Appeals procedure - Powers of the Crown Court on appeal

Learning Outcomes

This article outlines the Crown Court’s powers and procedure on appeals from the magistrates’ court, including:

• Powers open to the Crown Court on appeal, including de novo rehearing on fact and law
• Scope of the appeal hearing, including admission of fresh evidence, involvement of legal representatives, and the role of the Crown Court judge sitting with magistrates
• Confirmation, reversal, and variation of convictions or sentences, including substitution of alternative verdicts
• Statutory and common law restrictions on discretion, such as sentencing limitations and the prohibition on substituting more serious offences
• Procedural requirements for appeals, including time limits, notices, and the effects of an unsuccessful appeal (cost consequences and potential risk of increased sentence)
• Further appeal routes from Crown Court decisions, including the nature and scope of an appeal by case stated to the High Court

SQE1 Syllabus

For SQE1, you are required to understand the powers and procedure of the Crown Court when hearing appeals from the magistrates’ court, with a focus on the following syllabus points:

• the scope of the Crown Court’s powers when hearing criminal appeals from the magistrates’ court
• the effect and conduct of a full rehearing on appeal
• admitting fresh evidence and calling new witnesses on appeal
• the ability to confirm, reverse, or vary conviction or sentence, and the meaning of “quash” and “substitute”
• limits on sentencing powers of the Crown Court following appeal (no greater power than magistrates’ court)
• restrictions on appeals by prosecution and the nature of defence and prosecution appeals
• procedures for bringing an appeal to the Crown Court, including time limits and requirements for notices
• further routes for appeal (e.g. appeal by case stated to the High Court, points of law or jurisdiction only)

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 main powers of the Crown Court when hearing an appeal from the magistrates’ court?
2. Can the Crown Court impose a sentence greater than the magistrates’ court could have imposed on appeal?
3. In what circumstances can the Crown Court admit new evidence on appeal?
4. What is the effect of a rehearing in the Crown Court on an appeal against conviction?

Introduction

Appeals from the magistrates’ court to the Crown Court serve as a fundamental safeguard in the criminal justice system of England and Wales, ensuring that there is meaningful review of both conviction and sentence. The Crown Court’s appellate jurisdiction does not merely permit limited error correction: it offers a full rehearing, with expansive powers, while still constrained by strict statutory limits. A thorough understanding of these appellate powers, their procedure, and their limitations is essential for criminal practitioners and is squarely within the scope of the SQE1 assessment requirements.

Key Term: rehearing
A rehearing is a hearing de novo, where the Crown Court considers the case afresh as if the trial were happening for the first time, deciding both questions of law and fact anew and not being limited to reviewing the magistrates’ decision.

Appeals from the Magistrates’ Court to the Crown Court

A defendant convicted and/or sentenced in the magistrates’ court has an automatic right of appeal to the Crown Court against conviction, sentence, or both—even if they pleaded guilty, though in practice appeals against conviction following a guilty plea are rare and limited to exceptional circumstances (such as where the plea was equivocal or involuntary). The prosecution, save for some narrow statutory exceptions, has no corresponding general right to appeal against acquittals or lenient sentences in the magistrates’ court.

The appeal must be commenced by serving a notice of appeal on both the magistrates’ court and the prosecution, usually within 15 business days of sentence being passed, though extensions can sometimes be granted for good reason at the discretion of the Crown Court.

Who Hears the Appeal?

Appeals are normally heard by a Crown Court judge (a Circuit Judge or Recorder) sitting with two magistrates who were not involved in the original case. The Court sits as a tri-partite fact-finding and law-deciding body. In this configuration, the judge is responsible for all rulings on the law, while all members decide questions of fact (Criminal Procedure Rules, Practice Directions).

The Role and Scope of Appeal

Unlike a traditional appellate process limited to reviewing errors of law or procedure, an appeal to the Crown Court is a comprehensive rehearing. The Court approaches the matter as if it were dealing with the case at first instance, not fettered by the magistrates' findings of fact or law and not bound by the evidence presented at first instance. Both the prosecution and defence have the right to call new or additional evidence or make new submissions.

Importantly, the Crown Court is not a court of review when exercising its appeal jurisdiction under s. 108 Magistrates’ Courts Act 1980, but functionally replaces the magistrates’ court for the purposes of the appeal.

Powers of the Crown Court on Appeal

When determining an appeal from the magistrates’ court, the Crown Court has the statutory powers to:

• Confirm (affirm) the conviction and/or sentence
• Reverse (quash) the conviction and/or sentence
• Vary the conviction and/or sentence
• Substitute a different verdict or sentence, within the limits of the charge and jurisdiction
• Order a retrial in very rare and specific cases (typically only where the proceedings were a nullity)

These powers follow from s. 48 Supreme Court Act 1981, s. 48 Senior Courts Act 1981, and s. 109 Magistrates' Courts Act 1980, among other provisions, as interpreted by modern case law.

Key Term: confirm, reverse, or vary
To "confirm" is to uphold the magistrates’ decision; to "reverse" is to quash the conviction or sentence; to "vary" is to change the verdict (such as substituting an alternative lesser offence) or sentence while remaining within procedural and statutory limits.

Confirm (Affirm) or Reverse (Quash)

The Crown Court may uphold (confirm or affirm) the verdict or sentence, or may quash (reverse) it if it finds the conviction was unsafe, the verdict could not reasonably be supported by the evidence, or the sentence was wrong in law or manifestly excessive.

When quashing a conviction, the Crown Court may acquit the appellant. On occasion, it may substitute a verdict of guilty for a lesser alternative offence provided the facts support such a finding and only if this would have been available on the charge before the magistrates’ court.

Varying Conviction or Sentence

The Crown Court can substitute a verdict for a lesser offence that is supported by the evidence and within the scope of the original charge, provided this does not prejudice the fairness of the proceedings. The Court can also vary the sentence by increasing, reducing, or otherwise altering it, provided it does not go beyond the sentencing powers of the magistrates’ court.

Key Term: substitute
Substitution involves replacing the conviction or sentence with that for another offence or penalty which was available on the evidence before the magistrates’ court and does not amount to conviction for a more serious charge.

Fresh Evidence, Witnesses, and Procedure

The Court is not limited to the evidence called in the magistrates’ court. New witnesses can be called and new documents adduced by either side, subject to the Court’s overall case management powers and the rules of admissibility (including compliance with the rules of evidence and the need to address the interests of justice).

Fresh evidence may be admitted if it is relevant and there is a reasonable explanation for its absence from the original hearing. Key considerations include its credibility, materiality, potential effect on outcome, and whether admission is in the interests of justice. The Court may exclude evidence if its admission would be unfair or prejudicial.

Key Term: fresh evidence
Fresh evidence is evidence not adduced at the original trial, which may be admitted on appeal if relevant, credible, and there is a sufficient and justified reason for its earlier absence.

Worked Example 1.1

A defendant is convicted in a magistrates’ court of theft, receiving a custodial sentence. On appeal to the Crown Court, the defendant produces cell phone location records showing they could not have been at the scene. The prosecution agrees these records were not available at the time of trial.

Answer:
The Crown Court may admit the fresh evidence if it is relevant, credible, and there is a justifiable reason for its absence at trial. If the Court finds the evidence undermines the conviction, it will quash the conviction and may substitute a not guilty verdict.

Sentencing Powers on Appeal

When dealing with an appeal against sentence, or where it allows an appeal against conviction but considers the defendant guilty of a lesser included or alternative offence, the Crown Court may impose any sentence the magistrates’ court could have applied for that offence.

• The Crown Court must not impose a sentence harsher than that available to the magistrates’ court on the facts or charge as heard at trial.
• This restriction applies even if fresh evidence at the appeal hearing reveals more serious aggravating circumstances.
• The Court must apply the relevant Sentencing Council Guidelines and consider aggravating and mitigating factors as required for the offence and appellant’s circumstances.

Key Term: sentencing powers
The Crown Court's sentencing powers on an appeal are capped at the maximum that could have been imposed in the magistrates’ court, regardless of new findings at appeal.

Procedural Protections and Safeguards for Appellants

If the Court is considering increasing the sentence, the appellant must be warned and given opportunity to withdraw the appeal. The Court may increase, decrease, or otherwise alter (for example, substitute a community order for a fine) the sentence, provided the statutory parameters are respected.

Worked Example 1.2

A defendant is convicted in the magistrates’ court of assault occasioning actual bodily harm (s 47 OAPA 1861), and sentenced to 26 weeks’ imprisonment (the maximum for a single either-way offence). At appeal, the Crown Court considers imposing a community order with a requirement for unpaid work, or a longer custodial term.

Answer:
The Crown Court may substitute a community order (if it was within the powers of the magistrates’ court), but cannot impose a total sentence of imprisonment longer than that available to the magistrates’ court for this offence. Any non-custodial sentence or combination permitted at first instance may be imposed.

Special Considerations: Appeals Against Sentence

In appeals solely against sentence, the conviction remains undisturbed. The Crown Court’s jurisdiction is strictly limited to the quantum and type of penalty the magistrates were empowered to deliver, even if it considers the facts might justify a heavier penalty in another forum.

• Custodial and non-custodial sentences are both available, but the overall limitation is always the maximum for the offence in the context of the magistrates’ court trial.

Worked Example 1.3

A defendant is convicted of criminal damage (value less than £5,000) and fined £2,000. On appeal, the Crown Court considers a community order but is also alerted to aggravating circumstances not previously canvassed.

Answer:
The Court may impose a community order if it was within the power of the magistrates, but cannot impose any sentence not available to that court on the offence as charged or increase the total penalty above the lawful maximum.

Limits on the Crown Court’s Powers

The powers of the Crown Court are broad, but carefully circumscribed.

• The sentence passed on appeal cannot exceed the statutory maximum the magistrates’ court could have imposed, even if fresh or more serious facts emerge in the appeal.
• The Crown Court cannot convict the appellant of a more serious charge than the one tried at first instance (it may, however, find the appellant guilty of a lesser alternative or “included” offence where supported by the facts and law).
• Where the appeal is solely against sentence, the Crown Court may not revisit or alter the conviction: only the sentence is within scope.
• If the Court intends to increase the sentence, it must warn the appellant—who may then seek to withdraw the appeal, subject to procedural discretion.

Exam Warning: Where the Court considers increasing a sentence on appeal, it must alert the appellant (R v Barnes [2005]), giving the opportunity to withdraw the appeal.

Procedure for Appeals to the Crown Court

• Appeals must be initiated by serving a notice of appeal within 15 business days of sentence (not conviction), but time can be extended by the Crown Court in exceptional circumstances.
• The notice must specify the grounds of appeal (conviction, sentence, or both), and a copy must be served on both the magistrates’ court and the respondent (usually the prosecutor).
• The clerk to the magistrates’ court will transmit the relevant court records and information to the Crown Court.
• The appeal is conducted as a rehearing. Evidence may be adduced as in a trial—oral evidence, examination-in-chief, cross-examination, and re-examination, subject to the ordinary rules of evidence and fairness.
• Both sides may present further argument, make legal submissions, and invite the Court to exercise discretionary powers to admit or exclude fresh evidence.
• The outcome of the appeal is usually delivered at the end of the hearing, with reasons for the decision provided.

Effects of Withdrawal of Appeal

The appellant may withdraw the appeal at any time before a decision is made, but if the appeal proceeds and is dismissed, the initial conviction and sentence stand, and the appellant may be ordered to pay additional costs. A vexatious or unmeritorious appeal may result in further consequences, including loss of available credit for a guilty plea.

Worked Example 1.4

A defendant appeals their sentence for shop theft. During the hearing, the judge indicates the sentence may be increased if the appeal is pursued. The defendant then asks to withdraw the appeal.

Answer:
Provided the withdrawal is requested promptly after the warning and before verdict, the Court may allow it. The magistrates’ court sentence then remains in force, and there is no further appeal (save for appeal by way of case stated in limited circumstances).

Further Appeals and Appeal by Way of Case Stated

If a party believes the Crown Court made an error of law or jurisdiction in its decision on appeal from the magistrates’ court, the next step is to apply for an appeal by way of case stated to the High Court (Divisional Court). This route is strictly limited:

• It is available to either party (defendant or prosecutor).
• Only available on a point of law or jurisdiction, not on the facts of the case.
• The application is made to the Crown Court, which prepares a “case stated” (a formal statement of the legal question) for the opinion of the High Court.
• The High Court may affirm, reverse, or vary the Crown Court’s decision, or remit the case for rehearing or retrial if appropriate.

Key Term: appeal by way of case stated
An appeal to the High Court (Divisional Court) on a point of law or jurisdiction, based on a formal statement (‘case stated’) by the lower court.

Note: The Divisional Court may only entertain appeals where there is a significant legal or jurisdictional issue. Factual disputes are outside its scope, and the High Court will not rehear the evidence.

Special Issues: Fresh Evidence and Miscarriages of Justice

In certain circumstances, new evidence may come to light post-appeal that raises the possibility of a miscarriage of justice. If the Crown Court’s decision is final (i.e., not appealable by way of case stated), applications may be made to the Criminal Cases Review Commission (CCRC) seeking referral to the High Court or the Court of Appeal (Criminal Division), depending on the court hierarchy and facts.

Note on Costs and Risks: There is a risk to appellants that appeals, particularly those found to be unmeritorious or brought without real prospect of success, may result in increased sentences or adverse cost orders. Appellants must be advised of the hazard of “losing” an appeal and being worse off than if no appeal had been brought, although the Court's powers remain subject to the maxima applicable to the magistrates’ court.

Summary Table of Crown Court Powers on Appeal

Key Point Checklist

This article has covered the following key knowledge points:

• The Crown Court hears appeals from the magistrates’ court by way of a full rehearing (de novo).
• The Crown Court may confirm, reverse (quash), or vary the conviction or sentence.
• The Court can admit new evidence, provided it is relevant, credible, and there is good reason for its late admission.
• The Court’s sentencing powers are strictly limited to those of the magistrates’ court for the same offence.
• The defence must file an appeal notice within 15 business days of sentence, stating grounds (with possible extension at discretion).
• The prosecution has no general right of appeal to the Crown Court, but may appeal by way of case stated on a point of law.
• Either party may seek a further appeal by case stated to the High Court Divisional Court on a point of law, not fact.
• The Crown Court may warn of possible sentence increase; appellant may withdraw the appeal at this stage to avoid harsher penalty.
• Risks of costs and loss of credit for a guilty plea should be taken into account when deciding whether to pursue appeal.

Key Terms and Concepts

• rehearing
• confirm, reverse, or vary
• substitute
• fresh evidence
• sentencing powers
• appeal by way of case stated