Appealing a Crown Court Conviction

Appealing against a Crown Court Conviction

"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)by serving a notice and grounds of appeal within 28 days of your conviction"

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 a notice and grounds of appeal within 28 days of your conviction (or later in certain circumstances). If you are granted permission the Court of Appeal will examine the grounds 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 set aside).

Please note that this section only concerns appealing against convictions in the Crown Court. If you were convicted in the Magistrates' Court and want to appeal the procedure is far simpler and you can find the details here

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 as set out in the 'How do I appeal against conviction ...' section below.  

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); 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.

Following your sentence you should automatically receive advice on the merits of an appeal and can ask for that advice to be given in writing. If the advice is positive, then your Barrister or Solicitor Advocate will also draft the 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"

As mentioned above, 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: 

These include errors of law 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 open for the jury's 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.

Occasionally appeals against conviction are based on fresh evidence which was not available, or where there is a reasonable explanation for not relying upon it, at the original trial. 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.

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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 and Grounds of Appeal must be served within 28 days of conviction on the Crown Court where you were convicted.  You can see a template for the Notice in the Further Information section. It is worth bearing 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.
  2. If you are outside the 28 day time limit you must apply for an extension of time, providing reasons for the delay. If the appeal is considered to have merit, then an extension will usually be granted.
  3. 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.
  4. 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. 
  5. The Crown Court then sends the Application, Grounds and any other applications (e.g. for bail) to the office of the Registrar of Criminal Appeals.  
  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 is refused, you will be notified of this and told that you have 14 days to apply to renew your application for permission to appeal 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.

    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).  
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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 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.

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.

WANT TO KNOW MORE ABOUT Crown court trial?

If you want to know what happens at a Crown Court trial and during a judge's summing-up to a jury have a look at our Crown Court Trial Guide here.

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