Prosecution routes, references and post-conviction review

The preceding sections explain the ordinary defendant appeal routes. The following mechanisms provide supporting and extended context. They answer different questions: can a prosecution ruling be challenged before final disposal; can the law be clarified after an acquittal; can an eligible sentence be increased; or can a potential miscarriage of justice be referred back to a court? None creates a general entitlement to overturn an acquittal or to take a second appeal merely because the first was unsuccessful.

A. Prosecution appeal against a terminating ruling — supporting context

The terminating-ruling appealGlossary termProsecution appeal against a terminating ruling is a prosecution route to CACD under Criminal Justice Act 2003 sections 57–61 and 67. It concerns a qualifying ruling in a trial on indictment, before the judge begins the summing-up. It can include an evidential ruling whose effect the prosecution elects to challenge subject to the statutory acquittal guarantee; it is not confined to a ruling formally entitled “no case to answer”. The Part 9 exclusions and any distinct statutory appeal route must still be checked. This is not an appeal against a jury’s final not-guilty verdict.

Act immediately and give the guarantee. Under section 58 and CrimPR 38.2, immediately after becoming aware of the ruling the prosecutor must tell the Crown Court judge of the decision to appeal, or immediately ask for time to decide. The judge must allow a reasonable opportunity, normally until the next business day, rather than compel an instant decision. At or before announcing the appeal, the prosecutor must give the acquittal guarantee: the directly affected defendant must be acquitted if leave is not obtained or the appeal is abandoned. This protects the defendant from the prosecution using an unsuccessful challenge simply to prolong the same prosecution.

Permission and service. Leave may be granted by the Crown Court judge or CACD. Under CrimPR 38.3, serve the appeal notice on the Crown Court officer, the Registrar and every directly affected defendant. If the Crown Court judge expedites the appeal, service is due no later than the next business day after announcing the decision to appeal; otherwise it is due within five business days after that announcement. The ruling’s date, announcement and notice are distinct steps even when they happen on the same day. The notice identifies the ruling, grounds and supporting material, with any required application for leave or extension (CrimPR 38.4). A qualifying renewal after refusal is due within five business days, subject to the applicable refusal or service trigger, under CrimPR 38.10. A rules-based extension must not be assumed to cure non-compliance with the statute’s election and guarantee requirements.

Ground for intervention and result. Under section 67, CACD may reverse only for an error of law, an error of law or principle within the ruling, or a ruling that it was not reasonable for the judge to make. Under section 61, it may confirm, reverse or vary the ruling. Confirmation requires an acquittal on the affected offence. Reversal or variation permits an order for the proceedings to resume, a fresh trial, or acquittal where a fair trial is not possible. This is different from directing a conviction: a successful prosecution appeal does not establish guilt.

B. Attorney General’s point-of-law reference — extended context

Under Criminal Justice Act 1972 section 36, following an acquittal on indictment the Attorney General may refer a point of law arising in the case to CACD. The court gives an authoritative opinion on that point. The trial outcome and acquittal remain unaffected under section 36(7). This is therefore a law-clarification mechanism, not a way for the prosecution to secure a conviction of the acquitted person.

There is no separate initial leave requirement and no statutory lodging deadline for this reference. It should nevertheless be handled expeditiously. Under CrimPR 41.2–41.3, the Attorney General serves the notice on the Registrar and the acquitted person, identifies the question, facts and legal argument, and explains that the outcome will not change the trial result. The rules protect the person’s identity in the published point-of-law reference. “No fixed deadline” does not mean that this route can reopen the acquittal years later.

C. Unduly lenient sentence reference — extended and time-sensitive

An unduly lenient sentence referenceGlossary termUnduly lenient sentence reference is a Law Officer’s application to CACD to review an eligible Crown Court sentence under Criminal Justice Act 1988 sections 35–36. The relevant Law Officers are the Attorney General and Solicitor General. A victim or other member of the public may request review, but does not become an appellant and cannot demand that CACD increase the sentence. Eligibility requires a case within the statutory scheme, including offences triable only on indictment and other specified categories; not every low sentence is eligible.

The test is undue leniency, not mere leniency. The sentence must fall outside the range reasonably available to the sentencing judge, including a material error of principle of the required seriousness. A lawful sentence at the lower end of the proper range is not enough. Leave of CACD is required. The Law Officer explains why the statutory threshold is met; if the court intervenes, section 36(1) permits it to quash the sentence and substitute a sentence within the powers the Crown Court had. The sentence can increase. The no-more-severe-overall protection on a defendant’s ordinary sentence appeal does not govern this reference.

Apply the operative statutory clock, not an outdated unqualified 28-day summary. In England and Wales, Schedule 3 paragraph 1 of the 1988 Act, amended with effect from 29 June 2026 by Victims and Courts Act 2026 section 13(2)(a)–(c), provides:

The ordinary 28-day calculation begins on the day after sentence, finishing four weeks later; weekends and holidays count. The equivalent receipt-based period is counted from the following day. An Attorney General’s certificate of the first receipt date is conclusive for this statutory purpose. Distinguish the public’s request to the Attorney General from the Law Officer’s notice to the Registrar; the latter must satisfy the applicable statutory deadline. The court has no general discretion to extend the operative period simply because the case is important. CrimPR 41.2 also requires service on the defendant.

There is not a general operative six-month deadline. As at 5 September 2026, the separate victim-requested mechanism enacted by Victims and Courts Act 2026 section 13(2)(d) is not in force. It must not be confused with the already-operative 14-day rule for late first requests. The currently effective extension is the specific statutory one above, not permission to wait six months. Commencement is provision-specific: Royal Assent to an Act does not activate every section simultaneously.

D. Criminal Cases Review Commission — extended context

The Criminal Cases Review CommissionGlossary termCCRC reference, or CCRC, is an independent statutory review body. It investigates possible miscarriages of justice and can refer a conviction or sentence to a court. It does not itself quash the conviction or resentence the person. A reference opens the receiving court’s statutory appellate process; it is not another tribunal finding the applicant innocent.

Under Criminal Appeal Act 1995 section 13(1), the central threshold is a real possibility that the conviction, verdict, finding or sentence would not be upheld if referred. Ordinarily, the potential outcome must arise from something not raised in the original proceedings or on appeal: for a conviction, verdict or finding, a new argument or evidence; for a sentence, a new argument on a point of law or information. Ordinarily an appeal must already have been determined or leave refused. The statutory question is not whether the CCRC personally would have reached a different verdict at trial.

The exception is precise. Under section 13(2), exceptional circumstances may justify proceeding despite the absence of a new conviction argument or evidence under section 13(1)(b)(i), or despite the usual prior-appeal condition in section 13(1)(c). It does not dispense with the real-possibility threshold, and it does not expressly dispense with the separate sentencing condition in section 13(1)(b)(ii). Avoid compressing this into “the CCRC can waive any condition in an exceptional case”.

There is no time limit for applying to the CCRC. The application should explain the conviction or sentence, the appeal history and the potentially significant new material or exceptional circumstances. An applicant who merely missed an ordinary appeal deadline should normally pursue the out-of-time appeal mechanism rather than treat the CCRC as an automatic alternative. Nor is a reference automatic because an application is accepted for consideration.

For a magistrates’ conviction referred under section 11(2), that treatment applies whether or not the defendant pleaded guilty. This is an express exception to the ordinary section 108 plea restriction, not a reason to ignore that restriction in ordinary appeals. Under section 11(6), the Crown Court on a CCRC reference must not award punishment more severe than that imposed by the court whose decision is referred. Identify the statutory reference and original conviction, rather than assuming the last court building mentioned necessarily determines the route.

E. Supreme Court and exceptional retrial after acquittal — extended context

A further ordinary criminal appeal to the Supreme Court has two gateways. Under Criminal Appeal Act 1968 section 33, the court below must certify a point of law of general public importance, and permission must be granted by CACD or, after refusal there, the Supreme Court. The point must be one that ought to be considered by the Supreme Court. A certificate alone does not grant permission; the Supreme Court cannot ordinarily supply the missing certificate if CACD has not certified a point. This is fundamentally different from a trial or sentencing judge’s certificate that replaces CACD leave.

Apply first to CACD. CrimPR 43.2 provides for an oral application immediately after reasons, or a written application to the Registrar served on the other parties. For an ordinary criminal appeal, section 34(1) prescribes 28 days beginning with the decision date or, if later, the date reasons are given. Use that statutory period, including its starting day, rather than assuming the ordinary conviction-notice calculation is identical. If CACD refuses permission but has certified the point, an application to the Supreme Court is ordinarily due within 28 days beginning with the refusal date, not the day after it and not automatically the date of certification. Supreme Court Practice Direction 12.16 expressly confirms this counting rule and permits receipt on the next Registry-open day where the period ends on a day when the Registry is closed.

Extension is not uniform. Under section 34(2), the court can extend the ordinary further-appeal period on the defendant’s application; the prosecutor’s extension power is confined to an appeal under section 33(1B) concerning a decision under the Criminal Justice Act 2003 Part 10 retrial-after-acquittal regime. The extension request needs reasons. Do not assume that every criminal further appeal has this same power or clock.

A sentencing reference has a different timetable. For a further reference arising from an Attorney General’s unduly lenient sentencing reference, Criminal Justice Act 1988 Schedule 3 paragraph 4 prescribes 14 days beginning with the date CACD concludes its review for an application there. An application to the Supreme Court is within 14 days beginning with conclusion of the review or refusal of leave, as the provision applies. CrimPR 43.2 addresses the accompanying application procedure and its note confirms that this special 14-day limit may not be extended or shortened. Record the conclusion of the review, reasons and any refusal separately; do not apply the ordinary 28-day period to this route.

A final High Court decision in a criminal cause or matter, including a case-stated determination, has a separate potential route to the Supreme Court under Administration of Justice Act 1960 sections 1–2, again requiring the relevant certificate and permission; it is not an ordinary appeal to the Civil Division of the Court of Appeal. The ordinary Supreme Court application after permission is refused below has the 28-day period beginning with refusal confirmed in Practice Direction 12.16. A refusal of permission to bring criminal judicial review has restrictive further-remedy rules: it must not be presented as an ordinary onward merits appeal. Practice Direction 12.14 addresses that distinct situation.

The Supreme Court determines the certified legal issue and the consequential appeal or reference, with powers to make the appropriate order or remit the matter. It is not a further general factual rehearing. For the ordinary defendant route, think important legal question → certification → permission → legal decision and consequential remedy, not “one more court will reconsider the witnesses”.

An exceptional retrial after acquittal uses a different statute. Under Criminal Justice Act 2003 Part 10, an acquittal for a qualifying serious offence can be quashed for retrial only through the specified prosecution application to CACD. The prosecutor needs the Director of Public Prosecutions’ written consent. CACD must be satisfied both that there is new and compelling evidence and that retrial is in the interests of justice: sections 75–79. A prior not-guilty verdict alone does not prevent the application, but neither political pressure nor disagreement with the jury establishes the statutory conditions.

New and compelling are defined conditions. Under section 78, the evidence must not have been adduced in the proceedings in which the person was acquitted, or, where those were appeal proceedings, in the earlier proceedings to which the appeal related. It must be reliable, substantial and, in the context of the outstanding issues, highly probative of the case against the acquitted person. Under section 79, the court considers matters including the prospect of a fair trial, delay and the diligence of the investigation and prosecution. The statutory interests-of-justice assessment is not an invitation simply to retry every old case using evidence that should previously have been presented.

There is no general 28-day period after acquittal within which this Part 10 application must be made. Its own procedural safeguards apply: under section 80(2) the prosecutor must give the acquitted person notice within two days beginning with the day notice of the application is given to CACD. The notice to the person must charge the qualifying offence, or state that the person has already been charged. Under section 80(3), CACD may extend that service period where the person is outside the United Kingdom and extension is necessary for that reason. If the conditions are established, CACD quashes the acquittal and orders retrial under section 77; it does not itself convict. This is not a CCRC remedy, a point-of-law reference, or the ordinary retrial power after a successful defendant conviction appeal.

To check understanding, return first to the section that controls the error: Magistrates’ court appeals for plea restrictions, rehearing and sentence risk; Case stated and residual judicial review for legal questions, election and supervisory limits; Crown Court appeals for safety, certificates, separate clocks and remedies; and Prosecution routes, references and post-conviction review for the identity and powers of the applicant. Practise a different factual variation after repairing the rule, rather than treating recognition of a case name or a remembered number as sufficient.