Appealing a Crown Court Sentence

"If you are unhappy about the sentence you received at the Crown Court you can seek permission to appeal against sentence to the Court of Appeal by serving a notice and grounds of appeal within 28 days of your sentence"

If you are unhappy about the sentence you received at the Crown Court you can seek permission to appeal (which is often referred to as seeking ‘leave' to appeal) against sentence to the Court of Appeal (Criminal Division) by serving an Application for Permission to Appeal and grounds of appeal within 28 days of your sentence.  

Please note that this section only concerns appealing against sentences passed in the Crown Court. If the sentence you want to appeal against was passed in the Magistrates' Court then click here.

do I always have the right to appeal against my Crown Court sentence?

No. To appeal against your sentence you have to get permission 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 sentence ...' section directly below.  

Generally, appeals against sentence are based on the sentence being 'wrong in law' (there was no legal power to pass the sentence), or ‘wrong in principle’ (you are arguing that the wrong type of sentence was passed, such as when a prison sentence was imposed when the offence only deserved a community order) or when the sentence was ‘manifestly excessive’ (far too long). Often sentencing guidelines will be referred to during an appeal with the argument being that the Crown Court judge failed to follow the guidelines for a particular offence. You can read more about sentencing generally below.

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 grounds of appeal which set out the individual arguments it is intended to advance in your favour.

HOW DO I APPEAL AGAINST SENTENCE FROM THE crown court to the court of appeal?

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The procedure to appeal against a sentence passed in the Crown Court 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).  

In summary, 

  1. An Application for Permission to Appeal and Grounds of Appeal must (for sentences before 1 October 2018) be served within 28 days of sentence on the Crown Court where the sentence was passed. Note that from 1 October 2018 the Form NG and Grounds of Appeal must be served within 28 days of sentence direct on the Registrar of Criminal Appeals, not on the Crown Court. Electronic service is encouraged - See the Guide to commencing proceedings in the Court of Appeal Criminal Division (part A2) in the Further Information section below where you can also find a template for the Application for Permission to Appeal. If you are outside the 28 day time limit you must apply for an extension of time, explaining why this is required. See the section below on appealing out of time.
  2. 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.
  3. If you have been sentenced to a custodial sentence, 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 appeal 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. 
  4. 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.
  5. If permission is granted, you will be notified of when the appeal will be heard before the full Court of Appeal.
  6. 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.

Can I appeal out of time?

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An Application for Permission to Appeal together with Grounds of Appeal should be served on the Crown Court where the sentence took place within 28 days of the sentence being passed. The Criminal Appeal Act 1968 (section 18(3)) provides that the time for giving notice may be extended, either before or after it expires, by the Court of Appeal and Note 7 on Form NG (the Application for Permission to Appeal) 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:

"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" R v Thorsby, Court of Appeal

"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 or sentence 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 or sentence 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 SENTENCE 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 (although the prosecution do not always attend these hearings). 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 SENTENCE IN THE Court of appeal?

The appeal will be heard by at least two judges (usually a Lord Justice of Appeal and a High Court Judge). Sometimes three judges will hear an appeal against sentence. 

WHAT POWERS DOES THE court of appeal HAVE WHEN DEALING WITH AN APPEAL AGAINST SENTENCE?

"The Court can allow the appeal by quashing the original sentence and substituting it for a different sentence or order, or dismiss the appeal"

The powers of the Court of Appeal are contained in section 11 of the Criminal Appeal Act 1968 (see Further Information below). The Court can allow the appeal by quashing the original sentence and substituting it for a different sentence or order, or dismiss the appeal.

The Court cannot make the sentence harsher than the sentence passed in the Crown Court (i.e. taking the case as a whole, the appellant should not be more severely dealt with on appeal than he was dealt with by the Crown Court).  However, see the section below on Appeal Risks.

IS APPEAL THE ONLY WAY TO CHANGE A crown COURT SENTENCE?

The Power to Re-open a Sentencing Hearing

The Crown Court has the power to vary a Crown Court sentence or order within 56 days of making it. This power is contained in section 155 Power of Criminal Courts (Sentencing) Act 2000 and is often referred to as the 'slip rule' because it is a useful method of correcting any minor errors that might have occurred during sentencing.

If a judge passes sentence but subsequently considers that the sentence should have been shorter, this rule can be used by the judge to reduce that sentence. A judge can even increase a sentence under this rule where (s)he takes the view that the original sentence was passed on an incorrect factual basis (e.g. where a defendant has said at sentence that he regretted his actions but, after sentence, boasted on Facebook about it).  

Usually, however, the rule is used to correct minor errors in circumstances where the prosecution, defence and judge agree that an error has been made. In situations where you simply feel the court has been too harsh in the sentence passed the appropriate way forward will be to apply for permission to appeal against sentence.

Criminal Cases Review Commission

If your application or renewed application for permission (leave) to appeal is refused or your appeal is dismissed, you could ask to have your appeal against sentence 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 reduce the original sentence; and
(b) this real possibility is due to evidence or argument on a point of law not previously advanced on the application for permission or at the first appeal (unless there are exceptional circumstances); and
(c) the applicant has already unsuccessfully applied for permission to appeal or been unsuccessful at appeal (unless there are exceptional circumstances).

Are there any appeal risks? THE 'Loss of time' ORDER

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 has no 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 real prospect of succeeding.  

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

WANT TO KNOW MORE ABOUT SENTENCING?

"the sentences for most criminal offences are covered by sentencing guidelines which will be referred to, if relevant, at any appeal to the Court of Appeal"

Remember that the sentences for most criminal offences are covered by sentencing guidelines which will be referred to, if relevant, at any appeal to the Court of Appeal.  There is a lot of information about the sentencing process, how judges 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 substituted by the Court of Appeal.  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.  Of course every case is different and must be considered individually on its own facts.

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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