Appeals to the Court of Appeal

• Introduction
• Principles
• Leave to Appeal
• Commencement of appeals
• Prosecutor's Response to applications for leave to appeal
• Actions of the Criminal Appeal Office (CAO)
• Skeleton arguments and Respondent’s Notice
• Hearing new evidence
• Appeals against sentence - Jurisdiction
• Notice arrangements - appeals against sentence
• Referral to Appeals and Review Unit
• ARU Responsibilities
• Procedure for referral to ARU
• Victims and Witnesses

Introduction

This guidance deals with defendants’ appeals against conviction and/or sentence in the Crown Court.

Principles

The law relating to appeals from the Crown Court against conviction or sentence is largely contained in the Criminal Appeal Act 1968, the Criminal Appeal Act 1995, Criminal Procedure Rules Part 39 and the Consolidated Criminal Practice Direction.

The Crown Court has the power to alter a sentence or other order made by the Crown Court within 56 days of the date on which it was made. This allows time for the correction of errors that would otherwise require an appeal to the Court of Appeal.

Within the CPS, conduct of appeals against sentence and conviction is the responsibility of the Appeals and Review Unit, Special Crime and Counter Terrorism Division.

Leave to Appeal

Leave to appeal to the Court of Appeal is required in all cases in relation to conviction or sentence (except in relation to contempt) save where a certificate has been issued by the trial judge that the case is fit for appeal.

There is a time limit of 28 days within which a judge may grant a certificate of fitness 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.

When it quashes a conviction, the Court of Appeal may re-sentence the appellant for any other offence for which he was sentenced at the same time by the court below. This is so, whether the counts were on the same or different indictments.

Commencement of appeals

An appellant must serve an appeal notice (form NG Notice and Grounds of appeal) on the Crown Court office not more than 28 days after the conviction, sentence or order in accordance with Criminal Procedure Rules 39.2. There is no requirement for the appellant or his solicitor to serve notice on the respondent of an intention to appeal.

When the form NG is lodged at the Crown Court, a notification slip is sent to the prosecuting authority by the Crown Court officer.

Prosecutor's Response to applications for leave to appeal

Procedures outlined in the Criminal Procedure (Amendment No.2) Rules 2007 made formal provision for a Respondents Notice (Rule 39.6(1)) to be served at an early stage in proceedings.

This provision enables the early involvement of the prosecution when the Court of Appeal (Criminal Division) is considering granting or refusing leave to appeal. It requires prosecutors to provide a written response to the defence grounds of appeal. This is to assist the single judge in making the decision in determining the merit of the appellant’s application.

The prosecutor’s response will not be invited in every case; it will be limited to those cases where it is believed the single judge would benefit from a response, or where the prosecution themselves identified they would wish to respond.

The need for a prosecution response to the appellant’s grounds of appeal could be initiated by:

• the CPS indicating they would wish to provide a prosecution response to inform the single judge’s decision on whether leave should be granted; or
• where in the judgment of the Registrar or his staff, a response from the prosecutor would be of assistance to the single judge.

To facilitate this, the Registrar will serve the appeal notice from the applicant and an invitation to respond, on the prosecution. The prosecutor’s name and details will be drawn from the Plea and Sentence Document that must be served in accordance with the Attorney General’s revised Guidelines on the Acceptance of Pleas and the Prosecutor’s role in Sentencing Exercise. Prosecutors completing the Plea and Sentencing Document must ensure that their contact details are included.

Actions of the Criminal Appeal Office (CAO)

The Criminal Appeals Office sends daily emails to the ARU notifying it of all new appeals received. Within 24 hours of receiving this notification, the ARU will contact the CPS Area that handled the original case, informing them of the appeal and confirming whether it is the Area or ARU that will conduct the appeal.

If the case does not fall within the ARU remit, the original Area will have conduct of the appeal. Further communication will be between the Area and Criminal Appeal Office, although the ARU will continue to make itself available to the Area to advise on any difficulties that may be encountered.

Skeleton arguments and Respondent’s Notice

The appellant must lodge a skeleton argument with the Registrar within 14 days of the grant of leave.

Rule 39.6(2) Criminal Procedure Rules requires any party who wants to make representations to the Court to serve a respondent’s notice.

The respondent must lodge a skeleton within 14 days of receipt of the appellant’s skeleton argument. In practice, it is accepted that the skeleton argument and respondents notice will be conjoined.

Hearing new evidence

The Court of Appeal may hear new evidence that was not adduced in the original proceedings (section 23(1)(c) Criminal Appeal Act 1968), if:

• it appears capable of belief;
• it may afford any ground for allowing the appeal;
• it would have been admissible;
• it is an issue which is the subject of the appeal;
• there is a reasonable explanation for the failure to adduce it.

The court can call persons who were not called at trial but who may be able to give relevant evidence to the Court of Appeal, such as jurors or lawyers.

The court has power to compel the production of documents and the attendance of witnesses. These powers extend to hearings of applications for leave to appeal as well as the appeal itself.

Appeals against sentence - Jurisdiction

The jurisdiction of the Court of Appeal is statutory. In relation to an appeal against sentence, its powers are to be found in section 9(1) and 11 of the Criminal Appeal Act 1968. Section 9 provides:

"(1) A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings."

In the case of James Hughes v R [2009] EWCA Crim 841, the Court of Appeal held that the fact of a previous referral by the Attorney General pursuant to section 36 Criminal Justice Act 1988, on the grounds that the sentence passed in the Crown Court was unduly lenient, did not effectively extinguish the right of an appellant to the statutory right of appeal pursuant to section 9 Criminal Appeal Act 1968, where that right had not yet been exercised.

Notice arrangements - appeals against sentence

Notice arrangements in relation to appeals against sentence are contained in Practice Direction (Criminal Proceedings: Consolidation) paragraph II.1. The practice direction contains details on the provision of notice to the prosecution when:

• leave to appeal against sentence is granted;
• an application for leave to appeal is referred to the full court;
• the full court is to hear a renewed application for leave to appeal against sentence;
• where counsel for the applicant is to address the court.

The provisions contain short time limits. The prosecution only has 7 days from the granting of leave to appeal by a single judge or referral by the Registrar to notify the Registrar that it wishes to be represented at the hearing or request sight of the grounds of appeal. If the latter, the prosecution then has a further 7 days in which to notify the court if it wishes to be represented.

If counsel is appearing at a renewed application for leave, the time limits, from notification by the Registrar are reduced to 72 and 48 hours, the latter if the case is listed.

The types of cases in which it may be appropriate for the prosecution to be represented at the sentence appeal include:

• sexual offences;
• homicide;
• cases with a national profile;
• where particular issues arose during the course of the trial or sentencing hearing (such as an unwarranted attack on the credibility of the victim or derogatory remarks made about the victim in the course of mitigation - in relation to this category reference was made to the Code of Practice for Victims of Crime being promoted by the Home Office);
• violence / domestic violence;
• racially or religiously aggravated crime;
• ASBOs;
• football banning orders;
• cases where there has been a previous referral by the Attorney General pursuant to section 36 Criminal Justice Act 1988, on the grounds that the sentence passed in the Crown Court was unduly lenient.

The Court of Appeal will expect to see a copy of the Plea and Sentencing document required by the Attorney General’s revised Guidelines on the Acceptance of Pleas and the Prosecutors Role in Sentencing Exercise.

Referral to Appeals and Review Unit

All appeals to the Court of Appeal must be notified to the Appeals Unit, SCCTD ([email protected]). The ARU will conduct the majority of appeals and sentence and conviction in the Court of Appeal.

In appellate court work, the ARU’s role is:

• To conduct the full range of appeals against final judgments and judicial reviews of interlocutory decisions;
• To act as a central point of contact and source of expert advice for CPS Areas, the appellate court offices, partners within the wider criminal justice system and victims and bereaved families affected by appellate court proceedings; and
• To identify CPS cases with national policy or procedural implications and to assist in the development and clarification of criminal caselaw.

Notification to the ARU is necessary because some cases will result in a change in the law, which will have a national impact on the CPS generally or on national policy. Some may result in a further appeal to the Supreme Court or attract national publicity. Areas should ensure that local mechanisms are in place to ensure notification takes place.

When providing information to the ARU, Areas should bear in mind the possible consequences of the judgement of the Court and the need that the CPS has to have a co-ordinated approach where points of law of general importance are concerned.

For example:

• the outcome of any appeal which may involve alteration to current national policy guidance;
• any appeal which may involve the CPS having to disclose the contents of national guidance other than the Code for Crown Prosecutors or any other public document;
• any appeal which may involve CPS staff being required to explain any CPS action or omission;
• any appeal, the outcome of which is likely to result in a change of statutory interpretation or case law which has national implications.

ARU Responsibilities

As well as conducting appeals against conviction and sentence, the ARU is responsible for informing Private Office and/or the Press Office of cases of significance which are likely to affect the policy of the Service or attract media attention.

The ARU maintains a record of Court of Appeal cases referred to it by Areas and provides a central reference point for the Criminal Appeal Office. The responsibilities of the ARU include:

• conducting the full range of appellate court cases;
• advising on the consolidation of cases;
• co-ordination of related appeals;
• ensuring a consistent application of settled policy;
• giving appropriate advice and guidance; and
• giving information, including the results of significant cases, to Areas.

Procedure for referral to ARU

The CCP, DCCP or other lawyer delegated by him/her, has overall responsibility for ensuring that the ARU is informed of Court of Appeal cases, particularly any case which may have a serious national impact or media interest.

Areas should submit to the ARU a Court of Appeal Notification form NFR/CA.1 on all appeals against conviction, together with the grounds of appeal. This form should also be used to notify the ARU of the results of cases in which they were not involved.

Areas should update the ARU about any developments in the cases and about hearing dates.

Whether the ARU will have a presence at court will depend on the overall significance of the case, i.e. the result may require immediate dissemination of Advice to Areas.

Victims and Witnesses

A Victim Notification Form containing information concerning the granting of bail to the appellant, the date of the appeal hearing and the result will be sent by the Criminal Appeal Office (CAO) via the ARU to the appropriate Witness Care Unit in all cases where an individual has been directly affected by the crime.