The Appeal Process

THE COURT STRUCTURE

The United Kingdom has several tiers to its legal system. Most cases start off in the Administrative Court, which is a branch of the High Court. The appeal route from there is to the Court of Appeal and hence to the House of Lords.

The Court of Appeal (Criminal Division) sits in London at the Royal Courts of Justice, dealing with appeals from the Crown Court. The Lord Chief Justice, who is the most senior judge in England and Wales, presides.

The Court of Appeal is normally constituted by any three of the Lord Justice of Appeal and the Lord Chief Justice. The 25 Lord Justices of Appeal are assisted by High Court judges when required.

A person convicted at a Magistrates’ Court may appeal to the Crown Court, while a person convicted at the Crown Court may appeal to the Court of Appeal and finally to the Supreme Court.

THE COURT OF APPEAL

Most appeal cases submitted to the Court of Appeal require permission. The lower Court may grant permission, but this is unusual. It is a way of saying that the Judge accepts their decision may not be right. More often permission is refused and one has to apply for permission from the Court of Appeal itself.

It is vital to initiate this process quickly. One has to lodge an “Appellant’s Notice” within two weeks of the decision to be appealed. This is relatively easy to do as the information required is not great. Nevertheless, full documentation and a skeleton argument explaining why the appeal is sound have to be provided within two weeks after that.

A decision is made on paper by a Lord Justice of Appeal. If the decision is to refuse permission, one can renew the application in an oral hearing. This is usually before one or two Lord Justices. The other party (or parties) are not normally invited but, in practice, they will often turn up to the hearing. They may still not be allowed to make representations – the point is that the prospective appellant must show that the proposed appeal stands a realistic prospect of success.

If permission to appeal is refused at this stage it is the end of the matter. One cannot then take it further to the House of Lords (on the basis that you have been refused twice – by the High Court and Court of Appeal). In this sense the Court of Appeal is, therefore, a Court of last instance and, as a matter of law, must refer points of European law that are not ‘acte clair’ to the European Court of Justice. In practice in such cases, the Lord Justice(s) hearing the application for permission will usually adjourn the matter to a full three-person Court for further consideration.

If permission is granted the appeal will proceed, any time up to a year later, before a three-person court. Usually, no new evidence is allowed as the facts have been decided at the High Court stage. In theory, therefore, the appeal stage is quicker and cheaper than the High Court stage. Although this is usually true, in practice, an argumentative permission stage can be time consuming, as we have found in some particularly vexed cases.

As in the High Court, judgment may be given on the spot, although usually it is handed down. Increasingly the Court of Appeal will either give one judgment on behalf of all the Lord Justices or two will simply agree with one lead judgment.

There is again the argument as to costs. Permission is sought to appeal to the Supreme Court, which is almost invariably refused.

APPEALS TO THE COURT OF APPEAL PRINCIPLE

Appeals against conviction and sentence to the Court of Appeal – The law relating to appeals from the Crown Court is largely contained in the Criminal Appeal Act 1968, the Criminal Appeal Rules 1968 and the Criminal Appeal Act 1995.

LEAVE TO APPEAL

Section 1 of the 1995 Act requires leave to be granted in cases where an appeal is sought on a point of law alone (Archbold, 7-36). Therefore, leave to appeal to the Court of Appeal is required in all cases, save where a certificate has been issued by the trial judge that the case is fit for appeal. Similar provisions exist in relation to findings of not guilty by reason of insanity, findings of disability and findings of unfitness to be tried. Section 2 of the 1968 Act, as amended, provides that the Court of Appeal shall allow an appeal against conviction if they think the conviction is unsafe, and shall dismiss an appeal in any other case (Archbold, 7-43, 7-45 and 7-46).

GUIDANCE

There is no requirement for the appellant or his solicitor to notify the respondent of an intention to appeal. Often the first that the CPS will know of the matter is when documents are received from the Registrar pursuant to Rule 8 Criminal Appeal Rules 1968 (Archbold, 7–196).

ACTIONS OF THE CRIMINAL APPEAL OFFICE (CAO)

As soon as an appellant has been granted leave to appeal against conviction the Criminal Appeal Office (CAO) will forward to the CCP of the relevant Area written notification of the granting of the leave to appeal together with a copy of the appeal papers, for immediate onward transmission to the CPS office dealing with the case. Similar notification will be sent to counsel who appeared for the prosecution at trial.

The notification to the CCP requests that if the Crown propose to instruct different counsel for the purpose of the appeal details of the new advocate should be forwarded to the CAO on Form A within seven days of receipt of the appeal notification. The CPS must also arrange for re-direction of the appeal papers sent direct to the trial counsel by the CAO. Counsel instructed to act for the prosecution in the appeal must lodge a skeleton argument with the Registrar and the appellant’s advocate within 14 days of receiving the appellant’s skeleton argument which itself must have been lodged within 14 days of receiving leave to appeal.

For full details see Casework Bulletin 46 of 1999.

AREA RESPONSIBILITY

Areas handle their own cases in the Court of Appeal; instructing counsel, dealing with correspondence and arranging for CPS representation at the hearing. In exceptional cases, Policy Directorate (PD) may intervene, give advice or, following consultation, take over the conduct of the case.

When preparing the appeal for the hearing, early consideration should be given to whether the Court of Appeal will be requested to certify a point of law of general public importance for the Supreme Court to decide. If so, counsel must be instructed to inform the Court before judgment. This will enable the Court to decide whether other grounds of appeal should be resolved at the hearing. In the brief to counsel for the appeal hearing, counsel should be expressly instructed in relation to section 37 of the Criminal Appeal Act 1968. If the Court grants a certificate that a point of law of public importance is involved, and if counsel is informed that the Director is considering a petition to the Supreme Court (http://www.supremecourt.gov.uk/) for leave to appeal, an application under section 37 of the Criminal Appeal Act 1968 should be made. Failure to invite the court to make such an order will mean that if the House of Lords subsequently allow a prosecution appeal, any custodial sentence imposed by the Crown Court cannot be restored (Archbold, 7-265).

REFERRALS TO POLICY DIRECTORATE

Policy Directorate (PD) at Ludgate Hill and at York has responsibility for monitoring Court of Appeal cases. This system is necessary because some cases will result in a change in the law, which will have a national impact on the Service generally or on national policy. Some may result in a further appeal to the House of Lords or attract national publicity. There is therefore a need for the Service to have a coordinated approach where points of law of general importance are concerned.

It is impossible to categorise all types of appeal against conviction. The grounds of appeal may cover a miscellany of points of law and fact. One or more of the following will normally cover the principal grounds:

  • Misdirection of law
  • Non-direction on the law
  • Failure to refer to a defence
  • Misdirection on the facts
  • Inappropriate comment by the judge
  • Wrongful admission or exclusion of the evidence
  • Defects in the indictment
  • Rejection of no case to answer
  • Jury irregularities
  • Irregularity in relation to verdict
  • Prosecution responsibilities such as non-disclosure or late change in nature of the case

Irrespective of the grounds of appeal, all appeals against conviction to the Court of Appeal should be notified to PD. However, PD involvement will be minimal where the grounds of appeal are primarily factual or where there is criticism of the behaviour of the judge.

When providing information to PD, Areas should bear in mind the possible consequences of the judgment of the Court and the obvious need for the Service to have a coordinated approach where points of law of general importance are concerned.

The CPS is seldom involved in appeals against sentence and will usually only appear where the Court of Appeal has so requested. For further details see Casework Bulletin 16 of 1998 and Archbold, 7-207.

Unless the appeal raises matters which are likely to have an impact upon the Service generally, or where there is the possibility of criticism of the handling of the case by the CPS, there is no need to notify PD.

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