Procedures and processes in criminal litigation - Appeals pr...

Learning Outcomes

This article outlines the appeals procedure in criminal litigation in England and Wales, including:

• Who may appeal, in what circumstances, and on what grounds from magistrates’ and Crown Court decisions
• The key time limits and extension applications for each route (15 business days, 21 days, 28 days)
• Distinguishing a de novo Crown Court appeal from an appeal by way of case stated, and tactical choice
• The composition of appellate benches and how decisions are reached at each level
• The “unsafe conviction” test and sentence standards (“manifestly excessive” or wrong in law/principle)
• Leave to appeal requirements in the Court of Appeal, single judge consideration, and renewal
• Court powers and possible outcomes at the Crown Court, Divisional Court, and Court of Appeal
• Ancillary issues: bail pending appeal, representation orders, costs, and “loss of time” directions
• Prosecution routes: terminating rulings, unduly lenient sentence references, and double jeopardy retrials
• When judicial review is appropriate instead of case stated and the core differences between them
• The handling and admissibility of fresh evidence and its interaction with the safety test, and the risk of increased sentence on a magistrates’ appeal

SQE2 Syllabus

For SQE2, you are required to understand the appeals framework and procedure in criminal litigation as it applies to practical case scenarios, with a focus on the following syllabus points:

• The principal appeal routes from the magistrates’ court and the Crown Court in criminal cases.
• Who may bring an appeal, on what grounds, and the relevant time limits for appeals.
• The procedures and key differences between appeals against conviction, sentence, and by way of case stated.
• The powers and possible outcomes available to the appellate courts.
• How prosecution and defence rights of appeal differ.
• The leave to appeal process in the Court of Appeal, including single judge consideration and renewal.
• The test for fresh evidence on appeal and how it interacts with the “unsafe” test.
• Prosecution appeals against terminating rulings and the Attorney General’s unduly lenient sentence references.
• Limited further appeals to the Supreme Court and certification of points of law of general public importance.

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 are the two main routes of appeal available to a defendant following conviction in the magistrates’ court?
• Name three possible outcomes of a successful appeal to the Crown Court against conviction.
• Who can appeal to the High Court by way of case stated, and in what circumstances?
• By when must a defendant file an appeal against conviction from the Crown Court to the Court of Appeal?

Introduction

When advising a client convicted in the criminal courts of England and Wales, you may need to consider whether and how to challenge the court’s decision or penalty. Appeals procedures differ depending on whether the conviction or sentencing was before the magistrates’ court or the Crown Court. Different appeal routes also apply to prosecution and defence, and each route requires careful attention to timing, processes, and available remedies.

Appeals are part of a wider framework that aims to ensure criminal cases are dealt with justly and efficiently, in line with the Criminal Procedure Rules. The choice of route and grounds can have immediate practical implications, such as whether new evidence can be adduced, whether legal errors can be corrected without a full rehearing, and whether bail pending appeal is realistically available.

Key Term: appeal
An application to a higher court to review and potentially change the decision of a lower court.

Appeals from the Magistrates’ Court

Defendants convicted in the magistrates’ court can appeal by two principal routes: a direct (de novo) appeal to the Crown Court, or an appeal on a point of law to the High Court by way of case stated. These routes are mutually exclusive in respect of the same decision; a defendant must choose one.

Key Term: de novo appeal
A full rehearing of the case as if it were a new trial, hearing evidence and legal issues afresh.

Appeal to the Crown Court

A defendant convicted in the magistrates’ court may appeal to the Crown Court against conviction and/or sentence. This is a de novo appeal, meaning the Crown Court rehears all evidence and makes its own decision on facts and law. No permission (“leave”) is needed to bring the appeal, but the defendant must file and serve the notice of appeal within 15 business days after sentencing (or deferral of sentence). If out of time, an application for extension can be made, explaining the reasons and prospects of success.

At the appeal hearing, a Crown Court judge (High Court judge, Circuit Judge or Recorder) sits with an even number of lay magistrates—usually two, but up to four—none of whom took part in the original decision. While the judge determines the applicable law, the panel’s decision on conviction or sentence is by majority vote, so the magistrates can outvote the judge on the ultimate outcome.

If the appeal is against conviction, the court will rehear witnesses and evidence. Either party may call new evidence or omit evidence heard below. If the appeal is against sentence only (after a guilty plea or following conviction), the Crown Court conducts a fresh sentencing exercise, considering all relevant material. The court may increase, decrease, or leave the sentence unchanged—but only within the original magistrates’ sentencing powers, including any relevant statutory maxima.

Practical points:

• The appellant should consider seeking bail pending appeal in the notice. The presumption in favour of bail does not apply; a separate, focused application is required.
• If the representation at the magistrates’ court was legally aided under a representation order, a fresh representation order is generally required for the Crown Court appeal.
• The respondent (prosecution) must file a respondent’s notice within 15 business days of service of the appeal notice in conviction appeals.
• Costs can follow the event; an unsuccessful appellant may face a prosecution costs order.

The Crown Court may:

• Allow the appeal and quash the conviction.
• Dismiss the appeal and uphold the conviction/sentence.
• Substitute a different verdict available to the magistrates.
• Vary the sentence or impose any sentence that the magistrates’ court could have imposed (including, if appropriate, different community requirements or ancillary orders).

Exam Warning

Appeals to the Crown Court are from sentence, not conviction, if the defendant pleaded guilty. Challenging the validity of a guilty plea is usually pursued by an application to reopen in the magistrates’ court (e.g., under the magistrates’ powers to rectify mistakes) rather than by appealing “conviction” to the Crown Court.

A further appeal, on a point of law, may be made from the Crown Court (when it has heard an appeal from the magistrates’ court) to the High Court by way of case stated if a legal question remains.

Appeal by Way of Case Stated (to the High Court)

Both defence and prosecution may appeal to the Divisional Court of the High Court by way of case stated. This procedure is used when there is a specific point of law or jurisdiction disputed, not to challenge factual findings. The application must be made to the magistrates’ court within 21 days of the decision, specifying the precise question(s) of law for the High Court’s opinion. The other party may object within seven days; the magistrates can refuse to state a case only if the application is frivolous or vexatious.

The "case stated" is a written document from the lower court, setting out the facts found, the decision made, and the legal question to be determined. The High Court does not hear new evidence; it decides whether the magistrates’ court (or the Crown Court acting in its appellate capacity) misapplied the law or exceeded its powers.

Possible outcomes:

• Affirm the lower court’s decision.
• Reverse or amend the decision.
• Remit the case back with directions (e.g., to convict, to acquit, or to rehear before a different bench).

The Divisional Court normally sits with two or three judges. If only two judges sit and cannot agree, the appeal fails and the decision below stands.

Exam Warning

Proceeding by way of case stated precludes a simultaneous de novo Crown Court appeal for the same matter. Choose the route that matches your client’s objective: factual re-evaluation (Crown Court) or correction of legal error (Divisional Court).

Key Term: case stated
A formal document prepared by the lower court that sets out the facts found and poses defined questions of law for the High Court’s opinion.

Judicial Review

On rare occasions, where there is alleged procedural unfairness, breach of natural justice, or excess of jurisdiction not suited to an appeal by way of case stated, an application for judicial review may be possible in the Administrative Court. This is a supervisory remedy; permission is required, and the claim must be brought promptly (in practice as soon as possible and within the relevant Civil Procedure Rules time limit). Judicial review focuses on the legality of the decision-making process, not the merits or facts.

Appeals from the Crown Court

After a conviction or sentence in the Crown Court, the defendant may appeal to the Court of Appeal (Criminal Division). Permission to appeal (“leave”) is always required, either from the trial judge or from the Court of Appeal.

Appeal to the Court of Appeal (Criminal Division)

A defendant may appeal against conviction or sentence from the Crown Court. Two distinct regimes apply:

• Conviction appeals: the test is whether the conviction is “unsafe.”
• Sentence appeals: the sentence must be “wrong in law,” “manifestly excessive,” or wrong in principle.

The process requires an application for leave, which must generally be made within 28 days of conviction (for a conviction appeal) or 28 days of sentence (for a sentence appeal). The application is usually considered on the papers by a single judge. If the single judge refuses leave, the applicant may renew before the full court.

Leave to appeal may be granted by:

• The trial judge immediately after conviction/sentence; or
• A single judge of the Court of Appeal, on consideration of the written application.

Key Term: grounds of appeal
The legal reasons (e.g., error in law, unsafe conviction, or unduly severe sentence) upon which an appeal is based.

Key Term: unsafe conviction
The statutory test for allowing a conviction appeal; the Court of Appeal must be satisfied that the conviction is unsafe after considering the whole of the proceedings, any fresh evidence, and any arguments of law.

Examples of conviction grounds include:

• The judge misdirected the jury on a point of law (e.g., elements of the offence or burden/standard of proof).
• The judge wrongly admitted evidence that should have been excluded (e.g., identification or confession obtained in breach of PACE), or excluded evidence that should have been admitted.
• Errors in the summing up, or inappropriate judicial interventions that undermined the fairness of the trial.
• A submission of “no case to answer” was wrongly rejected.
• Credible fresh evidence emerges that, considered with the trial record, gives rise to an unsafe conviction.

Fresh evidence is restricted. The Court will consider whether it is capable of belief, whether it would likely have affected the jury’s verdict, and whether it could reasonably have been obtained for use at trial. “Fresh” does not automatically mean admissible; the overarching question is whether admitting it would support the safety of the conviction.

On sentence appeals, “manifestly excessive” reflects sentences that fall outside the reasonable range given the facts and guideline framework, or where legally impermissible elements were included (e.g., exceeding statutory maxima, or misapplying mandatory surcharges or orders).

Possible outcomes include:

• Allowing a conviction appeal and quashing the conviction; the Court may direct an acquittal or order a retrial.
• Dismissing the conviction appeal and affirming the conviction.
• Substituting a conviction for a lesser or alternative offence (where appropriate and within statutory powers).
• Reducing sentence (and ensuring any time spent in custody pending appeal is credited). The Court will not increase sentence on a defendant’s appeal; however, in wholly unmeritorious appeals it may make a “loss of time” direction, ordering that time spent in custody pending appeal not count towards sentence.

The prosecution has limited rights of appeal in relation to Crown Court proceedings, usually where the trial judge makes a ruling terminating proceedings or in respect of unduly lenient sentences.

Key Term: terminating ruling
A ruling by the trial judge which effectively brings the case to an end (e.g., upholding a “no case to answer” submission), against which the prosecution may appeal.

Prosecution Appeals: Terminating Rulings and Unduly Lenient Sentences

• Terminating rulings: The prosecution may appeal a ruling that terminates proceedings. The judge should be notified immediately after the ruling that the prosecution intends to appeal. The Court of Appeal may confirm (leaving the acquittal intact), reverse or vary the ruling, order a resumption of proceedings, or direct a fresh trial.

• Unduly lenient sentences: With the Attorney General’s authority, the prosecution may refer a Crown Court sentence that appears unduly lenient. The Court of Appeal can increase the sentence to the appropriate level within the original sentencing powers.

Exam Warning

The prosecution cannot appeal a jury’s acquittal, save under the statutory double jeopardy retrial provisions for qualifying serious offences where new and compelling evidence exists and consent is obtained.

Double Jeopardy Retrials for Qualifying Offences

In tightly circumscribed circumstances, an acquittal may be quashed and a retrial ordered for qualifying serious offences (e.g., murder, attempted murder, manslaughter, certain serious sexual or violent offences) if there is new and compelling evidence and it is in the interests of justice. Consent of the Director of Public Prosecutions is required, and leave must be granted.

Further Appeals

A further appeal lies, in limited circumstances, from the Court of Appeal to the Supreme Court. The Court of Appeal or the Supreme Court must certify that a point of law of general public importance is involved and grant leave. Certification is not automatic; the point must be one of broader significance beyond the individual case.

Procedural Requirements and Timings

Be precise and methodical about procedure and time limits. Missing a deadline will require an application for extension with clear reasons.

• Magistrates’ court to Crown Court (defence): file and serve the appeal notice within 15 business days from sentence (or deferral of sentence). Consider including a bail application. The magistrates’ court officer must promptly send the case papers and reasons to the Crown Court.

• Magistrates’ court to High Court by case stated (either party): apply to the magistrates’ court within 21 days of the decision, specifying the questions of law; allow seven days for objections; the magistrates decide whether to state a case. If they refuse, consider an application to the High Court to require a case to be stated.

• Crown Court to Court of Appeal (defence): apply for leave within 28 days of conviction or sentence, depending on the nature of the appeal; include full grounds and any proposed fresh evidence materials. If refused by the single judge, the application may be renewed before the full court. Seek extensions out of time only with compelling reasons (e.g., late discovery of fresh evidence, illness, prison lockdown). Be aware of “loss of time” directions for wholly unmeritorious appeals.

• Prosecution unduly lenient references: must be made within the statutory time limit (short and strictly applied), with the Attorney General’s consent.

Service requirements:

• Serve notices on the court of first instance and the respondent (usually the CPS), ensuring compliance with Criminal Procedure Rules (Parts governing appeals and notices).
• Keep grounds concise and focused; the appellate courts are not a forum for relitigating every issue raised at trial without a principled basis.

Revision Tip

Link procedural steps to outcomes. For example, only a de novo appeal allows new factual evidence wholesale. By contrast, case stated confines argument to law and jurisdiction; judicial review examines the lawfulness of process, not facts.

Key Term: leave to appeal
Permission required to pursue an appeal to the Court of Appeal; may be granted by the trial judge or the Court of Appeal (single judge or full court on renewal).

The Role of the Prosecution on Appeal

The prosecution can:

• Appeal against a magistrates’ court ruling by case stated (wrong in law or excess of jurisdiction).
• Appeal against a Crown Court judge’s terminating ruling which brings proceedings to an end.
• Refer unduly lenient sentences from the Crown Court via the Attorney General.
• Seek retrial of certain acquittals for qualifying offences where new and compelling evidence exists, with the required consents.

The prosecution cannot appeal a jury’s acquittal except under the restricted statutory retrial regime. Nor can the prosecution appeal a magistrates’ court acquittal to the Crown Court; their route from magistrates is case stated (or judicial review in appropriate cases).

Worked Example 1.1

Scenario:
Anna is convicted in the magistrates’ court of theft after a trial. She believes the magistrates made errors regarding both the facts and the law. Her solicitor wants to fully challenge the conviction.

Question: What routes of appeal are open to Anna, and what may the Crown Court do on appeal?

Answer:
Anna may appeal to the Crown Court within 15 business days after sentence. The Crown Court will rehear the evidence and may allow the appeal (quashing the conviction), dismiss the appeal, substitute another verdict, or vary the sentence within magistrates’ powers. If there is a question only of law, Anna can (instead or as an alternative) go by way of case stated to the High Court within 21 days of the magistrates’ decision.

Worked Example 1.2

Scenario:
Ben is convicted by a jury in the Crown Court and receives a 4-year sentence. He believes the judge’s directions to the jury were flawed in law and the sentence is too harsh.

Question: What should Ben’s solicitor advise about appeals, timing, and outcomes?

Answer:
Ben can apply for leave to appeal to the Court of Appeal within 28 days of conviction (for conviction appeals) or sentence (for sentence appeals). The Court of Appeal may allow the appeal (and quash the conviction or substitute a conviction for a lesser offence) or dismiss it. For sentence, the court may reduce (but not increase beyond the original powers) the term. Ben’s solicitor must submit full grounds of appeal with the application.

Worked Example 1.3

Scenario:
The CPS is dissatisfied with a magistrates’ court decision to acquit Chloe of an offence after ruling certain hearsay evidence admissible which the CPS believes was wrongly admitted.

Question: What route of appeal is available, what is the time limit, and what can the High Court do?

Answer:
The CPS may appeal by way of case stated to the High Court within 21 days, asking the magistrates to state the case on the specific legal question. The Divisional Court will not rehear evidence; it can affirm, reverse or amend the decision, or remit the case with directions (including directions to convict or to hold a rehearing before a different bench).

Worked Example 1.4

Scenario:
During a Crown Court trial, the judge upholds a submission of “no case to answer” at half-time and directs an acquittal. The prosecution believes the ruling was erroneous and wants to continue.

Question: Can the prosecution appeal, and what might the Court of Appeal do?

Answer:
Yes. This is a terminating ruling; the prosecution should notify the court immediately that it intends to appeal. The Court of Appeal can confirm the ruling (acquittal stands), reverse or vary the ruling and direct that proceedings resume or that a fresh trial be ordered, depending on the circumstances.

Worked Example 1.5

Scenario:
Layla receives a suspended sentence for a serious sexual assault. The Attorney General considers the sentence unduly lenient.

Question: What is the process and possible outcome?

Answer:
The Attorney General can refer the sentence to the Court of Appeal within the statutory time limit. The Court may find the sentence unduly lenient and increase it to the appropriate level within the powers available at first instance, ensuring any time already served or restrictions are taken into account.

Worked Example 1.6

Scenario:
Two years after conviction for manslaughter, new forensic evidence emerges suggesting an alternative cause of death not explored at trial. D seeks to appeal out of time.

Question: What principles apply to fresh evidence and late appeals in the Court of Appeal?

Answer:
D must apply for leave out of time, explaining the delay and demonstrating the fresh evidence is credible, could not reasonably have been obtained for the trial, and would likely affect the safety of the conviction. If admitted and the conviction is unsafe, the Court may quash and order an acquittal or a retrial. The Court may issue a “loss of time” direction against unmeritorious appeals; careful assessment of merit is essential.

Worked Example 1.7

Scenario:
A conviction appeal raises a novel interpretation of a statutory offence element with wider impact across many cases. If the Court of Appeal dismisses the appeal, D believes the point merits further consideration.

Question: How can the case reach the Supreme Court?

Answer:
The Court of Appeal (or later the Supreme Court) must certify that the case involves a point of law of general public importance and grant leave. If certification and permission are granted, the appeal proceeds to the Supreme Court on that defined point.

Revision Tip

Take particular care with time limits for appeals and serving notices on all required parties. Late appeals may be refused unless an extension is granted. Distinguish clearly between conviction and sentence appeal time points (conviction date versus sentencing date).

Exam Warning

An appeal to the Crown Court from the magistrates' court results in a full rehearing. New evidence may be considered. However, once an appeal by way of case stated has been begun, a direct appeal to the Crown Court may no longer be available for the same matter.

Key Point Checklist

This article has covered the following key knowledge points:

• There are two principal appeal routes for defendants from the magistrates’ court: de novo appeal to the Crown Court and appeal by way of case stated to the High Court.
• An appeal to the Crown Court is a full rehearing; case stated appeals are on points of law only and may be brought by either party.
• From the Crown Court, appeals by defendants are to the Court of Appeal; leave to appeal is required and must be sought within strict time limits.
• The Court of Appeal allows conviction appeals only if the conviction is unsafe; sentence appeals succeed where the sentence is wrong in law/principle or manifestly excessive.
• Prosecution rights of appeal include case-stated appeals from magistrates, appeals against terminating rulings in the Crown Court, unduly lenient sentence references, and rare double jeopardy retrials for qualifying offences.
• Procedural rules and strict time limits apply for all appeals—missing deadlines usually requires permission to appeal out of time with good reason.
• Crown Court on a magistrates’ appeal may confirm, quash, substitute, or vary sentences within magistrates’ powers; Divisional Court may affirm, reverse or remit with directions; Court of Appeal may quash, order retrial, substitute offences, or vary sentence.
• Ancillary issues include bail pending appeal, representation orders for appeals, costs orders against unsuccessful appellants, and “loss of time” directions for unmeritorious Court of Appeal applications.

Key Terms and Concepts

• appeal
• de novo appeal
• grounds of appeal
• case stated
• unsafe conviction
• terminating ruling
• leave to appeal