"If you are unhappy about the sentence you received from the Magistrates’ Court you can appeal against sentence to the Crown Court within 21 days of the sentence being passed"
If you are unhappy about the sentence you received from the Magistrates’ Court you can appeal against sentence to the Crown Court within 21 days of the sentence being passed.
You may feel, for example, that the wrong type of sentence was imposed in that the Magistrates or District Judge passed a prison sentence when you expected a non-custodial alternative, or that the sentence passed was far too long in the circumstances, or that your disqualification from driving was unjust or the fine imposed on you too high.
On this page you will find what you need to know about appealing against your Magistrates' Court sentence and at the bottom of the page you will find links to further detailed information.
What happens at an appeal against sentence at the Crown Court?
The appeal against sentence is heard at the Crown Court and is a re-hearing of the case, i.e. the case is heard again from the start. This means that the prosecution will open the case to the court (i.e. explain what the offence is, what the circumstances of the commission of the offence were, refer to any relevant sentencing guidelines and make reference to any relevant previous convictions). The defence will then make a plea in mitigation setting out all those matters that tend to make the offence less serious and/or making reference to any particular personal circumstances of the defendant that might call for a lenient approach to sentencing. You can read more about what happens at a sentencing hearing here in How Sentencing Works.
Who will hear my appeal against sentence in the Crown Court?
The appeal will be heard by a judge (usually a Circuit Judge or Recorder) sitting with two magistrates. The magistrates will not have previously been involved in the case. The majority vote prevails meaning it is possible for the magistrates to outvote the judge.
What powers does the Crown Court have when dealing with an appeal against sentence?
"the court does have the power to increase sentence in appropriate cases."
The powers of the Crown Court on appeal are contained in section 48(2) of the Senior Courts Act 1981 (see Further Information below). The Crown Court can allow the appeal (meaning, in effect, the court will reduce the sentence) or dismiss the appeal. If the appeal is dismissed the court will usually simply decide not to change the sentence. However, the court does have the power to increase sentence in appropriate cases. Any such increase must be within the maximum sentence that was available to the Magistrates (click here for more information on maximum sentences). Where the court is considering increasing a sentence it should give a warning of this at the start of the appeal (allowing the appellant to ask to abandon the appeal rather than continuing with it and facing the risk of an increased sentence).
A defendant who loses on appeal (i.e. the appeal is dismissed) is likely to face an application by the prosecution for the costs of the appeal. This will be in addition to any costs awarded at the Magistrates’ Court. An appellant who succeeds on appeal can apply to recover his costs, but the amount recoverable will seldom cover actual expenditure.
Is appeal the only way to change a Magistrates’ Court sentence?
Re-opening a Case
" The Magistrates’ Court has a power to vary its own sentences if it considers it to be in the interests of justice to do so"
No, there is another route available in some situations. The Magistrates’ Court has a power to vary or rescind its own sentences if it considers it to be in the interests of justice to do so. This power is contained in section 142(1) of the Magistrates’ Courts Act 1980 (see Further Information below). This provision is often used to rectify mistakes where both the prosecution and the defence agree that an error has occurred, such as the court passing a sentence or making an order which it does not have power to make, or where it is agreed that the court has proceeded on the basis of an incorrect factual assumption. In such circumstances an application can be made to the court under s.142(1) to put the matter right. In exceptional circumstances the court can use this section to increase sentence, such as where it considers it has been misled by the defence.
There is no specific time limit for this type of application although Part 28.4 of the Criminal Procedure Rules (see Further Information section below) requires the party making the application to do so 'as soon as reasonably practicable' after the sentence. It is also worth bearing in mind that If the case to which the application relates has already been the subject of an appeal it will not be possible to make such an application.
"there is another route of appeal against a Magistrates’ Court sentence available which is called appeal by way of case stated ... These appeals are confined to cases where the issue for consideration is a matter of law"
Secondly (although rarely) there is another route of appeal against a Magistrates’ Court sentence available which is called appeal by way of case stated. This type of appeal is to the Divisional Court of the Queen's Bench Division of the High Court. These appeals are confined to cases where the issue for consideration is a matter of law (i.e. the suggestion is that the Magistrates or District Judge have construed or applied the law incorrectly, or acted in a way which is outside their powers). This type of appeal is more complicated than appealing to the Crown Court. Also, bear in mind that if you appeal by way of stated you will lose your right of appeal to the Crown Court, whereas if you appeal to the Crown Court you can still seek to appeal by way of case stated from the Crown Court to the Divisional Court. You can read more about appeal by way of case stated here.
Generally, in situations where you simply feel the court has been too harsh in the sentence passed but (1) where you cannot point to any matter of fact or law that both sides agree is wrong, or (2) the issue in the case is not confined to a matter of law, then the usual way forward will be to appeal against sentence to the Crown Court.
Criminal Cases Review Commission
Thirdly, if you have exhausted all your avenues of appeal, you could ask to have your appeal against sentence heard by the Crown Court by having it referred there by the Criminal Cases Review Commission (see Further Information about the CCRC below).
The CCRC may refer a sentence to the Crown Court where it considers:
(a) there is a real possibility that the Crown Court will reduce the original sentence; and
(b) this real possibility is due to evidence or argument on a point of law not previously advanced at the earlier appeal(s) (unless there are exceptional circumstances); and
(c) the applicant has already unsuccessfully appealed (unless there are exceptional circumstances).
How do I appeal against sentence from the Magistrates’ Court to the Crown Court?
"An appeal against sentence from the Magistrates’ Court to the Crown Court is a relatively simple process"
An appeal against sentence from the Magistrates’ Court to the Crown Court is a relatively simple process. A Notice of Appeal (see the Further Information section below for a copy of this) must be completed and served on the Magistrates’ Court and the prosecution within 21 days of the sentence being passed. If you are outside the 21 day time limit you must explain why on the form and an extension of time can be granted by the Crown Court if there is a good reason for the delay.
On the Notice of Appeal you can also tick if you wish to apply for suspension of any disqualification (such as a driving disqualification) pending the appeal being heard. If you have been sentenced to a custodial sentence, you can also tick a box stating that you wish to apply for bail pending the appeal being heard. These applications can be made to the Magistrates' Court and/or to the Crown Court. For example, if your bail application is refused by the Magistrates you can then apply to the Crown Court, or you can apply direct to the Crown Court without applying to the Magistrates.
Want to know more about sentencing?
Remember that the sentences for most criminal offences are covered by sentencing guidelines which will be used at any appeal to the Crown Court (where a new sentencing hearing will take place). There is a lot of information about the sentencing process, how judges and magistrates’ calculate sentences, different types of sentence and the maximum sentences available to the courts on this website in how sentencing works. It will be important in appeal cases to look at the sentencing guidelines and have a clear idea if the original sentence passed is within or outside the appropriate guidelines for the offence. If it is within the guidelines then there will have to be a clear and cogent argument as to why a different or lesser sentence should be passed by the Crown Court. If the original is arguably not within the guidelines or there is a solid basis to consider that the guidelines have been misapplied then these can be good reasons to appeal to the Crown Court where the sentence will be considered again. Of course every case is different and must be considered individually on its own facts.
Get legal Advice
There are significant potential pitfalls if you launch an appeal which in fact has no merit. Not only can a poor appeal hit you in the pocket by way of an order for costs (not just yours but the prosecution’s costs too) but you can find yourself having a sentence increased.
For these reasons 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 lawyer to represent you at the appeal hearing itself.
- The main power to appeal against sentence to the Crown Court is contained in section 108 of the Magistrates’ Courts Act 1980.
- Appealing against sentence to the Crown Court is governed by Part 34 of the Criminal Procedure Rules. There is also helpful information in Criminal Practice Direction IX: Appeal (paragraph 34A.3). You can find these documents on the justice.gov.uk website here.
- Service of documents is governed by Part 4 of the Criminal Procedure Rules.
- The powers available to the Crown Court when dealing with an appeal are contained in section 48(2) of the Senior Courts Act 1981.
- The power of the Magistrates to rectify mistakes is contained in section 142 of the Magistrates’ Courts Act 1980 and Part 28.4 of the Criminal Procedure Rules.
- Our guide to Appeal by way of Case Stated.
- References to the Criminal Cases Review Commission are governed by Part II of the Criminal Appeal Act 1995. There is also useful information on the CCRC website.