Appealing a Crown Court Decision

If you have been wrongly found guilty in the Crown Court you can apply for permission (also known as ‘leave’) to appeal against your conviction to the Court of Appeal (Criminal Division). 

This is done by serving an Application for Permission to Appeal together with Grounds of Appeal within 28 days of your conviction on the Registrar of Criminal Appeals. 

If you are granted permission to appeal the Court of Appeal will then examine each ground of appeal and decide if the conviction is safe (in which case the conviction will stand) or unsafe (in which case the conviction will be quashed). 

Please note that this section only concerns appealing against convictions in the Crown Court. 

Do I always have the right to appeal against my Crown Court conviction?

No. To appeal against your Crown Court conviction you have to get permission (leave) and this will only be granted if you have grounds which are considered to be properly arguable. The sentencing judge at the Crown Court can issue a certificate that the case is fit for appeal but this is rare – usually permission is requested in a written application to a single judge.  

It is not possible to appeal against a conviction in the Crown Court simply because you are unhappy with the verdict (even if you know that the verdict is wrong) and wish to have another trial; what must be established is that something has gone seriously wrong with the trial process itself such that the guilty verdict is unsafe. Your specific arguments of what has gone wrong will be contained in the Grounds of Appeal.

If you were legally represented in the Crown Court, following your conviction you should receive advice on the merits of an appeal and can ask for that advice to be given in writing. If the advice is positive (i.e. that there are arguable grounds), then your Barrister or Solicitor Advocate will also draft those grounds of appeal setting out the individual arguments it is intended to advance in your favour.  

What grounds of appeal can be relied upon?

“the grounds of appeal set out in detail what it is suggested has gone wrong during the trial such that the verdict is unsafe”

The grounds of appeal set out in detail what it is suggested has gone wrong during the trial such that the verdict is unsafe. The precise grounds that can be relied upon will, of course, differ from case to case.  

There are numerous grounds upon which appeals against conviction are based and what follows are simply some examples: 

  • Errors of law – i.e. where it is suggested that the judge has wrongly directed the jury on a legal issue and this has resulted in an unsafe verdict. It is sometimes argued that the trial judge has shown bias during the summing-up, or has failed or refused to leave potential defences or factual matters to the jury for their consideration which, if included, could have led to a different verdict. 

  • There are sometimes matters which occur during the course of a trial that amount to a ‘material irregularity’, such as where it becomes apparent that jurors have contacted witnesses or carried out research outside the courtroom; in one case it became known after the verdict that some jurors had consulted a Ouija board in an attempt to communicate with the victim of an alleged murder; the Court of Appeal quashed the conviction and ordered a retrial. (R. v Young Times 30-Dec-1994, (1995) 2 Cr App R 379, [1995] QB 324, [1995] 2 WLR 430.)

  • Occasionally appeals against conviction are based on fresh evidence which was not available at the original trial, or where there is a reasonable explanation for not relying upon it. It might also be argued in certain cases, depending on the specific facts, that the jury have reached verdicts which are logically inconsistent where one defendant is acquitted and another found guilty on the same evidence and, as such, that the guilty verdict is unsafe.

How do I appeal against conviction from the Crown Court to the Court of Appeal?

In summary the procedure is as follows: 

  1. An Application for Permission to Appeal (on form NG – see the Further Information section below for this form) and Grounds of Appeal must be served within 28 days of conviction direct on the Registrar of Criminal Appeals at the Criminal Appeal Office (not on the Crown Court where the conviction took place). Electronic service is encouraged. The address and email address of the Criminal Appeal Office can be found in the Guide to commencing proceedings in the Court of Appeal Criminal Division in the Further Information section below.

  2. It is important to bear in mind that if your sentence is due to take place more than 28 days after conviction you will need to apply for permission to appeal against conviction before sentencing takes place.

  3. If you are outside the 28 day time limit you must apply for an extension of time, providing reasons for the delay. You can read more about appealing out of time below.

  4. The Grounds of Appeal must identify each ground of appeal relied upon, numbering them consecutively (if there is more than one) and concisely outlining each argument in support.

  5. If you are in custody, an application for bail pending appeal can be attached to the Application for Permission to Appeal. The Court of Appeal will only grant bail in exceptional circumstances, normally where the merits of the case are overwhelming or where the sentence will have been served before the appeal can be heard. The usual practice of the Court of Appeal is to expedite appeals rather than release on bail.

  6. The application for permission to appeal is then considered by a single judge (usually a High Court judge) who will decide if there is sufficient merit in the appeal to allow it to go to the full Court of Appeal for a hearing. Consideration by the single judge usually takes place in private and the decision is made on the basis of the Application and Grounds provided. The single judge will then grant permission (leave) on some or all of the grounds advanced or refuse permission.

  7. If permission is granted, you will be notified of when the appeal will be heard before the full Court of Appeal.

  8. If permission to appeal against conviction is refused on one or more grounds, you will be notified of this and told that you have 14 days to apply to renew your application for permission to appeal on those grounds before the full Court of Appeal. If you apply to renew, the Court of Appeal will then consider the papers and decide whether permission should be granted. A legal representative can attend such a hearing but the applicant is not entitled to be present.

  9. This procedure to appeal against a Crown Court conviction is governed by section 18 of the Criminal Appeal Act 1968 and Parts 36 and 39 of the Criminal Procedure Rules (for more on these see the Further Information section at the bottom of this page).

Can I appeal out of time?

 

“… this court will be unlikely to grant an extension of time unless injustice would be caused in consequence.” R v Thorsby, Court of Appeal

An Application for Permission to Appeal together with Grounds of Appeal should be served on the Registrar of Criminal Appeals within 28 days of the conviction.

The Criminal Appeal Act 1968 (section 18(3)) provides that the time for giving notice may be extended by the Court of Appeal, either before or after it expires.

Note 7 on Form NG (which is the Application for Permission to Appeal form) states: ‘The period of 28 days cannot be extended except with permission of the Court of Appeal Criminal Division and detailed reasons for the delay must be attached to this form. An application for an extension of time will not be considered before an application for permission to appeal conviction or sentence has been lodged on Form NG, whether or not the 28 day period has already expired.’

It is important to bear in mind that there must be good reason for an extension of time and specific reasons must be advanced in support of it. The merits of the appeal will be considered as part of this process. There are a number of cases in which the Court of Appeal has asserted this principle, and a useful summary of these is contained in the case of R v James & Ors [2018] EWCA Crim 285 (08 February 2018).

For example, in R v Thorsby [2015] EWCA Crim 1, the Court held at paragraph 13:

“Neither the Criminal Appeal Act nor the Rules limit the discretion of the court on the issue whether an extension of time should be granted. In this court’s experience the principled approach to extensions of time is that the court will grant an extension if it is in the interests of justice to do so. There are, however, several components that contribute to the interests of justice. The court will have in mind the public interest in the proceedings of the Court generally, in particular in the finality of Crown Court judgments, the interests of other litigants, the efficient use of resources and good administration. However, the public interest embraces also, and in our view critically, the justice of the case and the liberty of the individual.

Where there is no good reason why an applicant should not have complied with well-known time limits this court will be unlikely to grant an extension of time unless injustice would be caused in consequence. Accordingly, the court will examine the merits of the underlying grounds before the decision is made whether to grant an extension of time. The judgment is judicial and not merely administrative.”

Can I get new legal representation for my appeal? Due diligence requirements

“when you instruct a new legal representative who did not appear at the original trial they must inform you that they must satisfy themselves, before any grounds are settled and lodged, that a) the factual basis for each of the proposed grounds of appeal is correct, and b) this requires them to make enquiries of your former legal representatives, and to seek other objective evidence, for that purpose.”

For various reasons you may wish to appoint a new barrister or solicitor to advise you on your appeal and/or represent you at your appeal hearing. However, it is worth bearing in mind that your new legal representative will be subject to what are known as ‘due diligence’ requirements.

Legal representatives are held to high standards in the conduct of litigation and owe a fundamental duty to the court. In the context of appeals this means, amongst other things, that your legal representatives must consider that any grounds relied upon are properly arguable and that all matters of fact put forward to the court are correct. For this reason, when you instruct a new legal representative who did not appear at the original trial they must inform you that they must satisfy themselves, before any grounds are settled and lodged, that a) the factual basis for each of the proposed grounds of appeal is correct, and b) this requires them to make enquiries of your former legal representatives, and to seek other objective evidence, for that purpose. In cases where grounds of appeal have already been lodged with the court, the new legal representative is subject to the same due diligence requirements. It is only in exceptional circumstances that a new legal representative will be able to assist with an appeal without being given your specific authority to discuss your case with those who previously represented you. These discussions between new and former legal representatives would be on a confidential and legally privileged basis (i.e. they would not be divulged to the court without your further consent). 

Where a ground of appeal relies upon a factual allegation as to what happened during the trial or which is otherwise relied upon in support of an appeal, the new legal representative will therefore have to specifically write to the previous legal representative about it. If this involves criticism of the previous representatives then this will also have to be clearly stated. The duty on new representatives to seek factual verification extends not only to contacting the previous representatives, but also to seeking other objective and independent material in support. 

Where the appeal relies on material which would be otherwise subject to legal professional privilege (e.g. discussions between you and your previous legal representatives) then you would have to waive privilege, meaning that you would consent to these matters being raised in court. Such a general waiver of privilege would also allow your previous legal representatives to refer to all privileged information relating to your case and to communicate directly with the court and to give evidence about such matters if required to do so. Where an appeal relies upon a criticism of former representatives a general waiver of privilege will almost always be required.  If you did not want to grant such a waiver it would be likely to mean that you would be unable to pursue any grounds that relied upon privileged material. This is a complex area that you would need to discuss in detail with your new legal adviser. You can read more about this in the Bar Council document: Criminal Appeals – Duties to the Court to Make Enquiries. You can also read more about this in the Guide to commencing proceedings in the Court of Appeal Criminal Division (part A4) in the Further Information section below.

It is also worth bearing in mind that if you already have a solicitor who is instructed on legal aid to carry out work for you, you cannot instruct an additional barrister or solicitor privately to carry out the same work whilst you are still in receipt of legal aid. This would mean, for example, that if you were unhappy with the advice your legally-aided solicitor or barrister had given you concerning your prospects of success on an appeal, you would not be permitted to seek a second opinion from a solicitor or barrister by instructing them privately when your public funding certificate was still in place.

What happens at an appeal against conviction at the Court of Appeal?

At the appeal hearing in the Court of Appeal, the judges will consider the grounds of appeal and hear submissions from the appellant (or his legal representative) and from the prosecution (who are referred to as ‘the Respondent’). In most cases, if the appellant is in custody he is entitled to be present at the hearing except where the only matter under consideration is a point of law.

Who will hear my appeal against conviction in the Court of Appeal?

The appeal will be heard by at least three judges (usually a Lord Justice of Appeal and two High Court Judges). 

What powers does the Court of Appeal have when dealing with an appeal against conviction?

“Where the Court takes the view that the conviction is unsafe it will quash the conviction”

The powers of the Court of Appeal on an appeal against conviction are contained in Part 1 sections 1 to 8 of the Criminal Appeal Act 1968 (see Further Information below):

  • Where the Court takes the view that the conviction is unsafe it will quash the conviction;

  • The Court is entitled to substitute a verdict for an alternative lesser offence where this would have been open to the jury. For example, the Court could substitute a conviction of manslaughter instead of murder, or of grievous bodily harm instead of grievous bodily harm with intent, or of possession of Class A drugs instead of possession of Class A drugs with intent to supply;

  • The Court can order a retrial where it considers this is required ‘in the interests of justice’;

  • If the Court does not consider that the conviction is unsafe it will dismiss the appeal.

Is an appeal the only way to challenge a Crown Court conviction?

Yes, once you have been convicted by a jury in the Crown Court the only route of appeal is to the Court of Appeal.

Criminal Cases Review Commission

“you could ask to have your case heard again by the Court of Appeal by having it referred there by the Criminal Cases Review Commission”

However, if your application or renewed application for permission (leave) to appeal is refused or your appeal is dismissed, you could ask to have your case heard again by the Court of Appeal by having it referred there by the Criminal Cases Review Commission (see Further Information about the CCRC below).  

The CCRC may refer a case back to the Court where it considers: 

(a) there is a real possibility that the Court of Appeal will quash the original conviction; and
(b) this real possibility is due to evidence or arguments not previously advanced on the application for permission or at the appeal (unless there are exceptional circumstances); and
(c) the applicant has already unsuccessfully applied for permission to appeal or appealed (unless there are exceptional circumstances).

Supreme Court Appeals

Appealing to the Supreme Court from the Court of Appeal is only available concerning decisions which are certified by the Court of Appeal or by the Supreme Court as involving a point of law of general public importance.   As such, this is a rare and narrow route of appeal.  Examples of points of law of general public importance that have been considered by the Supreme Court are the law on ‘joint enterprise’ (R v Jogee [2016] UKSC 8) and the law on diminished responsibility as a partial defence to cases of murder (particularly the meaning of the term ‘substantially impaired’) (R v Golds [2016] UKSC 61).

The procedure is governed by sections 33 and 34 of the Criminal Appeal Act 1968 and Part 43 of the Criminal Procedure Rules.

Appeals to Europe

There are two European Courts which might deal with some aspects of the criminal law: the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR). 

European Court of Human Rights (ECHR)

Individuals can petition the ECHR for breaches of the European Convention of Human Rights. 

In summary, to take a case to the ECHR you must be the victim of a breach of a convention right and you must have exhausted all the appeals open to you in which you should have raised the issues you now wish to place before the ECHR.  The case should be taken to the ECHR within six months of the last decision in your case. You can read more about the ECHR in the Further Information section below.

European Court of Justice (ECJ)

The ECJ does not deal with appeals from individuals.  It can give preliminary rulings concerning the interpretation and validity of UK law when a question is referred to it by the UK courts.  Such a referral is made by the UK court itself or on an application to the UK court. You can read more about the ECJ in the Further Information section below.

Are there any appeal risks? The ‘Loss of time’ order

“The purpose of a loss of time direction is to prevent appeals being launched that have no prospect of succeeding”

During the process of applying for permission to appeal, the Application and Grounds of Appeal will be considered by the single judge.  If permission is refused and the application is renewed, the same documents will be considered by the full Court of Appeal.  Both the single judge and, on a renewal, the full court can make a ‘loss of time’ direction if they consider the appeal is wholly without merit (i.e. is unarguable).  This means they can direct that any or all the time spent in custody since the date of the Application for Permission to Appeal shall no longer count towards the sentence. The effect of this is to increase the length of the custodial sentence that will have to be served. For examples of loss of time orders being made see the case of R v James & Ors [2018] EWCA Crim 285 where all the appellants had loss of time orders of 60 days made against them.

The purpose of a loss of time direction is to prevent appeals being launched that have no prospect of succeeding.  

The power to order loss of time is specifically referred to in Criminal Practice Direction IX at paragraph 39E (see link to this Practice Direction in the Further Information section below) where those applying for permission to appeal are advised to seek advice before proceeding.

Get Legal Advice

The most significant risk of applying for permission to appeal is an order for ‘loss of time’ (see above). For this reason it is important to obtain legal advice on the merits of your appeal before starting the appeal process.  Many lawyers will be happy to advise you simply on this aspect of your case even if you do not want to instruct a legal representative to represent you at the appeal hearing itself. 

FURTHER INFORMATION

 

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