Defence rights of appeal

1. If you receive a notice of appeal, you should notify Legal Adviser's Office immediately.

Appeal from the magistrates' court to Crown Court

2. Defendants may appeal to the Crown Court on a point of law or fact. If they pleaded not guilty, they can appeal against conviction or sentence; if they pleaded guilty, against sentence only 1. Appeals are heard by a Crown Court Judge sitting with not less than two and not more than four magistrates 2. An appeal against conviction is a complete rehearing of the whole case, so evidence not put before the magistrates may be adduced at the appeal 3. An appeal against sentence is a rehearing of the sentencing process only.

3. The Crown Court may confirm, reverse or vary any part of the decision appealed against, remit the case to the magistrates with directions, or make any order it thinks just 4. The Crown Court has no power to amend the original Information upon which the magistrates reached their decision 5, but a minor defect which had clearly been discounted by the original court and which had caused no prejudice to the appellant could also be discounted by the Crown Court on appeal 6. When the Crown Court is sitting in its appellate capacity, it must give reasons for its decisions 7, since a refusal to give reasons might provide grounds for judicial review.

4. The application must be made within 21 days of the decision appealed against 8. If a solicitor agent handled the case in the magistrates' court they will usually retain conduct of the appeal in the Crown Court and will liaise with Legal Advisors Office about the choice of advocate in the Crown Court.  If an inspector presented the case in the magistrates' court they should contact Legal Advisors office immediately on receipt of the notice of appeal.

There will be a conference to consider the evidence in an appeal against conviction, although evidence is rarely given in an appeal against sentence. Appeals against sentence are often listed by the Crown Court at very short notice and so if you receive notification of an appeal being listed, you must ensure that all relevant parties are informed as a matter of urgency.

5. If the defence gives notice to abandon an appeal, the prosecution can apply to the magistrates' court to order the appellant to pay costs. The court can award costs that it considers just and reasonable in respect of expenses properly incurred by the prosecution in connection with the appeal before notice of abandonment was received 9.

Appeal from the magistrates' court to the Divisional Court by case stated

6. A defendant may only appeal by way of case stated on the ground that a decision is wrong in law or is in excess of jurisdiction 10 – see the section 'Prosecution rights of appeal' for further guidance on appeals by way of case stated. The application must be made within 21 days of the decision appealed against 11. If an application is made to the Divisional Court, the defendant will no longer have any right of appeal to the Crown Court 12 even if the Divisional Court appeal is abandoned 13.

7. Where the defendant has requested that a case be stated and a Notice is served you will receive a copy of it from the court that must be immediately sent to Legal Adviser's Office with your comments and suggestions.  The procedure is the same as for a prosecution appeal by way of case stated.

Appeal from the Crown Court to the Divisional Court by case stated

8. If the defendant has unsuccessfully appealed to the Crown Court from the magistrates' court, or was committed to the Crown Court for sentence, then the defendant may further apply to the Divisional Court by way of case stated on the ground that it is wrong in law or is in excess of jurisdiction 14. The application must be made within 21 days of the decision appealed against 15.

Appeal to the Court of Appeal

Appeal against conviction

9. If the defendant has been convicted on indictment by the Crown Court, there is a right of appeal against conviction, with the leave of the Crown Court or the Court of Appeal, on a point of law, on a point of fact, or on mixed law and fact 16. The question for the Court of Appeal to decide is whether the conviction is unsafe 17. The prosecution will play an important role in the appeal and will usually be represented by the same Counsel who conducted the original trial. Legal Advisers Office must be notified of all appeals against conviction.

Appeal against sentence

10. The defendant may also appeal against sentence 18 with the leave of either court 19. The application must be made within 28 days of the conviction or sentence, although the court may extend this period on application 20. The role of the prosecution in the appeal will vary depending on various factors including the requirements of the Court. In any event a proportionate response is required especially as costs may not be awarded (R v Kenneth Thelwall [2016] EWCA Crim 1755). Legal Advisers Office must be notified of all appeals against sentence.

Footnotes

  1. Magistrates' Courts Act ('MCA')  1980, s.108. The defendant may only appeal against conviction if the magistrates' court treats an equivocal plea as a plea of guilty: see R v Birmingham Crown Court, ex parte Sharma [1988] Crim LR 741, where a defendant, who had inadvertently pleaded guilty to two offences when he had wished only to plead guilty to one, was refused leave to appeal against his conviction. For a plea to be equivocal, the defendant must have added to the plea of guilty a qualification which, if true, may show that they are not guilty of the offence charged. Back
  2. Senior Courts Act ('SCA') 1981, s.74. Back
  3. SCA 1981, section 79(3). See also Archbold para 2-184. Back
  4. SCA 1981, s.48(2)(a)-(c) as amended by CJA 1988, s.156, and Criminal Appeal Act (CAA) 1995, schedule 2, paragraph 14. Back
  5. R v Swansea Crown court, ex parte Stacey [1990] Crim LR 260 DC. Back
  6. SCA 1981, s48(1). See also R v Norwich Crown court, ex parte Russell [1993] Crim LR 518, where the original information contained the wrong date of offence. Back
  7. See R v Harrow Crown court, ex parte Dave [1994] 1 All ER 315, DC. Back
  8. Part 34 Criminal Procedure Rules. Back
  9. MCA 1980, s.109(1)(b). Back
  10. MCA 1980, s. 111(1). Back
  11. MCA 1980, s. 111(2). Back
  12. MCA 1980. s. 111(4). Back
  13. R v Winchester Crown Court, ex parte Newington [1982] 1 WLR 1277. Back
  14. SCA 1981, s.28(1). Back
  15. Part 64.6 CPR 2012. Back
  16. Criminal Appeal Act (CAA) 1968, s.1, as amended by CAA 1995, s.1. In respect of convictions before 1 January 1996, leave is not required for appeals on a point of law alone. Back
  17. CAA 1968, s.2(1), as substituted by CAA 1995; the substitution relates to convictions before 1 January 1996. Back
  18. CAA 1968, s.9. Back
  19. CAA 1968, s.11(1)(1A). Back
  20. CAA 1968, s.18(2)(3). Back
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Updated 2022-03-21