the Court of Appeal on appeal against conviction, including quashing, substituting verdicts, retrials, and the operation of the 'proviso' where applicable.
- The grounds for and procedure of appealing against sentence, including what constitutes a 'manifestly excessive' or 'wrong in law/principle' sentence.
- The powers of the Court of Appeal on sentence appeals, including substituting a sentence and the prohibition on increasing severity.
- The admissibility and treatment of fresh evidence on appeal.
- The rules and functions governing applications for leave to appeal.
- The role of the Court of Appeal as a safeguard for the right to a fair trial under Article 6 ECHR.
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.
- What is the primary ground upon which the Court of Appeal (Criminal Division) may allow an appeal against conviction?
- True or False: A defendant has an automatic right to appeal their conviction or sentence from the Crown Court to the Court of Appeal.
- Identify two powers the Court of Appeal has if it allows an appeal against conviction.
- On what basis might the Court of Appeal allow an appeal against sentence?
Introduction
The Court of Appeal (Criminal Division) is the principal appellate court in England and Wales for criminal cases tried on indictment. It functions as a key protector of the right to a fair trial under Article 6 ECHR, providing a mechanism for correction of error and the prevention of miscarriages of justice. Its core business includes hearing appeals from persons convicted or sentenced in the Crown Court, using powers strictly conferred by statute and developed by precedent to ensure consistency, finality, and the just determination of criminal proceedings.
Key Term: Court of Appeal (Criminal Division)
The Court of Appeal (Criminal Division) is a senior court with the power to hear appeals against conviction and sentence from the Crown Court. It acts as a safeguard in the administration of criminal justice.
Appeals Against Conviction
A person convicted on indictment in the Crown Court may seek to appeal their conviction to the Court of Appeal (Criminal Division). However, this is not a right exercisable as of course: leave to appeal must be obtained either from the trial judge (which is seldom granted) or, more commonly, from the Court of Appeal itself through a single judge or the full court.
Leave to Appeal
Key Term: Leave to Appeal
This is the necessary permission required to bring an appeal to the Court of Appeal (Criminal Division). The leave requirement acts as a filter to prevent unmeritorious or frivolous appeals from being argued.
The application for leave must be filed within statutory deadlines: generally, 28 days from the date of conviction (if the appeal is against conviction) or within 28 days from the date of sentence (if the appeal is against sentence). Failure to obtain leave will result in the appeal not proceeding.
Grounds for Appeal: The Safety Test
Under the Criminal Appeal Act 1968, s 2(1), an appeal against conviction may only be allowed if the conviction is deemed 'unsafe.' This statutory ground is the sole legitimate basis for overturning a conviction following trial on indictment.
Key Term: Unsafe Conviction
A conviction is 'unsafe' if, having considered the circumstances of the case—including the proceedings at trial and any new material—the Court of Appeal is in substantial doubt as to the correctness of the verdict. The test does not require proof of the appellant's innocence, merely that the conviction cannot be regarded as reliable or just given the circumstances.
Circumstances which may render a conviction unsafe include:
- Errors of Law: Serious misdirection to the jury by the judge on legal principles essential to the determination of guilt.
- Procedural Irregularities: This includes serious failings such as bias, prosecutorial misconduct, a fundamentally flawed summing up, or the inability of the defence to fairly present their case.
- Improper Admission or Exclusion of Evidence: If critical evidence was wrongly admitted or key defence evidence wrongly excluded.
- Jury Irregularities: Where the integrity of the deliberation process is compromised (e.g., outside influence, improper conduct).
- Fresh Evidence: Where credible and relevant new evidence has come to light post-trial, which could have affected the verdict.
- Serious Police or Prosecutorial Misconduct: E.g., non-disclosure of material which would have assisted the defence.
It is important that not every irregularity or error will result in a conviction being found 'unsafe'—it must be sufficiently material to the reliability of the verdict as a whole.
Powers of the Court of Appeal on Conviction Appeals
If the Court of Appeal concludes that the conviction is unsafe, it must allow the appeal (s 2(2) Criminal Appeal Act 1968). Upon allowing an appeal against conviction, the Court has the following primary powers:
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Quash the Conviction: Setting aside the conviction, resulting in the appellant’s acquittal on that count.
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Order a Retrial: Under s 7 of the Criminal Appeal Act 1968, the Court may order that the appellant be re-tried on a fresh indictment if it is in the interests of justice. This will be appropriate where the original trial was flawed but the evidence against the defendant remains sufficient for the case to be re-heard.
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Substitute a Conviction for an Alternative Offence: Under s 3 of the same Act, if the evidence supports conviction for a lesser or alternative offence, the Court may substitute that verdict and pass sentence accordingly.
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Apply the Proviso (No Substantial Miscarriage of Justice): In rare circumstances, if the Court identifies a legal error but is satisfied that no substantial miscarriage of justice has occurred (i.e., the error would not have affected the safety of the conviction), it may dismiss the appeal—this is known as applying the 'proviso'.
Key Term: Proviso (No Substantial Miscarriage of Justice)
This is the power, under s 2(1) of the Criminal Appeal Act 1968, for the Court of Appeal to dismiss an appeal where, despite identifying a legal error, it concludes that no substantial miscarriage of justice has actually occurred.
- Order for Loss of Time, where appropriate: In exceptional circumstances, the Court may order that the period spent in custody pending the appeal or retrial not count towards any sentence ultimately served if it considers the appeal to have been unmeritorious or abusive.
Worked Example 1.1
David was convicted of murder after a trial in the Crown Court. His defence was self-defence. The trial judge failed to direct the jury correctly on the law regarding the degree of force permissible in self-defence. David seeks leave to appeal.
Answer:
The Court of Appeal would likely find the conviction unsafe due to the judge's misdirection on a key point of law. The Court could quash the murder conviction. Depending on the circumstances and whether a properly directed jury could still have potentially convicted David of either murder or manslaughter, the Court might order a retrial. If the Court considers it clear that the error could not have affected the jury’s verdict, the appeal could theoretically be dismissed by applying the proviso, though that is rarely used in fundamental error cases.
Fresh Evidence
The Court of Appeal is empowered to consider and admit fresh evidence (Criminal Appeal Act 1968, s 23). It will do so only if it is necessary or expedient in the interests of justice.
Key Term: Fresh Evidence
Evidence not produced at trial, which could not with reasonable diligence have been adduced, and which is credible, relevant, and may reasonably affect the safety of the conviction.
In considering the admission of fresh evidence, the Court will weigh factors including:
- Whether the evidence is credible and capable of belief.
- Whether it would likely have led to a different outcome at trial, or at least have affected the verdict.
- Whether there is a reasonable explanation for failure to adduce it at the original proceedings (mere tactical decisions usually do not suffice).
- Whether the evidence would have been admissible at trial.
If the Court finds that fresh evidence raises serious doubt about the reliability of the verdict, it can set aside the conviction.
Worked Example 1.2
Sophia was convicted of fraud. Her conviction rested on identification evidence. After trial, a new witness comes forward confirming her alibi. Her legal team applies with affidavits from this new witness.
Answer:
The Court will consider whether this new evidence is credible, whether it could have been adduced at trial, and whether it could have reasonably affected the outcome. If the evidence is found genuinely fresh, credible, and likely to have changed the jury’s view, the Court may admit the evidence and, finding the conviction unsafe, allow the appeal—quashing the conviction or ordering a retrial.
Summary Procedure for Appeals Against Conviction in the Court of Appeal
- Obtain leave to appeal (from trial judge or single judge).
- Prepare and serve notice, setting out the grounds of appeal (within 28 days).
- Registrar or single judge filters applications; a full court hears substantive appeals.
- If appeal is allowed, the court exercises its statutory powers.
Revision Tip (Conviction Appeals)
Focus on the requirement for the conviction to be 'unsafe'—mere doubts about guilt are insufficient unless they arise from serious error; always relate errors to their material impact on the safety of the verdict. Not all technical defects in trial process will lead to a conviction being unsafe.
Appeals Against Sentence
A defendant sentenced by the Crown Court has a right to apply for leave to appeal against sentence. The essential grounds for such an appeal are that the sentence is:
- wrong in law;
- wrong in principle (i.e., an error in the approach to sentencing, such as misapplication of guidelines, aggravating or mitigating factors, or failure to follow binding precedents);
- or manifestly excessive (i.e., plainly disproportionate given the circumstances of the offence and offender, significantly above the normal range for such an offence).
Key Term: Manifestly Excessive
A sentence is 'manifestly excessive' if it is obviously too harsh or lengthy, considering the facts, relevant circumstances, the offence's gravity, aggravating and mitigating features, and applicable sentencing guidelines.
The Court of Appeal will not interfere simply because it would have imposed a different sentence—it must be clear that the sentence was outside the appropriate range or based on an incorrect approach.
Exam Warning
Disagreement with the sentencing judge’s discretion is not enough for a successful appeal. There must be an error in law or principle, or the overall sentence must be so harsh that it is manifestly excessive.
Powers of the Court of Appeal on Sentence Appeals
When allowing an appeal against sentence, the Court has power (Criminal Appeal Act 1968, s 11) to:
- Quash the original sentence.
- Substitute any sentence (whether more or less severe, or of a different type) that the Crown Court could have lawfully passed, provided that the total sentence is not more severe in substance than the one imposed by the Crown Court for the offence in question.
Key Term: Substituted Sentence
This refers to a different sentence imposed by the appellate court in place of the original, ensuring it is lawful and proportionate in all circumstances.
It is important to note that upon a successful sentence appeal, the Court cannot increase the severity of the sentence above that passed by the Crown Court; its powers are confined to reducing (or substituting) to the level the Crown Court could legally have imposed.
Aggravating and mitigating circumstances will be taken into account, but the principle of totality and compliance with sentencing guidelines govern appellate review.
Worked Example 1.3
Fatima pleaded guilty to theft and was sentenced to four years by the Crown Court, but the judge mistakenly believed the statutory maximum for theft to be 10 years when, in fact, the maximum is 7 years.
Answer:
The sentence is wrong in law, as it is not permitted to exceed the statutory maximum. The Court of Appeal would quash the sentence and substitute the maximum permitted or a sentence within the guideline band, adjusting for guilty plea and circumstances.
Revision Tip (Sentence Appeals)
Remember: the Court of Appeal will only reduce sentences where there is a distinct legal or principled error, or clear overreach of the judge’s discretion. The Court is guided by the sentencing guidelines but retains discretion to ensure just outcomes.
Relevant Standards of Proof and Burden in Appeals
In the Court of Appeal, as in other criminal proceedings, the burden falls on the appellant to show the conviction is unsafe or the sentence improper. The standard of proof is generally on the balance of probabilities for issues such as the admission of fresh evidence, but the fundamental question for conviction (safety) is whether the appeal court is left in real doubt about the verdict’s propriety.
The hearing before the full court is not a complete retrial. It is generally confined to the materials and issues advanced in the grounds of appeal, although oral argument, supplementary written materials, and admitted new evidence may be considered.
The Role of Disclosure and Article 6 ECHR
The Court’s appellate powers must be seen in the broader context of the right to a fair trial under Article 6 ECHR.
Key Term: Article 6 ECHR (Right to a Fair Trial)
Article 6 ECHR guarantees anyone charged with a criminal offence the right to a fair and public hearing, legal representation, and equality of arms. Failures in disclosure, process, or the exclusion of relevant evidence can render a conviction unsafe on ECHR and domestic grounds.Key Term: Disclosure
In a criminal appeal context, disclosure relates to the prosecutor's continuing duty to provide information/material which might undermine the case against the defendant or assist the defence. Non-disclosure of such material may form part of the basis on which a conviction is challenged as unsafe.
Summary Table: Main Powers of the Court of Appeal (Criminal Division)
- Dismiss appeal (upholding conviction/sentence).
- Quash conviction (acquittal).
- Substitution of alternative verdict.
- Retrial order (in the interests of justice).
- Substitution of a different sentence (never to increase severity).
- Admission of fresh evidence.
- Application of the proviso (where no substantial miscarriage of justice).
- Make an order for loss of time (in exceptional and abusive cases).
The Interaction With the Right to Silence and Confessions
The Court of Appeal will consider as part of its review whether any infringement or misdirection relating to a defendant’s right to silence, adverse inferences, or improper admission of confession evidence arose, and if so whether these were material to the safety of the conviction. Sections 76 and 78 of PACE 1984, and the relevant ECHR jurisprudence, underpin this analysis.
Key Point Checklist
This article has covered the following key knowledge points:
- The Court of Appeal (Criminal Division) hears appeals against conviction and sentence from the Crown Court; leave to appeal is always required.
- Appeals against conviction may succeed if (and only if) the conviction is deemed unsafe by reason of serious error, irregularity, or new/fresh evidence.
- The Court’s powers on appeal include quashing the conviction, substituting an alternative verdict, ordering a retrial, or applying the proviso where no substantial miscarriage of justice has occurred.
- Fresh evidence may be admitted by the Court where necessary in the interests of justice, subject to strict criteria.
- The Court can quash the original sentence and substitute any sentence the Crown Court could have lawfully imposed, but cannot increase the sentence’s severity.
- Appeals against sentence must show that the sentence was wrong in law, wrong in principle, or manifestly excessive to succeed.
- Disclosure failures and breaches of the right to a fair trial (Article 6 ECHR) may ground an appeal where they undermine the safety of a conviction.
- The Court’s function is significant in upholding the integrity of the criminal justice system and protecting against miscarriages of justice.
Key Terms and Concepts
- article 6 echr (right to a fair trial)
- Court of Appeal (Criminal Division)
- disclosure
- fresh evidence
- leave to appeal
- unsafe conviction
- manifestly excessive
- substituted sentence
- proviso (no substantial miscarriage of justice)