Appeals procedure - Powers of the Court of Appeal

Learning Outcomes

This article outlines the jurisdiction and key powers of the Court of Appeal (Criminal Division) when dealing with appeals from the Crown Court. After studying this material, you should understand the grounds for appealing against conviction and sentence, the tests applied by the Court (such as the 'safety test'), and the potential outcomes of an appeal, including the Court's power to quash convictions, order retrials, or vary sentences. This knowledge is essential for advising clients on appeal prospects and handling post-conviction procedures.

SQE1 Syllabus

For SQE1, you are expected to demonstrate an understanding of the criminal appeals process, specifically focusing on the role and powers of the Court of Appeal in relation to cases originating in the Crown Court. Your revision should cover:

  • The jurisdiction of the Court of Appeal (Criminal Division).
  • The procedure for initiating an appeal against conviction or sentence from the Crown Court, including the requirement for leave.
  • The grounds upon which an appeal against conviction may be allowed, particularly the concept of an 'unsafe' conviction.
  • The powers available to the Court of Appeal when dealing with an appeal against conviction (eg quashing, ordering retrial, substituting verdict).
  • The grounds upon which an appeal against sentence may be allowed (eg sentence wrong in principle or manifestly excessive).
  • The powers available to the Court of Appeal when dealing with an appeal against sentence.

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 is the primary ground upon which the Court of Appeal (Criminal Division) may allow an appeal against conviction?
  2. True or False: A defendant has an automatic right to appeal their conviction or sentence from the Crown Court to the Court of Appeal.
  3. Identify two powers the Court of Appeal has if it allows an appeal against conviction.
  4. On what basis might the Court of Appeal allow an appeal against sentence?

Introduction

The Court of Appeal (Criminal Division) serves as an important check within the criminal justice system, primarily reviewing decisions made by the Crown Court. Its role is essential in correcting potential miscarriages of justice, ensuring convictions are safe and sentences are appropriate. For SQE1 purposes, understanding the Court's powers concerning appeals against conviction and sentence is essential. This article focuses on the statutory framework governing these powers, the tests applied by the Court, and the potential outcomes for an appellant.

Appeals Against Conviction

A defendant convicted on indictment in the Crown Court may appeal against their conviction to the Court of Appeal (Criminal Division). This right is not automatic; the defendant requires leave (permission) either from the trial judge or, more commonly, from the Court of Appeal itself.

Grounds for Appeal: The Safety Test

The sole ground on which the Court of Appeal may allow an appeal against conviction is that the conviction is unsafe. This is mandated by the Criminal Appeal Act 1968, s 2(1).

Key Term: Unsafe Conviction A conviction is deemed unsafe if the Court of Appeal considers there is a doubt about the appellant's guilt based on all the circumstances of the case, including the conduct of the trial, the summing-up, or fresh evidence. It does not necessarily mean the appellant is innocent, but that the process or evidence makes the conviction unreliable.

Factors that might render a conviction unsafe include:

  • Errors of Law: Misdirections by the trial judge to the jury on points of law.
  • Procedural Irregularities: Significant failures in the trial process that prejudiced the defendant.
  • Improper Admission or Exclusion of Evidence: Decisions on evidence that unfairly impacted the trial's outcome.
  • Jury Irregularities: Issues concerning the conduct or deliberations of the jury.
  • Fresh Evidence: New evidence emerging post-trial that is credible, relevant, and could have affected the verdict.

Powers of the Court of Appeal on Conviction Appeals

If the Court of Appeal finds the conviction unsafe, it must allow the appeal. Upon allowing an appeal, the Court has several powers:

  1. Quash the Conviction: This nullifies the conviction. The appellant is then treated as acquitted on that count.
  2. Order a Retrial: Under s 7 of the Criminal Appeal Act 1968, the Court may order the appellant to be retried on a fresh indictment if it is in the interests of justice. This is common where the original trial was flawed but there remains a case to answer.
  3. Substitute a Conviction for an Alternative Offence: Under s 3 of the Criminal Appeal Act 1968, if the jury could have convicted the appellant of a different offence on the indictment, and the Court considers the jury must have been satisfied of facts proving guilt of that other offence, it may substitute a conviction for that alternative offence.

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.

What power might the Court of Appeal exercise if leave is granted and the appeal allowed?

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.

Fresh Evidence

The Court of Appeal has the power to receive fresh evidence under s 23 of the Criminal Appeal Act 1968, but only if it considers it necessary or expedient in the interests of justice. The Court will typically consider:

  • Whether the evidence is capable of belief (credible).
  • Whether it might afford a ground for allowing the appeal.
  • Whether it would have been admissible at the original trial.
  • Whether there is a reasonable explanation for the failure to adduce it at trial.

Revision Tip (Conviction Appeals)

Focus on the single ground for allowing a conviction appeal: the conviction must be unsafe. Understand the types of issues (misdirection, procedural errors, fresh evidence) that lead to this finding.

Appeals Against Sentence

A defendant sentenced by the Crown Court following conviction on indictment may appeal against their sentence to the Court of Appeal (Criminal Division), again requiring leave.

Grounds for Appeal

Leave to appeal against sentence will usually only be granted if it is arguable that the sentence was:

  • Wrong in Law: The sentence imposed was not legally permissible (e.g., exceeding the maximum sentence).
  • Wrong in Principle: The sentencing judge made an error in the approach taken or failed to follow relevant sentencing guidelines without justification.
  • Manifestly Excessive: The sentence was far too severe in all the circumstances, even if legally permissible and based on correct principles.

Key Term: Manifestly Excessive A sentence that is clearly and obviously too long or severe when considering the offence's seriousness, the offender's circumstances, and the relevant sentencing guidelines. It goes beyond mere disagreement with the judge's decision.

Exam Warning

Disagreement with the length of a sentence is not sufficient grounds for appeal. The sentence must be arguably manifestly excessive or based on a legal or principled error.

Powers of the Court of Appeal on Sentence Appeals

If the Court grants leave and allows the appeal against sentence, under s 11 of the Criminal Appeal Act 1968, it may:

  1. Quash the Original Sentence: Set aside the sentence passed by the Crown Court.
  2. Pass a Different Sentence: Impose any sentence (more or less severe) that the Crown Court could have passed for the offence, provided the new sentence, taken as a whole, is not more severe than the original sentence taken as a whole.

Worked Example 1.2

Fatima pleaded guilty to theft (an either-way offence) in the magistrates' court and was committed to the Crown Court for sentence due to her previous convictions. The Crown Court judge imposed a sentence of 4 years' imprisonment, mistakenly believing the maximum sentence was 10 years. The actual maximum sentence for theft when tried on indictment is 7 years.

On what ground might Fatima appeal her sentence, and what is the likely outcome?

Answer: Fatima can appeal on the ground that the sentence was wrong in law. The judge imposed a sentence based on an incorrect understanding of the maximum penalty. The Court of Appeal would likely quash the 4-year sentence and impose a different, legally permissible sentence, considering the appropriate sentencing guidelines for theft within the correct 7-year maximum.

Revision Tip (Sentence Appeals)

Remember that the Court of Appeal cannot increase the overall severity of the sentence when allowing an appeal against sentence. It can substitute a different type of sentence, but the total effect cannot be harsher than the original.

Leave to Appeal

Appeals from the Crown Court to the Court of Appeal (Criminal Division) are not automatic. The appellant (the defendant) must obtain leave to appeal.

Key Term: Leave to Appeal Permission required from the court to proceed with an appeal. It acts as a filter to prevent unmeritorious appeals from consuming court time.

Leave can be granted by:

  1. The trial judge certifying that the case is fit for appeal (rare).
  2. The Court of Appeal itself (single judge or full court).

An application for leave must usually be lodged within 28 days of the conviction or sentence being appealed.

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 required.
  • Appeals against conviction are allowed only if the conviction is deemed 'unsafe'.
  • Factors rendering a conviction unsafe include errors of law, procedural irregularities, and compelling fresh evidence.
  • If a conviction appeal is allowed, the Court can quash the conviction, order a retrial, or substitute a verdict for an alternative offence.
  • Appeals against sentence can be based on the sentence being wrong in law, wrong in principle, or manifestly excessive.
  • If a sentence appeal is allowed, the Court can quash the sentence and pass a different sentence, but the overall severity cannot be increased.

Key Terms and Concepts

  • Unsafe Conviction
  • Leave to Appeal
  • Manifestly Excessive
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