Crown Court appeals to the Court of Appeal

A. Identify how the Crown Court acquired the case

The Court of Appeal (Criminal Division), abbreviated CACD, deals with the statutory criminal appeals considered here. Under Criminal Appeal Act 1968 section 1, the ordinary conviction route concerns conviction on indictment. Under section 9, a person convicted on indictment can appeal against a qualifying sentence. Under section 10, a qualifying sentence can also be appealed where the Crown Court dealt with a magistrates-convicted person otherwise than on appeal, including a qualifying committal for sentence. Section 10 does not supply a second appeal from the Crown Court’s determination of a magistrates’ appeal.

A conviction challenge asks whether guilt has been validly established; a sentence challenge asks whether the punishment or order should be changed. A successful sentence appeal does not itself quash the conviction. Conversely, a conviction appeal can require consequential changes to sentence. Identify both objectives expressly when advising on both routes.

B. Conviction appeal: unsafe test, leave and deadline

The test is safety. Under Criminal Appeal Act 1968 section 2(1), CACD must allow an appeal if it considers the conviction unsafeGlossary termUnsafe conviction and otherwise dismiss it. A misdirection, unfairness, evidential error or newly available material must be related to that conclusion. An identified trial error does not automatically require quashing; equally, the court’s task is not confined to deciding whether the trial judge made an identifiable error.

The normal gateway is leave of CACD. Section 1(2)(a) requires permission unless a statutory alternative applies. Under section 1(2)(b), a certificate from the judge who tried the case, granted within 28 days from conviction, that the case is fit for appeal supplies the alternative to leave. A qualifying CCRC reference is treated as an appeal under the separate statutory scheme. Do not describe a conviction certificate as a certificate from any judge, or confuse it with the sentencing certificate below.

Certificate application and notice are separate. Under CrimPR 39.4, an application for the trial judge’s certificate is made orally immediately after conviction, or by a written application served on the Crown Court officer within 10 business days after conviction, explaining why the case is fit for appeal. That application timetable is distinct from the Act’s 28-day limit for the certificate itself to be granted. A certificate does not excuse service of the appeal notice. Nor does refusal of a certificate decide a later application to CACD for leave.

Notice is due within 28 calendar days after conviction, even if sentence is months later: Criminal Appeal Act 1968 section 18; CrimPR 39.2–39.3. Serve it on the Registrar of Criminal Appeals, the officer administering CACD appeals. Identify the conviction, separately numbered grounds, relevant facts, arguments and supporting material, and include any application for leave that is required. A bare assertion that the result was unfair does not explain why the conviction is unsafe.

Late appeal and renewal have their own steps. CACD can extend the section 18 period under section 18(3). Under CrimPR 36.4, the extension application and reasons accompany the late notice. If a single judge refuses leave, a qualifying application to renew before the full court is ordinarily due within 10 business days after refusal, or after service of the decision where the applicant was not present: CrimPR 36.5. That is not a fresh 28-day conviction-appeal period. An extension of an appeal-notice period does not automatically enlarge a separate statutory limit on granting a certificate.

A guilty plea is not an absolute bar to a section 1 appeal, but it changes the argument. The appellant must identify a legal basis on which the plea or resulting conviction is unsafe, rather than ask CACD to rehear a factual contest that the plea resolved. For example, a contention that the admitted facts could not in law constitute the offence is different from a wish to retract a valid admission simply because the sentence was disappointing. The statutory safety inquiry remains the controlling test.

C. Fresh evidence and remedies

Fresh evidenceGlossary termFresh evidence on appeal is evidence not adduced in the proceedings below. It need not have come into existence only after the trial. Under Criminal Appeal Act 1968 section 23(1), CACD may receive it where necessary or expedient in the interests of justice. Under section 23(2), it must consider in particular whether the evidence appears capable of belief; whether it may provide a ground for allowing the appeal; whether it would have been admissible below on an issue in the appeal; and whether there is a reasonable explanation for not adducing it below. These are statutory considerations within the interests-of-justice decision, not four substitute grounds of appeal.

Application comes before conclusion. Explain what the proposed evidence proves, its source and reliability, why it is admissible and why it was not used earlier. Comply with CrimPR 39.7 concerning the application and supporting material. If the evidence is received, the next question remains whether the conviction is unsafe. Evidence can be admitted yet fail to undermine the conviction; failure to locate material earlier must be explained rather than hidden behind the label “fresh”.

The remedy must fit the statutory power. Under section 2(2)–(3), allowing the conviction appeal quashes the conviction and normally operates as a direction to enter an acquittal, subject to an order for retrial. Under section 3, CACD can substitute an alternative verdict where the jury could have convicted of that other offence and must have been satisfied of facts establishing it. This is not an unrestricted power to replace the prosecution’s case with a different allegation. Under section 7, the court can order a retrial where the interests of justice require it. Consequential sentencing powers also apply where another conviction remains.

If the court considers the conviction unsafe, it must quash it; the question whether a fair retrial is possible is not a reason to preserve an unsafe conviction. Conversely, quashing does not invariably end all possibility of prosecution: a retrial can follow under the statutory power. These are the distinctions explained in Pendleton, especially paragraphs 18–20.

D. Sentence appeal

Identify a qualifying sentence and the alleged error. The ordinary routes are Criminal Appeal Act 1968 sections 9 and 10. Section 9 excludes a sentence fixed by law, subject to the statutory provision for appealing the relevant minimum-term order in a mandatory-life case. A sentence imposed by the Crown Court after a qualifying committal can fall within section 10; a sentence imposed on a magistrates’ appeal does not. On the merits, identify an unlawful sentence, a sentence wrong in principle, or one manifestly excessive. Mere preference for a different evaluative balance is not enough: the appeal must justify intervention in the sentence imposed.

Read sentencing reasons in the correct appellate context. In R v Chin-Charles and Cullen [2019] EWCA Crim 1140, paragraphs 1–8, CACD considered two sentencing applications alongside the proper form of sentencing remarks. At paragraph 8 it distinguished its task from Administrative Court review: the question is whether the sentence is manifestly excessive or wrong in principle, not whether every mitigation point was recited. An omission from the remarks does not by itself establish that the judge ignored the point. This does not excuse an unlawful sentence or a material sentencing error.

The sentence certificate has its own statutory basis. Under section 11(1A), an appeal against sentence under either section 9 or section 10 requires CACD’s leave unless the judge who passed sentence, within 28 days from sentence, grants a certificate that the case is fit for appeal. It is not limited to an indictment sentencing judge. The corresponding application under CrimPR 39.4 is oral immediately after sentence or written within 10 business days after sentence. A qualifying statutory reference is separate; it is not a judge’s certificate.

Neither of the first two certificates creates appellate jurisdiction where sections 1, 9 or 10 do not supply it. In particular, a Crown Court judge cannot turn a sentence imposed on a magistrates’ appeal into an ordinary CACD section 10 sentence appeal simply by calling the case fit for appeal.

Deadline and powers. Serve the sentence appeal notice on the Registrar within 28 calendar days after sentence, independently of the conviction clock. The late-notice and renewal rules described above apply as relevant. Under section 11(3), CACD can quash a sentence or order and substitute the sentence or order it considers appropriate, within the powers of the court below, but must not deal with the appellant more severely overall. It may restructure individual components without making the overall treatment worse. This is not the rule governing an ordinary Crown Court rehearing or a Law Officer’s unduly lenient sentence reference.

Apply the case: Pendleton: fresh evidence and conviction safetyKey caseR v Pendleton[2001] UKHL 66, paragraphs 17–20 and 25–30. The appeal concerns conviction safety, not a new appellate verdict on guilt. In a difficult fresh-evidence case, test the provisional view against the possible effect on the trial jury.