Criminal Appeals Handbook

2nd edition
Criminal Appeals Handbook

2nd edition

Joel Bennathan QC
Barrister, Doughty Street Chambers

Rebecca Trowler QC
Barrister, Doughty Street Chambers

Gregory Stewart
Solicitor and Higher Courts Advocate,
GT Stewart Solicitors & Advocates
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Foreword

Apart from a few specialists, advocates practising in crime spend the vast
majority of their time dealing with criminal cases in the Magistrates’ and
Crown Courts. Forays to the Court of Appeal Criminal Division can be few
and far between and I suspect these infrequent appearances often engender
feelings of uncertainty and apprehension. I vividly recall the challenge that
is presented when all three members of the court are seemingly unimpressed
by an argument, and proceed to fire difficult questions in rapid succession.
The advocate can feel very lonely and ill equipped. Furthermore, appellate
proceedings are in many ways a wholly different exercise to conducting first
instance cases, and the procedure, the conventions and the jurisprudence are
voluminous and can feel positively byzantine, especially to the uninitiated.
In order for the Court of Appeal Criminal Division to function efficiently and
effectively, it is crucial that the advocates understand and apply the rules, and
that the procedures of these courts are loyally followed. A relatively small
number of judges deal with a high volume of work, and this is only possible if
the applicants/appellants and the respondents prepare and present these cases
in accordance with the established modus operandi. There are many elephant
traps lying in wait for those who have not done their homework in advance.
For the judiciary, it is a joy when cases are properly prepared, presented and
economically argued and there is a risk that good points may be obscured if the
court is forced to wrestle with a chaotically prepared case or when unfocussed
submissions fail to distinguish between good and bad points.
This book is a wholly welcome addition to the relatively few guides that are
available for advocates in this field. One of its great strengths is that it has been
presented in a rigorously practical and intelligent way, and as a consequence it
provides an impressive mix of purely practical assistance on basic procedure,
along with detailed insight into some of the more legally challenging issues.
The layout of the book means that it will be easy to use – the different stages
are clearly delineated and it provides ‘cradle to grave’ assistance. It offers a
clear route through the labyrinth and it is packed with excellent legal analysis.
In the result, I suspect that many members of the judiciary will have it close at
hand as a critical point of reference.
Lord Justice Fulford
Vice President of the Court of Appeal Criminal Division

v
Preface

Appealing against a conviction or a sentence that was imposed in the Crown

Court can be a daunting business. There is a striking contrast to be found
between the ease with which an appeal can be brought against a decision of the
Magistrates’ Court and the difficulties and uncertainties involved in appealing
from the Crown Court.
A defendant who wishes to appeal against a conviction or a sentence that was
imposed in the Magistrates’ Court simply has to lodge a notice of appeal.
He is then entitled to a complete re-hearing in the Crown Court. In contrast,
appealing a conviction or sentence that was imposed in the Crown Court,
which is always to the Court of Appeal, requires an application to be made for
leave to the Court of Appeal. If leave is allowed, what is being granted is the
right to a hearing at which the appellant has the opportunity to persuade the
Court to allow the appeal. That opportunity is a narrow one. It often consists
of a short hearing before a Court that has read the papers and may already have
formed a clear preliminary view of the merits of the case.
This is a process that poses particular challenges for defendants and their
lawyers. Defendants who have acclimatised themselves to the pace and
formality of the Crown Court find themselves having to adjust to new and very
different proceedings; there is a new set of legal terms to grapple with, further
delays, a process from which they seem to be excluded, and that may culminate
in a hearing at which trials that may have lasted for weeks are considered in
minutes, and matters that seemed so crucial at trial are barely mentioned.
Their lawyers must seek to persuade a Court in which the swift, sometimes
brutal dispatch of business and a ruthless focus on essentials replaces the
comparatively relaxed pace of life in the Crown Court. It requires a different
approach and even a different set of skills in order to achieve the best result
for their clients.
The aim of this book is to assist those who seek to challenge a conviction
or sentence or pre-trial order which was imposed in the Crown Court. It is
intended for defence lawyers but also for defendants and their families who
want a better understanding of the appeal process. For those who choose to
represent themselves we hope to provide assistance, but it is not our intention
to encourage anyone to do so. The need for effective legal representation is
never more important than at the appeal stage. That effectiveness can only be
increased when clients understand what they should expect of their lawyers
and both lawyers and clients appreciate and can focus on the questions that
will be of importance to the Court.

vi
 Preface

Because convictions and sentences that have been imposed on the Crown
Court can only be appealed to the Court of Appeal, the focus of this book
is largely on appealing to that Court. Chapter 1 provides a brief introduction
to the Court, its judges, constitution, rules and administration. Chapter 2
considers the sources of law that it applies. Chapters 3 and 4 consider the
tests for appeal, potential grounds and the powers of the Court in relation to
conviction and sentence (including confiscation), respectively.
Chapters 5 to 8 then address the practicalities of appealing. Chapter 5 considers
the important but often overlooked question of defence investigations, often the
source of new material that provides the basis for an appeal. Chapter 6 deals
with the practicalities of preparing the case; applying for leave, renewal of such
applications and extensions of time, whilst Chapter 7 considers preparation for
hearings. Chapter 8 deals with applying for legal aid to cover legal advice or
representation whilst touching on the other ways of obtaining legal assistance,
through private instruction, innocence projects and charities.
One of the most important features of the appeals process is the Criminal Cases
Review Commission, which has the power to refer cases back to the Court of
Appeal that have previously been considered and refused. Chapter 9 focuses
on applying to the Commission whilst Chapter 10 sets out the procedure for
appealing from the Court of Appeal to the Supreme Court.
Although a decision of the Court of Appeal or, very occasionally, the Supreme
Court, will conclude the domestic appeal process, it need not always exhaust
the search for justice. If a defendant’s rights have been violated, he may apply
for the case to be heard by the European Court of Human Rights. Chapter 11
addresses when and how such an application can be made and what can be
achieved by doing so.
We have concluded with three chapters on subjects with which the defence
practitioner will occasionally have to grapple. Chapter 12 deals with
interlocutory appeals. Chapter 13 addresses the issue of responding to
prosecution appeals against sentence (or ‘Attorney General’s references’)
and against acquittal. Chapter 14 deals with appeals against certain findings
and orders made in the Crown Court against defendants who are found to be
suffering from serious mental disorders.
In retaining the focus on appeals in relation to serious criminal offences we
have deliberately omitted two topics. First, appeals from the Magistrates’
Court. As already indicated, the process of appealing from the Magistrates’
Court to the Crown is straightforward. Lawyers will find what they need to
know in the general criminal practitioner’s textbooks. Self-representing should
also be able to comply with the procedural requirements for an appeal, perhaps
with some assistance from the local Crown Court in relation to the completion
of the relevant forms and time limits for doing so.

vii
Preface

The second topic is that of judicial review of the decisions of the Magistrates’
Court and judicial review of certain decisions of the Crown Court.1 It is a
topic of considerable scope and complexity. The law is covered briefly in the
established practitioner’s textbooks but more extensively in judicial review
textbooks and now in a textbook devoted to judicial review in criminal
proceedings.2 We could not hope, in the limited space that might have been
devoted to the topic in this book, to match the guidance that is to be found in
such publications.
It should by now also be obvious that this book is not intended to be a
comprehensive guide to the Court of Appeal and its wide array of powers.
It is intended for those who act for those who have suffered a miscarriage of
justice in the Crown Court and who seek redress. It was Parliament’s purpose
in creating the Court of Appeal to ensure that when such injustices occurred in
the Crown Court there should be a remedy. We seek to assist defendants and
their representatives to make best use of the rights of appeal that Parliament
has provided.
Any practitioner in the criminal courts will have had the experience of getting
a bad result, either the loss of a trial that should have been won or a sentence
far harsher than predicted. Very soon, someone will ask, ‘What next?’ By
combining our experience, knowledge and ideas in this book, we hope to assist
in arriving at the right answer.
Joel Bennathan QC
Rebecca Trowler QC
Gregory Stewart
August 2019

1 Decisions in relation to trial on indictment may only be appealed to the Court of Appeal
by virtue of the Senior Courts Act 1981, s. 29(3). However, decisions in relation to bail at
an early stage in criminal proceedings (R (M) v Isleworth Crown Court [2005] EWHC 363
(Admin)), custody time limits, production orders and decisions in relation to appeals from
the Magistrates’ Court fall outside the scope of that section and may be challenged by way of
judicial review.
2 Von Berg, P. (ed) (2014) Criminal Judicial Review, Oxford: Hart Publishing.

viii
Acknowledgements

We are deeply grateful to Kiran Goss from Bloomsbury for her endless patience
in guiding us from initial proposal to publication, and yet more patience in our
work on this updated version. We would also like to thank our families for
their support during the writing of this book.

ix
Contents

Foreword v
Preface vi
Acknowledgements ix
Table of Statutes xv
Table of Statutory Instruments xix
Table of Cases xxi

Part 1: The Law 1

1 Introduction to the Court of Appeal 3
Introduction 3
The development of the Court of Appeal 3
The current statutory regime 6
Procedural rules and guidance 6
The judges of the Court of Appeal 7
The Registrar of Criminal Appeals and the Criminal Appeals
Office 8
Where and when the Court sits 9
Communicating with the Court 9
Summary of key points 10
2 Applying the law: recent developments 11
Introduction 11
Stare decisis and the Court of Appeal 11
Judgments of the European Court of Human Rights 13
European Union law and international law 14
Summary of key points 15
3 Appeals against conviction 17
Introduction 17
The meaning of ‘unsafe’ 17
The Court’s approach to common issues 23
The Court’s powers 31
Summary of key points 36
4 Appeals against sentence 39
Introduction 39
Appeal against sentence on indictment and for cases sent from
the Magistrates’ Court 40
The principles: general 43
Rights of appeal: confiscation orders and other orders under the
asset recovery legislation 48

xi
Contents

Principles: confiscation 49
Powers of the Court: confiscation 50
Prosecution rights of appeal in confiscation cases 50
Summary of key points 51

Part 2: The Appeal Process 53

5 Defence investigations 55
Introduction 55
What are defence investigations? Who may carry them out? 57
The ethics of defence investigation 58
The techniques of investigation 59
Co-operating with other investigatory bodies 68
Summary of key points 69
6 Applying for leave to appeal 71
Introduction 71
Advice on appeal 72
Trial judge’s certificate 78
The grounds of appeal 79
Particular issues 80
Citation of authorities 81
New arguments 82
Fresh evidence 83
Change in law appeals 84
Other applications which may be made along with the
application for leave 86
Lodging the grounds – direct lodgement 88
Steps before the case is sent to the single judge 89
Decision of the single judge 91
Renewing an application for leave 91
Abandoning an application for leave 93
Summary of key points 96
7 Preparing for hearings in the Court of Appeal 99
Introduction 99
Preparing for the hearing 99
Listing the hearing 102
The hearing 102
Applications at the conclusion of the case 108
Summary of key points 110
8 Public funding and pro bono assistance 113
Introduction 113
Work under a Crown Court or Court of Appeal representation
order 115
Claiming for work done in the Court of Appeal 119
Funding under the 2017 Standard Criminal Contract (SCC) 124

xii
 Contents

Pre-conditions – financial eligibility (means) 128

Practical issues 133
Specific applications and appeals against refusals 136
Alternative sources of advice and assistance 142
Summary of key points 144

Part 3: Applications from the Court of Appeal 147

9 The Criminal Cases Review Commission 149
Introduction 149
The establishment and role of the Criminal Cases Review
Commission 150
The Commission’s power to refer to the Court of Appeal 150
The test for referral 151
Applying to the Commission for a referral 152
Challenging a refusal to make a reference 156
The procedure following a reference being made to the Court of
Appeal 156
An overview of the Commission’s investigatory powers 157
Commission investigations at the direction of the Court of Appeal 159
Too high a test? 160
Summary of key points 160
10 Appealing to the Supreme Court 163
Introduction 163
The types of cases for which leave is given 164
Applying for leave 165
Preparing the case following leave 166
Hearings 167
Particular issues 168
Summary of key points 168
11 Applications to the European Court of Human Rights 171
Introduction 171
Whether to apply 171
Applying to the ECtHR 172
The consequences of a successful outcome 177
Summary of key points 178

Part 4: Other Rights of Appeal 181

12 Appeals against interlocutory rulings 183
Introduction 183
Appeals against rulings made at preparatory hearings in serious
or complex fraud cases 184
Appeals under section 35 of the Criminal Procedure and
Investigations Act 1996 186

xiii
Contents

Appeals against a ruling that a case should be tried by a judge

and not a jury when there is a risk of jury tampering 187
Appeals against a decision to order a trial without a jury where
jury tampering has taken place 188
Ruling that a judge should try certain counts alone following
conviction by a jury on sample counts 189
Summary of key points 189
13 Responding to prosecution appeals 191
Introduction 191
The prosecution’s rights of appeal 191
Prosecution appeals against rulings under section 58 of CJA 2003 192
Attorney-General’s references 196
Summary of key points 200
14 Appeals in relation to defendants suffering from a mental
disorder 203
Introduction 203
Appeals against findings of unfitness to plead and findings that
the accused made the act or omission charged 205
Appeals against a verdict of not guilty by reason of insanity 206
Appeals against an order made under section 5 of the Criminal
Procedure (Insanity) Act 1964 207

Appendices
A Criminal Practice Directions, Division IX 209
B The Criminal Procedure Rules, Parts 36 to 44 221
C A Guide to Commencing Proceedings in the Court of
Appeal (Criminal Division) 281
D Sample pleadings 313
E Court of Appeal costs 335
F New client appeal enquiry form 341

Index 349

xiv
Table of Statutes

All references are to paragraph numbers

Access to Justice Act 1999 Criminal Appeal Act 1968 – contd

s 17...........................................4.10 Pt I (ss 1–32)........................ 1.12, 1.13
Administration of Estates Act 1925 s 1(2)(b).................................6.15, 6.16
s 55(1)(xi).................................7.22 2(1)......................................1.10; 3.2
Administration of Justice Act 1960 (a)....................................3.3
s 13...........................................1.12 3, 3A......................................3.64
Children Act 1989 4.............................................3.80
s 17A........................................8.29 (3)........................................3.81
Children and Young Person’s Act 1933 7.............................................3.82
s 37...........................................7.26 (1)........................................3.67
39...........................................7.29 (2)........................................3.68
Constitutional Reform Act 2005..2.5; 8(1B)(b).................................3.73
10.1, 10.22 (2).................................... 3.72, 3.75
s 40...........................................10.1 9.............................................4.1
Sch 2 (b)........................................4.6
Pt 1 (paras 4–9)....................1.14 10...........................................4.1, 4.7
Sch 9.........................................10.1 11...........................................4.2
Contempt of Court Act 1981 (1)......................................4.2
s 8.............................................3.40 (1A).................................4.2; 6.15
9.............................................7.31 (3), (3A).............................4.51
Coroners and Justice Act 2009 12...................................... 14.1, 14.12
s 52, 54, 55...............................14.1 13....................................14.12, 14.13
116.........................................3.21 15............ 14.1, 14.5, 14.7, 14.8, 14.9
125.........................................4.29 (2)(b)..................................14.7
(1)....................................4.27 16...........................................14.9
Courts Act 2003 (3)(a), (b)...........................14.8
s 69, 74.....................................1.14 16A...................................14.1, 14.17
Crime and Courts Act 2013 (2)(b)...............................6.16
s 32...........................................7.31 16B(1)....................................14.18
Crime and Disorder Act 1889 (2)–(5).............................14.19
s 8.............................................4.16 16C........................................9.12
10(4)......................................4.16 18(2)......................................6.8
Crime and Disorder Act 1998 (3)......................................6.9
Sch 3 22...........................................7.17
para 6....................................4.6 (4)......................................7.18
Criminal Appeal Act 1907...........1.3, 1.4 23............ 3.49, 3.83; 4.34, 4.46; 6.31
s 4(1)...................................... 1.6, 1.10 (1)(a)..................................6.76
Criminal Appeal Act 1964...........1.7 (b)..................................6.31
Criminal Appeal Act 1966...........1.7 (2)......................................6.31
Criminal Appeal Act 1967...........1.7 (a)..................................3.47
Criminal Appeal Act 1968........1.8, 1.10; (b).............................. 3.47, 3.49
3.63; 6.66; 9.5; 14.1, 14.5 (c), (d)...........................3.47

xv
Table of Statutes

Criminal Appeal Act 1968 – contd Criminal Appeal Act 1995 – contd
s 23A........................................9.32 Sch 1
(1)(aa).............................9.32 para 6(3)...............................9.22
(1A).................................9.32 Criminal Justice Act 1925
(4), (5).............................9.32 s 41...........................................7.31
29...........................................6.66 Criminal Justice Act 1967
31...........................................6.14 s 9.............................................5.30
31A(4)...................................6.76 Criminal Justice Act 1972
Pt II (ss 33–44A)..................1.12, 1.13 s 36(1)......................................13.2
s 33.................... 7.42; 10.2, 10.3, 10.4; Criminal Justice Act 1987...... 12.3, 12.19,
12.10; 14.5 12.28
(1)......................................12.25 s 7(1)........................................12.6
34....................................... 7.40; 10.9 9.............................................12.5
36...........................................10.19 (3)........................................12.7
44A........................................7.22 (b)....................................12.9
(2)(b)...............................10.22 (11)................................ 12.8, 12.10
46A........................................9.10 (13), (14)..............................12.10
50...............4.8, 4.9, 4.11, 4.12, 4.13, 11...........................................12.17
4.14, 4.40, 4.41, 4.42 (1), (5)................................12.11
(3)......................................4.10 12...........................................7.27
Sch 2 Criminal Justice Act 1988........ 4.40, 4.42
para 2(1)...............................3.77 s 35..................................... 13.2, 13.20
(3)...............................3.78 36...........................13.2, 13.20, 13.40
Criminal Appeal Act 1995...... 1.10, 1.11; (1), (2)................................13.21
3.2; 9.3 36A.................................13.34, 13.35
s 8.............................................9.3 41...........................................4.6
9.............................................9.4 Pt VI (ss71–103)......................4.8
(2), (3)..................................9.5 Sch 3..................................13.23, 13.40
(5), (6)..................................9.4 Criminal Justice Act 1993
12A........................................9.4 s 6.............................................12.7
13.................................... 9.7, 9.8, 9.9 Criminal Justice Act 2003
(a), (b)................................9.11 s 43...........................................12.12
14...........................................9.27 44.........................12.12, 12.18, 12.19
(1)......................................9.5 45................................... 12.12, 12.19
(2), (3)................................9.21 46................................... 12.24, 12.25
(4)(b)..................................9.27 (3)......................................12.18
(4A), (4B)..........................9.27 47...........................................12.20
15...........................................9.32 (2)......................................12.25
(1).................................. 9.30, 9.32 (4)...............................12.21, 12.25
(2)–(6)................................9.32 (6)......................................12.25
16(1)......................................9.3 57(2)(a), (b)...........................13.5
17...........................................9.28 (4)......................................13.11
(2), (4)................................9.28 58...........13.1, 13.2, 13.3, 13.5, 13.40
18, 19.....................................9.28 (4)......................................13.5
20...........................................9.28 (8)...................................13.5, 13.7
(6)......................................9.32 (13)....................................13.5
21...........................................9.28 61...........................................13.18
22...........................................9.28 (3)......................................13.7
(1)......................................9.28 62...........................................13.2
23–25.....................................9.28 71.....................................7.27; 13.16

xvi
 Table of Statutes

Criminal Justice Act 2003 – contd Football Spectators Act 1989

s 74(1)......................................13.5 s 14A(5A).................................13.2
Pt 10 (ss 75–97).......................13.2 23...........................................4.8
s 172.........................................4.26 Freedom of Information Act
240A......................................4.39 2000.................................5.26, 5.36
269(2)....................................13.34 s 1.........................................5.26, 5.27
313.........................................9.32 30...........................................5.27
Criminal Justice and Immigration Health and Social Care Act 2001.8.29
Act 2008 Homicide Act 1957
s 42...........................................9.12 s 2, 4.........................................14.1
46...........................................13.35 Human Rights Act 1998.........2.2, 2.7, 2.8
Sch 8 s 2(1)(a)....................................2.8
para 10..................................6.31 Immigration and Asylum Act 1999
Criminal Procedure and Investi­ s 31......................................... 5.5; 9.20
gations Act 1996...........12.19, 12.28 Legal Aid, Sentencing and
s 3.............................................5.17 Punishment of Offenders
13(3)......................................12.10 Act 2012...............................8.1, 8.7
23...........................................5.2 s 13–15.....................................8.1
29...........................................12.12 16...........................................8.1, 8.7
(1C), (6).............................12.13 17, 18.....................................8.1
35.................................. 12.12, 12.15, 19...........................................8.1
12.16, 12.17 (1)......................................8.7
(1), (2)................................12.10 42...........................................8.7
37...........................................7.27 Licensing Act 2003
(1)......................................12.17 s 129(2)....................................4.8
54...........................................13.2 Mental Health Act 1983
72...........................................5.17 Pt III (ss 35–55).......................4.8
Criminal Procedure (Insanity) Act 1964 s 47, 49.....................................5.23
s 4........................................14.6, 14.14 Modern Slavery Act 2015
(5), (6)..................................14.11 s 45...........................................5.5
4A.....................................14.6, 14.14 Police and Criminal Evidence
5.................................... 14.11, 14.14, Act 1984...............................9.28
14.16, 14.17 Powers of Criminal Courts
Crown Cases Reserved Act 1848.1.2 (Sentencing) Act 2000
Data Protection Act 2018.........5.21, 5.25, s 14...........................................4.8
5.28, 5.36 137(1)....................................4.16
s 7.............................................5.26 150.........................................4.16
45(1)......................................5.21 155.....................................4.36, 4.45
(3)......................................5.24 (6)....................................4.40
(4)......................................5.22 Proceeds of Crime Act 2002........
53...........................................5.25  4.40, 4.43, 4.52, 4.53; 13.2
54...........................................5.24 Pt 1 (ss 1–5).............................8.27
Sch 7.........................................5.21 Pt 2 (ss 6–91)...........................4.8
Domestic Violence, Crime and s 10A.......................................4.8, 4.52
Victims Act 2004..................12.28 19, 20.....................................4.52
s 17...........................................12.28 21, 22................................... 4.8, 4.41
(3)–(5)................................12.27 23....................................... 4.41, 4.53
25...........................................14.17 27, 28.....................................4.52
Drug Trafficking Act...................4.8, 4.40 29......................................... 4.8, 4.41
s 19...........................................4.8 31...........................................4.52

xvii
Table of Statutes

Proceeds of Crime Act 2002 – contd Senior Courts Act 1981 – contd
s 31(3)......................................4.53 s 53(2)......................................1.12
41...........................................8.29 55(2)......................................1.18
65...........................................4.43 (6)......................................1.19
Prosecution of Offences Act Serious Organised Crime and
1985.....................................6.67 Police Act 2005
s 16A........................................8.14 s 74(12)....................................7.26
18(2)......................................7.49 75(2)......................................7.26
19(1)..................................7.50, 7.51 Sexual Offences (Amendment)
19A........................................7.52 Act 1992...............................7.27
19B........................................7.55 s 2.............................................7.27
Protection from Harassment Act 1997 Terrorism Act 2000
s 5A(5).....................................4.13 s 17...........................................10.5
Regulation of Investigatory Trial of Lunatics Act 1883
Powers Act 2000.............. 9.28, 9.33 s 2.............................................14.12
Senior Courts Act 1981................1.9 Welfare Reform Act 2012
s 2.............................................1.16 Pt 4 (ss 77–95).........................8.29
3.............................................1.15 Youth Justice and Criminal
9.............................................1.16 Evidence Act 1999
31A(2)(b)...............................1.23 s 25...........................................7.26

xviii
Table of Statutory Instruments

All references are to paragraph numbers

Coroners and Justice Act 2009 Criminal Legal Aid

(Commencement No 4, (Remuneration) Regulations
Transitional and Saving 2013, SI 2013/435 – contd
Provisions) Order 2010, Sch 3 – contd
SI 2010/816..........................4.26 para 2....................................8.13
Criminal Appeal Act 1995 (3)...............................8.14
(Commencement No 1 and 3(1), (2)........................8.14
Transitional Provisions) 4....................................8.16
Order 1995, SI 1995/3061....1.11 5................................ 8.13, 8.17
Criminal Legal Aid 8(2)...............................8.15
(Determination by a 9(1)–(4)........................8.17
Court and Choice of 11..................................8.18
Representative) Regulations Sch 4.........................................8.39
2013, SI 2013/614................8.4 Sch 5..................................... 8.16, 8.40
Criminal Legal Aid (Financial Criminal Procedure Rules 2014,
Resources) Regulations SI 2014/1610..................... 6.4; 7.49;
2013, SI 2013/471................8.1 8.7; 13.23,
reg 2............................ 8.27, 8.29, 8.31 13.24
Pt 2 (regs 5–15)........................8.26 Pt 1 (rr 1.1–1.3)........................1.14
reg 8.........................................8.29 r 1.1..........................................6.14
9.........................................8.28 4.3..........................................7.54
11.......................................8.29 4.7..........................................7.55
12.......................................8.29 Pt 6 (rr 6.1–6.36)......................7.28
13.......................................8.30 Pt 14 (rr 14.1, 14.2)..................6.16
14.......................................8.27 Pt 16 (rr 16.1–16.10)................6.31
Criminal Legal Aid (General) Pt 18 (rr 18.1–18.7)..................6.31
Regulations 2013, Pt 20 (r 20.1)............................6.31
SI 2013/9..............................8.1 Pt 21 (r 21.1)............................6.31
reg 2.........................................8.1 Pt 22 (rr 22.1–22.9)..................6.31
6.........................................8.1 Pt 34 (rr 34.1–34.5)..................1.14
33(c)...................................8.1 Pt 35 (rr 35.1–35.6)..................1.14
Criminal Legal Aid Pt 36 (rr 36.1–36.7)............. 1.14; 13.9,
(Remuneration) Regulations 13.40; 14.5
2013, SI 2013/435.......8.1, 8.7, 8.13, r 36.2........................................6.76
8.14, 8.39 36.6........................................6.76
reg 6.........................................8.13 (1)....................................7.26
26.......................................8.19 (2)....................................7.25
31.......................................8.13 36.7........................................6.76
Sch 1 36.8(5)....................................6.16
Pt 7.......................................8.15 36.12(2)..................................6.68
Sch 3.........................................8.13 36.13......................................6.74
para 1(2)...............................8.13 (2)..................................6.70

xix
Table of Statutory Instruments

Criminal Procedure Rules 2014, Criminal Procedure Rules 2014,

SI 2014/1610 – contd SI 2014/1610 – contd
Pt 37 (rr 37.1–37.18)........... 1.14; 12.3, r 41.2, 41.3...............................13.23
12.28 41.4........................................13.24
r 37.1........................................12.25 41.6........................................13.27
37.2........................................12.10 Pt 42 (rr 42.1–42.11)................1.14
37.3........................................12.10 Pt 43 (r 43.1)............................10.2
37.4........................................12.10 r 43.2........................................10.9
37.5, 37.7...............................12.10 45.6(8)....................................7.49
37.8........................................12.10 45.8........................................7.50
Pt 38 (rr 38.1–38.18)...........1.14; 13.40 Pt 44 (rr 44.1–44.4)..................1.14
r 38.2(2)....................................13.10 Criminal Procedure Rules 2015,
38.3........................................13.10 SI 2015/490
38.5........................................13.11 Pt 26 (rr 26.1–26.5)..................4.1
38.7................................ 13.13, 13.14 Pt 39 (rr 39.1–39.14)................4.1
38.8........................................13.10 Pt 42 (rr 42.1–42.20)................4.1
38.11......................................13.16 Regulation of Investigatory
Pt 39 (rr 39.1–39.4)..... 1.14; 6.51; 14.5 Powers (Communications
r 39.2........................................9.27 Data) (Additional Functions
39.3(2)(c)...............................6.43 and Amendment) Order
(g)...........................6.54; 7.14 2006, SI 2006/1878..............9.28
39.4........................................6.16 Supreme Court Rules 2009,
39.6........................................9.27 SI 2009/1603
(3)–(6).............................6.57 r 5.............................................10.17
39.7(1)–(7).............................6.31 11...........................................10.10
39.8........................................6.38 13...........................................10.12
39.9........................................6.38 14.2........................................10.12
39.11......................................6.76 18(2).......................................10.17
Pt 40 (rr 40.1–40.8)..................1.14 19...........................................10.17
Pt 41 (rr 41.1–41.16)..........1.14; 13.22, 22(3).......................................10.17
13.40 46(1).......................................10.21

xx
Table of Cases

All references are to paragraph numbers

A
A-G’s Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72, [2004]
2 WLR 1.......................................................................................................3.17
A-G’s Reference (Nos 3 & 5 of 1989) [1989] 10 WLUK 169, (1990) 90 Cr App
R 358, (1989) 11 Cr App R (S) 489.............................................................13.28
A-G’s Reference (No 8 of 2007), Re [2007] EWCA Crim 922, [2008] 1 Cr App
R (S) 1, [2007] Crim LR 642.......................................................................13.28
A-G’s Reference (Nos 14 & 15 of 2006), Re [2006] EWCA Crim 1335, [2007]
1 All ER 718, [2007] 1 Cr App R (S) 40, [2006] Crim LR 943...................13.33
A-G’s Reference (No 19 of 2005), Re [2006] EWCA Crim 785.........................13.30
A-G’s Reference (Nos 25 & 26 of 2008), Re [2008] EWCA Crim 2665, [2009]
1 Cr App R (S) 116......................................................................................13.31
A-G’s Reference (No 45 of 2014) [2014] EWCA Crim 1566, [2014]
7 WLUK 21..................................................................................................13.33
A-G’s Reference (No 69 of 2013), Re; sub nom R v McLoughlin
[2014] EWCA Crim 188, [2014] 3 All ER 73, [2014] 2 Cr App R (S) 40,
[2014] HRLR 7, [2014] Crim LR 471, (2014) 158 (8) SJLB 37.................2.10
A-G’s Reference (No 74 of 2010), Re [2011] EWCA Crim 873.........................13.30
A-G’s Reference (No 79 of 2015), Re [2016] EWCA Crim 448, [2016]
4 WLR 99, [2016] 3 WLUK 670.................................................................13.30
A-G’s Reference (Nos 86 & 87 of 1999), Re [2000] 10 WLUK 779, [2001] 1
Cr App R (S) 141, [2001] Crim LR 58........................................................13.31
Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948]
1 KB 223, [1947] 2 All ER 680, (1947) 63 TLR 623.............................. 3.30, 3.31

B
Bestel (Jean Pierre) v R [2013] EWCA Crim 1305, [2014] 1 WLR 457, [2013]
2 Cr App R 30..............................................................................................4.50
Boodram v The State [2002] 1 Cr App R 103.....................................................3.58

D
Dowsett v Criminal Cases Review Commission [2007] EWHC 1923 (Admin).11.3
DPP v Majewski [1975] 3 WLR 401; [1975] 3 All ER 296; (1976) 62 Cr App
R 5................................................................................................................1.11
DPP v Patterson [2017] EWHC 2820 (Admin), [2017] 11 WLUK 46, [2018] 1
Cr App R 28.................................................................................................2.6
Duppin v Croatia (Application No 363868/03) (7 July 2009).............................11.9

E
Evans v Bartlam [1937] AC 473, [1937] 2 All ER 646.......................................3.30

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Table of Cases

I
Ivey v Genting Casinos UK Ltd (t/a Crockfords Club) [2017] UKSC 67,
[2018] AC 391, [2017] 3 WLR 1212...........................................................2.6

L
LSA [2008] EWCA Crim 1034...........................................................................13.7

M
Manoussos v Czech Republic (Applicaion No 46488/99) (7 September 2002).. 11.28
Morelle Ltd v Wakeling [1955] 2 QB 379, [1955] 2 WLR 672, [1955] 1 All
ER 708, (1955) 99 SJ 218............................................................................2.5

P
P (Barrister) (Wasted Costs Order), Re [2001] EWCA Crim 1728, [2002] 1 Cr
App R 19, [2001] Crim LR 920...................................................................7.53
Porter v Magill; Weeks v Magill [2001] UKHL 67, [2002] 2 AC 357, [2002]
2 WLR 37.....................................................................................................3.45

R
R v Abu Hamza [2006] EWCA Crim 2918, [2007] QB 659, [2007]
2 WLR 226...................................................................................................3.46
R v Achogbuo [2014] EWCA Crim 567, [2014] 2 Cr App R 7...........................6.13
R v Ahmed (Shabir) [2014] EWCA Crim 619.....................................................9.31
R v Aldridge (Trevor); R v Eaton (Thomas) [2012] EWCA Crim 1456.............4.12
R v Antoine (Pierre Harrison) [1999] 3 WLR 1204, [1999] 2 Cr App R 225,
(1999) 96 (21) LSG 37, (1999) 143 SJLB 142............................................
 14.3, 14.4
R v Arnold (Louise Sarah) [2008] EWCA Crim 1034, [2008] 1 WLR 2881,
[2009] 1 All ER 1103, [2008] 2 Cr App R 37, [2008] RTR 25........13.3, 13.6, 13.7
R v B [2008] EWCA Crim 1144..........................................................................13.17
R v B [2014] EWCA Crim 2078, [2014] 10 WLUK 647....................................13.7
R v Ball (Kenneth John) (1951) 35 Cr App R 164, (1951) 95 SJ 790.................4.19
R v Baybasin (Mehmet Sirin) [2013] EWCA Crim 2357, [2014] 1 WLR 2112,
[2014] 1 Cr App R 19...................................................................................3.42
R v Bennett (David Joseph) [1968] 1 WLR 988, [1968] 2 All ER 753, (1968)
52 Cr App R 514..........................................................................................4.3
R v Bentley (Derek William) (dec’sd) [2001] 1 Cr App R 21, [1999] Crim
LR 330.........................................................................................................3.32
R v Blackwood (Romaine) [2012] EWCA Crim 390, [2012] 2 Cr App R 1,
[2012] Cim LR 786......................................................................................3.71
R v Bolivar (Luyisa de Marillac); R v Lee (Matthew John) [2003] EWCA Crim
1167, (2003) 148 SJLB 538.........................................................................3.58
R v Booker (Edward Martin) [2011] EWCA Crim 7, [2011] 3 All ER 905,
[2011] 1 Cr App R 26...................................................................................3.76
R v Bryant (Patrick) [2005] EWCA Crim 2079..................................................3.33
R v Bukhari (Daniyal) [2008] EWCA Crim 2915, [2009] 2 Cr App R (S) 18,
[2009] Lloyd’s Rep FC 198.........................................................................4.45

xxii
 Table of Cases

R v Burley (unreported).......................................................................................6.11
R v Chalkley (Tony Michael); R v Jeffries (Tony Brisbane) [1998] QB 848,
[1998] 3 WLR 146, [1998] 2 Cr App R 79..................................................3.29
R v Clarke (Ronald Augustus); R v McDaid (James Andrew) [2008] UKHL 8,
[2008] 1 WLR 338, [2008] 2 All ER 665....................................................3.21
R v Clinton (Dean) [1993] 1 WLR 1181, [1993] 2 All ER 998, (1993) 97 Cr
App R 320....................................................................................................3.55
R v Cooper (Sean) [1969] 1 QB 267, [1968] 3 WLR 1225, [1969] 1 All ER 32.
 3.3, 3.24
R v Cottrell (Steven) sub nom R v Fletcher (Joseph) [2007] EWCA Crim 2016,
[2007] 1 WLR 3262, [2008] 1 Cr App R 7, [2008] Crim LR 50.................9.12
R v Coutts (Graham James) [2006] UKHL 39, [2006] 1 WLR 2154, [2006]
4 All ER 353................................................................................................. 3.35
R v Criminal Cases Review Commission, ex p Pearson [1999] 3 All ER 498,
[2000] 1 Cr App R 141, [1999] Crim LR 732, [1999] COD 202................3.3, 3.5,
3.24; 9.26
R v D (David Michael) [2001] EWCA Crim 911................................................14.10
R v Davies (David William) [1983] 76 Cr App R 120.........................................3.29
R v Davis (Michael George) (No 3); R v Rowe (Raphael George) (No 3); R v
Johnson (Randolph Egbert) (No 3) [2001] 1 Cr App R 8, [2000] HRLR 527,
[2000] UKHRR 683.......................................................................... 3.6, 3.13, 3.27
R v Davis (Zantoe); R v Thabangu (Mercedes) [2013] EWCA Crim 2424........6.13
R v Day (Mark Darren) [2003] EWCA Crim 1060......................................... 3.56, 3.57
R v Dolan (Joseph Daniel Philip) (1976) 62 Cr App R 36, [1976] Crim
LR 145......................................................................................................... 3.80
R v Doski (Niwar) [2011] EWCA Crim 987, [2011] Crim LR 712....................6.46
R v Dunn (James Lee) [2010] EWCA Crim 1823, [2011] 1 WLR 958, [2010] 2
Cr App R 30, [2011] Crim LR 229..............................................................7.42
R v Dyer (Richard) [2013] EWCA Crim 2114, [20143] 11 WLUK 47, [2014]
2 Cr App R (S) 11........................................................................................4.30
R v Edwards (Regina) [2018] EWCA Crim 595, [2018] 4 WLR 64, [2018]
3 WLUK 660................................................................................................14.1
R v Erskine (Kenneth) [2009] EWCA Crim 1425, [2010] 1 WLR 183, [2010]
1 All ER 1196, [2009] 2 Cr App R 29, [2009] MHLR 215, [2010] Crim
LR 48, (2009) 153 (28) SJLB 30...........................................3.48, 3.49; 4.31; 6.24,
6.25, 6.26, 6.27;
7.15, 7.28
R v Falconer-Atlee (Joan Olive) (1974) 58 Cr App R 348..................................3.34
R v Fawcett (Keneth John) (1983) 5 Cr App R (S) 158.......................................4.35
R v Ferizi (Orhan) [2016] EWCA Crim 2022, [2016] 11 WLUK 509, [2017] 1
Cr App R (S) 26...........................................................................................13.33
R v Fletcher (Joseph) see R v Cottrell (Steven)
R v Forbes (Anthony Leroy) [2001] 1 AC 473, [2001] 2 WLR 1, [2001] 1 Cr
App R 31...................................................................................................... 3.15
R v Foster (Mark) [2007] EWCA Crim 2869, [2008] 1 WLR 1615, [2008] 2 All
ER 597.........................................................................................................3.35
R v Geraghty [2016] EWCA Crim 1523, [2017] 1 Cr App R (S) 10.............. 4.14, 4.17
R v Gerald [1999] Crim LR 315..........................................................................9.15
R v Ghosh (Deb Baran) [1982] QB 1053, [1982] 3 WLR 110, [1982] 2 All
ER 689.........................................................................................................2.6

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Table of Cases

R v Gibson (Ivano) [1983] 1 WLR 1038, [1983] 3 All ER 263, (1983) 77 Cr

App R 151, (1983) 147 JP 683, [1983] Crim LR 679, (1983) 80 LG 2133,
(1983) 127 SJ 509........................................................................................8.12
R v Gilbert (Jean) [2006] EWCA Crim 3276, [2006] 12 WLUK 182.................13.12
R v Gilbey (Raymond Giles) (1990-91) 12 Cr App R (S) 49..............................3.32
R v Gogana (Sanjeev) (The Times, 12 July 1999)...............................................6.31
R v Gooch (Malcolm George) (No 1) [1998] 1 WLR 1100, [1998] 4 All ER 402,
[1998] 2 Cr App R 130, (1998) 95 (7) LSG 32, (1998) 142 SJLB 61.........7.21
R v Goodyear (Karl) [2005] EWCA Crim 888, [2005] 1 WLR 2532, [2005]
3 All ER 117, [2005] 2 Cr App R 20, [2006] 1 Cr App R (S) 6, [2005]
Crim LR 659................................................................................................13.31
R v Gordon (Gavin Stephen) [2007] EWCA Crim 165, [2007] 1 WLR 2117,
[2007] 2 All ER 768.....................................................................................4.39
R v Gould (John Arthur) [1968] 2 QB 65, [1968] 2 WLR 643, 52 Cr App
R 152............................................................................................................2.6
R v Graham [1997] 1 Cr App R 302; [1997] Crim LR 340.................................3.65
R v Grant-Murray (Janhelle) [2017] EWCA Crim 1228, [2017] 8 WLUK 160,
[2018] Crim LR 71.......................................................................................3.53
R v Gray (Dean Andrew) [2014] EWCA Crim 2372, [2014] 10 WLUK 169,
[2015] 1 Cr App R (S) 27.........................................................................6.14, 6.67
R v H [2003] UKHL 1.........................................................................................14.1
R v H [2008] EWCA Crim 483, [2008] 2 WLUK 321........................................13.10
R v H (Interlocutory Application: Disclosure) [2007] UKHL 7, [2007]
2 AC 270, [2007] 2 WLR 364, [2007] 3 All ER 269, [2007] 2 Cr App R 6,
[2007] Crim LR 731, (2007) 151 SJLB 332........................................... 12.9, 12.15
R v H (Peter) [2002] EWCA Crim 730, [2002] Crim LR 578............................3.50
R v Hallam (Sam) [2012] EWCA Crim 1158.................................................. 9.27, 9.28
R v Hanson (Nicky) [2005] EWCA Crim 824, [2005] 1 WLR 3169, [2005] 2
Cr App R 21.................................................................................................3.31
R v Hart (Clifford) [2006] EWCA Crim 3239, [2007] 1 Cr App R 31, 2007] 2
Cr App R (S) 34, [2007] Crim LR 313........................................................6.67
R v Hayden (Joseph Anthony) [1975] 1 WLR 852, [1975] 2 AlL ER 558,
(1974) 60 Cr App R 304...............................................................................4.10
R v Hedworth (Peter John) [1997] 1 Cr App R 421............................................12.4
R v Height (John); R v Anderson (Malcolm) [2008] EWCA Crim 2500, [2009]
1 Cr App R (S) 117, [2009] Crim LR 122...................................................4.28
R v Hirani (Amin Mohammed) [2008] EWCA Crim 1463.................................4.47
R v Hoath (Terence); R v Standage (Terence Edward) [2011] EWCA Crim 274,
[2011] 1 WLR 1656, [2011] 4 All ER 306..................................................4.12
R v Horncastle (Michael Christopher) [2009] EWCA Crim 964, [2009]
4 All ER 183, [2009] 2 Cr App R 15, (2009) 153 (21) SJLB 28; aff’d
[2009] UKSC 14, [2010] 2 AC 373, [2010] 2 WLR 47............................. 2.9, 2.10
R v Horseferry Road Magistrates’ Court, ex p Bennett (No 1) [1994] 1 AC 42,
[1993] 3 WLR 90, [1993] 3 All ER 138 (HL).............................................3.16
R v I (C) [2009] EWCA Crim 1793, [2010] 1 WLR 1125, [2010] 1 Cr App
R 10, [2010] Crim LR 312...........................................................................12.15
R v JH [2014] EWCA Crim 2618........................................................................6.13
R v James [2018] EWCA Crim 285................................................................6.14; 7.13
R v Jogee (Ameen Hassan) [2016] UKSC 8, [2017] AC 387, [2016]
2 WLR 681...................................................................................................3.59

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 Table of Cases

R v Johnson (Lewis) [2016] EWCA Crim 1613, [2017] 4 WLR 104, [2017]
4 All ER 769............................................................................................. 3.59; 6.32
R v Joof (Adam) [2012] EWCA Crim 1475........................................................9.31
R v Kalia (Daya) (1974) 60 Cr App R 200, [1975] Crim LR 181.......................6.40
R v Kalis (Christopher) [2003] EWCA Crim 1080.............................................6.16
R v Keene (Daniel) [2010] EWCA Crim 2514, [2011] Crim LR 393.................3.38
R v Kirk (Phillip John) [2015] EWCA Crim 1764, [2015] 10 WLUK 112........6.14
R v L [2013] EWCA Crim 1913..........................................................................6.73
R v L; R v HVN; R v THNl R v T [2013] EWCA Crim 991, [2014] 1 All
ER 113, [2013] 2 Cr App R 23, [2014] Crim LR 150.................................2.14
R v Lane (Sally) & Letts (John) (AB & CD) [2018] UKSC 36, [2018]
1 WLR 3647, [2019] 1 All ER 299..............................................................10.5
R v Lashley (Angela) [2005] EWCA Crim 2016, [2006] Crim LR 83...............3.33
R v Lee (James) [2014] EWCA Crim 2928, [2014] 7 WLUK 828.....................6.13
R v Legal Aid Board, ex p RM Broudie & Co [1994] 3 WLUK 252,
[1994] COD 435, (1994) 138 SJLB 94........................................................8.15
R v Lewis (Ian) [2013] EWCA Crim 776........................................................ 3.43; 9.31
R v McCann (John Paul) (1991) 92 Cr App R 239, [1991] Crim LR 136, (1990)
140 NLJ 629..............................................................................................3.30, 3.46
R v McCook [2014] EWCA Crim 734........................................................... 5.12; 6.11,
6.13, 6.14
R v McDonald (Michael Christopher) [2004] EWCA Crim 2614, (2004)
SJLB 1218....................................................................................................7.30
R v McGill [2018] EWCA Crim 1228, [2018] 5 WLUK 157.........................6.11, 6.13
R v Mackinlay (Craig) [2018] UKSC 42, [2019] AC 387, [2018] 3 WLR 556...10.5
R v McLoughlin (Ian) see A-G’s Reference (No 69 of 2013), Re
R v Mackle (Plunkett Jude) [2014] UKSC 5, [2014] AC 678, [2014]
2 WLR 267...............................................................................................4.47, 4.48
R v Magro (Anthony) [2010] EWCA Crim 1575, [2011] QB 398, [2010]
3 WLR 1694, [2011] 2 All ER 935, [2010] 2 Cr App R 25, [2011] 1 cr
App R (S) 73, [2010] Crim LR 787.............................................................2.6
R v Mahendran (Kajanthan) [2011] EWCA Crim 608........................................4.28
R v Mateta (Koshi Pitshou) [2013] EWCA Crim 1372, [2014] 1 WLR 1516,
[2014] 1 All ER 152, [2013] 2 Cr App R 35, [2014] Crim LR 227.............9.20
R v Medway (Andrew George) [1976] QB 779, [1976] 2 WLR 528, [1976]
1 All ER 527, (1976) 62 Cr App R 85, [1976] Crim LR 118...................6.72, 6.74
R v Millard (Gary Michael) [2003] EWCA Crim 3629......................................3.37
R v Mitchell (Emma) [2013] EWCA Crim 1072.................................................9.31
R v Mohamed (Noor Bana) [2010] EWCA Crim 2464.......................................6.72
R v NT [2010] EWCA Crim 711, [2010] 1 WLR 2655, [2010] 4 All ER 545....13.7
R v Nealon (Victor) [2014] EWCA Crim 574.....................................................9.13
R v Nolan (Terence) [2017] EWCA Crim 2449, [2017] 11 WLUK 766.............6.67
R v Noye (Kenneth) [2011] EWCA Crim 650, (2011) 119 BMLR 151.............3.11
R v Oates (Emma Louise) [2002] EWCA Crim 1071, [2002] 1 WLR 2833,
[2002] 4 WLR 496.......................................................................................8.11
R v O’Connor [1997] Crim LR 516.....................................................................3.19
R v Okedare (Charles) [2014] EWCA Crim 228, [2014] 1 WLR 4071, [2014]
3 All ER 109................................................................................................6.6; 7.21
R v Ordu (Mehmet) [2017] EWCA Crim 4, [2017] 1 WLUK 340, [2017] 1 Cr
App R 21......................................................................................................6.34

xxv
Table of Cases

R v Pendleton (Donald) [2001] UKHL 66, [2002] 1 WLR 72, [2002] 1 All
ER 524......................................................................................................3.10, 3.12
R v Phelps (David Robert) [2017] EWCA Crim 2403, [2017] 9 WLUK 23.......13.33
R v Pinfold (Terence Joseph) [1988] QB 462, [1988] 2 WLR 635, (1988) 87 Cr
App R 15......................................................................................................4.17
R v Pope [2013] EWCA Crim 2241, [2013] 1 Cr App R 14; [2013] Crim
LR 421.........................................................................................................3.24
R v Quinn (Phillip Craig) [1996] Crim LR 516...................................................3.31
R v R (Amer) [2006] EWCA Crim 1974, [2007] 1 Cr App R 10, [2007] Crim
LR 79........................................................................................................... 3.59
R v Razaq (Salim) [2011] EWCA Crim 1518.....................................................4.25
R v Randall (Barry Victor) [2002] UKPC 19, [2002] 1 WLR 2237, [2002] 2 Cr
App R 17......................................................................................................3.15
R v Reynolds (Michael Edwin) [2007] EWCA Crim 538, [2008] 1 WLR 1075,
[2007] 4 All ER 369.....................................................................................4.3
R v Roberts (Mark) [2016] EWCA Crim 71, [2016] 1 WLR 3249, [2016]
3 WLUK 564................................................................................................6.11
R v Rogers (Georgina) [2016] EWCA Crim 801, [2017] 1 WLR 481, [2016] 2
Cr App R (S) 36...........................................................................................4.34
R v Rowe [2007] EWCA Crim 635, [2007] QB 975, [2007] 3 WLR 177, [2007]
3 All ER 36, [2007] 2 Cr App R 14, [2007] 2 Cr App R (S) 92, [2007]
Crim LR 744, [2008] Crim LR 72...............................................................2.6
R v Salik (Abdulrahman) [2004] EWCA Crim 2936..........................................3.29
R v Salloum [2010] EWCA Crim 312.................................................................7.21
R v Secretary of State for the Home Department, ex p Hickey (No 2) [1995]
1 WLR 734, [1995] 1 All ER 490, (1995) 7 Admin LR 549, (1994)
144 NLJ 1732........................................................................................... 9.24, 9.28
R v Siddall (John Stephen) [2006] EWCA Crim 1353, (2006) 150 SJLB 809...9.27
R v Simpson (Ian McDonald) [2003] EWCA Crim 1499, [2004] QB 118,
[20013] 3 WLR 337, [2003] 3 All ER 531, [2003] 2 Cr App R 36, [2004]
1 Cr App R (S) 24, [2003] Crim LR 652, (2003) 100 (27) LSG 34, (2003)
147 SJLB 694...............................................................................................2.6
R v Simpson (John Lee) [2001] EWCA Crim 468, [2001] 2 WLUK 504..........3.60
R v Singh (Kunwar Ajit) [2017] EWCA Crim 466, [2018] 1 WLR 1425, [2017]
3 WLUK 705............................................................................................ 6.13, 6.31
R v Skanes (Tony Alan) [2006] EWCA Crim 2309.............................................3.77
R v Smith (Brian Peter) [1997] QB 836, [1997] 2 WLR 588, [1997] 1 Cr App
R 390............................................................................................................3.22
R v Smith (Paul James) [2013] EWCA Crim 2388, [2014] 2 Cr App R 1, [2014]
Crim LR 612................................................................................................6.73
R v Smith (Wallace Duncan) (No 4) [2004] EWCA Crim 631, [2004] QB 1418,
[2004] 3 WLR 229, [2004] 2 Cr App R 17..................................................9.9
R v Spruce (Ronald Arthur) [2005] EWCA Crim 1090, [2006] 1 Cr App R (S)
11.................................................................................................................7.19
R v Stroud (John Richard) (No 1) [2004] EWCA Crim 1048.............................4.46
R v Suggett (Philip) (1985) 81 Cr App R 243, (1985) 7 Cr App R (S) 123,
[1985] Crim LR 607, (1985) 82 LSG 2008.................................................6.37
R v Tarrant [1998] Crim LR 342.........................................................................3.39
R v Taylor (John William) [1950] 2 KB 368, [1950] 2 All ER 170, 34 Cr App
R 138............................................................................................................2.6

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 Table of Cases

R v Taylor (Michelle Ann) (1994) 98 Cr App R 361...........................................3.46

R v Thelwall (Kenneth) [2016] EWCA Crim 1755, [2016] 10 WLUK 549,
[2016] CTLC 180.........................................................................................4.31
R v Thompson (Glyn) [2006] EWCA Crim 2849, [2007] 1 WLR 1123, [2007]
2 All ER 205, [2007] 1 Cr App R 15, [2007] Crim LR 387.........................13.8
R v Thompson (Benjamin) [2010] EWCA Crim 1623, [2011] 1 WLR 200,
[2011] 2 All ER 83.......................................................................................3.40
R v Thornley (James William) [2011] EWCA Crim 153, [2011] 2 Cr App R (S)
62, [2011] Crim LR 415...............................................................................4.29
R v Thorsby (Adrian Kenneth) [2015] EWCA Crim 1, [2015] 1 WLR 2901,
[2015] 1 WLUK 345....................................................................................6.9
R v Togher(Kenneth) (Appeal against Conviction) [2001] 3 All ER 463 , [2001]
1 Cr App R 33, [2001] Crim LR 124.............................................. 3.14, 3.17, 3.29
R v Ul Hamid (Ibbtsam) [2016] EWCA Crim 449, [2016] 3 WLUK 506, [2016]
2 Cr App R 29..............................................................................................3.43
R v Vowles (Lucinda) [2015] EWCA Crim 45, [2015] 1 WLR 5131, [2015]
2 WLUK 161................................................................................................14.1
R v Warren (Davis Lewis) [2017] EWCA Crim 226, [2017] 4 WLR 71, [2017]
3 WLUK 76..................................................................................................6.1
R v Watton (Joseph) (1979) 68 Cr App R 293, [1979] Crim LR 246..................6.36
R v Waya (Terry) [2012] UKSC 51, [2013] 1 AC 294, [2012] 3 WLR 1188......4.49
R v Whittaker [1967] Crim LR 431.....................................................................4.3
R v Williams [2010] EWCA Crim 3289..............................................................6.11
R v Wilson (David Steve) [2016] EWCA Crim 65, [2016] 2 WLUK 236..........6.10
R v X [2010] EWCA Crim 2367.........................................................................3.75
R v Zabotka [2016] EWCA Crim 1771...............................................................6.74
RM Broudie & Co (a firm) v Lord Chancellor [2000] 5 WLUK 442, [2000] 2
Costs LR 285...............................................................................................8.15
R (on the application of Cleeland) v Criminal Cases Review Commission
[2009] EWHC 474 (Admin)........................................................................9.26
R (on the application of Langley) v Preston Crown Court [2008] EWHC 2623
(Admin), [2009] 1 WLR 1612, [2009] 3 All ER 1026.................................4.11
R (on the application of Nunn) v Chief Constable of Suffolk Constabulary
[2014] UKSC 37, [2014] 3 WLR 77, [2014] 4 All ER 21, [2014] 2 Cr App
R 22..............................................................................................................5.18
R (on the application of TB) v Combined Courts at Stafford [2006] EWHC 1645
(Admin), [2007] 1 WLR 1524, [2007] 1 All ER 102, [2006] 2 Cr App
R 34..............................................................................................................6.48
Reilly v UK (Application No 53731/00) (26 June 2003)....................................11.7

S
Scozzai v Italy (13 July 2000, ECHR).................................................................11.9
Selvanayagam v UK (Application No 57981/00) (12 December 2002)..............11.7
Stafford v DPP [1974] AC 878, [1973] 3 WLR 719, [1973] 3 All ER 762.........3.9

T
Tucka v UK (No 1) (Application No 34566/10) (18 January 2011)....................11.7

xxvii
Table of Cases

V
Van Duyn v Home Office (Case C-226/07) [1974] ECR 1337............................2.12

Y
Young v Bristol Airplane Co Ltd [1944] KB 718, [1944] 2 All ER 293, (1945)
78 Ll L Rep 6...............................................................................................2.5, 2.6

xxviii
Part 1
The Law
Chapter 1

Introduction to the Court of Appeal

INTRODUCTION
1.1 The Court of Appeal (Criminal Division) (‘the Court’) sits in the
gothic setting of the Royal Courts of Justice, London, in courtrooms of dark
and intimidating antiquity. This should not mislead us into thinking that the
Court is itself one of our ancient institutions. It was created in the 20th century,
following years of campaigning by legal reformers and fierce opposition
from successive governments and members of the judiciary.1 Its core function
then, as now, is to hear appeals from the Crown Court against conviction and
sentence (including appeals against confiscation orders). However, Parliament
has since loaded the Court with powers to hear appeals from a variety of other
decisions of the Crown Court and Courts Martial. Although the focus of this
book is on appeals against conviction and sentence, the additional powers that
are most significant for general criminal litigation are also considered.2

THE DEVELOPMENT OF THE COURT OF APPEAL

1.2 The roots of the jury trial can be traced back to the middle ages. But
if the jury system was one of the historic strengths of the English system of
justice, the absence of a system of appeal against decisions of the jury was
one of its great weaknesses. Before 1907 those who wished to challenge
a conviction or a sentence imposed in the Assize and Sessions Courts (the
predecessors of today’s Crown Court) had two potential avenues of redress,

1 See Cornish, W. and Clarke, G. (1989) Law and Society in England 1750–1950, London:
Sweet & Maxwell, pp. 619–623.
2 The prosecution’s own rights of appeal, which are considered in Chapter 13; appeals
against interlocutory rulings, which are considered in Chapter 12; appeals against restraint,
receivership and foreign confiscation requests, which are considered in Chapter 4.

3
1.3 Introduction to the Court of Appeal

neither of them satisfactory.3 The principal argument against the creation of a

criminal court of appeal that was made in the 19th century (in which some 50
bills for the creation of a Court of Appeal were introduced to Parliament but
failed to become law4) was that the role of the jury would be undermined if
judges could, on appeal, overturn, the jury’s decisions.5 However, opposition
was also driven by the perceived need for finality in criminal litigation6 and
a refusal, among some, to accept that the existing system was the cause of
significant injustices.7

1.3 When Parliament finally bowed to public pressure and passed the
Criminal Appeal Act 1907, these concerns found expression in the requirements
for leave (or ‘permission’ as it is referred to in civil cases) to appeal in certain
cases and also in the limited grounds upon which the Court could quash a
conviction. Although the 1907 Act was repealed, it set the mould in which
subsequent legislation was cast.

1.4 The 1907 Act created the ‘Criminal Court of Appeal’, which had the
power to determine appeals against conviction and sentence from cases that
had been heard on indictment in the Assize and Sessions Courts. An appeal
against conviction could be brought without the need for leave of the Court
when it was based upon a question of law. However, the leave of the Court or
the certificate of the trial judge was required when an appeal was brought on a
question of fact alone.

1.5 The Court had the power to set aside a conviction if it was:
(a) unreasonable;
(b) did not accord with the evidence;
(c) was wrong in law.

3 From 1848 onwards a convicted person could ask the trial judge to refer the case to the Court
for Crown Cases Reserved, which was established by the Crown Cases Reserved Act 1848,
but only if the correctness of the conviction rested on a point of law. If the trial judge declined
to refer the case, the only alternative was to fall back on the ancient practice of petitioning the
government to grant a royal pardon. In contrast all but one US state had a criminal appeals
court by 1840 (Grossberg, M. and Tomlins, C. (eds) (2008) The Cambridge History of Law in
America, Vol. 2, New York: Cambridge University Press).
4 Radzinowicz, L. and Hood, R. (1986) A History of English Law and it Administration from
1750, Vol. V, London: Stevens & Sons, p 758.
5 Cornish and Clarke (1989), pp 619–623.
6 As R. Spencer noted in Delmas-Marty, M. and Spencer, J. R. (eds) (2002) European Criminal
Procedures, Cambridge: Cambridge University Press, at p 28: ‘In England the Jury was
introduced as a substitute for the Judgment of God pronounced through the ordeal, and like
the Judgment of God it was not open to challenge on the ground that it has given an answer
that was wrong’.
7 Radzinowicz and Hood (1986), p 763.

4
 The development of the Court of Appeal 1.11

1.6 Even if the Court found that any of these criteria were satisfied, it did
not have to set aside the conviction if ‘no substantial miscarriage of justice had
occurred’.8

1.7 A number of reforms were introduced by the Criminal Appeal Acts

1964, 1966 and 1967. Most notably, the 1966 Act re-constituted the Court as
a branch of the existing civil Court of Appeal, enabling all High Court judges
and Lord Justices of Appeal to sit in both Courts. Thereafter the Court was
known as the Court of Appeal (Criminal Division).

1.8 These changes were consolidated by the Criminal Appeal Act 1968
(CAA 1968) which (much amended by later legislation) contains the powers of
today’s Court of Appeal in relation to appeals against conviction and sentence.

1.9 The Senior Courts Act 1981 contains the overarching framework
that now governs the Court of Appeal (Criminal Division) in all its activities.
The need for such a framework is a testament to the many other appeals from
the decisions of the Crown Court with which, since 1968, Parliament has
empowered the Court to determine.

1.10 The last major reforms of the Court’s powers are contained in the
Criminal Appeal Act 1995, which made a number of amendments to the 1968
Act, the most important of which were:
(a) The introduction of a new test for appeal against conviction. Whilst the
original criteria from section 4(1) of the 1907 Act (see 1.5) had been
preserved in section 2(1) of the Criminal Appeal Act 1968, the Criminal
Appeal Act 1995 amended section 2(1) by replacing that criteria with a
single test: the Court has to ask whether the conviction is ‘safe’.
(b) The removal of the automatic right of appeal against conviction in those
cases where appeal is based on a point of law. Thereafter, either leave to
appeal from the Court of Appeal or a certification from the trial judge
would be required for all criminal appeals.
(c) The creation of the Criminal Cases Review Commission (‘the
Commission’) (the role of which is considered in Chapter 9).

Appeals from cases which pre-date the coming into force of

CAA 1995
1.11 The test of unsafety applies to appeals against all convictions, whether
they took place before or after the commencement of CAA 1995.9 However, the

8 Criminal Appeal Act 1907, s 4(1).

9 By virtue of the Criminal Appeal Act 1995 (Commencement No. 1 and Transitional
Provisions) Order 1995 (SI 1995/3061).

5
1.12 Introduction to the Court of Appeal

pre-1995 rules in relation to leave remain in force in respect of appeals against

convictions that took place before 1 January 1996. If one appeals against such
a historic conviction there will be no requirement for leave where the appeal
involves a question of law only.10

THE CURRENT STATUTORY REGIME

1.12 The jurisdiction of the Court is set out in section 53(2) of the Senior
Courts Act 1981. It provides that the Criminal Division of the Court of Appeal
shall exercise:
(a) all jurisdiction of the Court of Appeal under Parts I and II of the Criminal
Appeal Act 1968;
(b) the jurisdiction of the Court of Appeal under section 13 of the
Administration of Justice Act 1960 (appeals in cases of contempt of court)
in relation to appeals from orders and decisions of the Crown Court;
(c) all other jurisdiction expressly conferred on that division by this or any
other Act; and
(d) the jurisdiction to order the issue of writs of venire de novo (a rarely used
remedy that can be used to remit a case to the Crown Court where the
Court is satisfied that the proceedings were so irregular that they did not
constitute a proper trial).

1.13 Part 1 sets out the Court’s powers when determining appeals against
conviction or sentence from the Crown Court. Part II sets out its powers when
determining applications for leave to appeal from that Court to the Supreme Court.

PROCEDURAL RULES AND GUIDANCE

1.14 Although the Court is a creature of statute and its powers are limited
to those which Parliament has provided it, it does have the power to regulate its
own procedures. Therefore, the statutory provisions relating to the conduct of
appeals are supplemented by detailed procedural rules and guidelines from the
following sources:
(a) The Criminal Procedure Rules (Crim PR)11 – Part 1 contains the rules
that apply to all criminal proceedings. Parts 34 to 44 contain the rules
which apply to appeals to the Court of Appeal.

10 See DPP v Majewski [1975] 3 All ER 296 for the meaning of ‘a question of law’.
11 The Criminal Procedure Rules are set out in statutory instruments that are promulgated under
the Courts Act 2003, s 69. The Criminal Procedure Rules Committee, which is chaired by the
Lord Chief Justice, is responsible for drawing them up. Unless otherwise stated, references to
‘CPR’ are to the 2015 Rules. See Appendix B.

6
 The judges of the Court of Appeal 1.17

(b) The Criminal Practice Directions (‘the Practice Directions’)12 –

Section IX of the Practice Directions is specifically concerned with
Appeals to the Court of Appeal Against Conviction and Sentence. The
Practice Directions are updated periodically.
(c) The ‘Guide to Commencing Proceedings in the Court of Appeal
(Criminal Division)’ (‘the Guide’) was published in August 2018. It was
prepared by Court of Appeal lawyers under the direction of the Registrar.
Guidance notes are produced by the Court for appellants, lawyers and
others with an interest in the appeal process.13
(d) The case law of the Court – The Lord Chief Justice or Vice President
of the Criminal Division occasionally use particular cases to provide
guidance on what the Court expects from the parties. These individual
decisions are often incorporated into the Practice Direction when it
is updated.

THE JUDGES OF THE COURT OF APPEAL

1.15 The Court of Appeal is presided over by the Lord Chief Justice who
is appointed by the Lord Chancellor. He may in turn appoint another judge as
Vice President of the Criminal Division to assist him.14

1.16 The other permanent judges of the Court are a small number of
holders or former holders of certain high judicial offices, and a larger number
of ‘ordinary’ judges who on appointment to the Court of Appeal are known
as Lord or Lady Justices of Appeal.15 In addition, the Lord Chief Justice may
ask High Court judges (referred to in the legislation as ‘puisne judges’) or
judges who sit in the Crown Court (‘circuit judges’) to sit in the Court of
Appeal.16

1.17 When a judge is sitting in the Court of Appeal, he or she should be

addressed as my Lord or my Lady.

12 The Lord Chief Justice has the power, under the Courts Act 2003, s 74 and the Constitutional
Reform Act 2005, Sch 2, Pt 1 to make directions as to the practice and procedure of the
criminal courts.
13 They can be found at: www.justice.gov.uk/courts/rcj-rolls-building/court-of-appeal/criminal-
division.
14 Senior Courts Act 1981, s 3.
15 Senior Courts Act 1981, s 2.
16 Senior Courts Act 1981, s 9.

7
1.18 Introduction to the Court of Appeal

The composition of the Court

1.18 The Court is constituted, for the purposes of exercising any of its
powers, when it sits as an uneven number of judges, not less than three.17 In
practice it usually sits as a Court of three judges, presided over by a Lord or
Lady Justice of Appeal. A court of five judges will occasionally sit on important
cases when the Lord Chief Justice deems it appropriate. There may never be
more than one circuit judge sitting in any one court.

1.19 A Court of two judges may be constituted by two High Court judges
or a High Court judge and a Circuit judge.18 It may only hear the following
appeals:
(a) an appeal against sentence;
(b) a renewed application for leave to appeal against conviction or sentence
where the single judge has already refused leave.

The ‘single judge’

1.20 An application for leave to appeal against conviction or sentence is
generally considered by a single judge, in practice this will be a High Court
judge. The single judge may determine other applications (for example, an
application for bail) that are made along with or following the application
for leave. Alternatively, he may refer applications on to the full Court for its
determination. Although her decisions are usually made on paper she may
choose to hold oral hearings.

THE REGISTRAR OF CRIMINAL APPEALS AND THE

CRIMINAL APPEALS OFFICE
1.21 The role of the Registrar of Criminal Appeals (‘the Registrar’) is to
assist the Court in the effective management of cases. It is an administrative
but also a judicial role in that she (as the current occupier of the office is)
has a number of case management powers, some of which are considered in
Chapters 6 and 7 of this book.

1.22 The Registrar herself is assisted by the lawyers and administrative

staff at the ‘Criminal Appeals Office’. Cases will be assigned to a lawyer
and caseworker who will then take responsibility for preparing the case and
communicating with the parties.

17 Senior Courts Act 1981, s 55(2).

18 Senior Courts Act 1981, s 55(6).

8
 Communicating with the Court 1.28

1.23 Their work is undertaken in the name of ‘the Registrar’, and it is the
‘the Registrar’ to whom correspondence with the Court should generally be
addressed. However, it should be assumed that routine casework is undertaken
without the Registrar’s personal involvement.19

WHERE AND WHEN THE COURT SITS

1.24 The Court may sit anywhere in England and Wales but it is based in
the Royal Courts of Justice in the Strand (sitting usually in Courts 4 to 9) along
with the Registrar and the Criminal Appeal Office.

1.25 It sits at the following times of year:20

(a) the Michaelmas sittings, which begin on 1 October and end on
21 December;
(b) the Hilary sittings, which begin on 11 January and end on the Wednesday
before Easter Sunday;
(c) the Easter sittings, which begin on the second Tuesday after Easter
Sunday and end on the Friday before the spring holiday; and
(d) the Trinity sittings, which begin on the second Tuesday after the spring
holiday and end on 31 July.

COMMUNICATING WITH THE COURT

1.26 Correspondence to the Court should be addressed to:
The Registrar of Criminal Appeals
The Royal Courts of Justice
Strand
London
WC2A 2LL
DX 44451 Strand
Email: [email protected]

1.27 All correspondence to the Court should contain the case reference
number which is to be found on all correspondence from the Court.

1.28 In practice, most correspondence will be considered and replied to by

the lawyer or the caseworker who has been assigned to the case. The lawyer
may pass on correspondence to the Registrar herself if the nature of the issues

19 Senior Courts Act 1981, s 31A(2)(b).

20 Civil Procedure Direction 2F.

9
1.28 Introduction to the Court of Appeal

requires her consideration. If the case is being prepared for hearing and a
presiding judge has already been assigned, the lawyer may pass correspondence
on to the judge’s clerk.

SUMMARY OF KEY POINTS

• The Court of Appeal (Criminal Division) hears all appeals against
conviction and sentence from the Crown Court. It also has power to hear
a number of other appeals from decisions of the Crown Court and the
Courts Martial.
• The Court was created by statute. Its powers and jurisdiction are therefore
defined by statute. Its overarching framework is contained in the Senior
Courts Act 1981.
• Its powers in relation to appeals against conviction or sentence are to
be found in the Criminal Appeal Act 1968 as amended by subsequent
legislation, most notably the Criminal Appeal Act 1995. However,
appeals against decisions that were made before 1 January 1995 take
place under the provisions that were then in force.
• It has the power to regulate its own procedures. The legislation is
supplemented by a number of procedural rules and guidelines that are
to be found in the relevant Criminal Procedural Rules, the relevant parts
of the Criminal Practice Direction, decisions of the Court itself and the
Court’s written guidance for advocates.
• It is based in the Royal Courts of Justice (sitting usually in Courts 4 to 9)
where the Registrar of Criminal Appeals and the Criminal Appeal Office
are also based.
• Communication with the Court should be through written correspondence
addressed to the Registrar and should contain the Court’s own case
reference number.

10
Chapter 2

Applying the law: recent developments

INTRODUCTION
2.1 The Court interprets and applies law from the following sources:
(a) Acts of Parliament;
(b) Statutory Instruments;
(c) decisions of the Superior Courts;
(d) the European Convention on Human Rights and decisions of the
European Court of Human Rights;
(e) European Union law and international law.

2.2 The overriding requirement to apply statutes remains a constant

feature of our criminal law. However, in the last 25 years a once crystal
clear hierarchy of norms has become clouded as the Human Rights Act and
the growing impact of European Union law and international law has added
complexity to the business of interpreting the domestic criminal law. It has also
been a period in which the Court of Appeal has returned on several occasions
to the question of when it is entitled to depart from its own previous decisions.
The focus of this chapter is upon these developments.

STARE DECISIS1 AND THE COURT OF APPEAL

2.3 The Court of Appeal must follow the decisions of the Supreme Court
and those of its predecessor, the Judicial Committee of the House of Lords.2
The judges who sit in the Supreme Court also sit in the Judicial Committee
of the Privy Council which hears appeals from a number of Commonwealth
countries. Its decisions are not strictly binding on the Court of Appeal but

1 The doctrine of stare decisis is an abbreviation of the maxim ’stare decisis at non quieta
movere’, which translates as ‘to stand by things decided and not disturb settled points’.
2 The Supreme Court was created by the Constitutional Reform Act 2005. It came into existence
on 1 October 2009.

11
2.4 Applying the law: recent developments

will carry great weight and are likely to be followed unless there is very good
reason to depart from them.

2.4 As a general rule the Court of Appeal is bound to follow its own
decisions. However, there are exceptions to that rule. It is the scope of those
exceptions that needs to be considered.

2.5 In Young v Bristol Airplane Co Ltd3 the Court of Appeal (Civil

Division) held that the Court of Appeal was bound to follow a previous decision
of the Court unless one of the following exceptions applied:
(a) There is a conflict between two Court of Appeal authorities and the Court
must decide which to follow.
(b) The decision of the Court of Appeal cannot stand with a decision of the
Supreme Court.
(c) The decision was per incuriam (taken without consideration of relevant
statutory provision or binding case law (Morelle Ltd v Wakeling4)).

2.6 The rule of stare decisis is less strictly applied in the Criminal Division
of the Court of Appeal, dealing as it must with questions involving the liberty
of the subject.5 It has been established that the Criminal Division of the Court
of Appeal has a residual discretion to decline to follow a previous decision for
reasons that lie outside the categories identified in Young v Bristol Airplane.
The scope of that discretion has been considered in three cases in which the
Court was presided over by successive Lord Chief Justices (R v Simpson,6 R v
Rowe7 and R v Magro8). These cases indicate differing approaches to the scope
of the discretion. However, the following principles emerge:
(a) It is only in very rare cases that the Court will decline to follow a previous
decision of the Court of Appeal.
(b) If it is considering doing so it will usually sit as a Court of five judges
rather than the usual two or three. Such a Court will usually be presided
over by the Lord Chief Justice.

3 [1944] KB 718.
4 [1955] 2 QB 379.
5 R v Taylor [1950] 2 KB 368, 34 Cr App R138; R v Gould [1968] 2 QB 65, 52 Cr App R 152.
In DPP v Patterson [2017] EWHC 2820, the Admin Court held that the test as to dishonesty
set out in R v Ghosh [1982] QB 1053 no longer represented the law in light of the decision in
Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 and that it was clear from Gould that the
Court of Appeal might depart from Ghosh without the matter returning to the Supreme Court.
6 [2003] EWCA Crim 1499.
7 [2007] EWCA Crim 635.
8 [2010] EWCA Crim 1575.

12
 Judgments of the ECHR 2.9

(c) If the effect of refusing to follow a previous decision would be to render

the appellant guilty of a crime of which he or she would not otherwise be
guilty, the Court will be bound to follow the decision in question.
(d) If failing to follow the previous decision has the effect of exposing the
appellant to some lesser disadvantage, that may be a powerful factor
against departing from the decision.
(e) If the previous decision can be said to be per incuriam, very broadly
understood (for example, if the matter in issue was not properly argued
or if all the relevant authorities were not drawn to the Court’s attention),
the Court may in those circumstances decide not to follow that decision.
(f) However, if the previous decision was reached following full argument
on the point and careful consideration of all the relevant authorities and
statutory provisions, the Court may regard itself as being bound to follow
that decision.

JUDGMENTS OF THE EUROPEAN COURT OF HUMAN

RIGHTS
2.7 The European Convention on Human Rights (‘the Convention’) is a
Convention between European states which was incorporated by the Human
Rights Act 1998 (HRA 1998) into domestic law. The effect of HRA 1998 is to
require the Courts to:
(a) Interpret legislation in so far as possible to give effect to the Convention.
However, Parliament remains the ultimate source of law. Therefore if the
Court is unable to interpret a statute so as to render it compatible with
the Convention, it must make a declaration of incompatibility that will
require Parliament to consider amending the legislation.
(b) Interpret statutory instruments in accordance with the requirements of
the Convention or refuse to apply them if they cannot be interpreted in a
way that is compatible with the Convention.
(c) Develop the common law so as to give effect to the Convention.

2.8 The European Court of Human Rights (ECtHR) determines cases

brought against a state that is a signatory to the Convention. HRA 1998 requires
that in determining the scope of Convention rights the domestic courts must
‘take account’ of any relevant judgment of the ECtHR.9

2.9 This requirement is interpreted by the domestic courts as meaning

that they should give great weight to the judgments of the ECtHR and strive to

9 Human Rights Act 1998, s 2(1)(a).

13
2.10 Applying the law: recent developments

follow them. However, they do not regard themselves as bound to follow the
ECtHR. If, after careful consideration, the domestic courts reach a different
conclusion as to what the Convention requires, the courts should not follow the
jurisprudence of the ECtHR.10

2.10 The case law11 suggests that when the Court of Appeal is contemplating
disagreeing with the ECtHR it will sit as a Court of five judges presided over by
the Lord Chief Justice or the Vice President. Faced with a conflict of approach
between the Supreme Court and the ECtHR the Court of Appeal is bound by
the doctrine of precedent to follow the Supreme Court.

2.11 Whether the ECtHR provides a useful avenue of redress, when an

appeal against conviction or sentence is refused is considered in Chapter 11,
below.

EUROPEAN UNION LAW AND INTERNATIONAL LAW

2.12 The European Union has explicit but limited powers to legislate in
matters of substantive criminal law12 and criminal procedure.13 It may only do
so through directives. They must usually be incorporated into domestic law by
legislation in order to have effect. Clearly, EU law will be an important aid to the
interpretation of legislation that seeks to bring it into domestic effect. However,
EU law may also shape our domestic criminal law even in the absence of such
domestic legislation, if and when it confers rights on individuals that may be
relied on in court.14 If and when the United Kingdom leaves the European
Union following the 2016 referendum, EU law will cease to apply to the UK
save to the extent that it has already been incorporated into domestic law or its
application is preserved by the exit Treaty.

2.13 International law consists of customary international law (general

international practice which is accepted as law) and international treaties. Like
European Union law, it too may shape the common law even when it has not
been incorporated into domestic law, when the effect of a rule or principle of
international law is to create individual rights.

2.14 An important example of the role that both EU and international

law can play in the criminal law lies in the protection of victims of human

10 R v Horncastle [2009] UKSC 14.

11 R v Horncastle [2009] EWCA Crim 964; R v McLoughlin [2014] EWCA Crim 188.
12 Treaty of the European Union, Art. 83.
13 Treaty of the European Union, Art 82(2).
14 Van Duyn v Home Office (Case C-226/07) [1974] ECR 1337.

14
 Summary of key points 2.15

trafficking. International conventions15 and an EU Directive on human

trafficking16 require the UK to take steps to ensure that victims of trafficking
who have been compelled to commit an offence as a direct consequence of
having been trafficked are not prosecuted for those offences. In R v L, HVN,
THN & T17 the Court found that, in order to comply with its international and
EU obligations, the domestic courts should stay, as an abuse of process, the
prosecution of a victim of trafficking whose offending was carried out as a
direct result of having been trafficked.

2.15 Although international and EU law may be sources of rights, it is

a well-recognised principle that criminal offences may now only be created
by Parliament. Whilst there are several old common law offences which the
courts still recognise, the courts will not recognise new offences unless they are
created by domestic legislation. Therefore, neither EU law nor international
law can be used to establish or extend the bounds of criminal liability without
being incorporated into domestic law by Parliament.

SUMMARY OF KEY POINTS

• The Court of Appeal (Criminal Division) is bound to follow the decisions
of the Supreme Court and its predecessor, the Judicial Committee of the
House of Lords.
• It is generally bound to follow previous decisions of the Court of Appeal.
However, there are certain exceptions that would allow it to depart from
such a decision.
• The Court is bound to interpret the law in accordance with the
requirements of the European Convention on Human Rights. If it cannot
interpret a statute in accordance with the requirements of the Convention
it must make a declaration of incompatibility.
• In interpreting the requirements of the Convention, it must have regard
to the decisions of the European Court of Human Rights. However, it is
not bound by them.
• As things stand, the Court may take into account important principles of
EU as well as international law when interpreting the requirements of
our criminal law, even when it has not been incorporated into domestic
law by statute.

15 Council of Europe Convention on Action against Trafficking in Human Beings 2005

(CETS No 197) and the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
especially Women and Children (‘the Palermo Protocol’), supplementing the United Nations
Convention against Transnational Organised Crime 2000.
16 EU Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and
Protecting its Victims.
17 [2013] EWCA Crim 991.

15
2.15 Applying the law: recent developments

• However, although there are several old common law offences that are
recognised by the courts, statute is now the only source of new criminal
liability.
• Upon exit from the EU, EU law will cease to apply to the UK save to the
extent that it has been incorporated into domestic law or its application is
preserved by the exit Treaty.

16
Chapter 3

Appeals against conviction

INTRODUCTION
3.1 To succeed in an appeal against conviction, the applicant has to meet
a single test: whether the conviction is unsafe.

THE MEANING OF ‘UNSAFE’

3.2 Section 2(1) of CAA 1968, as amended by CAA 1995, provides that:
‘Subject to the provisions of this Act, the Court of Appeal –
(a) shall allow an appeal against conviction if they think that the
conviction is unsafe; and
(b) shall dismiss such an appeal in any other case.’

3.3 The meaning of the term ‘unsafe’ was considered by Lord Bingham
CJ, as he then was, in the judgment of the Court in R v Criminal Cases Review
Commission, ex p Pearson1 at para 10:
‘The expression “unsafe” in section 2(1)(a) of the 1968 Act does not
lend itself to precise definition. In some cases unsafety will be obvious,
as (for example) where it appears that someone other than the appellant
committed the crime and the appellant did not, or where the appellant has
been convicted of an act that was not in law a crime, or where a conviction
is shown to be vitiated by serious unfairness in the conduct of the trial
or significant legal misdirection, or where the jury verdict, in the context
of other verdicts, defies any rational explanation. Cases however arise in
which unsafety is much less obvious: cases in which the court, although by
no means persuaded of an appellant’s innocence, is subject to some lurking
doubt or uneasiness whether an injustice has been done (R v Cooper [1969]
1 QB 267 at 271). If, on consideration of all the facts and circumstances of
the case before it, the court entertains real doubts whether the appellant was

1 [2000] 1 Cr App R 141.

17
3.4 Appeals against conviction

guilty of the offence of which he has been convicted, the court will consider
the conviction unsafe. In these less obvious cases the ultimate decision of
the Court of Appeal will very much depend on its assessment of all the facts
and circumstances.’

3.4 An unsafe conviction, then, can be considered a wrongful conviction.

Although Lord Bingham was careful not to seek to provide a comprehensive
definition of the factors that might lead the Court to regard a conviction as
unsafe, the passage outlines some of the key features of the test.

Error or new evidence giving rise to doubt as to guilt

3.5 Is a conviction unsafe only when there are grounds to doubt the
guilt of the convicted person or does it involve wider questions of fairness
and procedural regularity in the trial process? As Lord Bingham’s speech from
Pearson indicates, the Courts have come to embrace the broad understanding
of the test; a conviction may be unsafe even where there is no doubt as to guilt,
where the conviction has been obtained following a trial that was unfair.

3.6 However, it is only in rare cases that the Court will be prepared to find
a conviction unsafe in the absence of any real doubt as to guilt. In most appeals,
the Court’s approach is to consider whether, had the error or irregularity not
occurred, ‘the only proper and reasonable verdict be one of guilty.’ (R v Davis,
Rowe and Johnson2). If the Court concludes that the verdict would still have
been one of guilty, it is likely to find that the conviction is safe.

3.7 This approach has at times involved the Court placing itself in the
position of the jury and asking how the matter that is the subject of the appeal
may have led to its returning a different verdict. In another series of cases,
however, the Court has made clear that it is they who decide which convictions
are, or are not, safe.

3.8 In relation to grounds of appeal concerning a failure of disclosure, the

Court should ask whether ‘there was a real possibility of a different outcome
– if the jury might reasonably have come to a different view on the issue to
which it directed its verdict if the withheld material had been disclosed to the
defence.’3

2 [2001] 1 Cr App R 8 at 132.

3 Lord Kerr, speaking in an extra-judicial capacity, at the Justice Scotland International Human
Rights Day Lecture 2013, Miscarriage of Justice – When Should an Appellate Court Quash
Conviction? 10 December 2013.

18
 The meaning of ‘unsafe’ 3.13

The jury impact test

3.9 The correctness of this ‘jury impact’ approach was considered in
appeals that turned on the admission of fresh evidence. In Stafford v DPP,4
the House of Lords held that when fresh evidence was received by the Court,
the Court itself had to assess the impact of that evidence on the safety of the
conviction and not what effect it might have had upon the jury.

3.10 In R v Pendleton,5 the majority of the House of Lords found that

whilst the fundamental question of whether the conviction was safe was for the
Court itself, the Court might be at a disadvantage in relating that evidence to
the evidence that the jury had heard. Therefore, in all but the clearest cases, it
would be wise for the Court to consider whether the evidence might reasonably
have affected the verdict of the jury.

3.11 In the subsequent case law differently constituted Courts emphasised

either the potential jury impact of fresh evidence or the Court’s own task of
assessing for itself the potential impact of the evidence (see R v Noye6).

3.12 Although the two approaches will generally produce the same result
there may be some benefit to the defence to frame arguments in terms of the
potential jury impact of the error or new evidence that is the subject of the
grounds of appeal. It may be cited so long as it is couched in the terms that
were recognised as correct in Pendleton and the latter case law. However it is
done, it remains crucial to address the strength of the prosecution evidence
untouched by any legal flaw, failure in disclosure or whatever other ground is
advanced. By whichever intellectual route the Court assesses what is ‘unsafe’,
an appeal in which they form the impression that a convicted applicant was
manifestly guilty is almost certain to fail.

‘Unsafe’ and ‘unfair’

3.13 Article 6(1) of the European Convention of Human Rights, provides
the right to a fair trial, with Article 6(3) providing a number of specific fair
criminal trial guarantees. After the Human Rights Act brought the Convention
into domestic force, an unfair trial was an unlawful trial and a conviction
following such a trial is unsafe. This logic was not immediately recognised
by the Court of Appeal in R v Davis, Rowe and Johnson7 which, at para 135
stressed that an unfair trial and an unsafe conviction were two distinct concepts.

4 [1974] AC 878.
5 [2001] UKHL 66.
6 [2011] EWCA Crim 650.
7 See fn 2, above

19
3.14 Appeals against conviction

However, without eliding the two tests, the Court has since made it clear that a
trial that is unfair will almost certainly also be unsafe.

3.14 In R v Togher,8 Lord Woolf CJ said: ‘we consider that if a defendant

has been denied a fair trial it will almost be inevitable that the conviction will
be regarded as unsafe.’

3.15 This principle was confirmed in subsequent cases such as R v Forbes9

and the Privy Council case of R v Randall,10 in which Lord Bingham made
clear that in the absence of a fair trial a conviction was likely to be unsafe even
in the face of strong evidence of guilt:
‘There will come a point where the departure from good practice is so gross,
or persistent, or prejudicial, or irremediable that an appellate Court will
have no choice but to condemn the trial as unfair and quash the conviction
as unsafe, however strong the grounds for believing the defendant to be
guilty.’

3.16 This jurisprudence is consistent with the law in relation to abuse of

process, which recognises that a prosecution may give rise to abuse of process
if either a fair trial was not possible or it would not be fair to try the defendant
(R v Horseferry Road Magistrates’ Court, ex p Bennett11). The refusal of the
trial judge to stay a case as an abuse of process may itself be the subject of
appeal.

3.17 However, it is not every breach of the right to a fair trial that will
render a conviction unsafe. It will only be if the trial itself could be said to
be unfair that the conviction would be considered unsafe (R v Togher12). To
take an obvious example, a trial that was so delayed as to lead to a violation
of the Article 6 right to a trial ‘within a reasonable time’ will very rarely be
the basis of a successful appeal if it was fair in all other regards, see AG’s Ref
(No 2 of 2001).13

3.18 This is not to say that individual breaches of Article 6, particularly

Article 6(3), cannot form the basis of successful grounds as long as the
appellant has been able to show that had these breaches not taken place there
was a real chance that he or she would not have been convicted or that the
unfairness was so profound as to amount to an abuse of process.

8 [2001] 1 Cr App R 33, para 30.

9 [2001] 1 Cr App R 31.
10 [2002] UKPC 19.
11 [1993] 3 All ER 138 (HL).
12 See fn 8, above.
13 [2004] 2 AC 72.

20
 The meaning of ‘unsafe’ 3.22

Procedural irregularity
3.19 When the Court can be satisfied that a procedural irregularity in the
trial process materially disadvantaged a defendant such that in the absence
of the defect the jury may have had a doubt as to their guilt, then the usual
approach of considering whether there are real grounds to doubt the appellant’s
guilt can be applied without difficulty. An example of this approach in action
can be found in relation to the judge’s decision to allow an amendment to
the indictment in R v O’Connor,14 where the applicant would be expected to
explain how the amendment was unfair and how it disadvantaged him or her in
the conduct of the case.

3.20 In such cases, it will be important to be able to explain whether the

procedural flaw was raised at trial and if so, why not. The Court will wish to
know that the defence did not make a deliberate tactical decision not to raise
the point, in the belief that this would give the defendant some advantage at
trial, only to switch tactics on appeal; if the Court does form such a view, it will
be much harder for any appeal to succeed.

3.21 If the defendant has suffered no clear disadvantage, will procedural

irregularity lead to the conviction being quashed? The approach of the Courts
is to ask whether it was the intention of Parliament that the failure to follow
the procedure in question should render the proceedings a nullity. If so, then
it is likely that the conviction will be unsafe. An example of this principle at
work can be found in R v Clarke and McDaid15 in which the House of Lords
held that the failure to sign an indictment rendered the trial process a nullity
because Parliament had provided in sections 1 and 2 of the Administration
of Justice (Miscellaneous Provisions) Act 1993 that an indictment must be
signed to be valid and a trial could only take place on the basis of a valid
indictment.16

3.22 A further example is to be found in relation to misjoinder. When

charges wrongly joined are therefore in breach of rule 9 of the Indictment Rules
(R v Smith (Brian Peter)17), the misjoined charge will be quashed. However,
this misjoinder will not render the proceedings a nullity and the remaining
charges will be unaffected, unless prejudice is caused to the defence.

14 [1997] Crim LR 516 (CA).

15 [2008] UKHL 8.
16 However, following the Coroners and Justice Act 2009, s 116, it is no longer the case that an
indictment must be signed in order for it to be valid.
17 [1997] 1 Cr App R 390 (CA).

21
3.23 Appeals against conviction

‘Lurking doubt’
3.23 Despite all that has been said above about the need to advance
particular grounds, the Court may in rare circumstances be prepared to
conclude that a conviction is unsafe, in the absence of either irregularity at
trial or new evidence, if it nonetheless has some doubt or uneasiness about the
verdict which makes the Court wonder if an injustice had been done.

3.24 This was recognised as a proper basis to quash a conviction in R v

Cooper.18 That this ground has survived the introduction of the new test of
unsafety was indicated by Lord Bingham in Pearson although in R v Pope19 the
Court indicated that it would only be in the most exceptional circumstances
that a conviction would be found to be unsafe on this ground alone.

Conclusion: ‘unsafe’ as a flexible test

3.25 The above comments are illustrations of how the Court has
approached the question of unsafety in particular circumstances. They should
not be regarded as immutable doctrines. The Court has repeatedly emphasised
that there is a single statutory test of unsafety and has shown considerable
flexibility in its application.

3.26 The Court does not always elaborate on the basis upon which it has
concluded that the conviction is unsafe. This is often so when the Court finds
that the conviction is unsafe because of the cumulative effect of a number of
errors that are detailed in a number of distinct grounds.

3.27 When the Court’s basis for finding a conviction to be unsafe is set out,
the Court may approach the issue of fairness and jury impact in a number of
different ways. For example, the closer that the error complained of goes to a
core feature of a fair trial, the more likely it is that the Court will be prepared
to find that the conviction was unsafe without extensive enquiry as to what the
verdict might have been if the error had not been made. So, when the judge
fails to direct the jury on the balance and burden of proof, it has been held only
when the case was overwhelming that the conviction would be regarded as safe
(Davis, Rowe and Johnson20).

3.28 This does not make it easy for lawyers who are asked to advise on
appeal against conviction. Given that an unsafe conviction is a wrongful
conviction, it may be helpful to consider, in each case, why is it that the

18 [1969] 1 QB 267 (CA) at 271.

19 [2013] EWCA Crim 2241.
20 See fn 2, above.

22
 The Court’s approach to common issues 3.30

conviction must be regarded as wrongful. This is likely to provide the best

guide to the way in which the Court will approach the case.

THE COURT’S APPROACH TO COMMON ISSUES

Appeal following a guilty plea

3.29 The fact that a defendant has pleaded guilty does not act as a bar to any
appeal against conviction. However, the guilty plea is likely to be regarded by
the Courts as a very significant factor in favour of the safety of the conviction.
The Court has been prepared to allow appeals against conviction following a
guilty plea, in the following circumstances:
(a) Guilty pleas will be treated as a nullity and quashed where they were
equivocal. However, in those circumstances an application should first
have been made to the Crown Court to re-open. Any appeal must be
against the judge’s ruling.
(b) Guilty plea following flawed legal advice: the advice must go to the heart
of the guilty plea. The elements of the offence may do so, advice on the
likely length of sentence will not (R v Saik21).
(c) Guilty plea following erroneous ruling by the judge may be regarded
as giving rise to an unsafe conviction but only where the ruling has the
effect of depriving the defendant of a real choice as to whether to plead
guilty (R v Chalkley and Jeffries22).
(d) In R v Togher,23 other defendants had secured a stay as a result of non-
disclosure. At the time when he pleaded guilty, the appellant was not aware
of the material upon which the abuse of process application was based.
The Court found that it would be iniquitous for the conviction to stand.
(e) Lack of jurisdiction or procedural irregularity that rendered the
proceedings a nullity (R v Davies24).

Trial rulings
3.30 There is a high threshold to cross when challenging the decision of
a judge in relation to a ruling made at trial. How high is less clear. It is not
sufficient that the Court may not have reached the same decision. What is less
certain is whether the ruling must be so manifestly wrong as to be regarded as

21 [2004] EWCA Crim 2936.

22 [1998] 2 Cr App R 79.
23 See fn 8, above.
24 [1983] 76 Cr App R 120.

23
3.31 Appeals against conviction

Wednesbury unreasonable or whether it was sufficient for the Court to form its
own view that the decision was wrong. The better view seems to be that when
the Court reaches the view that it is ‘clearly wrong’ it should go on to consider
the safety of the conviction. This was the approach adopted in R vMcCann25 in
which it was said that:
‘To reverse the judge’s ruling it is not enough that the members of this
Court would have exercised their discretion differently. We must be clearly
satisfied that the judge was wrong; but our powers to review the exercise
of his discretion is not limited to cases in which he has erred in principle
or there is shown to have been no material on which he could properly
have arrived at his decision. The Court must, if necessary, examine anew
the relevant facts and circumstances to exercise a discretion by way of
review if it thinks that the judge’s ruling may have resulted in injustice to
the appellants. See Evans v. Bartlam [1937] AC 473.’

3.31 In the subsequent case of R v Quinn,26 it was held that the Court of
Appeal would not interfere with a ruling of the trial judge unless and until the
judge failed to take into account relevant factors or took account of irrelevant
factors. However, in R v Hanson27 in relation to rulings on bad character, the
Court held:
‘If a judge has directed himself or herself correctly, this Court will be
very slow to interfere with a ruling either as to admissibility or as to the
consequences of noncompliance with the regulations for the giving of
notice of intention to rely on bad character evidence. It will not interfere
unless the judge’s judgment as to the capacity of prior events to establish
propensity is plainly wrong, or discretion has been exercised unreasonably
in the Wednesbury sense.’

Defective summing up
Judge commenting on the evidence
3.32 The judge is entitled to comment on the facts. It is the role of the
judge to provide guidance on factual as well as legal issues. However, these
comments should not jeopardise the jury’s own consideration of the evidence
by being clearly partisan. The judge should direct the members of the jury that
they were the judges of fact and should only take into account views expressed
by the judge to the extent that it agreed with their own. If this direction is
provided, it will be regarded by the Court as an important factor in considering
whether any comments made by the judge might have improperly influenced

25 (1991) 92 Cr App R 239.

26 [1996] Crim LR 516.
27 [2005] EWCA Crim 824, para 15.

24
 The Court’s approach to common issues 3.36

the jury. However, in a case in which the judge’s comments were particularly
extreme or damaging, the conviction will not be made safe by the parrot-like
recitation that ‘it is matter for you, the jury’; see Lord Bingham in R v Bentley,28
citing with approval the judgment of Lloyd LJ in Gilbey.29

3.33 As always, the key test is whether the judge’s conduct is such as
to render the conviction unsafe. Appeals may succeed if the judge has made
clear his or her preference for the prosecution case (see R v Bryant30), has
undermined the advocate in the eyes of the jury, or has interrupted so much as
to prevent the defence from being able to properly advance its case (see R v
Lashley,31 another successful appeal from the same trial judge as in Bryant).

Summing up on a different basis to that advanced at trial

3.34 There is no bar to the judge summing up the prosecution case on a
different basis to that which it was put by the prosecution at trial. However, the
judge must proceed with caution. There is an obvious danger that the fairness
of the trial will be prejudiced where the judge introduces lines of argument
to which the defence have had no opportunity to respond to (R v Falconer-
Atlee32).

Leaving alternative verdicts to the jury

3.35 Whether to leave alternative, lesser counts to the jury is a matter that
the judge should raise with counsel but is ultimately a matter for the judge. It
should generally be done where it obviously arises on the evidence. A failure
to do so is highly likely to lead to a verdict being quashed (R v Coutts33 and R v
Foster34) though the Court of Appeal will often defer to the view of the trial
judge, who has had the advantage of hearing and seeing the evidence.

Getting the law wrong

3.36 As discussed above at 3.27, a failure to properly direct the jury on
the balance and burden of proof will be regarded as highly likely to render a
conviction unsafe. Other failures in directing the jury on the law, such as to
correctly identify the elements of the offence or the defence relied upon may

28 [2001] 1 Cr App R 21.

29 (unreported) 26 January 1990.
30 [2005] EWCA Crim 2079.
31 [2005] EWCA Crim 2016.
32 (1974) 58 Cr App R 348.
33 [2006] UKHL 39.
34 [2007] EWCA Crim 2869.

25
3.37 Appeals against conviction

provide powerful grounds of appeal. However, it should never be assumed that

such errors will automatically lead the Court to conclude that the conviction
is unsafe. If the judge has not provided the correct wording in a particular
passage, the Court will look to the summing up as a whole to see whether it
provided the jury with the appropriate guidance. Even in those cases where it
failed to do so, the Court is likely to consider whether, in the circumstances of
the case, there is a real risk that it leads the jury to adopt the wrong approach.

The significance of ‘specimen directions’

3.37 The Court of Appeal has made it clear that the specimen directions are
not blueprints that must be slavishly followed (R v Millard35). In the forward
to the Judicial Studies Board Crown Court Bench Book (2010), the Lord Chief
Justice placed increased emphasis on the importance of the judge crafting his
or her own directions:
‘We are all familiar with the so-called “specimen directions” for juries. We
read of them in the news. We hear much about them in the Court of Appeal.
And, of course, we use them in the Crown Court. But the great value
of the specimen direction has also the potential to be a weakness. What
was intended to provide guidance and assistance to judges has, on many
occasions, to all intents and purposes, operated as if judges were bound
by them when they were preparing their summing up and sometimes the
specimen directions have been incanted mechanistically and without any
sufficient link with the case being tried.
In this Benchbook, the objective has been to move away from the
perceived rigidity of specimen directions towards a fresh emphasis on
the responsibility of the individual judge, in an individual case, to craft
directions appropriate to that case.’

3.38 It is clear from this that a failure to follow the specimen directions that
are contained in the Bench Book will not itself render a direction defective.
A direction will be defective only to the extent that it fails to clearly and
accurately set out the relevant law as the jury should apply it (R v Keene36).

Grounds in relation to the jury

Jury selection
3.39 Irregularities in the selection of the jury may give rise to an appeal.
In certain circumstances the failure to follow the correct procedure for jury

35 [2003] EWCA Crim 3629.

36 [2010] EWCA Crim 2514, para 20.

26
 The Court’s approach to common issues 3.43

selection may render the trial a nullity, leading to the issue of the writ of venire
de novo (R v Tarrant37). See 3.82–3.83 below, on retrials and venire de novo.

Allegations of jury misconduct

3.40 It has been known for a convicted person, their family or lawyers
to be contacted by former jurors who express disquiet at what took place in
the jury room. If this occurs, those taking a statement from the former juror
are in danger of committing an offence if they pose questions whose answers
would breach section 8 of the Contempt of Court Act 1981, which prohibits the
disclosure of a jury’s deliberations. The Courts are not subject to that section
and can authorise enquiries; see R v Thompson.38 However, evidence in relation
to jury deliberations is inadmissible unless the juror’s approach involves
a complete repudiation of his or her oath to try the case on the evidence or
involves extraneous material being introduced into jury deliberations. It is
therefore only in one of these two circumstances that jury deliberations can
form a ground of appeal.

3.41 The sensible course for any lawyer coming into possession of
complaints about the jury’s deliberations from former jurors is to swiftly
contact the Registrar to seek guidance and to draft grounds of appeal in
reliance on what they have already, then allow the Court to control any further
investigations.

3.42 If grounds are drafted based on a former juror’s account, the Court may
ask the Criminal Cases Review Commission to undertake enquires by tracing
the whole jury and taking statements from them. It should not be assumed
that these enquiries will be made as a matter of course; in R v Baybasin39 the
Lord Chief Justice stated that where a complaint is first raised after verdict, the
Court will assume that any genuine problem would have been raised before,
and will therefore not order enquiries to be made in the absence of any other
‘strong and compelling evidence’.

3.43 Even after an investigation, the Court may be wary of relying on the
allegations made by former jurors when those matters were not raised at trial.
Usually, the Court will proceed on the basis that a complaint made by a juror
after a trial is simply a protest against a verdict with which he disagreed (see
R v Lewis40). Similarly, a juror who assented to a verdict but then swiftly said
he or she harboured doubts was found to have no basis to allow an appeal;
second thoughts after conviction were not, said the Court, relevant, see R v Ul

37 [1998] Crim LR 342.

38 [2010] EWCA Crim 1623.
39 [2013] EWCA Crim 2357.
40 [2013] EWCA Crim 776.

27
3.44 Appeals against conviction

Hamid and Khan.41 All this said, the reservations expressed by the Court are
never in absolute terms. If a former juror is able to produce a powerful account
such as casts doubt on the safety of the verdict, and if he or she has a credible
explanation for not raising the matter during the trial, such later complaints can
be the foundation for an appeal.

Possible jury bias

3.44 Allegations of jury bias will often not require investigation into what
occurred in the jury room. That is because the Court’s starting point is to
consider the appearance of potential bias.

3.45 The Court will consider whether ‘the fair minded and informed
observer having considered the facts would conclude that there was a real
possibility that the jury were biased’ (Porter v Magill; Weeks v Magill42).

Adverse publicity
3.46 The Court takes the view that jurors know their duty and will be
robust in disregarding what they have read or viewed in the media; see the trial
direction of Hughes J, as he then was, later cited with approval by the Court in
R v Abu Hamza.43 The cases where appeals founded on adverse publicity have
met with any success have almost all been where the publicity was during the
trial and was focused on the facts of the case itself or had a direct and obvious
link, such as R v McCann44 and R v Taylor.45

Fresh evidence
3.47 The Court has the power to receive fresh evidence after a conviction
where it is in the interests of justice to do so. The considerations that the Court
must have regard to are set out in section 23(2)(a)–(d) of CAA 1968 and are:
(a) whether the evidence is capable of belief;
(b) whether the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible at trial; and
(d) whether there is a reasonable explanation for the failure to adduce that
evidence at trial.

41 [2016] 2 Cr App R 29.

42 [2001] UKHL 67.
43 [2006] EWCA Crim 2918.
44 (1991) 92 Cr App R 239.
45 (1994) 98 Cr App R 361.

28
 The Court’s approach to common issues 3.52

3.48 The Court has emphasised that the application of these considerations
is highly fact sensitive but that all four need to be addressed in any application
(see R v Erskine46). In the same case, Lord Judge CJ said at para 39: ‘the
considerations … are neither exhaustive nor conclusive’.

3.49 The most usual occasions in which one might seek to adduce fresh
evidence that does not meet all the section 23 criteria, however, is where
there is no sound reason why the evidence was not called at trial (usually an
application to adduce such evidence will also be accompanied by criticism
of trial lawyers for failing to adduce, see below). This is not to say that the
Court encourages such applications, but the comment by Lord Judge in Erskine
confirms that the considerations are not prerequisites and so fresh evidence can
be received if it is in the interests of justice to do so even where they are not met
[though it is hard to think of a case wherein the Court would admit evidence
that failed to meet the section 23(2)(b) consideration, as there could be no point
in doing so].

3.50 The Court has also made clear that it will normally not allow an
appellant to run a different case on appeal from the one advanced at trial. For
example in R v H,47 Lord Justice Judge, as he then was, said at para 82: ‘It
follows that this court will only permit an appellant to present a factual case
inconsistent with his instructions and sworn testimony at the trial at which he
was convicted in the most exceptional circumstances’.

3.51 It is obvious from all the above that the Court is eager not to encourage
convicted defendants from trying to appeal by acquiring and deploying further
evidence. All that said, when a convicted person or their legal advisors have
compelling evidence that suggests he may be innocent of the offence, this type
of application for leave to appeal should be pursued. The test that the Court
has to apply in determining whether a conviction is unsafe in the light of fresh
evidence is considered above at 3.9–3.12. The procedures for doing so are
considered in at 6.31.

Errors of defence lawyers

3.52 Allegations that the defendant’s trial lawyers committed serious
errors in the conduct of the defence case can provide a perfectly sound basis
for an appeal, but there are three important things to bear in mind. First, the
trial lawyers have to be given the chance to explain how they conducted the
case. Secondly, the Court will require clear evidence of fault before this ground
succeeds, and thirdly (as always), the Court must determine whether the errors
make the conviction unsafe.

46 [2009] EWCA Crim 1425.

47 [2002] EWCA Crim 730.

29
3.53 Appeals against conviction

3.53 There is no one method for seeking the views of trial lawyers, as long
as it is done fully and fairly, but when an appeal relies on any criticism of trial
lawyers, it is crucial to ask focused questions that fully explore the issue that
is being advanced on appeal, see R v Grant-Murray48. The applicant will have
to waive privilege and the trial lawyers need to be given a clear indication of
what questions are being asked of them and what criticisms are being made.
The practicalities of obtaining a waiver and communicating with previous
representatives are considered at 6.13–6.14.

3.54 If the reply by the trial team conflicts with the applicant’s account of
what took place, the Court is likely to prefer the lawyers’ recollections unless
there are contemporaneous records that contradict them. So obtaining as many
of the trial notes and papers as possible is always a good idea.

3.55 Historically, the Court made clear that the decisions of trial lawyers
made in good faith after proper consideration of the competing arguments and,
where appropriate, after consultation with the defendant, would not make a
verdict unsafe even though the Court disagreed with that decision. On the other
hand, if a decision was taken in defiance of, or without, proper instruction, or
when ‘all promptings of reason and common sense pointed the other way’, that
may render a conviction unsafe (see R v Clinton49).

3.56 In more recent cases based on the failings of trial lawyers, the Court
has moved away from any test of incompetence and instead focused on the
single statutory test of safety (see R v Day50).

3.57 However, Day has not altered the Court’s traditionally cautious
approach to criticism of former representatives. It tends to be robust in finding
that trial lawyers who take decisions in the heat of a trial are not to be criticised
unless those decisions were very clearly flawed. It is wary of applying the
benefit of hindsight to difficult forensic decisions.

3.58 The final requirement is that the failings of the trial lawyers have the
effect of making the conviction unsafe. These would have to be major and
significant events in the case, for example not calling powerful alibi evidence
or not advising the defendant properly about the advantages of giving evidence.
Without such a connection, there can be very serious problems with the trial
lawyers but no successful appeal will result. In a spectacular example of this
principle in action, the Court found that two murder convictions were safe even
though trial counsel was under investigation for serious sexual offences and the
supply of class A drugs, and was also made bankrupt whilst simultaneously
conducting two trials in different parts of the country. In rejecting the appeal,

48 [2017] EWCA Crim 1228.

49 (1993) 97 Cr App R 320.
50 [2003] EWCA Crim 1060.

30
 The Court’s powers 3.61

the Court reviewed not only the manner in which the advocate conducted the
trials but also the strength of the evidence (which in the case of both appellants
was overwhelming) (R v Bolivar; R v Lee51). While this may be very unlikely
to occur, the appellate courts have suggested the possibility of representation
being so disastrous that the subsequent conviction should be overturned
regardless of safety, as the effect had been to deprive the convicted person of
any sort of due process, see Boodram v The State.52

Changes in the law

3.59 Changes in the law since conviction may provide grounds of appeal
but only if this change has given rise to substantial injustice (R v R (Amer)53).
This has been applied very robustly indeed; when the Supreme Court changed
the mens rea for a joint enterprise in R v Jogee,54 the Court of Appeal ‘applie’”
the ‘substantial injustice’ test in such robust terms in R v Johnson and others55
as to lead to minuscule number of subsequent successful appeals.

Categories not closed

3.60 As made clear at the start of this chapter, there is but one test: whether
the conviction under appeal is ‘unsafe’. If an event occurs at trial that proffers a
basis for arguing it rendered the conviction unsafe, no lawyer should be put off
initiating an appeal just because there seems to be little precedent. A striking
example occurred in R v Simpson56: In a finely balanced case where, on one
view, the complainant may have made allegation of rape as she was so upset by
the defendant’s callous behaviour on the occasion of her first sexual encounter.
The jury were visibly repelled by defence counsel’s closing speech which
included ‘Life was not a Mills and Boon novel and many women would rather
forget the occasion when they lost their virginity up against a wall in a back
alley’. Prosecution counsel noted: ‘I could feel the antagonism of the jury
to the way this point was expressed’. Faced with a weak case with troubling
features and an extraordinarily ill-judged speech, the Court allowed the appeal.

THE COURT’S POWERS

3.61 The Court may either allow or dismiss an appeal. If it allows the
appeal it must quash the conviction. Unless it orders a re-trial the effect of the

51 [2003] EWCA Crim 1167.

52 [2002] 1 Cr App R 103.
53 [2006] EWCA Crim 1974.
54 [2016] UKSC 8.
55 [2016] EWCA Crim 1613.
56 [2001] EWCA Crim 468.

31
3.62 Appeals against conviction

conviction being quashed is to require the Crown Court to record a judgment

and verdict of acquittal.

3.62 If the Court quashes a conviction it is not required to make any further
order. However, it may:
(a) substitute the conviction with a conviction for an alternative offence
upon which he could have been convicted in the Crown Court; or
(b) order that a re-trial take place; or
(c) re-sentence the appellant in respect of related convictions for which the
sentence was not quashed.

3.63 Although CAA 1968 does not expressly frame these as alternatives, it
would be difficult to see how they could be fairly combined.

Substituting a conviction
3.64 Where a defendant was convicted of a particular count but might,
on the same evidence, have been convicted on an alternative count, the Court
of Appeal has the power to substitute the conviction of one offence for a
conviction for another.57

3.65 In R v Graham58 the Court held that the power could only be exercised
when the following criteria were met:
(a) The jury could, on the indictment, have found the appellant guilty of
some other offence, because the allegation in the count of which the
appellant was convicted expressly or impliedly included this other count.
(b) By their verdict of guilty on the count that is subject to appeal, the jury
must also have been satisfied of the facts that rendered the appellant
guilty of this other offence.

3.66 The Court must impose a sentence for the new count but that sentence
cannot be so long as to increase the overall length of sentence above that which
was imposed in the Crown Court.

57 CAA 1968, s 3 in respect of offences for which he was convicted by a jury, s 3A in respect of
offences to which the appellant had originally pleaded guilty.
58 (1997) 1 Cr App R 302.

32
 The Court’s powers 3.69

Re-trials
The circumstances in which a re-trial can be ordered
3.67 The test for whether to order a re-trial is whether it is in the interests
of justice to do so.59 This may involve consideration of a number of factors.
The following are commonly considered by the Court:
(a) how much of the original sentence the appellant has already served;
(b) the seriousness of the offence;
(c) the time that elapsed since the commission of the offence and any
particular difficulties that the passage of time may cause the parties in
now conducting the case;
(d) whether the appeal was allowed as a result of errors in the original trial
which can be easily remedied at a re-trial (for example, errors in the
legal directions that were provided to the jury) or whether difficulties in
the original trial are likely to be present in any future trial (for example,
abuse of process caused by delay, inherent weakness in the prosecution’s
case); and
(e) personal circumstances of the appellant (for example, age or poor health).

3.68 The type of convictions that may be subject to a retrial are set out in
s 7(2):
‘(2) A person shall not under this section be ordered to be retried for any
offence other than –
(a) the offence of which he was convicted at the original trial
and in respect of which his appeal is allowed as mentioned in
subsection (1) above;
(b) an offence of which he could have been convicted at the original
trial on an indictment for the first-mentioned offence; or
(c) an offence charged in an alternative count of the indictment
in respect of which the jury were discharged from giving a
verdict in consequence of convicting him of the first-mentioned
offence.’

The procedure for making an order for re-trial

3.69 Whether to order a re-trial is a matter for the Court. There is no statutory
requirement for an application for a re-trial to have been made before the Court

59 CAA 1968, s 7(1).

33
3.70 Appeals against conviction

makes an order. However, it will usually only make it upon application of the
prosecution. Therefore, the Court will expect the advocate who is appearing
on behalf of the prosecution to have been provided instructions on this point
prior to the appeal hearing. The defence advocate should be prepared to make
submissions on the matter at the conclusion of the hearing.

3.70 If prosecuting counsel does not have instructions, the Court may put
the matter back in order for him to do so. If it puts the case back to a future date
for a final hearing to formally pronounce judgment and determine whether to
allow a re-trial, it may consider whether to grant bail in the interim.

3.71 Once the decision of the Court to quash the conviction is formally
recorded in the Crown Court as an acquittal, the Court of Appeal has no power
to order a re-trial. Even if the application for a re-trial is made before this takes
place, if by the time that the Court comes to consider the application the verdict
of acquittal has been entered, the Court has no power to grant the application
prosecution (R v Blackwood60).

The procedure once an order for re-trial is made

3.72 Once a re-trial is ordered the defendant must be arraigned on a new
indictment that has been preferred by direction of the Court of Appeal, in the
Crown Court. Arraignment must take place within two months of the order
having been made.61

3.73 If it is does not take place within two months, it may only take place
if the prosecution applies to the Court of Appeal for leave for arrangement to
take place and the Court is satisfied both that:
(a) ‘The prosecution has acted with all due expedition’; and
(b) ‘That there is good and sufficient cause for a retrial’ in spite of the lapse
of time since the order for a retrial was made.62

3.74 The Court may list the matter for legal argument. If it is not satisfied
that both conditions are made out, the Court will direct that an order for
acquittal be recorded by the Crown Court.

3.75 When it makes an order for a re-trial, the Court has power to grant
bail or order that the defendant be remanded in custody.63 In practice, the Court
of Appeal will often direct that any bail application should be made to the

60 [2012] EWCA Crim 390.

61 CAA 1968, s 8(2).
62 CAA 1968, s 8(1B)(b).
63 Section 8(2).

34
 The Court’s powers 3.80

relevant Crown Court. Once an indictment is preferred in the Crown Court,

any applications in relation to bail must be made to the Crown Court itself.
The position during the period between an order being made and an indictment
being preferred is unclear. However, there is dicta in R v X64 to suggest that the
Crown Court does have the power to deal with bail after an order for re-trial
was made.

3.76 Once the Crown Court is seized of the matter it has the power to amend
the indictment. However, when considering the fairness of any application to
amend, the Crown Court must take into account that the purpose of the order
made by the Court of Appeal is to allow the defendant to be retried for the
offences that they originally faced, not tried for new matters (R v Booker65).

3.77 The key limitation upon the power of the Crown Court is that a
sentence that is passed in respect of a conviction that was secured following a
re-trial may not be more severe than the sentence that was originally imposed
by the Crown Court.66 There is dicta to suggest that when a defendant originally
pleaded guilty, successfully appealed their conviction, but then was convicted
by a jury, a sentence that was longer than that which was originally imposed
(to take account of the fact a discount was originally made to reflect the guilty
plea) may not necessarily be regarded as ‘more severe’ (R v Skanes67).

3.78 A sentence of imprisonment that is imposed following a re-trial takes

effect as if it was imposed on the date of the original sentence. However, time
spent on bail following an order for re-trial and time in custody before trial that
would not have been counted towards the original sentence is to be deducted
from this period.68

3.79 Legal aid to cover the re-trial is not granted by the Court of Appeal.
Instead, an application must be made to the Legal Aid Agency.

Re-sentencing
3.80 If the appellant was convicted of two or more offences on an
indictment, the Court may re-sentence him in respect of those remaining
sentences.69 The power is often exercised to reduce the remaining sentences
to take account in the reduction in the total level of criminality following the
quashing of a conviction. But the Court may impose harsher sentences for the

64 [2010] EWCA Crim 2367.

65 [2011] EWCA Crim 7.
66 By virtue of CAA 1968, Sch 2, para 2(1).
67 [2006] EWCA Crim 2309.
68 CAA 1968, Sch 2, para 2(3).
69 CAA 1968, s 4.

35
3.81 Appeals against conviction

remaining offences than were originally imposed, including for an offence for
which no separate penalty was originally imposed (R v Dolan70).

3.81 However, the Court may not impose a sentence that would have the
effect of rendering the overall length of sentence longer than the overall length
of sentence which was originally imposed in the Crown Court.71

Retrial and venire de novo

3.82 In a case in which the Court finds that there was never a valid
conviction, because the proceedings were so irregular so as not to constitute
a proper trial, it may make an order for venire do novo. The effect of this is
to require proceedings to start again in the Crown Court, with the original
‘conviction’ set aside. If the Court makes such a finding, any re-trial is free of
the procedural constraints in respect of re-trials under section 7 of CAA 1968.

3.83 A writ of venire may be issued where the proceedings were not
properly commenced or the verdict was not returned by a properly constituted
jury. It may also be available in respect of other fundamental procedural errors
that render the trial a nullity.

SUMMARY OF KEY POINTS

• In determining appeals against conviction the Court applies the single
statutory test of whether the conviction is ‘unsafe’.
• A conviction that was obtained following a trial that was fundamentally
unfair will usually be considered unsafe regardless of the strength of
the evidence. However, not every unfairness that occurs during trial will
render a conviction unsafe. In most instances the Court will consider the
impact that the error or other unfairness may have had on the verdict of
the jury.
• In relation to appeals that turn on fresh evidence the Court has emphasised
that the jury impact test may assist the Court but it was ultimately for the
Court itself to assess the potential impact of the evidence in question.
• The Court may be prepared to allow an appeal on the basis of its ‘lurking
doubt’, in the absence of other grounds, in the most exceptional of
circumstances.
• There are a limited number of circumstances in which a conviction may
be appealed following a guilty plea. They include when the plea was

70 (1976) 62 Cr App R 36.

71 CAA 1968, s 4(3).

36
 Summary of key points 3.83

entered following incorrect legal advice that went to the heart of the
decision to plead guilty.
• A procedural error may form the basis for grounds of appeal. However,
unless the error was of such a serious nature that it rendered the
proceedings a nullity, it will usually be necessary to show that it caused
serious prejudice to the defence in the conduct of the trial.
• A wrongful trial ruling may provide grounds of appeal. However, the
ruling must have been clearly wrong or unreasonable, not merely a ruling
that the Court would not itself have made.
• The failure of the defence representative may give rise to grounds of
appeal. But they must be given the opportunity to answer any criticism
and the Court will distinguish between genuine error and criticism of
tactical decisions made with the benefit of hindsight. Any proven or
admitted failure must have had the effect of rendering the conviction
unsafe.
• If fresh evidence is relied on, the considerations of section 23 of
CAA 1968 must be addressed though not all need be met.
• If the Court allows the appeal and quashes the conviction it may, in
certain circumstances, substitute a conviction for another offence or re-
sentence the defendant for any offences that remain on the indictment or
order a re-trial.
• If a re-trial is ordered, arraignment must take place within two months.
Any application to extend this time must be made to the Court of Appeal.
• If the defendant is convicted following a re-trial, any sentence imposed
may not be more severe than the sentence that was originally imposed.

37
Chapter 4

Appeals against sentence

INTRODUCTION
4.1 Under sections 9 and 10 of the Criminal Appeal Act 1968, a
defendant may appeal to the Court of Appeal against any sentence that was
imposed by the Crown Court on indictment and, in certain circumstances,
against sentences imposed by the Crown Court, following a conviction in
the Magistrates’ Court. The rules regulating the bringing of an appeal against
sentence are to be found in the Criminal Procedure Rules 2015, Parts 36
and 39 (and Part 42 in relation to confiscation orders) and in the Criminal
Practice Direction 2015, Division X. Regard should also be had to the ‘Guide
to commencing proceedings in the Court of Appeal Criminal Division’1
published by HM Courts & Tribunals Service.

4.2 The right of appeal against sentence is subject to leave being granted
by the Court of Appeal2 or otherwise a certificate being issued by the sentencing
judge stating that the case is fit for appeal.3
By section 11 of the Criminal Appeal Act 1968 the Court of Appeal has the
following powers when determining appeals against sentence:
‘(3) On an appeal against sentence the Court of Appeal, if they consider that
the appellant should be sentenced differently for an offence for which he
was dealt with by the court below may –
(a) quash any sentence or order which is the subject of the appeal; and
(b) in place of it pass such sentence or make such order as they think
appropriate for the case and as the court below had power to pass or
make when dealing with him for the offence;
but the Court shall so exercise their powers under this subsection that,
taking the case as a whole, the appellant is not more severely dealt with on
appeal than he was dealt with by the court below.’

1 August 2018.
2 Section 11(1) Criminal Appeal Act 1968.
3 Section 11(1A) Criminal Appeal Act 1968.

39
4.3 Appeals against sentence

4.3 The injunction upon the Court not to impose a more severe sentence
than that which was originally imposed is clear and unequivocal. The Court
cannot even impose a sentence that would be mandatory for a sentencing Court
to impose (R v Reynolds4). However, whether a sentence is ‘more severe’ than
the sentence that was the subject of appeal is not always clear. A life sentence
cannot be imposed in place of a determinate sentence (R v Whittaker5).
However, in R v Bennett,6 the Court held that a hospital order with a restriction
with an indefinite period in place of a determinate sentence, was not more
severe than a determinate sentence.

4.4 In order to understand how the Court employs its powers it is necessary
to turn from the statute to the body of principles that it has developed. The
grounds upon which the Court may be prepared to allow an appeal against
sentence overlap and the terms are not always used consistently. The precise
classification of grounds is less important than ensuring that the grounds clearly
and succinctly identify why the sentence is wrong, by applying the underlying
principles to the facts of the case.

4.5 This chapter therefore considers the types of orders that can be
appealed as sentences and then sets out the principles to be applied to such
appeals. There are distinct principles and powers in relation to appeals against
confiscation orders. Therefore, confiscation orders are considered separately
in the latter part of the chapter. However, because of the wide range of orders
which may be appealed as appeals against sentence, the principles that the
Court has developed in relation to appeals against confiscation orders may well
also be applicable to other sentence appeals.

APPEAL AGAINST SENTENCE ON INDICTMENT AND

FOR CASES SENT FROM THE MAGISTRATES’ COURT
4.6 The Court may hear appeals against sentences imposed in the Crown
Court following a conviction on indictment. It may also hear appeals against
sentence for summary offences that had been sent to the Crown Court for trial
under section 41 of the Criminal Justice Act 1988 (power of Crown Court to
deal with summary offence where person committed for either way offence) or
under paragraph 6 of Schedule 3 to the Crime and Disorder Act 1998 (power
of Crown Court to deal with summary offence where person sent for trial for
indictable-only offence).7

4 [2007] EWCA Crim 538.

5 [1967] Crim LR 431.
6 (1968) 52 Cr App R 514.
7 CAA 1968, s 9(b).

40
 Indictment and cases from the magistrates’ court 4.9

4.7 In addition, pursuant to section 10 CAA 1968 the Court may also hear
appeals against sentence for other offences sent from the Magistrates’ Court in
various circumstances.

What counts as a sentence?

4.8 Section 50 of CAA 1968 provides:
‘(1) In this Act “sentence”, in relation to an offence, includes any order
made by a court when dealing with an offender including, in particular –
(a) a hospital order under Part III of the Mental Health Act 1983, with or
without a restriction order;
(b) an interim hospital order under that Part;
(bb) a hospital direction and a limitation direction under that Part;
(c) a recommendation for deportation;
(ca) a confiscation order under Part 2 of the Proceeds of Crime Act 2002
(but not a determination under section 10A of that Act);
(cb) an order which varies a confiscation order made under Part 2 of the
Proceeds of Crime Act 2002 if the varying order is made under section
21, 22 or 29 of that Act (but not otherwise);
(d) a confiscation order under the Drug Trafficking Act 1994 other than
one made by the High Court;
(e) a confiscation order under Part VI of the Criminal Justice Act 1988;
(f) an order varying a confiscation order of a kind which is included by
virtue of paragraph (d) or (e) above;
(g) an order made by the Crown Court varying a confiscation order which
was made by the High Court by virtue of section 19 of the Act of
1994; and
(h) a declaration of relevance within the meaning of section 23 of the
Football Spectators Act 1989; and
(i) an order under section 129(2) of the Licensing Act 2003 (forfeiture or
suspension of personal licence).
(1A) Section 14 of the Powers of Criminal Courts (Sentencing) Act
2000 (under which a conviction of an offence for which … an order for
conditional or absolute discharge is made is deemed not to be a conviction
except for certain purposes) shall not prevent an appeal under this Act,
whether against conviction or otherwise.’

4.9 Since the list at section 50 is not exhaustive, the Court has had to
consider whether a number of other orders are sentences.

41
4.10 Appeals against sentence

Costs
4.10 Section 50(3) specifically provides that an order for recovery of
defence costs under section 17 of the Access to Justice Act 1999 is not a
sentence within the meaning of section 9. However, an order that the defendant
pay towards the costs of the prosecution is a sentence within the meaning of the
section and may therefore be appealed (R v Hayden8).

Criminal behaviour orders

4.11 The making of a criminal behaviour order following conviction is a
sentence within the meaning of section 50 as is a subsequent decision of the
Crown Court to vary or refuse an application to vary the order (R v Preston
Crown Court, ex p Langley9).

Making and varying of sexual offences prevention orders

4.12 The making of a sexual offences prevention order and also a
subsequent decision of the Crown Court in relation to varying such an order
is a sentence within the meaning of section 50 (R v Hoath; R v Standage,10
approved in R v Aldridge; R v Eaton11).

Restraining orders
4.13 A restraining order that is made following conviction is clearly within
the scope of section 50. However, by virtue of section 5A(5) of the Protection
from Harassment Act 1997, so too is a restraining order that is made following
an acquittal.

Financial reporting orders

4.14 Financial reporting orders are sentences for the purposes of section 50
(R v Geraghty12).

Appeals in relation to sentences fixed by law

4.15 A defendant who is the subject of a mandatory life sentence may
appeal against the minimum term that he must serve.

8 (1974) 60 Cr App R 304.

9 [2008] EWHC 2623 (Admin).
10 [2011] EWCA Crim 274.
11 [2012] EWCA Crim 1456.
12 [2017] 1 Cr App R (S) 10.

42
 The principles: general 4.19

Appeals by parents and guardians

4.16 Parents and guardians may appeal against:
(a) an order that they pay a fine, costs or compensation that has been imposed
on a child or young person (Powers of Criminal Courts (Sentencing)
Act 2000, s 137 (1));
(b) an order, under section 150 of the Powers of Criminal Courts (Sentencing)
Act 2000 that they enter into a recognisance to take proper care of a child
or to pay a fine in lieu;
(c) a parenting order made pursuant to section 8 of the Crime and Disorder
Act 1889 (s 10(4)).

A single right of appeal – more than one sentence

4.17 There is a single right of appeal against sentence (R v Pinfold13).
A defendant cannot appeal against a particular aspect of their sentence and
then separately appeal against another14, unless the case is referred back to the
Court by the Criminal Cases Review Commission.

4.18 The significant exception to this relates to orders that are made on
different dates as separate sentencing exercises. This occurs mainly in relation
to confiscation orders, which may be made weeks or months after the original
sentence was imposed. It will also apply to appeals against refusals to vary
orders that were made on an earlier occasion. The 28-day time limit will run
from the date when the order that is subject to appeal is made.

THE PRINCIPLES: GENERAL

What are the grounds of appeal?

4.19 The grounds upon which the Court has been prepared to allow
appeals against sentence are numerous and overlapping. The terminology with
which the Court describes sentencing grounds is not always consistently used.
The most well-known terms are ‘manifestly excessive or wrong in principle’.
Although it may be said that the two terms themselves overlap (see R v Ball15),
their meaning is sufficiently clear and broad to capture the variety of grounds
that may be advanced. The Court will regard a sentence as manifestly excessive
if it is improperly severe as a result, for example, of the judge having failed to

13 (1988) 87 Cr App R 15.

14 R v Geraghty [2016] EWCA Crim 1523.
15 (1951) 35 Cr App R 164.

43
4.20 Appeals against sentence

apply the relevant guidelines, given too much weight to an aggravating feature
or too little weight to a guilty plea or some piece of mitigation. A sentence may
be wrong in principle if it was wrong for some other reason: if, for example,
it was unlawful, or passed following a procedural failure, breach of legitimate
expectation or some other important sentencing principle.

4.20 It may be helpful, therefore, for the grounds of appeal to state whether
the sentence is challenged on the basis that it is manifestly excessive or wrong
in principle. However, it is far more important that the grounds should go
on to state clearly and succinctly exactly why it is said that the sentence is
wrong. An appeal against sentence will not fail because the grounds have been
misclassified. However, leave to appeal is often refused because the nature of
the challenge is simply unclear.

Manifestly excessive
4.21 The term ‘manifestly excessive’ tends to induce a high degree of
caution in the minds of many advocates. If this caution is based on a correct
understanding of the term then it is justified. It is intended to exclude those
sentences in which different judges might disagree. The Court often states that
the test is not whether they would have passed the same sentence but whether
it is outside the range that could properly be imposed for the offence.

4.22 However, it is sometimes understood that the term ‘manifestly

excessive’ means very or significantly excessive. It does not. If a sentence can
be shown to be clearly outside that range, whether by a substantial or limited
period, it is manifestly excessive.

4.23 It is right that the Court does not ‘tinker’ with sentences, but if a
custodial sentence is manifestly excessive by months or even, in the case of
shorter sentences, by weeks, then a reduction in sentence by months or weeks
will hardly be considered ‘tinkering’ by the person who has to serve it or by a
fair-minded tribunal.

4.24 Whether a sentence is manifestly excessive will depend on the facts of

each case. However, the following general principles apply:

The Court will consider whether the total sentence is wrong

4.25 When a defendant is sentenced for a number of offences, the Court of
Appeal is generally concerned with the correctness of the overarching sentence
(the total length of the sentences imposed in a single sentencing exercise) that
was imposed (R v Razaq16). So, if it can be shown that an individual sentence

16 [2011] EWCA Crim 1518.

44
 The principles: general 4.29

was excessive but the overarching sentence was correct, an application for
leave is likely to be refused.

Failure to follow the guidelines

4.26 When it passes sentence for an offence that was committed before
6 April 2010, the Crown Court must have regard to any sentencing guideline
that was promulgated by the Sentencing Guidelines Council.17

4.27 However, when the offence in question was committed after that date,
the Court is bound by the stronger injunction of section 125(1) of the Coroners
and Justice Act 2009 which provides:
‘Every court –
(a) must, in sentencing an offender, follow any sentencing guidelines
which are relevant to the offender’s case, and
(b) must, in exercising any other function relating to the sentencing of
offenders, follow any sentencing guidelines which are relevant to the
function,
unless the court is satisfied that it would be contrary to the interests of
justice to do so.’

4.28 The effect of this is that if the Crown Court fails to follow the
applicable guideline without giving good reason for doing so or if it applies
them incorrectly, this may provide a ground for appeal (R v Mahendran18).
However, the sentencing judge is free to apply the guidelines in a flexible
manner in order to achieve a just result:
‘we have lost count of the number of times when this court has emphasised
that these provisions are not intended to be applied inflexibly. Indeed, in our
judgment, an inflexible approach would be inconsistent with the terms of the
statutory framework … even when the approach to the sentencing decision
is laid down in an apparently detailed and on the face of it intentionally
comprehensive scheme, the sentencing judge must achieve a just result.’
(R v Height and Anderson19)

4.29 The existence of a specific guideline will supersede previous Court

of Appeal case law. However, section 125 has not diminished the weight to be
attached to decisions of the Court of Appeal. Therefore the sentencing Court

17 CJA 2003, s 172, as preserved by the Coroners and Justice Act 2009 (Commencement No 4,
Transitional and Saving Provisions) Order 2010 (SI 2010/816).
18 [2011] EWCA Crim 608.
19 [2008] EWCA Crim 2500 at para 29.

45
4.30 Appeals against sentence

should take into account any significant sentencing guidance that is contained
in authorities of the Court of Appeal that post-date the relevant guideline.
‘The “interests of justice” consideration which now, and we assume always
has and always will underpin the work of the Sentencing Guidelines
Council (now the Sentencing Council), undoubtedly involves consideration
of the subsequent thinking of this court and of the legislature on sentencing
issues which may impact on every original definitive guidance. Just as the
guidelines are not tramlines – an observation made time and time again –
nor are they ring-fenced.’ (R v Thornley20)

4.30 The role of the Court of Appeal is to interpret the guidelines and
provide practical illustrations of their operation, including examples where
departure from them might be appropriate (Dyer21).

4.31 A distinction should be drawn between authorities that have an

impact upon the guidelines and those cases which merely apply the guidelines
to the facts of the case. Advocates should recall the injunction of the Court
in Erskine22 about the citation of cases which are merely fact specific. In
Thelwall23 the Court of Appeal made it plain that the sentencing system now
proceeds on the basis of guidelines, not case law, and so the citation before the
Court of Appeal of appellate decisions which were simply illustrations of the
operation of a sentencing guideline on particular facts was unlikely to be of
assistance. The only exception to that principle was where the Court had said
something to clarify the terms of the guideline.

Procedural unfairness
4.32 A failure to follow the proper procedures may provide grounds of
appeal. However, the general approach of the Court is to decline to interfere
with a sentence where, had the correct procedures been followed, the sentence
that would have been imposed would have been essentially the same.

Post-sentence developments
4.33 The Court is not confined to considering only the material to which
the sentencing judge had access. It may, in its discretion, consider material that
was not before the Court or events that have occurred since the sentence took
place. The appellant’s conduct following sentence will often play an important
part in the sentencing process. If leave is granted, the Court may ask for a

20 [2011] EWCA Crim 153.

21 [2014] 2 Cr App R (S) 11 (61).
22 [2010] EWCA Crim 1425.
23 [2016] EWCA Crim 1755.

46
 The principles: general 4.38

report from the prison on the appellant’s progress on their sentence. The Court
can order its own probation report in cases where it is of the view that it may
be assisted by one, even if there was no probation report in the lower court.

4.34 In Rogers24 the Court of Appeal emphasised the limitations on the

use of new material in appeals against sentence. The material the Court will
hear without an application under the Criminal Appeal Act 1968, s 23 for the
court to admit ‘fresh evidence’ will include updated pre-sentence and prison
reports on conduct in prison after sentence. However, it will not include fresh
psychiatric or psychological evidence in support of an argument that a finding
of dangerousness ought not to have been made or a hospital order should have
been made. If an appellant seeks to introduce material of that type, the Court
will apply the provisions of s 23.

Disparity in sentence
4.35 An unjustified disparity in sentence between co-defendants may give
rise to grounds of appeal but only if ‘right thinking members of the public with
knowledge of the relevant facts and circumstances, learning of this sentence
would consider that something had gone wrong with the administration of
justice’ (R v Fawcett25).

Unlawful sentences and the slip rule

4.36 When the Crown Court passes a sentence that is unlawful, in the
sense that the Court does not have the power to impose it, the sentence may
be appealed. However, consideration should first be given to returning to the
Crown Court under the slip rule and asking the sentencing judge to correct the
error. Section 155 of the Powers of the Criminal Courts (Sentencing) Act 2000
provides that a sentence that was imposed by the Crown Court can be ‘varied
or rescinded’ up to 56 days from the date when the sentence was passed.

4.37 It is only if the judge refuses, wrongly, to correct the error or the
matter is not listed within the time limit for correction that an appeal to the
Court of Appeal should be lodged.

4.38 In a case where there are other grounds of appeal, it may be tempting
to bypass the Crown Court entirely and have all matters dealt with on appeal.
However, the time limit for appeal runs from the date of any variation26 so
nothing is lost by resolving such matters that can be resolved in the Crown Court.

24 [2016] 2 Cr App R (S) 36 (370).

25 (1983) 5 Cr App R (S) 158.
26 Powers of the Criminal Courts (Sentencing) Act 2000, s 155(6).

47
4.39 Appeals against sentence

Failure to credit time spent on a qualifying curfew

4.39 Although the sentencing judge is no longer required to specify the
number of days spent on remand that should count towards sentence, he must
still state the amount of time spent on a qualifying curfew.27 If the judge fails,
without good reason, to state the period on curfew that should be counted to
towards the sentence or if the period was miscalculated, the approach outlined
by the Court in R v Gordon28 should be followed.

RIGHTS OF APPEAL: CONFISCATION ORDERS AND

OTHER ORDERS UNDER THE ASSET RECOVERY
LEGISLATION
4.40 Section 50 of CAA 1968 provides that an appeal against a confiscation
order, whether under the Proceeds of Crime Act 2002 (POCA 2002) or the
Drug Trafficking Act 1994 (except when the order has been made by a High
Court judge) or the Criminal Justice Act 1988 is an appeal against sentence.
However, there are a number of other orders that a Crown Court can make
under this legislation, only some of which attract a right of appeal against
sentence.

4.41 A refusal to vary a confiscation order under section 23 of POCA 2002

is not a sentence and there is no appeal to the Court of Appeal. Therefore,
the only way such an order can be challenged is by way of judicial review.
However, as section 50 provides, decisions in relation to a reconsideration of
benefit and available amount (POCA 2002, ss. 21 and 22) and variations of
orders made whilst the defendant was considered an absconder (s 29) under
POCA 2002 are considered sentences.

4.42 In contrast, any variation or refusal to vary a confiscation order under

the Drug Trafficking Act 1994 (except when the confiscation order has been
made by a High Court judge) or the Criminal Justice Act 1988 is a sentence
within the meaning of section 50.

4.43 Appeals against restraint or receivership orders under POCA are not
appeals against sentence. However, they attract their own rights of appeal.29

27 Criminal Justice Act 2003, s 240A.

28 [2007] EWCA Crim 165.
29 The rights of Appeal in relation to receivership orders are to be found at POCA 2002, s 65.

48
 Principles: confiscation 4.48

PRINCIPLES: CONFISCATION

Grounds of appeal
4.44 There are no prescribed grounds of appeal against confiscation orders.
Common grounds of appeal are that the judge erred in fact or law. The Court
is often cautious about interfering with errors of fact, unless they are clear and
significant. It normally accords considerable respect to factual findings of the
Crown Court judge who heard the case, particularly if their judgment depends
to a significant extent on assessment of live evidence that the judge heard in
either the course of the confiscation hearing or the preceding trial.

The slip rule

4.45 Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000
applies to confiscations orders (R v Bukhari30).

Fresh evidence
4.46 The statutory rules in relation to fresh evidence apply to confiscation
proceedings (R v Stroud31). A party seeking to adduce fresh evidence must
therefore meet the requirements of section 23 of CAA 1968. Much of the case
law on fresh evidence in appeals against conviction is applicable to appeals
against confiscation order.

Appeals against confiscation orders made by consent

4.47 In R v Mackle,32 the Supreme Court held that a confiscation order
that had been made with the consent of the defendant but following clearly
erroneous legal advice may be appealed. This overturned the decision of the
Court of Appeal in R v Hirani33 in which the Court found that in the absence
of exceptional circumstances a defendant was bound by an order to which he
consented, even if that consent was based on an entirely incorrect understanding
of what he was consenting to, following bad legal advice.

4.48 Mackle did not provide any guidance as to how the Court of Appeal
should now approach appeals based upon allegations of consent being given as
a result of flawed legal advice. However, it is likely that the Court will approach

30 [2008] EWCA Crim 2915.

31 [2004] EWCA Crim 1048.
32 [2014] UKSC 5.
33 [2008] EWCA Crim 1463.

49
4.49 Appeals against sentence

in a similar manner to appeals against conviction in which it is argued that a

guilty plea was tendered following bad legal advice.

Extension of time to appeal against a confiscation order

following a change in the law
4.49 Following the judgment of the Supreme Court in R v Waya,34 in
which the Court held that the First Protocol of the Convention required the
Crown Court to ensure that any confiscation order represents a proportionate
interference with the defendant’s property, a number of applications for
extension of time within which to appeal against sentence were made by
applicants whose confiscation order had been made some time ago and had not
appealed because the law, prior to Waya, provided no grounds upon which to
do so.

4.50 In Bestel v R,35 the Court held that the principle of finality that decisions
made under the law as it was then understood should not be disturbed unless
this would cause substantial injustice, should be followed in confiscation cases.

POWERS OF THE COURT: CONFISCATION

4.51 The Court has the power under section 11(3) Criminal Appeal Act
1968 to impose an alternative sentence to that which was subject to appeal.
However, it also has the power, under section 11(3A) to quash a confiscation
order and then to remit the case to the Crown Court with a direction that a new
confiscation hearing take place. When it does so, the Court of Appeal must give
directions to the Crown Court as to the conduct of the new hearing. The Crown
Court must not impose a confiscation order that is more severe than that which
was subject to appeal.

PROSECUTION RIGHTS OF APPEAL IN

CONFISCATION CASES
4.52 The prosecution enjoy rights of appeal against the terms of a
confiscation order or the refusal to make a confiscation order under POCA 2002
only. Section 31 of POCA 2002 provides:
‘(1) If the Crown Court makes a confiscation order the prosecutor may
appeal to the Court of Appeal in respect of the order.

34 [2012] UKSC 51.

35 [2013] EWCA Crim 1305.

50
 Summary of key points 4.53

(2) If the Crown Court decides not to make a confiscation order the
prosecutor may appeal to the Court of Appeal against the decision.
(3) Subsections (1) and (2) do not apply to an order or decision made by
virtue of section 10A, 19, 20, 27 or 28.’

4.53 As subsection (3) provides, the prosecution enjoy none of the rights
of appeal against variations of a confiscation order that are enjoyed by the
defence.

SUMMARY OF KEY POINTS

• The only statutory test on an appeal against sentence is whether ‘the
appellant should be sentenced differently for an offence’.
• The Court had recognised a number of grounds of appeal against
sentence, the most well-established of which are that a sentence is
‘manifestly excessive’ or ‘wrong in principle’. Between them these terms
cover most of the types of arguments that can be advanced. However,
for the applicant, the classification of grounds is less important than
ensuring that the grounds clearly identify the way in which it is said that
the sentence in question is flawed.
• In determining whether a sentence is manifestly excessive, the Court will
consider whether the sentence as a whole is excessive.
• The Court may be prepared to find that a failure to follow the sentencing
guidelines renders a sentence manifestly excessive. However, it has
reiterated that guidelines are not a straightjacket and may in any event be
interpreted in a flexible manner.
• The unjustified disparity in sentence between co-defendants may give
rise to grounds of appeal but only if ‘right thinking members of the
public with knowledge of the relevant facts and circumstances, learning
of this sentence would consider that something had gone wrong with the
administration of justice’.
• A failure to follow the proper procedures may provide grounds of appeal.
However, the general approach of the Court is to decline to interfere with
a sentence where, had the correct procedures been followed the sentence
that would have been imposed would have been essentially the same.
• An unlawful sentence may be corrected on appeal. However, consideration
should first be given to whether the unlawful element of the sentence can
be corrected by returning to the Crown Court under the slip rule.
• If the Court allows an appeal it may quash the sentence and replace
it with any sentence that the Crown Court had the power to impose.
However, this new sentence must not be more severe than the sentence
that was appealed.

51
4.53 Appeals against sentence

• Confiscation orders may be appealed as well as decisions in relation to

the variations of confiscation orders but not variations under section 23
of POCA 2002.
• When appeal is based on alleged errors of fact, the Court may be
reluctant to interfere with the findings of the Crown Court judge save in
the clearest circumstances.
• A confiscation order that has been made with the consent of the defendant
may be appealed if it can be shown that, as a result of bad legal advice
or some other reason, the defendant did not understand the order he was
agreeing to.
• If the Court allows an appeal against a order it may simply quash the
order, impose a new order or remit the case to the Crown Court for a new
confiscation hearing to take place.
• The prosecution may also appeal against a confiscation order or a refusal
to make a confiscation order but only when proceedings are under
POCA 2002.

52
Part 2
The Appeal Process
Chapter 5

Defence investigations

INTRODUCTION
5.1 Defence investigations can play a vital role in correcting miscarriages
of justice. However, they are often undervalued and can be regarded with
suspicion by the prosecution, the courts and even some defence lawyers. That
is because the adversarial defence lawyer can be typecast as merely responding
to the prosecution case, rather than actively investigating the crime scene or
engaging with actual witnesses. The general principle that ‘there is no property
in a witness’ is subject to many practical difficulties as police will guard the
crime scene and their witnesses against any contact from defence lawyers, who
are viewed as a potential source of interference or even intimidation. Appellants
often complain that inadequate effort was made by police, and sometimes the
original defence team, to fully investigate what happened by failing to speak to
all the potential witnesses or seizing all the relevant material. Given the lack of
resources on both sides, they may be right.

5.2 When investigating a crime the police have a duty to pursue all
reasonable lines of enquiry and to obtain evidence which points away from, as
well as towards, the suspect.1 This includes material the investigator believes
may be in the hands of third parties. If that is the case then the investigator
should inform the disclosure officer who, in turn, should ask the party to
retain it and this should be recorded and notified to the prosecutor.2 As recent
history has highlighted, especially when budgets are cut, it should not be
assumed that has been done.3 The failure of disclosure and the collapse of
several high-profile trials in recent years has brought about a public outcry
and led to the House of Commons’ Justice Committee looking into serious

1 Criminal Procedure and Investigations Act 1996 (CPIA), s 23; Para 3.5 CPIA Code of
Conduct; Para 17 Attorney General’s Guidelines on Disclosure.
2 Para 3.6 CPIA Code of Conduct.
3 A critical report by HM Inspectorate of Constabulary led the police and prosecution to issue
joint guidance in July 2017 in an effort to improve the process: ‘Making it Fair – A Joint
Inspection of the Disclosure of Unused Material in Volume Crown Court Cases’ (www.
justiceinspectorates.gov.uk/hmicfrs/publications/making-it-fair-disclosure-of-unused-
material-in-crown-court-cases).

55
5.3 Defence investigations

failings in disclosure by police and prosecutors. They published their findings

in the summer of 2018.4
It is often the case that by the time a defendant is charged the police will
be firmly committed to a particular view of the case and it is inevitable
that resources will be focused on obtaining evidence that will help secure
a conviction. Every day we all generate huge amounts of electronic data
on our phones and social media. Police usually seize any electronic
devices found on the suspect, as well as from their home and sometimes
their workplace. Often that is used to bolster the prosecution case by
adducing potentially harmful messages, pictures and social contacts,
which are then used to build associations with co-defendants and cell
siting of where the defendant was. Less often is that material considered
for prosecution witnesses who may not be telling the truth or who may
have misremembered events. In cases where the parties are known to each
other or the prosecution witnesses have an ulterior motive in making the
accusations, this material may be either highly relevant to the defence
or help to undermine the prosecution case. The potential problems with
seizure and disclosure has been recognised by the Attorney-General, who
published an important review of how disclosure should operate in practice
to take account of these concerns.5

5.3 In an age of austerity when police do not have the budget to do

everything they should it is all the more important that defence lawyers
appreciate that they are not solely dependent on the efforts of the police
investigators. They can actively pursue other avenues themselves to obtain
potentially relevant information. Indeed, some of these avenues may not be
open to the police as witnesses may be reluctant to speak to them or the police
may be unaware of information that the defendant has.
If this was not considered properly pre-trial then it becomes indispensable
after conviction because, at that point, most prosecution investigations
will cease entirely. It will only be those who act on behalf of the potential
appellant who have an interest in continuing to work on the case. Such defence
investigations may uncover evidence to start an appeal or they may reveal
material that triggers further prosecution disclosure or persuades the Criminal
Cases Review Commission to commence their own investigation using their
extensive powers (see Chapter 9).

4 Including the widely publicised case of Liam Allen, who was acquitted in December 2017
(https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/859/859.pdf).
5 Review of the efficiency and effectiveness of disclosure in the criminal justice system,
November 2018 (https://assets.publishing.service.gov.uk/government/uploads/system/
uploads/attachment_data/file/756436/Attorney_General_s_Disclosure_Review.pdf).

56
 What are defence investigations and who may carry them out? 5.6

WHAT ARE DEFENCE INVESTIGATIONS AND WHO

MAY CARRY THEM OUT?
5.4 Defence investigations are attempts to obtain relevant material in a
way that maximises the chances of it being admitted as fresh evidence by the
Court of Appeal.

5.5 Although the term ‘defence investigations’ conjures up complex

enquiries in relation to convictions for grave crimes, in reality most appeal
cases will benefit from new material that supports the appellant’s case.
A primary example is good background proofing and checking. For example,
in the most straightforward appeal against sentence it may be possible to obtain
medical evidence that was never before the Crown Court or a compelling
character witness who was never asked to give a statement. Fresh material
can be especially relevant for young appellants. The Sentencing Council
guidelines require the sentencing judge to actively consider relevant material
about the defendant’s background and take that information into account
when considering mitigating factors and take specific account of welfare
considerations. These include any difficulties the defendant faced as a child
and any issues that might impact upon culpability due to their lack of maturity.6
Often educational assessments, psychological reports or social services
records will not have been obtained prior to the original sentence. These should
have been considered by the original defence team in order to provide the
sentencing judge with a full picture of the young person’s circumstances and
the difficulties they may have faced and contributed to their offending. These
investigations can throw up mental health issues or show that the defendant
had been subject to coercive and controlling behaviour. It may show that the
defendant was a victim of forced labour or trafficking;7 it may reveal that they
were a refugee who had a defence to a false document offence.8 Sometimes
insufficient efforts will have been made given the increasing rush to plead
guilty and maximise credit, to identify these underlying issues which can go to
sentence and, in some cases, the question of whether they should have pleaded
guilty in the first place. However, whether the Court will be prepared to admit
this material as fresh evidence is a different matter (see Chapter 3).

5.6 As to who may carry out the investigation, the short answer is
‘anyone’. The longer answer is that investigations should be carried out under
the direction of the defence lawyers. Investigation carried out by a solicitor is
much more likely to result in evidence that will be admitted by the Court of
Appeal. As officers of the Senior Courts they are subject to the discipline of

6 Overarching Principles of Sentencing Children and Young People: www.sentencingcouncil.

org.uk/overarching-guides/crown-court/item/sentencing-children-and-young-people.
7 Modern Slavery Act, s.45.
8 Immigration and Asylum Act 1999, s.31.

57
5.7 Defence investigations

their professional body should they mislead the Court or attempt to conceal
the true picture, which may make the Court more likely to attach weight to
the material that they uncover. However, there is no reason why evidence
obtained by non-lawyers should not be admitted as long as it was obtained in
a proper manner. Many private investigators are former police officers who are
experienced in producing relevant witness statements that can be independently
corroborated. The Legal Aid Agency will be more likely to agree to fund their
work as it saves public money given it is billed at a lower hourly rate and paid
as a disbursement rather than the slightly higher hourly rate that can be claimed
by the solicitor.9 This is an important factor in investigative work that can be
time-consuming and open-ended. Of course, you will need to agree the scope
of the work in advance and obtain prior approval from the Legal Aid Agency
(or your private client) for the anticipated work (see Chapter 8).

THE ETHICS OF DEFENCE INVESTIGATION

5.7 Obtaining evidence in a manner that protects its integrity maximises
the chance of it being admitted by the Court of Appeal. Being aware of potential
ethical pitfalls is particularly important in appeal cases. Interviewing witnesses
who gave evidence for the Crown at trial is a matter that often gives rise to
particular concern. An unwillingness to speak to them often stems from a fear
that the defence team could be accused of influencing the witness to change
their evidence, particularly if the witness previously gave statements that are
inconsistent with what they are now saying.10

5.8 These and other concerns can be minimised by following best

practices and the relevant ethical rules that can be found in the solicitor’s
Code of Conduct.11 The Law Society has published guidance to assist defence
solicitors when dealing with defence witness notices, which has some
application generally.12 In particular, the investigator should:
(a) create a careful file note of the meeting or significant conversation with
a witness that lays out exactly what was said by all parties;

9 Currently Enquiry Agents guidance hourly rate is £25.60 outside London and £18.40 in London
(https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_
data/file/791497/Guidance_on_the_Remuneration_of_Expert_Witnesses_April2019.pdf).
10 Hannibal, M. and Mountford, L. (2013) Criminal Litigation Handbook 2013/14, Oxford:
OUP, para 1.11.6, and for a recent refusal by the Court of Appeal to accept retraction evidence
see R v SB [2019] EWCA Crim 565.
11 SRA Code of Conduct IB 5.10.
12 Law Society Practice Notes: Defence Witness Notices, 21 December 2015.

58
 The techniques of investigation 5.10

(b) never misrepresent who they are, who they work for and why they are
asking questions;13
(c) take care not to pressurise a witness in any way and remember that it is
the witness’s prerogative to refuse to be interviewed;14
(d) never take advantage of an unrepresented third party;15
(e) never interview a represented person without the consent of their legal
representative; and
(f) never give legal advice where there is a conflict of interest.16

5.9 The defendant himself should not be involved in questioning potential

witnesses nor should any other potential defence witnesses.

THE TECHNIQUES OF INVESTIGATION

Funding for an investigation

5.10 Where leave has not been applied for and the purpose of the
investigation is to put the defence in a position to make an application for leave,
funding can be requested from the Legal Aid Authority under the Advice and
Assistance scheme. (See Chapter 8 for consideration of funding applications
under the scheme.) If leave is granted the Court may grant a representation
order to allow the appellant’s solicitors to undertake particular tasks. (See 6.44
and 8.9–8.10.)

13 The people you are interviewing or asking for records from may ask you questions in return
about what you are up to. This is part of the natural give and take of conversation and does
not mean they are unwilling to talk to you. This does not mean you have to explain things that
are confidential to the defendant or things that, strategically, you would rather not have in the
public realm. You can simply explain that you are investigating for an appeal on behalf of a
defendant, and that you want to hear everyone’s side of the story.
14 This includes thinking carefully about who is the best person to do the interview, with
reference to matters such as age, gender, race, etc. The suspicion that a witness’s feeling of
being intimidated stems from prejudice does not obviate the fact that they felt intimidated.
Achieving Best Evidence (ABE) techniques and Special Measures can be employed when
appropriate with vulnerable witnesses.
15 A lawyer has a duty to represent their client to the best of their ability, but they also have a
duty not to take advantage of those who do not have legal representation in order to do so
(Solicitors Regulation Authority Code of Conduct, Chapter 11, Outcome 11.1). One way of
dealing with this situation may be to ensure that the potential witness has independent legal
assistance before formalising what they have to say in a s 9 witness statement.
16 See the Solicitors Regulatory Authority Code of Conduct, Chapter 3, Outcome 3.5. If
someone else wants to confess to the crime, or confess to previous perjury in the case, the
defendant’s lawyer cannot advise them of the legal implications of doing this. It is necessary
to get the information from them about what they would tell the Court (because that is your
duty to your client), but the defendant’s lawyer can’t advise them of the risks they face. They
should obtain independent legal representative before they make any formal statement.

59
5.11 Defence investigations

Conducting the investigation strategically

5.11 Planning an investigation involves:
(a) knowing what evidence was before the jury and what evidence was
available to both the prosecution and the defence at trial;
(b) prioritising the leads to follow first (given the limited resources available);
(c) working from the outside of the circle to the centre when approaching
a sensitive issue or witness, so that as much information as possible is
obtained before any evidence is removed from reach (such as a witness
refusing to talk or a document being destroyed).

What you already know

5.12 It is always helpful to start by establishing what material is already
in the hands of the defence. This will involve speaking to the defendant, their
family and certainly their previous lawyers.17 It is also important to gather as
complete a case file as possible.

5.13 The following material should normally be sought:

(a) records of arrest and pre-trial detention (especially as to defendant’s state
of mind and the circumstances of admissions);
(b) the defendant’s proof of evidence, comments on prosecution witnesses
and defence case statement (and any character evidence);
(c) the defence solicitor’s police station attendance notes;
(d) defence witness statements whether relied on or not and reasons why not
called;
(e) police statements, plus material the police relied on in writing their
statements reports (such as contemporaneous notes especially first
descriptions which they have a duty to record);
(f) witness statements taken by the police;
(g) news media reports (often available through internet search engines);
(h) recordings of transcribed statements especially Achieving Best Evidence
(ABE) recordings;

17 The Court of Appeal recently held that speaking with previous legal representatives ‘will
henceforth be necessary … to ensure that facts are correct, unless there are in exceptional
circumstances good and compelling reasons not to do so.’ R v McCook [2014] EWCA Crim
734, para 11. See Chapter 6 for further discussion of the case.

60
 The techniques of investigation 5.13

(i) other recorded evidence such as CCTV, copies of computer hard drives
and any 999 calls;
(j) expert reports plus any material experts relied on in reaching their
conclusions for both prosecution and the defence (and whether relied
upon);
(k) unused material provided to the trial team by the CPS and defence
section 8 CPIA applications;
(l) trial solicitors’ working file including notes, correspondence and billing
(the latter is useful for working out when/whether material was actually
read though the previous solicitor is not obliged to produce internal
documents that do not relate to advice provided);18
(m) trial exhibits/material that went before the jury especially admissions;
(n) trial transcript (access limited – see below);
(o) defence trial advocate’s notebooks;
(p) any previous grounds of appeal;
(q) any previous applications to Criminal Cases Review Commission
(CCRC) and any statement of reasons from the CCRC;
(r) HMPPS prisoner records;19
(s) prison and probation files, including OASYS reports and the most
recent parole dossier from the National Offender Management Service
(NOMS), which often contains historical documents that may have been
destroyed by others including old court transcripts; and
(t) prison healthcare records and medical records from the client’s General
Practitioner.
Whereas in older cases a request for case papers will generally result in many
boxes of papers arriving at your doorstep, things have improved with the
introduction of the Crown Court Digital Case System (‘Caselines’), as now the
previous solicitor can simply add you to the Caselines bundle which will give
you access to the prosecution material, though you will still need to obtain the
defence papers. As more solicitors work digitally, their files can increasingly
be supplied in an electronic format. It is important to remember that only those
prosecution documents which were put before the court will be on Caselines.
Unused material and documents such as unused expert reports and the proof
of evidence of the defendant are not uploaded to Caselines. When requesting
a case file it is advisable to request these be added onto the Caselines bundle
and for any other documents which were not uploaded. In addition, where

18 The Law Society has published a Practice Note: Who owns the file? 16 January 2019.
19 Obtainable from the Data Access and Compliance Unit (at the Branson Registry).

61
5.14 Defence investigations

the defendant had co-defendants, there may be both an ‘individual’ and

a ‘joindered’ Caselines bundle so you should ensure you are added to both
of these; although a lot of the documents will be the same, there are often
different documents on each of them.

5.14 Building an electronic file makes it easier and quicker to create a

chronology of what happened, and who knew what and when, as well as an
index of appeal issues, with each item linked back to the relevant pages of
the file. A similar tagging of witness statements and police interviews is also
helpful. There is increasingly sophisticated case analysis software to help with
this task.20

5.15 In older cases the trial lawyers may no longer be in possession of

the case file, as the obligation is only to keep the file for six years.21 In these
circumstances it may be necessary to reconstruct the trial solicitor’s files from
individual sources such as the Court, the CPS, the police, the defendant and
their supporters. Sometimes the parole dossier may be all that is left as a source
of relevant material.

5.16 A complete trial transcript is an invaluable guide to what occurred

at trial but the cost of ordering one from the relevant transcription company
can be prohibitively high. Generally, legal aid funding under advice and
assistance (see Chapter 8) can be obtained for specific, necessary transcripts,
such as the summing up, mitigation and sentencing hearings, or the evidence of
specific witnesses, but the LAA will not grant funding for transcripts of whole
proceedings. You will also need to obtain the permission of the resident judge
at the Crown Court where it was tried (see 8.40).

Seeking additional material from the prosecution

5.17 Following conviction the prosecution’s statutory duty to disclose
relevant material ends.22 There is a continuing common law duty of disclosure
when material ‘comes to light after the conclusion of the proceedings, which
may cast doubt upon the safety of the conviction’.23

20 Useful software includes Devon Think for Mac, Masterfile for PCs and Case map for Lexis
users, plus various cloud-based offerings.
21 The six-year requirement was originally set out in the Guide to Professional Conduct of
Solicitors, Annex 12A, and it is now within the discretion of law firms to decide how long to
retain closed cases.
22 Criminal Procedure and Investigations Act 1996, s 7A.
23 Attorney General’s Guidelines on Disclosure, Attorney General’s Office (2013), s 72; See
also CPS Guidance on Disclosure of Material to Third Parties and the CPS Disclosure Manual
(revised 26 February 2018).

62
 The techniques of investigation 5.21

5.18 In R (on the application of Nunn) v Chief Constable of Suffolk

Constabulary24 the Supreme Court held that whilst the prosecution should
disclose material that may assist the defence in presenting a ground of appeal,
‘there is no continuing right to indefinite re-investigation of cases following
conviction.’ The burden lies on the defence lawyers to make the case for further
disclosure of documents in the prosecution or police files.

5.19 Attempts to obtain new material from the prosecution can start with
written Subject Access Requests to the police, the Crown Prosecution Service
or the relevant prosecuting authority which should25:
(a) specify as clearly as possible what material is sought;
(b) explain why it is sought with reference to any potential grounds of
appeal;
(c) state why you believe that they have the material in question; and
(d) ask for full reasons to be given for any refusal to provide disclosure.

5.20 If the prosecutor refuses to provide further material, the Court of

Appeal may order its disclosure but it will only consider doing so after an
application for leave has been lodged with the Court (see Chapter 6). Therefore,
until an application for leave is made, the only remedy is an application for
judicial review of the prosecutor’s refusal to disclose. This should start with a
detailed letter setting out why the prosecution should exercise their discretion
to provide access to the material in question.

Seeking new material

Subject Access Requests under the Data Protection Act 2018
5.21 Material which contains personal information about a particular
person may be obtained through a ‘Subject Access Request’ (SAR) made
to a ‘competent authority’26 under section 45(1) of the Data Protection Act
2018 (DPA 2018).27 Such requests may be made to the agency that holds the
information with the written authorisation of the person to whom the data
relates, enabling the request to be made on their behalf by their lawyer.

24 [2014] UKSC 37.

25 It may be necessary to complete a specific Subject Access Request (SAR) on behalf of your
client for that organisation – see 5.21.
26 Schedule 7 Data Protection Act 2018 sets out a list of competent authorities, which includes
ministerial government departments, courts, police forces, the parole board, and prisons
(including those which are privately run).
27 An SAR, is a request made for records that relate to the person making the request, or their
representative.

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5.22 Defence investigations

5.22 Access to personal data may be restricted, either wholly or partially,

in order to:
(a) avoid obstructing an official or legal inquiry, investigation or procedure;
(b) avoid prejudicing the prevention, detection, investigation or prosecution
of criminal offences or the execution of criminal penalties;
(c) protect public security;
(d) protect national security;
(e) protect the rights and freedoms of others.
Any such a restriction to the right of access to personal data must be a
necessary and proportionate measure, having regard to fundamental rights
and legitimate interests of the individual, and only to the extent that, and for
so long as, is necessary.28 That exemption might apply on appeal cases when
the information sought is still relevant to other investigations or prosecutions.

5.23 If the request is made by someone other than the subject, then a signed
authorisation form will also be required which entitles the person making the
request to obtain the documents they are requesting on behalf of the subject.
This is so, even where the application form specifically states that the data
subject must sign the form themselves. Where a person is in prison or detained,
it is not necessary to comply with the requirement to provide identification
documents, although this is stated on the majority of application forms. In this
situation, it may assist if you can confirm the client’s location via email with
the National Offender Management Service (NOMS) prisoner location service
and then send a PDF of this email along with the SAR.29
A difficulty sometimes arises where a client has previously been imprisoned
but has been transferred to hospital under section 47 or section 49 of the
Mental Health Act (MHA), as the NOMS prisoner location service records
will state that the person has been released from prison. If this is the case,
generally it is best to explain this situation to the Data Controller and see what
other proof may be acceptable to them – for example, email confirmation from
the detained person’s treating clinician stating that they have been transferred
to hospital under section 47 or section 49 MHA.

5.24 It is important to include the requestor’s name and contact details,

the data subject’s full names and any relevant information that will help
the agency concerned to locate the material that is sought. The information
should be provided without undue delay and, in any event, within one month
of them either receiving the full request (with all necessary information) or

28 Data Protection Act 2018, s 45(4); which mirrors the test for restricting a Convention right.
29 Prisoner Location Service (NOMS): [email protected].

64
 The techniques of investigation 5.27

them obtaining the data which is requested.30 Where an organisation fails to

comply with this deadline, ultimately you can report them to the Information
Commissioner’s Office.

5.25 Since the DPA 2018 came into force, SARs should no longer
involve the payment of any administration fee. As a result many organisations
are struggling to comply with the guidelines as the number of requests has
increased considerably. There is an exception to this, whereby a reasonable fee
may be charged if the data subject has made ‘manifestly unfounded or excessive
requests’.31 There is no example or definition of ‘manifestly unfounded or
excesive’. An excessive request may be one that merely repeats the substance
of previous requests. For example, if you have already requested a client’s
prison healthcare records and require an update, you should request the records
from the last date of the previous records onwards, rather than requesting all
records, in order to avoid a request being viewed as excessive. The Information
Commissioner’s Office website provides a useful guide to making SARs and
has examples of pro-forma request letters that can be followed. A large number
of agencies and organisations, including the Metropolitan Police, have their
own SAR application form available online.
If a client has been in prison for a long time, they may no longer be registered
with a General Practitioner. If so, their medical records will have been sent
to Primary Care Support England (PCSE), which is an NHS department
responsible for storing residual medical records. These records can be obtained
directly from PCSE by completing the application form available the PCSE
website.

Requests under the Freedom of Information Act 2000

5.26 Applications for data held by public authorities that does not fall
under section 7 of the Data Protection Act 1998 can be made under section 1
of the Freedom of Information Act 2000. Again, a clear and detailed guide to
making such applications is to be found on the Information Commissioner’s
website.

5.27 Such applications can be a useful means of obtaining information

that is important for understanding the evidence in the case, for example, how
those with a role in the case are trained to do their jobs and the procedures
that are followed by particular institutions. However, freedom of information
requests cannot generally be used to bypass the requirements of disclosure
in criminal proceedings and obtain material that is held by the prosecution in
relation to the case. Material held for the purpose of a criminal investigation

30 Data Protection Act 2018, paras 45(3) and 54.

31 Data Protection Act 2018, s 53.

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5.28 Defence investigations

or prosecution is exempt from the requirements of section 1 to the extent that

the information holder does not regard it as being in the public interest to
disclose it.32

Records collection generally

5.28
(a) It is important to follow up on requests sent out. A request may have to
be sent several times. Further, fees for access to records via SAR are now
generally not permitted under the DPA 2018 so many organisations are
dealing with large increases in the numbers of requests.
(b) If the investigator believes that a record exists, but the relevant agency
states they cannot find it, or that it has been destroyed, it can be helpful
to ask for a sworn statement from a representative of the agency or
company attesting to what searches have been made, or to their personal
knowledge of the destruction of that particular document.
(c) It is always necessary (and beneficial) to be polite and courteous to the
record-holders.
(d) Although it is important to be specific about what records are sought, it is
helpful to try to draft a request in such a way as to catch other potentially
relevant documents that may be in the possession of the record holder.
(e) The investigator should personally search any archived files if permitted
to do so.
(f) The investigator should think outside the box (‘where else would copies
of that missing record end up?’).
(g) Good records should be kept of all requests made, including follow-
ups to the original request. This will become particularly relevant when
submitting an application for an extension of time for leave to appeal as
it will be necessary to justify any delay in making the application, which
is often contributed to by delays in obtaining documents.

Visiting and recording the crime scene and other significant

locations
5.29 Visiting the crime scene or another location that is significant
to the case is something that the defence should consider as part of their
preparation for trial. However, it is often overlooked. When investigating
a case for a potential appeal one should not assume that site visits have

32 Freedom of Information Act 2000, s 30.

66
 The techniques of investigation 5.30

been done or that they could not now assist in any appeal. Even if site visits
have already taken place, a fresh pair of eyes may notice something that has
previously been missed. If a site visit is to take place, the following should
be borne in mind:
(a) It is useful to take cameras with the capacity to shoot both stills and
moving footage. One film of a location can then be shot with a voiceover
by the film-maker describing what can be seen and its relevance.
A second film should be taken without the voiceover, so the ambient
sound can be recorded. Stills of the same areas should also be taken.
(b) Measurements should be taken where possible, using a tape measure or
a rolling measuring wheel. This should be done after any film and stills
have been taken.
(c) If access to private property is required to make the recording, the
owner should be asked, unless of course the owner or occupier is a
complainant, in which case filming will have to be restricted to what
can be seen from the street at a time when the complainant is not likely
to be disturbed or upset. The relevant privacy, trespass, harassment or
data protection laws should be consulted and followed if it appears that
filming may give rise to legal issues.

Conducting interviews with potential witnesses

5.30 In addition to the ethical considerations already discussed, the
following guidelines will help the investigator obtain useful evidence from
potential witnesses:
(a) Where possible, and provided it does not put the investigator at risk, the
investigator should seek to conduct the interview in the witness’s own
home where they are likely to be more relaxed, less pressed for time
and where there is a possibility of meeting other potential witnesses.
(b) The investigator should be courteous and respectful at all times and dress
appropriately for the meeting.
(c) The investigator should prepare for the interview by reviewing all
relevant materials in order to understand what the witness has already
said. It may be useful for the investigator to take the materials with them,
but care needs to be taken not to distract or influence the witness.
(d) The investigator should be prepared to explain their role, the status of the
case and what may happen next.
(e) If questioned about their view of the case, the investigator should stay
non-committal, objective and open.
(f) The questions should generally be open-ended.

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5.31 Defence investigations

(g) Close attention should be paid to what is said and the witness should be
asked to clarify what they have said, if necessary. Notes should be taken to
the extent that is possible without making the witness feel uncomfortable.
A record should be typed up as soon as possible afterwards. Witnesses
may be distrustful of recording equipment so it should be introduced
with caution and only with the witnesses consent.
(h) Pregnant pauses should be allowed to develop as often an uncomfortable
silence is filled by the interviewee saying what is on their mind.
(i) The contact details of the interviewee should be confirmed and they
should be informed that the defence team may wish to contact them
again.
(j) Notes should be reviewed for coherence. It is important that anyone who
reads the notes can understand what was said.
(k) If the decision is made to take a statement from a witness, it should
be done using the format required for admission of the statement under
section 9 of the Criminal Justice Act 1967, which allows for the statement
to be admitted before the Court without the witness needing to appear.

CO-OPERATING WITH OTHER INVESTIGATORY

BODIES

Investigation by the Criminal Cases Review Commission

5.31 The CCRC can deploy powers and call upon trained investigators to
carry out investigations that are unavailable to the defence. However, the CCRC
has limited capacity to take on new cases. According to 2017/2018 figures,
75.32 per cent of cases are closed (with a final decision having been sent by the
CCRC) within 12 months of the initial application.33 Unlike in previous years
34
in its most recent annual report, the CCRC did not disclose the average time
an applicant will have to wait while the Commission allocates, reviews and (if
it decides to do so) investigates the case. The processing time is a substantial
period of imprisonment that a defendant may be able to reduce if they or their
lawyers are able to obtain and disclose material to the Commission. However,
it should be borne in mind that the Commission has the distinct advantage
of being able to appoint their own investigators (including an external police
force) and also being able to examine public interest immunity material as well
as the transcripts of closed hearings.

33 Criminal Case Review Commission Annual Report 2017–18, pp 18 and 85.

34 Criminal Case Review Commission Annual Report 2013/14 at p 15, in which the average
time for a full review by the Commission, from receipt of application to final decision, was
72.8 weeks.

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 Summary of key points 5.36

5.32 An application to the Commission which can provide material, give

an account of the steps that have already been undertaken, and provide the
Commission with the responses to any defence enquiry can greatly assist the
speed and success of any investigation that the Commission itself decides
to carry out and may assist in persuading the Commission that such an
investigation is necessary.

5.33 For full consideration of applications to the Commission, see

Chapter 9.

Journalistic investigations
5.34 Historically, print and broadcast journalists have done much of the
heavy lifting when it comes to righting miscarriages of justice. They can play
a vital role in uncovering evidence which the applicant’s lawyers can later use
in court.

5.35 However, it is necessary to exercise caution when co-operating

with or seeking to enlist the help of journalists. Whilst the primary duty of a
lawyer is to their client subject to their duty to the Court, the journalist’s own
overriding duty is to tell the truth as they see it. The interests of a defendant and
a journalist’s desire to expose the truth may coincide, but they may clash.

5.36 Therefore, in those cases where it is believed that co-operating with a

journalist may lead to the uncovering of new evidence or may simply raise the
profile of a case, it is important to consider the risks and benefits of doing so
and ensure that the terms of the relationship are clear at the outset.

SUMMARY OF KEY POINTS

• Defence investigations can uncover vital material for an appeal against
conviction or sentence.
• Investigations do not have to be carried out by the defendant’s lawyers.
However, they should be carried out under their direction.
• Following clear ethical guidelines when conducting any investigation
will assist in any application to have evidence that has been obtained
considered by the Court of Appeal.
• Investigations should be carefully planned. It is first necessary to establish
what material the defence already have and what material the prosecution
may already have that might be disclosed, before considering whether
further material should be sought.
• Disclosure requests may be made to the prosecution and, if not complied
with, orders for disclosure may be sought from the Court of Appeal

69
5.36 Defence investigations

when leave has been granted, or judicial review commenced where it has
not. However, regard must be had to the limited disclosure duties of the
prosecution following a conviction.
• Material may be sought from public authorities under the Data Protection
Act 2018 and the Freedom of Information Act 2000.
• Interviewing witnesses, including those who gave evidence for the
prosecution in the Crown Court, can be of vital importance but should be
done with care, following clear ethical principles.
• Site visits should not be overlooked. It should not be assumed that they
took place before trial or, even if they did, that another site visit would
not yield further information.
• Informing the Criminal Cases Review Commission of the work that
has been undertaken in any defence investigation and providing the
Commission with any material obtained may help to persuade the
Commission to conduct their own investigation and may assist them in
doing so.

70
Chapter 6

Applying for leave to appeal

INTRODUCTION
6.1 There are two ways to appeal a conviction or sentence in the Crown
Court to the Court of Appeal: either an application to the Crown Court judge
for a certificate to appeal, or an application to the Court of Appeal for leave to
appeal. As it is rare for a Crown Court judge to grant a certificate to appeal it is
far more likely that the application will be direct to the Court of Appeal.
The application to the Court of Appeal is usually decided on the papers by
a High Court judge (the ‘single judge’). If the application is refused it may
then be renewed orally by asking for a hearing before the full Court. In a
small number of cases the Registrar may bypass the single judge and refer the
application to the Court for a full hearing (see 6.51 below).
Before considering an application to the Court of Appeal the advocate should
first consider whether the ‘slip rule’ can be used to avoid having to trouble
the court at all. This is likely to arise in sentencing cases where a legal or
factual error was made by the judge or the parties that should be brought to the
sentencing judge’s attention. As the time limit is short (56 days) and it needs to
be dealt with by the same judge. This should be done quickly and if necessary
can be dealt with in the defendant’s absence.1

6.2 This chapter will focus on the usual route of applying for leave
to appeal to the Court of Appeal, as well as renewing that application and
withdrawing it (‘abandonment’).

6.3 The preparation and advocacy at the actual hearing before the full
Court is considered separately in Chapter 7.

6.4 Note on terminology and the procedural rules: anyone applying

for leave to appeal is referred to as the ‘applicant’ until leave is granted, when
they become the ‘appellant’. As with other areas of criminal litigation the
relevant procedures on appeals are set out in detail in procedural rules, which

1 Powers of Criminal Court (Sentencing) Act 2000, s 155; R v Warren [2017] EWCA Crim 226.

71
6.5 Applying for leave to appeal

should be closely followed. These are found in the relevant ‘divisions’ of the
Criminal Practice Directions 2015 (CPD 2015) and the Criminal Procedure
Rules (CrimPR).2 Following these rules will help applicants and their lawyers
navigate through the process of a criminal appeal. It will also enhance the
chances of a favourable outcome. Ignoring them could seriously damage the
applicant’s prospects and may result in criticism by the court and even wasted
costs.

ADVICE ON APPEAL

The trial lawyer’s duty to advise promptly on appeal

6.5 The duty of lawyers to provide advice on appeal is set out in the
HMCTS ‘Guide to commencing proceedings in the Court of Appeal Criminal
Division’ (‘The Guide’):3
‘Provision for advice or assistance on appeal is included in the trial
representation order issued by the Crown Court. Solicitors should not wait to
be asked for advice by the defendant. Immediately following the conclusion
of the case, the legal representatives should see the defendant and advocates
should express orally a view as to the prospects of a successful appeal
(whether against conviction or sentence or both). If there are reasonable
grounds, grounds of appeal should be drafted, signed and sent to instructing
solicitors as soon as possible bearing in mind the time limits that apply
to lodging an appeal. Solicitors should immediately send a copy of the
documents received from the advocate to the defendant.’4

6.6 The revised Guide no longer requires the advocate to confirm a

negative advice in writing but warns them that they must only advise in favour
of appeal if they conclude that there are ‘arguable grounds’ that they would be
prepared to argue before the court, and not simply because they are ‘instructed’
to do so.5 The solicitor should also confirm the advocate’s advice in writing,
whether positive or negative, and attach a copy, if there is a written one.
As the opinion of the defendant is generally irrelevant to whether there is
a legal point to be argued, the lawyers may proceed with an appeal which
has merit even when the defendant cannot be contacted because they have
absconded or have been removed from the jurisdiction. In appeal cases it is law
and ethics that determine what is the right advice, not the views of the client.6

2 Criminal Practice Direction (CPD) 2015 IX Appeals, para 29 A–G; Parts 36 and 39 CrimPR.
See Appendix A – CPD 2015 and Appendix B – CrimPR.
3 Replaces the former guidance produced by the Registrar. See Appendix C – The Guide.
4 The Guide, A.1-1.
5 The Guide A.3-6; CPD IX Appeal, para 39 C.2.
6 R v Okedare & Ors [2014] EWCA Crim 228.

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 Advice on appeal 6.9

The defendant’s right to seek a second opinion

6.7 A defendant should consider carefully the advice that they are given,
but they are not bound to accept it. They may ask their solicitor to instruct a
new advocate to advise on appeal (although whether to do so will be a matter
for the solicitor). Alternatively, they may wish to seek assistance from new
solicitors. There is a limited amount of publicly funded advice available. This
is dependent on whether there is a good reason to provide the advice and
whether the defendant has passed a very restrictive means test. Even if they
do many criminal lawyers refuse to take on these cases as they are very poorly
paid (see Chapter 8).
Such advice needs to be given promptly because the time limits for lodging
an appeal are very short. It can take a considerable amount of time for a new
defence team to get up to speed with the case afresh so they may not be able
to lodge an appeal in time even if the advice is positive. This will add another
hurdle as it means an application will be required for an extension of time. This
has become slightly less of a problem with the introduction of the Digital Case
System in the Crown Court, which has made it easier to access the prosecution
case papers and some defence documents online by being invited on to the
Crown Court case.

Time limits, extensions and the need for expedition

6.8 An application for leave to appeal must be lodged no later than 28
days after the decision which is being appealed.7 It is a common mistake to
assume that the time limit to appeal against a conviction runs from the date
of sentence. In fact, the period for appeal runs from the date of what is being
appealed. For conviction it starts at the date of the verdict, sentence runs from
the date of sentence and a confiscation appeal runs from the date on which the
confiscation order was made.

6.9 The court may grant an extension of time in which to appeal, either
before or after the 28 days have expired.8 It will usually only do so if it decides
that there is merit in the application for leave itself. Even then, it is not bound
to grant the extension but must take an overall view of what justice requires.9
Whilst, there is power to grant an extension before expiry of the deadline, the
Criminal Appeal Office prefers any application to be submitted with the appeal
notice and the grounds so the judge can assess the merits of the substantive
grounds at the same time as the extension application.10

7 CAA 1968, s 18(2).

8 CAA 1968, s 18(3).
9 R v Thorsby [2015] EWCA Crim 1.
10 The Guide, A.6-5; Part 36.4 CrimPR generally regarding extension of time applications.

73
6.10 Applying for leave to appeal

6.10 The fact that the court does generally consider the merits of the
application for leave to appeal when deciding whether to grant an extension
should never lead the applicant or their lawyers to be complacent about time
limits. If nothing else, it is more difficult for the court to consider an application
in a sympathetic light if the applicant or their legal advisors appear to have done
little or nothing for a significant period of time, than one in which they have
clearly worked hard to ensure that the application is lodged as soon as possible.
The longer the period of time that has elapsed since the 28-day period has
expired, the greater the need to show why there has been a justifiable delay.11

6.11 When new lawyers are instructed to advise on appeal, unavoidable

delays may well arise from the need to consider transcripts from the trial and
contact previous lawyers before advising on the merits. The court will be
more sympathetic to such delays if it can see that the delay was due to serious
attempts being made to ensure the factual basis for the appeal was correct and
that any new evidence or legal points were fully aired with the previous team.
The court will want the fullest picture of what decisions were taken at the trial
and what advice was provided and that the new team have fully complied with
their McCook duties (see 6.13 and 6.14 below).12 However, the court has made
it clear that time limits will be taken seriously:
‘Time limits are set for good reason and in the interests of justice. They
must be strictly observed unless there are good and exceptional reasons for
their not being so observed. As was made clear by Lord Taylor CJ in R v
Burley – an unreported decision referred to in Williams [2010] EWCA Crim
3289 at paragraph 5 – the interests of justice as a whole require the strict
observance of time limits.’13
The Practice Direction makes it clear that any late amendments will face an
even higher hurdle.14

Obtaining transcripts for the purpose of advising on appeal

6.12 It will often be necessary for the advocate to have access to transcripts
from the original trial in order to advise on whether there are arguable grounds
to appeal. A quote for the relevant transcript will be needed to get prior
authority from the Legal Aid Agency (LAA) (or to agree the disbursement with
a privately paying client). This quote can be obtained from the transcription
company for the court where the case was heard. The application form includes

11 R v Wilson [2016] EWCA Crim 65.

12 R v McGill & Ors [2017] EWCA Crim 1228.
13 R v Roberts & Ors [2016] EWCA Crim 71 at para 39.
14 CPD IX Appeals, para 39C.4 [f].

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 Advice on appeal 6.13

guidance with a list of the relevant transcription companies.15 It is necessary

to get permission from the judge who heard the case (or the resident judge) to
authorise release of the transcript. This is done by completing a Form EX107
setting out what transcripts you need and why you want them, as well as
specifying when you need them.16 The funding for transcripts is considered in
detail in Chapter 8, but in general terms, the cost of transcripts must be met by
the LAA or the client prior to an application for leave as the Registrar will not
obtain transcripts unless and until an application for leave is lodged.

Contacting trial lawyers – due diligence

McCook – the new regime
6.13 Anyone considering an appeal against conviction or sentence should
note that there has been a significant change of culture in recent times. Having
become dismayed by the volume of appeals from new legal teams raising novel
points along with potential criticisms of decisions taken at trial, the court has
made it clear that the new lawyers have a heavy burden to overcome to satisfy
themselves that the proposed grounds are properly arguable and based on a
sound history of the previous advice received and the instructions given.17
The new team should advise the applicant that the Registrar will expect a
waiver of privilege (on previous advice received – not current advice being
given) so the court can investigate what instructions or advice was provided
at trial and any tactical decisions that were taken. If a suitable waiver is not
forthcoming adverse inferences may be drawn.18
The Guide cautions:
‘it is necessary for the fresh solicitors or advocate to approach the
solicitors and/or advocate who previously acted to ensure that the facts
upon which the grounds of appeal are premised are correct, unless there
are exceptional circumstances and good and compelling reasons not to
do so.’
This guidance has now been incorporated into the updated Practice Direction.19
These directions are essential reading for any fresh team of lawyers, as failure
to comply could easily lead to a wasted costs order and/or a loss of time
direction.

15 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_
data/file/763958/ex107-gn-eng.pdf
16 Form EX107 has a declaration that you agree to pay the costs of the transcript.
17 R v Davis and Thabagu [2013] EWCA Crim 2424; R v Achogbuo [2014] EWCA Crim 567;
R v McCook [2014] EWCA Crim 734.
18 The Guide A.4-1–4-3.
19 CPD IX Appeal, para 39 C.4 [c]–[h].

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6.14 Applying for leave to appeal

Where a new defence team are advising they are warned that they must take
account of the fact that their client should have already received advice on
appeal and, if it was positive, the previous lawyers would have lodged any
grounds of appeal. Bearing that in mind the new lawyers must comply with
their duty of due diligence outlined in McCook and explain to their client that
a waiver of privilege is very likely to be required. Any fresh grounds should be
reviewed carefully once the original trial lawyers have responded to confirm
that the proposed ones are ‘reasonably arguable and particularly cogent’. Once
lodged the Registrar will get transcripts and usually ask for a respondents’
notice to address the fresh grounds.
These principles have been developed further to highlight:
(i) the duty to obtain objective and independent evidence to establish the
evidential basis for the new grounds;20
(ii) the need for extensive enquiries of the previous team on all relevant
matters;21
(iii) the waiver of privilege procedure for criticism of the previous team;22
(iv) the waiver of privilege procedure for new evidence cases (see 6.31).23

Fresh and amended grounds procedure

6.14 Where the previous lawyers submitted grounds that were rejected by
the single judge and the new lawyers want to put in fresh grounds, they will
have to establish whether they need to vary the original appeal notice as well
as applying for an extension of time to submit fresh grounds.
The principles to be applied were extensively discussed in R v James (per
Hallett LJ, VP):24
‘(i) As a general rule, all the Grounds of Appeal an applicant wishes to
advance should be lodged with the Notice of Appeal/Application;
subject to their being perfected on receipt of transcripts from the
Registrar.
(ii) The filter mechanism provided by section 31 of the CAA 1968
(consideration of the application for leave by the single judge) is an
important stage in the process and should not be “bypassed” solely
on the basis that lawyers instructed post-conviction would have done

20 R v Lee [2014] EWCA Crim 2928.

21 R v McGill & Ors [2017] EWCA Crim 1228.
22 R v JH [2014] EWCA Crim 2618.
23 R v Singh [2017] EWCA Crim 466.
24 Above at 24.

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 Advice on appeal 6.14

or argued things differently from the trial lawyers. Fresh Grounds

advanced by fresh counsel must be particularly cogent.
(iii) Once an application for leave has been considered by a single Judge,
if the applicant wishes to advance fresh Grounds that have not
in substance been considered by the single judge, they require the
leave of the court. Applications to advance fresh Grounds must be
accompanied by an application to “vary” the notice of appeal. If there
is any doubt as to whether a Ground is ‘fresh’, an application to vary
should be made.
(iv) The advocate should address in writing the relevant factors which
the full Court is likely to consider in determining whether to allow
variation of the notice of appeal and an extension of time for the
renewal if required.
(v) In deciding whether to vary the Grounds of Appeal, the full Court will
take into account the following (non-exhaustive) list of issues:
(a) The extent of the delay in advancing the new ground/s;
(b) The reason for the delay in advancing the new ground/s;
(c) Whether the issues / facts giving rise to the new Grounds
were known to the applicant’s representative at the time he or
she advised the applicant regarding any available Grounds of
Appeal;
(d) The overriding objective (Crim PR 1.1) namely acquitting the
innocent and convicting the guilty and dealing with the case
efficiently and expeditiously;
(e) The interests of justice.
(vi) The application to vary would not require “exceptional leave” (by
demonstrating substantial injustice) but the hurdle for the applicant
is a high one. Counsel should remind themselves of the provisions
of the PD. 39C.2 namely that “Advocates should not settle grounds
unless they consider that they are properly arguable. Grounds should
be carefully drafted.” They should also bear very much in mind their
duty to the court.
(vii) Advocates should also remind themselves of the rules relating to
time limits. Leave will not be given to renew out of time unless the
applicant can persuade the court that very good reasons exist. If the
application to renew out of time is accompanied by an application to
vary the Grounds the hurdle is higher.
(viii) For pragmatic reasons we suggest the application to vary should
be considered by the full Court and not on the papers. An applicant
would have a right to require a review of a decision not to vary if it

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6.15 Applying for leave to appeal

were made by the Registrar or single Judge and a full Court hearing
would in any event be required.
(ix) Assuming that the applicant will have received advice and assistance
on appeal from his trial advocate, who will have advised that no
grounds exist on which to challenge the safety of the conviction or
settled the original Grounds of Appeal in the notice of appeal, fresh
counsel should in every case be required to comply with the duty
of due diligence as explained in McCook [2014] EWCA Crim 734.
Waiver will almost certainly be required.
(x) Once the trial lawyers have responded, “fresh counsel” should again
consider with great care their duty to the court and whether the “fresh
grounds” should be advanced as properly arguable and particularly
cogent.
(xi) The Registrar should obtain, in advance of the full Court hearing,
transcripts relevant to the new Grounds and (where required) a
Respondents’ Notice relating to the new Grounds.
(xii) The Crim PR Committee may wish to consider formulating rules for
the lodging of a Notice of Application to vary a notice of appeal.
(xiii) On any renewal the full Court when refusing an application to vary
the notice of appeal has the power to make a loss of time order or
order for costs in line with R v Gray and Others. By analogy with
R v Kirk [2015] EWCA Crim 1764 (where the Court refused an
extension of time) the Court has the power to order costs of obtaining
the Respondent’s Notice and or transcripts.’
The above procedure should be carefully followed and clients advised
accordingly of the possible consequences.

TRIAL JUDGE’S CERTIFICATE

Whether to apply for a trial judge’s certificate

6.15 The alternative to applying for leave is to apply to the judge who
conducted the trial or imposed the sentence (depending on the nature of the
decision being appealed) for a certificate that the conviction or sentence is fit
for appeal.25

6.16 A certificate can only be granted in very exceptional circumstances26

and it will only arise when the appeal involves a point of law:

25 CAA 1968, s 1(2)(b) in respect of conviction; CAA 1968, s 11(1A) in respect of sentence.
26 R v Kalis [2003] EWCA Crim 1080.

78
 The grounds of appeal 6.19

(a) The procedure is governed by section 1(2)(b) of CAA 1968 and Part 39.4
CrimPR.
(b) An oral application may be made immediately after the relevant decision
or a written application must be made within 14 days providing similar
information to an appeal notice.
(c) If the judge decides to issue the certificate they must do so within 28 days
of the decision. This statutory time limit may not be extended, unless it
relates to insanity or unfitness to stand trial.27
(d) The certificate is issued by the judge completing Form C and the Crown
Court officer sending it to the Registrar – Part 36.8(5) CrimPR.
(e) The refusal to grant a certificate may not be appealed.
(f) If the certificate is granted, the Crown Court may also grant bail pending
appeal. This should specify a condition of residence. The procedure for
such applications is to be found in the relevant Practice Direction which
adopts the general procedure set out in Part 14 CrimPR.28
(g) If the certificate is granted there is no requirement to lodge grounds.
However, a Form NG must still be lodged with the Court of Appeal.

THE GROUNDS OF APPEAL

Who may draft grounds of appeal?

6.17 The grounds may be drafted by the applicant, his solicitor or advocate.
The Registrar will not accept grounds drafted by a third party unless they are
expressly adopted by the applicant (except in exceptional cases, where the
applicant lacks the capacity to do so).

The form and content of the grounds

6.18 The purpose of the grounds is to convince the High Court judge who
will consider them (‘the single judge’) to grant leave to appeal. They should
therefore be drafted with care so as to ensure that they are as clear, concise and
persuasive as possible.

6.19 The Practice Direction makes it clear that the traditional practice of
submitting short grounds and a separate advice on appeal should no longer
be followed and advocates should not include their written advice to the lay

27 CAA 1968, s 16A(2)(b).

28 CPD III Custody and Bail, Para14 H5-6.

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6.20 Applying for leave to appeal

client.29 The grounds must be lodged with the relevant appeal notice (with
separate Form NGs for conviction/sentence/confiscation) and they must be
signed and dated. The Practice Direction now specifies exactly how they should
be drafted.30 The Criminal Procedure Rules also provide detailed advice on
the expected content of both the appeal notice (if there is no prescribed Form
NG) and the grounds; including the precise requirements that they should be
concise and drafted on A4-size portrait format (in not less than 12-point type
with 1.5 spacing).31

6.20 The rules now prescribe how the grounds should be set out:
(a) include in no more than the first two pages a summary of the grounds
that makes what follows easy to understand;
(b) in each ground of appeal identify the event or decision to which that
ground relates;
(c) in each ground of appeal summarise the facts relevant to that ground, but
only to the extent necessary to make clear what is in issue;
(d) concisely outline each argument in support of each ground;
(e) number each ground consecutively, if there is more than one;
(f) identify any relevant authority and—
(i) state the proposition of law that the authority demonstrates, and
(ii) identify the parts of the authority that support that proposition; and
(g) where the Criminal Cases Review Commission refers a case to the court,
explain how each ground of appeal relates (if it does) to the reasons for
the reference.

PARTICULAR ISSUES

Appeals against conviction (evidence)

6.21 In an appeal against conviction it is important to identify the
particular error at trial or fresh evidence that is relied upon. However, it is just
as important to identify how this makes the conviction ‘unsafe’. Whilst this
should not involve a lengthy description of the evidence, it is helpful to set out
the context in which the error is said to be significant. A common reason for
refusing leave is the single judge’s assessment that the evidence was so strong
that the error, or new evidence, would have made no difference to the jury’s

29 CPD IX Appeal, Para 39 C.1.

30 CPD IX Appeal, Para 39 C.2.
31 Part 39.3(2)(a)–(g) CrimPR; the Guide A.3-1 to 3-5.

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 Citation of authorities 6.24

decision. When the prosecution case appears to be strong, the grounds should
anticipate this objection: was the case truly overwhelming? If not, why not? If
it was overwhelming could the new evidence itself have created a doubt where
none otherwise existed?

Appeal against sentence (general)

6.22 The grounds should set out the offence, the maximum sentence that
was available for the offence, whether the plea was guilty or not guilty, details
of previous convictions and any other order made by the judge when passing
sentence. In a case involving several sentences it may be useful to include a
table setting out this information in relation to each offence and specifying
whether it was a concurrent or consecutive sentence.

Appeal against sentence (assistance provided to the police)

6.23 When a ground of appeal is that insufficient weight was given for
assistance that the applicant had provided to the police, special considerations
apply. As these cases involve sensitive information that may be damaging to the
applicant (or others), should it become public, there is a particular procedure
to be followed.32 The grounds of appeal and Form NG should be lodged with
the Court of Appeal in the usual way. They should make no mention of the
fact that information had been given to the sentencing judge in the form of a
‘text’ about assistance that the applicant had been provided to the police. This
means that if the only ground of appeal is the failure of the Crown Court to
make a proper reduction in sentence for such assistance, the grounds will be
a very short, bland document. A separate note should then be lodged with the
grounds, marked for the attention of the Registrar. It should alert the Registrar
to the existence of the text and might also include any arguments in relation
to the text that the applicant wishes the court to consider. The Registrar will
ensure that the text is obtained and provided to the single judge and if leave
granted to the full Court with the necessary steps taken to prevent publicity.

CITATION OF AUTHORITIES
6.24 In R v Erskine33 the court emphasised that the only authorities that
should be cited are those which are strictly necessary to advance the case. Lord
Judge CJ said at para 75:
‘If it is not necessary to refer to a previous decision of the court, it is
necessary not to refer to it.’

32 The Guide A.5-2.

33 R v Erskine [2009] EWCA Crim 1425.

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6.25 Applying for leave to appeal

6.25 In appeals against conviction the court emphasised that the authorities
relied on, should be, those which establish a particular proposition, and not,
those which do ‘no more than illustrate or restate an established proposition.’
(Erskine, para 78)

6.26 The Court was particularly concerned about unhelpful citation of

authorities in sentencing cases:
‘Advocates must expect to be required to justify the citation of any authority.
In particular where a definitive Sentencing Guidelines Council guideline is
available there will rarely be any advantage in citing an authority reached
before the issue of the guideline, and authorities after its issue which do not
refer to it will rarely be of assistance. In any event, where the authority does
no more than uphold a sentence imposed at the Crown Court, the advocate
must be ready to explain how it can assist the court to decide that a sentence
is manifestly excessive or wrong in principle.’ (Erskine, para. 80)

6.27 While it is important to follow this guidance it is also important

that it should not cause such anxiety that an authority that is genuinely
significant is not drawn to the court’s attention. The golden rule must be
that the advocate is able to justify reference to a particular authority in the
light of the approach that Erskine requires. The definitive citation rules are
now summarised in the Practice Direction concerning matters of general
application to all aspects of advocacy.34

NEW ARGUMENTS
6.28 If the appeal is based on a legal argument that was not raised in
the Crown Court, the court will want to know why it was not raised. If it is
necessary to apologise for failing to spot a legal point, then apologising in
the written grounds is more likely to disarm any criticism than having that
concession extracted by judicial cross examination at the full hearing.

Failure to object to things said in the summing up

6.29 If the appeal concerns the judge’s summing up the Court will want
to know:
(a) Did the judge give the advocate the opportunity to address them,
before the summing up, on any matters about which the applicant now
complains? If so, did the advocate raise the point that is now raised on
appeal? If not, why not?

34 CPD XII General Application, paras D2–D7.

82
 Fresh evidence 6.31

(b) Did the advocate seek to address the judge at the conclusion of the
summing up in relation to the matter? If not, why not?

Criticism of previous lawyers

6.30 This is subject to detailed guidance which must be followed
(see 6.13). The client needs to be advised at an early stage that waiver of
privilege will be expected so the previous lawyers can respond fully and
the court will be able to look at the instructions given at the time of the trial
and the advice provided. Any indication that the matter should have been
pursued then or was deliberately avoided for tactical reasons will be likely
to be fatal to the appeal.

FRESH EVIDENCE
6.31 At the leave stage the single judge should actively consider
the reason why the evidence was not sought at the trial stage. This will
involve asking whether there has been a waiver of privilege and if not
why. A Respondent’s Notice will be required and the single judge should
direct one if none has been filed. Having considered the response of the
trial representatives the single judge should consider whether admission
of the fresh evidence is potentially arguable. If it is not then leave should
be refused, but if it is, the single judge should refer the application to the
full court with directions rather than grant leave. Once referred the parties
should ask for further direction from the court.35
Once referred the matters to be considered include:36
(a) The section 23(2) CAA considerations (as discussed in Chapter 3) need
to be addressed.
(b) If the applicant seeks to call evidence by way of live witnesses, Form
W must be completed for each proposed witness.37 In practice the
court may well hear and decide the appeal without actually hearing any
witnesses. Nonetheless, that is a decision for the court to take, and the
lawyers preparing the appeal need to offer the court the option of hearing
the evidence.
(c) The court has the power to order the attendance of a witness.38 This
includes witnesses who would not be compellable to give evidence at

35 R v Kunwar Singh [2017] EWCA Crim 466, paras 52–55.

36 The Guide A.5.
37 Available on the Ministry of Justice website.
38 CAA 1968, s 23(1)(b).

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6.32 Applying for leave to appeal

trial, such as previous lawyers and jurors.39 If such an order is required,

the Form W should make that clear. The granting of such an order does
not mean that the court will hear the evidence. That will be decided by
the full court at the hearing.
(d) The statements of the witnesses (in section 9 form) or the documents that
constitute the fresh evidence, should all be attached.
(e) There must be a ‘Gogana’ statement40 from the applicant’s solicitor
in section 9 form (or affidavit) setting out why the evidence was not
available at trial and how it came to light. The Guide, points out ‘This
will implicitly require fresh representatives to comply with McCook’.41
(f) Applications for any of the following orders should be made in
accordance with the relevant Parts of the Criminal Procedure Rules.42
(i) written witness statements (Part 16 CrimPR);
(ii) measures to assist a witness or defendant to give evidence (Part 18
CrimPR);
(iii) hearsay evidence (Part 20 CrimPR);
(iv) evidence of bad character (Part 21 CrimPR);
(v) evidence of a complainant’s previous sexual behaviour (Part 22
CrimPR).
If these issues are raised in the grounds then they should be addressed in the
Respondent’s Notice (RN) or if raised in the Respondent’s Notice then the
applicant has 14 days to respond. The court and the Registrar have powers to
make directions without a hearing.43
The court can also make orders for the production of exhibits, documents
or other material (Part 39.7(3) CrimPR); or the attendance of witnesses
before the court, or an examiner on behalf of the court, provided the correct
procedure is followed (Part 39.7(4)–(7) CrimPR).

CHANGE IN LAW APPEALS

6.32 Where the application is lodged in time (see 6.8) the test is whether
the conviction is unsafe. Where the application is made out of time the then

39 Criminal Justice and Immigration Act 2008, Sch 8, para 10 introduced this amendment to
CAA 1968, s 23.
40 R v Gogana (1999) Times, 12 July.
41 The Guide A.5-1.2.
42 Part 39.7(1) CrimPR.
43 Part 39.7(2) CrimPR.

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 Change in law appeals 6.35

exceptional leave will be required. This will only be granted if the applicant
will suffer ‘substantial injustice’ due to the change in the law.44

Applying for extension of time within which to appeal

6.33 For those applications that are lodged after the end of the 28-day
period there is a box to be ticked in the Form NG indicating that an application
for an extension is being made. In addition to ticking the box it is essential that
the reasons for delay should also be clearly explained either in the grounds or
as a separate document.

6.34 In a case involving significant delay, particularly where that delay

has been brought about by the time that it took fresh solicitors to prepare the
appeal, the application should be accompanied by a chronology of the work
that has been done in the lead up to lodging the application with particular
reference to the timing of instructions and actions taken. (See 6.8–6.11
above, for consideration of time limits, extensions and the need for due
diligence). The substantial injustice test may prevent leave being granted
even where the appeal is unopposed or had substantial merit.45

Other documents to be lodged in support of the application

6.35 It is always worth considering what other documents might be
needed for the court to understand the grounds. Examples would include
the written directions to the jury if they are being criticised or a witness
statement that was admitted in evidence by way of a hearsay ruling that is
a ground of appeal. If there was relevant CCTV or other footage it should
be supplied with a summary if it would assist. In appeals based on new
material that relies on the applicant being a victim of trafficking, the Criminal
Appeal Office will want the relevant material including the National Referral
Mechanism (NRM) assessment and accompanying evidence to be lodged
with the Form NG.
It makes sense to copy and attach such documents to avoid any delay caused
by the Registrar later having to obtain them.

44 R v Johnson & Ors [2016] EWCA 1613; The Guide A.5-3.

45 R v Ordu [2017] EWCA Crim 4.

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6.36 Applying for leave to appeal

OTHER APPLICATIONS WHICH MAY BE MADE

ALONG WITH THE APPLICATION FOR LEAVE

Applications for bail

6.36 The single judge does have the power to grant bail pending appeal.
However, the court has held that bail pending appeal should only be granted in
exceptional circumstances in which the court concludes that it is necessary in
order to ‘do justice in the case’.46

6.37 Bail cannot be applied for until an application for leave is lodged.47
If a bail application is included with the application for leave then usually the
single judge will consider it when they decide whether to grant leave.

6.38 The application for bail should be made with Form B, and served on
the CPS (or the prosecuting authority). The rules for bail applications are at
Part 39.8 CrimPR. If bail is granted with pre-conditions before release, such as
a surety, the specific steps are outlined at Part 39.9.48

6.39 If the issue of bail is urgent because of the shortness of the sentence
or ill-health of the applicant, a note should be sent to the Registrar making
this clear. In extreme cases the Registrar may ask the single judge to consider
bail before the application for leave is considered. However, the court only
grants bail in exceptional circumstances so it is very unlikely to do so without
consideration of the strength of the application for leave itself.

6.40 The granting of bail should not create an expectation that the applicant
will not be returned to prison should the appeal fail.49

Request for an expedited hearing

6.41 As well as applying for bail or in cases where bail is unlikely to be
granted the applicant can ask for an expedited hearing. There is no form to be
submitted but a note attached to the application should make clear the reasons
for urgency. If the Registrar can refer the case to the full court immediately for
a rolled-up hearing of leave and, if granted, the appeal.

46 R v Watton (1979) 68 Cr App R 293.

47 R v Suggett (1985) 81 Cr App R 243.
48 The Guide A.13.
49 R v Kalia (1974) 60 Cr App R 200.

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 Other applications 6.46

Requests for transcripts

6.42 Once an application for leave is lodged the Registrar will obtain a copy
of the summing up (in an appeal against conviction), sentencing remarks (in an
appeal on sentence) and prosecution opening facts (in a sentence following a
guilty plea).50

6.43 If the applicant asks for a transcript of any other part of the trial
(specific evidence, a judge’s ruling or a legal argument) in the application for
leave to appeal conviction, they should explain why it is necessary for the
appeal and identify the date and, if possible, the time at which the relevant part
of the trial commenced and concluded.51 Transcripts can also be requested in
an application for leave to appeal against sentence.52

Applications for funding

6.44 The Form NG contains a box to apply for a representation order. It
will be granted if leave to appeal is granted. Usually it will be only be granted
for an ‘advocate alone’ which will not cover the instructing solicitor. If the
appeal requires work by the solicitor and they have a criminal legal aid contract
an application can be made to the Registrar to extend the representation order.
This can be done by letter and it will help if the advocate provides a supporting
note confirming the work that needs to be done. If the Registrar does not grant
the application to extend the order they will usually refer it to the single judge
or the full court.

6.45 If the Crown Court representation order was for a junior and a leading
junior or QC, the Court of Appeal will normally grant a representation order
for a single advocate only on the basis that two advocates will not be needed
for the presentation of the appeal.53 Again, a letter explaining why it requires an
additional advocate with a supporting note will need to be sent to the Registrar.
See Chapter 8 for a detailed consideration of funding.

Disclosure of third-party material

6.46 If third-party material is needed for the appeal the applicant must
provide a clear and compelling explanation why the material was not obtained

50 The Guide A.7-1 to 7-2.

51 Part 39.3(c) CrimPR; the Guide A.7.
52 The Guide A.7.3 to 7.5: the appellant may be ordered to pay for them and a privately funded
one will be expected to.
53 The revised Form NG asks that a copy of the Crown Court representation order is attached if
possible.

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6.47 Applying for leave to appeal

in the Crown Court.54 The full court, the single judge and Registrar can order a
third party to produce documents or other material, but they will only do so in
exceptional cases.

6.47 An application for third-party material should contain:

(a) completed Form W;
(b) details of the material sought;
(c) its relevance to the appeal;
(d) details of the party against whom any order for production of the material
is to be made; and
(e) details of any refusal of the party to provide the material on a voluntary
basis.

6.48 The application should be served on the party in question (and anyone
the material relates to) so that they can raise any objections.55 If there are
objections the court may direct that there is a hearing so that the parties who
are directly concerned can be heard, before deciding to make the order.

Request for an oral leave hearing

6.49 It is possible to apply for an oral leave hearing to argue the grounds
before the single judge. This is rare given that the applicant will have a right to
an oral hearing if they renew the refused application (on the papers).

LODGING THE GROUNDS – DIRECT LODGEMENT

6.50 The traditional practice of sending the grounds to the relevant Crown
Court ended on 1 October 2018. There is a new Form NG for conviction,
sentence and confiscation that should be completed separately for each. They
should be sent by secure email to the Criminal Appeal Office. If that is not
possible then they can be posted.56

6.51 When an application for leave is received by the Registrar, the

Criminal Appeal Office’s lawyer will:
(a) check that the application for leave is in valid form;

54 R v Niwar Doski [2011] EWCA Crim 987.

55 R (on the application of TB) v The Combined Courts at Stafford [2006] EWHC 1645 (Admin).
56 [email protected]; para 39C.5 CPD IX Appeal; the
Guide A2-2.

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 Steps before the case is sent to the single judge 6.55

(b) if the application is out of time, check an application for extension of

time has also been made;
(c) contact the Crown Court to ensure that all relevant exhibits are retained
until the conclusion of any appeal;
(d) obtain the transcripts and any other documents that are necessary for the
single judge to determine the application;
(e) if relevant, check there is a waiver of legal privilege and contact previous
lawyers for their comments on matters raised in the application;
(f) if appropriate, ask the prosecution for their views, before the case is sent
to the single judge.57 If the prosecutor wishes to make observations on
the appeal they will serve a Respondent’s Notice (see 6.56).

6.52 The Registrar has the power to refer a case directly to the full court
to deal with leave and any appeal as a rolled up hearing. There are a number
of reasons why this might be done: if co-defendants have already been given
leave to argue the point; if the need for a hearing is urgent or the question
of law is particularly complicated; or if the Registrar is of the view that the
application may be considered vexatious. However, this is unusual.

STEPS BEFORE THE CASE IS SENT TO THE SINGLE

JUDGE

Perfecting the grounds

6.53 Before the case is considered by the single judge the Registrar will
send the relevant transcripts from the trial to the applicant or their lawyers, if
represented. This is so that the grounds can be reviewed or ‘perfected’. The
‘perfected’ grounds should be a new document. It will replace the original
grounds and should contain references to the page and paragraph number of
the relevant passages in the transcripts.

6.54 The applicant will be given 14 days to perfect the grounds or they
will need to apply for more time.58 The advocate should include a list of
any relevant case law with the perfected grounds along with copies of any
unreported authorities (see 6.24 and 6.25).59

6.55 The Registrar may direct that the transcripts must be returned
unmarked so a copy should be made and kept for any future hearings.

57 Part 39 CrimPR specifies when a prosecution response is required.

58 The Guide A.8 sets out the expectations.
59 Part 39.3(2)(g) CrimPR; the Guide A.8-5.

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6.56 Applying for leave to appeal

Responses from trial lawyers and the respondent

6.56 The applicant will be given the opportunity to respond to the
observations from the trial lawyers to any additional questions asked by
the Registrar. This can be made by amending the grounds or in a separate
document. It may be unnecessary to add anything if it is already covered in the
grounds.

6.57 The respondent should serve their response (Form RN) on the
applicant.60 However, they sometimes fail to. It is therefore worth contacting
either the CPS Appeals Unit or prosecuting counsel directly in order to check
if one has been completed. The Registrar will ask for a Form RN in the
following cases:
(i) where the grounds concern matters which were the subject of public
interest immunity (PII);
(ii) allegations of jury irregularity;
(iii) criticisms of the prosecution or the conduct of the judge;
(iv) complex frauds;
(v) inconsistent verdicts;
(vi) fresh evidence; and
(vii) where the grounds claim that the wrong statute, rule or regulation was
applied.
The prosecution will be invited to lodge a Form RN in the following cases:
(i) all applications involving a fatality;
(ii) all conviction applications involving rape, attempted rape or a serious
sexual offence;
(iii) all conviction applications where the CPS Complex Casework Unit dealt
with the case;
(iv) all conviction applications where the offence was perverting the course
of justice.

6.58 The applicant should respond urgently to any new points in the Form
RN as the papers will go to the single judge as soon as the Form RN is received.

60 Part 39.6(3)–(6) CrimPR; CPD IX Appeal, para 39D; the Guide A.9.

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 Renewing an application for leave 6.65

DECISION OF THE SINGLE JUDGE

6.59 Once the perfected grounds, the trial lawyers’ comments and the
Form RN are received, the papers will be sent to the single judge who may:
(a) grant leave on some or all of the grounds that are arguable;
(b) refuse leave on all grounds; or
(c) refer the case to the full Court.

6.60 Other applications, including representation and any extensions of

time, will also be considered. The reasons for the decisions will be set out in
the Form SJ, which will be sent to the applicant. If the judge refuses leave they
will also initial the ‘loss of time box’ if they believe the application is hopeless
(see 6.65 and 6.66).

6.61 If leave is granted, then a representation order will be granted to the

advocate to appear at the hearing to argue any grounds that have been given
leave.

6.62 Waiting for the decision of the single judge can be frustrating because,
once the papers have been sent to the judge, the Criminal Appeal Office cannot
tell the applicant precisely how long it will take the judge to consider them.
Often ‘the papers are with the judge’ is the only indication that will be given.

RENEWING AN APPLICATION FOR LEAVE

6.63 The applicant can renew the application for leave on any of the
grounds that have been refused. The application must be lodged within 14 days
of receipt of the Form SJ. This is done by completing the SJ Renewal Form that
is on the reverse side of the Form SJ and sending it to the court. The 14-day
period will only be extended in exceptional circumstances. Any application for
extension will be referred to the full court with the renewal application.

6.64 If all of the grounds were refused, the application to renew will be
heard by the full court. If leave has been granted on some grounds, the renewed
application for leave for the remaining grounds can be argued at the full appeal
hearing. However, when leave is partially granted the applicant will have to
remember to complete the renewal form for any refused grounds that they want
to re-argue at the appeal hearing.

6.65 The decision to renew is often difficult. It is not made any easier by
the fact that legal aid will have come to an end. The advocate and their solicitor
will need to reflect on the reasoning of the single judge when reviewing
the strength of the grounds. On the one hand, the advocate should not have

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6.66 Applying for leave to appeal

drafted grounds unless they thought that they were arguable, on the other a
High Court judge has said the case is not arguable. The applicant will need
to be advised on the risk of a ‘loss of time’ order and whether the advocate
is prepared to act pro bono or, if not, the cost of renewing privately. The
advocate will note the advice in the Guide that they should never act simply
because they are instructed to do so, but only if there are reasonably arguable
grounds (see 6.6). Having said that if the grounds are properly arguable the
advocate should stand by them. Many appeals are allowed despite refusal
of leave by the single judge. Indeed, some appeals have been allowed even
when the single judge has initialled the loss of time box. If the advocate does
act pro bono on the renewal and leave is granted by the court then usually a
retrospective representation order will be granted to cover the hearing (see
Chapter 8).

The risk of loss of time served and costs

6.66 The biggest risk for the applicant is that the court will direct that some
of the time served whilst appealing should not count towards sentence.61 The
court should only do this if it thinks the application lacks any merit.

6.67 The initials of the single judge in the loss of time box on the Form
SJ is an indication to the full court that it should consider making an order for
loss of time. That creates a higher risk of a ‘loss of time’ order being made.
Even if the box is not initialled there is still a risk.62 An order can be made even
when the applicant’s advocate advised that there were arguable grounds of
appeal.63 The full court is becoming increasingly active in considering loss of
time orders. As we are reminded in the Practice Direction:64
‘unmeritorious renewal applications took up a wholly disproportionate
amount of staff and judicial resources in preparation and hearing time. They
also wasted significant sums of public money … The more time the Court
of Appeal Office and the judges spent on unmeritorious applications, the
longer the waiting times were likely to be … The only means the court has
of discouraging unmeritorious applications which waste precious time and
resources is by using the powers given to us by Parliament in the Criminal
Appeal Act 1968 and the Prosecution of Offenders Act 1985.’65
In the end the decision to renew must be the applicant’s, but they will rely
heavily on the advice they receive and whether the advocate will agree to act
pro bono. Even if a loss of time direction cannot be made because the applicant

61 CAA 1968, s 29.

62 Para 39 E.1 CPD IX Appeal; the Guide A.16.
63 R v Hart [2006] EWCA Crim 3239; CPD IX Appeal, para 39E.3.
64 CPD IX Appeal, para 39E.2.
65 R v Gray & Others [2014] EWCA Crim 2372.

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 Abandoning an application for leave 6.71

has been released from detention the single judge should additionally consider
whether to indicate that an adverse costs direction should be considered by the
full court.66

Renewing when considering taking the case to the European

Court of Human Rights
6.68 Where the applicant wants to take a point to the European Court of
Human Rights they should considering renewing the application.67 Otherwise
there is a danger that, by not renewing, it could later be said that the domestic
remedies had not been exhausted, which can be a bar to the European Court
considering the application. Where compatibility with a Convention right
arises the Registrar will give notice the any party potentially affected.68

Renewing other applications

6.69 On renewing an application for leave the applicant can also renew
other applications, including bail. These applications are renewed on the
same SJ Renewal Form to renew the leave application. They need to be made
within 14 days of receipt of the SJ decision. They will be considered by the
full court at the renewal hearing.

ABANDONING AN APPLICATION FOR LEAVE

6.70 Any application will be considered by the court unless it is
abandoned by the applicant. The decision to abandon is made by lodging a
Form A with the court prior to the hearing. The Form A needs to be signed by
the applicant or their lawyer. Abandonment can be made at the hearing, but
only with the leave of the court.69 The main reasons to abandon are to avoid
the risk of a loss of time or costs order.

6.71 Once an appeal is abandoned no new appeal against the same

decision may be brought, unless the case is referred to the court by the
Criminal Cases Review Commission. Abandonment cannot be withdrawn.
Therefore, by abandoning a case the appellant is effectively signing away
his appeal rights.

66 R v Terence Nolan [2017] EWCA Crim 2449; CPD IX Appeal, para 39E.4.
67 See the discussion in Chapter 11.
68 Part 36.12(2) CrimPR.
69 Part 36.13(2) CrimPR.

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6.72 Applying for leave to appeal

Abandonment as a nullity
6.72 Abandonment may only be challenged on the basis that an apparent
abandonment is a nullity. Abandonment will be a nullity when the Court
concludes that the mind of the applicant did not go along with the act of
abandonment (R v Medway).70 The clearest example of this would be where
the applicant signed a notice of abandonment thinking that he was signing a
different type of document.71

Bad legal advice giving rise to nullity

6.73 The court may accept that the abandonment was a nullity if it was
based on bad legal advice (R v L72), but only if that advice was positively
wrong, not if it was advice on a difficult point with which some might agree
and others disagree (R v Smith (Paul James)73).

Making an application for reinstatement

6.74 If the Court agrees the abandonment was a nullity it will reinstate
the application. An application to reinstate an appeal or application for leave
following abandonment is heard before the full court and the applicant
must satisfy the court that it was a nullity.74 The procedure is contained in
Part 36.13 CPR.75

Skeleton arguments
6.75 It may be useful to serve a skeleton prior to the hearing especially
if there is a novel point to argue or it involves a complex sentence.76 Any
skeleton must be served at least 21 days before the hearing and any response
at least 14 days before the hearing unless the court says otherwise.77
Skeletons should be no more than a numbered list of points that the advocate
wants to cover for each ground using no more than one or two sentences.
The document should have the CAO reference and the date it was served
on the header and the advocate’s name on the footer.78 The advocate should

70 (1976) 62 Cr App R 85.

71 As happened in R v Mohamed [2010] EWCA Crim 2464.
72 [2013] EWCA Crim 1913.
73 [2013] EWCA Crim 2388.
74 R v Medway (1976) 62 Cr App R 85; R v Zabotka [2016] EWCA Crim 1771.
75 The Guide A.17.
76 CPD IX Appeal, para 39F.1.
77 CPD IX Appeal, para 39F.2.
78 CPD IX Appeal, para 39F.3; See general guidance at CPD XII General Application, para
D17-23.

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 Abandoning an application for leave 6.76

double check that list of authorities is correct and the bundle complies with
the general Practice Direction.79

The hearing
6.76 Normal case management duties apply to appeals just as in any
criminal matter.80 The Registrar and the single judge have extensive statutory
powers that apply to efficient management of the case and obtaining evidence.81
If the Registrar refuses to make a procedural direction there is a right of appeal
to the single judge.82
The judges hearing the appeal will have the papers prepared by the lawyers
at the Criminal Appeal Office. These consist of a case summary which comes
in two parts. Part 1 goes to the advocate (or unrepresented appellant). They
can be shown to the lay and professional client but they are not for wider
circulation and should not be copied without permission. Part 1 consists of:
(i) a summary of the proceedings in the Crown Court including names of
the representatives and any co-defendants;
(ii) a history of the proceedings in the Court of Appeal;
(iii) a summary of the case drafted by the lawyer in the Criminal Appeal
Office based on the appeal documents,
(iv) the transcripts and trial statements or exhibits;
(v) the submissions, rulings, summing up and sentencing remarks.
The case summary is a matter for the lawyer drafting it but an advocate
can raise relevant matters to their attention as it is meant to be an objective
document.
Part 2 is for the court only and consists of:
(i) a summary of the grounds
(ii) in a sentence case the antecedent history of the applicant or appellant and
any pre-sentence report, medical report or other reports for sentencing.
The advocate should note that the court will have access to the source material
so they can refer them to it.83 Generally the hearings are to be conducted in
public but there are limited exceptions.84 Reasonable notice of hearings should

79 CPD XII General Application, para D.11-16.

80 Part 36.2 CrimPR; the Guide A.18.
81 CAA 1968, s 23(1)(a), s 31.
82 CAA 1968, s 31A(4).
83 CPD IX Appeal, Para 39G.
84 CrimPR, Part 36.6.

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6.77 Applying for leave to appeal

be given to anyone affected by the judgment.85 An appellant who is in custody

(but not an applicant), has a general right to attend the full hearing. That is
unless the court directs that it is only a point of law or the appellant was found
to lack capacity. This attendance will generally be by way of a prison video
link (PVL).86 Therefore, it is important, especially in sentencing renewals, to
confirm with the client in advance that they will waive this right to appear
at the appeal hearing if the renewal is successful and the court wishes to
proceed to a full appeal hearing immediately. This is generally good advice as
a successful renewal is more likely to lead to a successful appeal with the same
judges rather than taking the chance it will be adjourned and then heard by less
receptive ones. It will also save time and costs, which will be well received.
The advocate can expect to be asked if they have instructions to proceed.87

The judgment
6.77 Unless the court made a specific direction, the draft judgment is
provided to the lawyers about three working days before being handed down.
Any observations should be directed to the judge’s clerk. It should not be
circulated to the parties until two hours before being handed down. Any breach
of these directions will be treated as contempt.88

Miscellaneous appeals
6.78 The above outlines the general procedures in everyday appeals against
conviction, sentence and confiscation. Chapters 12, 13 and 14 look at more
specialist appeals and there is detailed guidance on the specific procedure or
forms required for these miscellaneous appeals against interlocutory rulings,
ancillary orders or costs in the HMCTS Guide.89

SUMMARY OF KEY POINTS

• Appeals from the Crown Court against conviction or sentence require
leave from the single judge or full court except in rare cases where it
might be appropriate to apply to the Crown Court for a certificate of
fitness for appeal.
• Application for leave to appeal must be lodged within 28 days of the
decision which is challenged.

85 CrimPR, Part 36.7.

86 CAA 1968, s 22 (c) gives the court the power to direct PVL.
87 Part 39.11 CrimPR.
88 Para C1-14 CPD XII General Application.
89 The Guide, paras B–E.

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 Summary of key points 6.78

• The court has the power to extend the time either before or after the
28 days expire. However, the application to extend must contain an
explanation for the delay.
• The application must be made using the specified Form NG and in
accordance with the requirements of Part 39.3 CPR.
• All other applications, including extension of time, bail and any
application for a representation order should be lodged with the grounds.
• The application must be lodged at the Criminal Appeal Office unless it
relates to a preparatory, terminatory or similar trial ruling, or is an AG
reference, in which case it is lodged at the Crown Court.90
• The Registrar’s office will prepare the case in order to either send it to the
single judge or refer it directly to the full court for consideration.
• If leave on any ground is refused by the single judge it may be renewed.
The application for renewal must be lodged within 14 days of the
decision.
• The court may consider exercising its power to loss of time order if an
application for leave is renewed that the court regards as being ‘wholly
without merit’. If the single judge has indicated on the Form SJ that the
court should consider this then there is a strong chance that it will do so.
• If leave has been granted on some grounds, renewal needs to be made
within 14 days on any remaining grounds that need to be re-argued at the
final hearing.
• Other applications that were refused by the single judge may also be
renewed before the court.

90 See summary: www.justice.gov.uk/courts/procedure-rules/criminal/docs/october-2015/2018-

appeal-forms/guidance-lodging-appeals-september-2018.pdf

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Chapter 7

Preparing for hearings in the Court of

Appeal

INTRODUCTION
7.1 Every advocate who has appeared before the Court of Appeal will
have had the experience of preparing the case thoroughly and arguing it
passionately only to sit down and listen to the Court deliver a judgment that
had clearly been written before the hearing commenced. It is tempting to ask
what was the point in arguing it at all?

7.2 Before the hearing the Court will often have formed a preliminary
view of the case. However, just as every advocate will have had the experience
of failing to change the Court’s collective mind, judges attest to occasions
when the Court was convinced by effective oral advocacy.

7.3 If belief in one’s ability to persuade is the first principle of advocacy

in the Court of Appeal, the second is that the task of persuading the Court does
not begin with the hearing itself. As the Court inevitably forms a preliminary
view of the case, it is important to try to influence its thinking as early as
possible by effective drafting, ensuring that important documents are lodged in
good time and that the relevant authorities are drawn to the Court’s attention.

7.4 This chapter covers the preparation for and presentation of the hearing.
The topics covered apply to both appeals with leave and oral applications for
leave to appeal. When different considerations apply to each type of hearing,
this is made clear.

PREPARING FOR THE HEARING

Considering the Court bundle

7.5 The Registrar (in practice the lawyer at the Criminal Appeal Office
who has been assigned to the case) is responsible for compiling the bundle of
material that will be considered by the judges. It will be sent to the parties in

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7.6 Preparing for hearings in the Court of Appeal

advance of the hearing. It should be read with care. This is the case that the
Court will read. In particular it is necessary to do the following:

Ensure that all the relevant documents are included

7.6 If either of the parties wish the Court to consider any document that is
not in the bundle, they should write to the Registrar, enclosing the document,
stating its relevance and asking that it be included. Alternatively, try phoning
the lawyer at the Criminal Appeal Office (whose details and direct number
are normally to be found in the correspondence) to discuss the contents of the
judges’ bundles.

Consider the case summary

7.7 Within the bundle will be the case summary that will have been
prepared by the lawyer in the Criminal Appeal Office. It will contain what the
writer considers to be the significant information about the facts of the case and
its procedural history.

7.8 It should be considered carefully. It is vital that it is accurate and that

it refers to the facts that are significant to the appeal. They are usually both
accurate and comprehensive but if there is an amendment that should be made,
the Registrar should be written to and asked to include it. Whether to make
the amendment sought is a matter for the judgment of the summary writer. If
it is decided not to include that matter in the case summary, the Court will be
provided with the document that requested its inclusion.1

7.9 Advocates can (unless the Registrar states otherwise) show the
summary to their clients but it should not be copied or reproduced.

Check the time estimate that has been given to the case
7.10 The summary writer’s view of the likely time estimate will be on the
front page. It will be used to list the case. The Court will expect hearings to
be concluded within the time estimate. Therefore, if it is thought that the time
estimate is inadequate, the Registrar should be written to2 and told why; bear in
mind, before doing so, that the hearing will be conducted by three experienced
judges who will have already read into the case.

1 Practice Direction 39G.3.

2 Practice Direction 39B.4.

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 Preparing for the hearing 7.14

Skeleton arguments
7.11 The Practice Direction provides:
‘39F.1 Advocates should always ensure that the court, and any other party
as appropriate, has a single document containing all of the points that are to
be argued. The appeal notice must comply with the requirements of CrimPR
39.3. In cases of an appeal against conviction, advocates must serve a
skeleton argument when the appeal notice does not sufficiently outline the
grounds of the appeal, particularly in cases where a complex or novel point
of law has been raised. In an appeal against sentence it may be helpful for
an advocate to serve a skeleton argument when a complex issue is raised.
39F.2 The appellant’s skeleton argument, if any, must be served no later than
21 days before the hearing date, and the respondent’s skeleton argument, if
any, no later than 14 days before the hearing date, unless otherwise directed
by the Court.
39F.3 A skeleton argument, if provided, should contain a numbered list of
the points the advocate intends to argue, grouped under each ground of
appeal, and stated in no more than one or two sentences. It should be as
succinct as possible. Advocates should ensure that the correct Criminal
Appeal Office number and the date on which the document was served
appear at the beginning of any document and that their names are at the end.’

7.12 It may well be helpful to draft a skeleton in a case that is to be

presented in a different way before the full Court to the way in which it was
first presented in the grounds (for example, if particular grounds are not going
to be advanced before the full Court, or more recent authorities relied on).

New grounds of appeal

7.13 The appellant must obtain leave to advance any new ground that was
not in the application for leave. Whilst the advocate should not be afraid to
pursue a powerful new ground, the Court has profoundly discouraged this
course; see R v James and Others.3

Authorities
7.14 Guidance from the Registrar on how authorities should be provided
to the Court will be set out in a letter from the Registrar with each case. The
general position is that a list of reported cases, with case references, should
have been supplied to the Criminal Appeal Office with the Perfected Grounds

3 [2018] EWCA Crim 285.

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7.15 Preparing for hearings in the Court of Appeal

of Appeal with copies of any unreported cases.4 If, when preparing for the
appeal, the advocate discovers a further authority, the Registrar should be told
as soon as possible. The Court is unlikely to flatly refuse to look at a further
case at the hearing, but it would be foolhardy to ask them to do so without
having ready at least an apology and, better still, a reasonable explanation for
asking them to do so.

7.15 In deciding what authorities (if any) to rely on, it is important to

bear in mind what the Court said in Erskine about not placing unnecessary
authorities before the Court and, in particular, not relying on sentencing cases
that pre-date a sentencing guideline or guideline case, unless there is very good
reason to do so. (See 6.24–6.27 for full details.)

LISTING THE HEARING

7.16 The Court of Appeal Listing Office is responsible for fixing a date
for hearing, of which the parties are notified. It will consider applications for a
hearing to be moved but will generally not move a case because the advocate
has another case in a lower Court. Appearances in the Court of Appeal must
take precedence.5

THE HEARING

Presence of the appellant/applicant

Hearings with leave
7.17 An appellant who is in custody has the right to be produced at his full
hearing, unless he suffers from insanity or a disability; this will almost always
be by way of a video link, and the Court now has video conference facilities.
There is no right to be present at a preparatory hearing although production can
be requested.6

7.18 If the appellant does not wish to be produced, the appeal can take
place in his absence.7 For this to take place the Registrar may require his
consent to be in writing.

4 Part 39.3(2)(g)) CrimPR.

5 Practice Direction 39B.2.
6 CAA 1968, s 22.
7 CAA 1968, s 22(4).

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 The hearing 7.22

Renewed applications for leave

7.19 Applicants have no right to be present at renewed applications for
leave. If an application for leave to appeal against conviction is successful then
the full hearing will generally take place at a later date at which an appellant
who is in custody will then be produced. However, if the application for leave
to appear against sentence is successful, the Court will usually proceed to
determine the appeal at the same hearing, in the absence of the appellant. If
this takes place, the Registrar will then write to the appellant informing him of
the result of the hearing and of his right to have a further hearing at which he
will be present but that the Court will only consider new submissions at such a
hearing if the applicant presents new material (R v Spruce and Anwar).8

7.20 In order to avoid this taking place the applicant’s solicitors should, in
advance of the hearing, obtain their client’s instructions on whether he would
wish to be present at the full hearing. In any event, it is often the practice of
the Court to produce the applicant from custody in cases where the effect of
granting leave and allowing the appeal against sentence would be his immediate
release.

When the appellant has absconded

7.21 If the appellant has absconded whilst in custody or on bail, the Court
may dismiss the appeal, hear it in the absence of the appellant or adjourn the
case pending his being returned to custody. The Court has held that it is only in
exceptional cases that the Court will hear the appeal.9 An important factor will
be whether the appellant had given his lawyers instructions that are sufficiently
clear and detailed for them to be able to properly advance his case in his
absence.10

When the appellant has died

7.22 Section 44A of CAA 1968 provides that an appeal can continue when
an eligible person can be identified and approved by the Court to take over his
case. The categories of eligible persons are:
(a) the widow or widower, or surviving civil partner, of the dead person;
(b) a person who is the personal representative (within the meaning of
section 55(1)(xi) of the Administration of Estates Act 1925) of the dead
person; or

8 [2005] EWCA Crim 1090. See also CPR, r 68.12.

9 R v Gooch [1998] 2 Cr App R 130 (CA), confirmed in R v Salloum [2010] EWCA Crim 312.
10 R v Okedare [2014] EWCA Crim 228.

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7.23 Preparing for hearings in the Court of Appeal

(c) any other person appearing to the Court of Appeal to have, by reason of a
family or similar relationship with the dead person, a substantial financial
or other interest in the determination of a relevant appeal relating to him.

7.23 Except in the case of an appeal on a reference by the Criminal Cases

Review Commission, an application for such approval may not be made after
the end of the period of one year beginning with the date of death.

Whether the prosecution will be represented at the hearing

7.24 The prosecution will be represented in appeals against conviction.
They may choose or be asked by the Court to appear in appeals against
sentence. They may also choose or be asked by the Court to appear at a renewed
application for leave.

Orders restricting public access or reporting of hearings

The public right to attend court hearings
7.25 The general rule is that the Court should hear appeals in public but it
may order that a hearing take place in private. The opposite approach applies
when the Court is hearing a Public Interest Immunity application which must
be held in private, unless the Court decides to hold it in public.11

7.26 An order that a hearing take place in private may be made under the
Court’s inherent power12, but only in exceptional circumstances where the
Court concludes that a public hearing would frustrate the administration of
justice. An order may also be made under the following statutory powers:
(a) in any appeal against a review of sentence (section 75(2) of the Serious
Organised Crime and Police Act 2005 in relation to appeals pursuant to
section 74(12));
(b) where a witness under the age of 18 is giving evidence (section 37
Children and Young Person’s Act 1933) (note: such an order cannot
apply to members of the press);
(c) where the Court hears evidence in relation to a sexual offence (section 25
of the Youth Justice and Criminal Evidence Act 1999) (with, once more,
an exception for the press).

11 Part 36.6(2) CrimPR.

12 Part 36.6(1) Crim PR.

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 The hearing 7.31

Reporting restrictions
7.27 The press are entitled to report, in full, the Court’s proceedings
unless it makes an order placing a restriction upon the reporting of a
particular case or unless one of the following three automatic statutory
reporting restrictions applies:
(a) The Sexual Offences (Amendment) Act 1992 gives the victim of a
sexual offence lifetime anonymity in respect of their identification. The
types of offences covered by this section are set out in section 2 of the
Act (as amended by subsequent legislation) and includes the majority
of sexual offences.
(b) Section 12 of the Criminal Justice Act 1987 and section 37 of the
Criminal Procedure and Investigations Act 1996 provide limitations to
the facts that may be reported in an appeal in relation to a preparatory
hearing.
(c) Section 71 of the Criminal Justice Act 2003 provides that reporting
restrictions apply to prosecution appeals against a preparatory ruling.

7.28 The Court may make an order restricting the reporting of a case
under its inherent power but it also has a number of statutory powers to do
so. Part 6 of the CPR sets out the proper approach to the making of reporting
restrictions and also contains a complete schedule of all statutory powers to
make such an order.

7.29 In all cases where a reporting restriction might be appropriate, for

example one involving children,13 the parties should check with the Clerk of
the Court whether any restrictions are in place. Any application should be
made at the commencement of the hearing.

Hearing appeals regarding public immunity applications

7.30 In R v McDonald, Rafferty and O’Farrell14 the Court set out the
principles that should govern appeals in which the conduct of a Public Interest
Immunity hearing in the Crown Court is the subject of challenge.

Televised Court hearings

7.31 An order has been made which allows television companies to
broadcast legal arguments and judgments from the Court of Appeal, for the

13 Children and Young Persons Act 1933, s 39.

14 [2004] EWCA Crim 2614.

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7.32 Preparing for hearings in the Court of Appeal

purpose of news reporting only.15 Witnesses, victims and appellants must not
be shown.

The procedure at the hearing

Appeals with leave
7.32 The case commences with the appellant being identified on the video
link. The appellant’s advocate will make submissions. The advocate for the
respondent (if the respondent is represented) will then make submissions.
There is a final reply from the appellant. The judges frequently adopt an
interventionist approach and will not be slow to ask the advocate about a
particular point that concerns or interests them or to indicate that they think
that an argument is a bad one.

7.33 If there is evidence to be called, the appellant will generally be

expected to call the witness and examine him and the respondent to cross-
examine in the normal way. However, when, if at all, that evidence is to be
called is a matter to be determined by the Court.

7.34 Unless there is a clear indication, in advance of the hearing, that the
Court does not wish to hear from a particular witness, or the prosecution agree
the witness, the witness should be at Court and in a position to give evidence if
called.

7.35 In most cases the Court gives judgment at the end of the hearing. In
more complex cases it may give a reserved judgment and the parties will be
informed of the date of a further hearing for judgment to be pronounced.

Renewed applications for leave

7.36 The hearings follow the same procedure as full hearings. Successful
renewed applications for leave to appeal against conviction usually result
in the Court listing the case for a full hearing on another occasion at which
the appellant (if in custody) can be produced and the prosecution can be
represented.

7.37 However, if a renewed application for leave to appeal against sentence

is successful, the Court will generally proceed to determine the appeal at the
same hearing.

15 The Crime and Courts Act 2013, s 32, which provides that the Lord Chancellor may, with the
concurrence of the Lord Chief Justice, make an order allowing for filming in particular courts.
The general ban on filming and recording in court is contained within the Criminal Justice Act
1925, s 41 and the Contempt of Court Act 1981, s 9.

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 The hearing 7.39

Suggestions for advocacy

7.38 When preparing:
(a) Re-read everything.
(b) Identify the strongest point (or points) and be prepared to argue it
concisely but with conviction. Not to do so is to throw away the
opportunity that is presented by oral advocacy.
(c) Search out the difficulties in your case. Every case has them. The Court
will identify them and ask the advocate about them.
(d) Clearly tab up the significant parts of the transcript so that they can be
found quickly in Court.
(e) If it is intended to rely on authorities that have not been lodged with the
Court or that were lodged late (and may not have reached the judges),
three additional copies should be brought to court (along with an
explanation for not having provided them earlier).

7.39 In Court:
(a) When a judge sits in the Court of Appeal he or she is always addressed
as My Lord or My Lady.
(b) The Court will expect an advocate to introduce his opponent.
(c) The Court will not expect the advocate to tell it about the facts of the
case. It should be assumed that the relevant facts are in the papers and
that the judges will have read the papers.
(d) It should not be assumed that the Court will be bound by the views of the
single judge. Although it is wise to carefully consider the reasons of the
single judge for granting or refusing, it is unwise to place reliance on the
fact that leave has been given in the submissions themselves.
(e) If there are apologies that may have to be offered (if an argument was missed
at trial) or concessions that are going to have to be made (if the judge got the
law right once, and the grounds rely on his getting it wrong at some other
stage), it is often best to make them immediately. It is more attractive to hear
an advocate face up to a problem, admit it and then go straight on to argue
why nonetheless the appeal should be allowed, than to witness the Court
having to cross examine him into an admission he should have made at once.
(f) When making an application for leave that is out of time the advocate
should not forget that the application to extend time must also be made.
It is sometimes sensible to mention at the outset when the advocate
proposes to deal with it (it usually makes sense to address it at the
conclusion of the substantive arguments on the grounds, unless the Court
wants it to be addressed immediately) so that the Court is aware that the
advocate has not forgotten the need to do so.

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7.40 Preparing for hearings in the Court of Appeal

APPLICATIONS AT THE CONCLUSION OF THE CASE

Applying for leave to appeal to the Supreme Court

7.40 If the appeal is dismissed, the appellant has 28 days to apply to the
Court of Appeal to:
(a) certify a point of law of general public importance; and
(b) grant leave to appeal on the point to the Supreme Court.16

7.41 The Court of Appeal rarely certifies a point of law and almost never
grants permission to appeal.

7.42 If the Court certifies a point and refuses leave to appeal, the appellant
then has 28 days to apply to the Supreme Court for permission to appeal.
However, if the Court refuses to certify a point of law the appellant cannot
apply to the Supreme Court. This is frustrating for appellants and their lawyers
who feel there is a good legal argument that deserves further consideration,
but both the Court of Appeal and the ECtHR have held that section 33 of
CAA 1968, which, in effect, allows the Court of Appeal Criminal Division
to terminate any further domestic appeal, is compatible with Article 6 of the
Convention.17

7.43 A certified point is in the form of a question which should be framed

in a way that identifies a particular legal issue that arose in the appeal but also
indicates its wider importance.

7.44 If the Court has given judgment on the day of the hearing, the
application to certify and for leave to appeal can be made orally, immediately
after the judgment. However, it can be useful to reflect and draft a question
with some care.

Applying to certification when considering an application to the

European Court of Human Rights
7.45 If the appellant wishes to take the case to the ECtHR, it is advisable
to make the application to the Court for leave and certification or the appellant
may later face a difficulty in satisfying the ECtHR that he has complied with
the requirement to exhaust all domestic remedies. (See 11.6 and 11.7 for full
discussion.)

16 CAA 1968, s 34.

17 R v Dunn [2010] EWCA Crim 1823 and application 62793/10 (declaration of inadmissibility,
by a majority).

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 Applications at the conclusion of the case 7.52

Costs
7.46 Orders for costs are not routinely made in the Court of Appeal and the
law governing such payments has been greatly restricted in recent years.

7.47 The law in relation to costs is to be found in Criminal Practice

Directions 2015 Division X.

Costs from central funds for the successful applicant/appellant

7.48 The only residual power to award costs from central funds relates to
appeals about insanity18.

Costs against an unsuccessful appellant or applicant

7.49 The Court can award costs against an unsuccessful appellant or
applicant19, but only when satisfied he or she has sufficient means to pay the
order, and not on the basis the money could be raised after release from prison
or by a third party20. The CPR also sets out the process that should be followed
when the prosecution seeks costs.

Costs for unnecessary or improper expenses

7.50 If the Court is satisfied that a party’s unreasonable or improper act or
omission has put another party to expense, it may order that party to pay some
or all of the other party’s costs.21 The Court may make such an order on the
application of a party or on its own initiative. An application should be made in
accordance with the requirements of rule 45.8 of the CPR in writing, as soon
as practical after becoming aware of the grounds for doing so. A copy should
be served on the Registrar and one on the other parties.

Wasted costs orders against representatives

7.51 ‘Wasted costs’ are defined by section 19(1) of the Prosecution

of Offences Act 1985 as any cost incurred ‘as a result of an unnecessary or
improper act or omission by, or on behalf of, another party to the proceedings’.

7.52 The Court may make a wasted costs order against a legal representative
or ‘other representative’, defined in the act as a person who is exercising a

18 CPD X Costs 2.4.4.

19 Prosecution of Offences Act 1985, s 18(2).
20 CrimPR 45.6(8) and CPD. See 8.19.
21 Prosecution of Offences Act 1985, s 19(1).

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7.53 Preparing for hearings in the Court of Appeal

right of audience or right to conduct litigation on behalf of any party to the

proceedings22. ‘Wasted costs’ in that section is defined as:
(a) as a result of any improper, unreasonable, or negligent act or omission on
the part of any representative or any employee of a representative; or
(b) which, in the light of any such act or omission occurring after they were
incurred, the court considers it is unreasonable to expect that party to pay.

7.53 The guidance for making a wasted costs order is to be found at

paragraph 4.1.1. of the Costs Practice Direction. Further guidance is to be
found in Re P (A Barrister).23

7.54 As an alternative to making a wasted costs order the Court may, when
the appellant is funded by a representation or costs are to be paid out of central
funds, make adverse observations about the representative’s conduct of the
case, for use in a costs assessment.24

Costs against a third party

7.55 The Court may make an order for costs against a third party
when the Court considers that there had been serious misconduct by that
party.25 Guidance on the use of that section is at rule 4.7 of the CPR (2015,
Division X). It is noted that such orders can only be made either of the Court’s
own volition or on the application of a party to the case.

Applications for a representation order following successful

applications for leave
7.56 In successful applications for leave to appeal an application for a
representation order may be requested at the conclusion of the hearing. It is a good
idea to be specific, so if the preparation and presentation of the appeal was all
unfunded, asking for ‘a representation order for the preparation and presentation
of the appeal’ will avoid any danger of the Registrar later taking the view that only
the work on the day of the hearing was covered by the order obtained.

SUMMARY OF KEY POINTS

• It is important to carefully read the appeal bundle to ensure that:

22 Prosecution of Offences Act 1985, s 19A.

23 [2001] EWCA Crim 1728.
24 CPD X Costs 4.3. See 8.19.
25 Prosecution of Offences Act 1985, s 19B.

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 Summary of key points 7.56

it contains all the documents that are important to the appeal;

that the case summary is accurate and covers the points that are
important to the appeal;
that the time estimate that has been given for the hearing is
accurate.
• Whether to lodge a skeleton argument is a matter for the advocate, but
the Court does not encourage advocates to provide skeleton arguments
when the case is already fully set out in the appeal notice.
• Lists of any reported authorities and bundles of any unreported authorities
should be lodged with the grounds or perfected grounds. The guidance
in Erskine should be considered when determining what authorities to
rely on.
• Leave of the Court will be needed in order to argue any ground that was
not contained in the original grounds that were considered by the single
judge.
• The appellant has a right to be present at all appeals with leave, normally
by video link, but not at renewed applications for leave. If the Court, having
given leave to appeal against sentence, goes on to allow the appeal at the
same hearing at which the appellant has not been produced, he will be
written to asking if he wishes to have a hearing at which he will be produced.
• When an appellant or applicant has absconded, the Court has a discretion
as to whether to hear the case, adjourn or dismiss the appeal.
• If the appellant dies before the hearing, the case may proceed if an
approved person can be appointed to continue the case on his behalf.
• The prosecution will be represented at appeals against conviction. They
may be represented at appeals against sentence or renewed applications
for leave depending on whether the Court requests it or the prosecuting
authority themselves decide to be represented.
• The Court’s hearings are open to the public unless an order is made that
a particular hearing be held in private. Certain reporting restrictions may
automatically apply or be made by the Court depending on the nature of
the case. In a case in which the parties believe that an order restricting
public access of press reporting of the case should be made, it should be
applied for at the commencement of the hearing.
• In straightforward appeals the Court will give judgment at the
conclusion of the hearing. In complex cases judgment may be reserved
to another date.
• At the conclusion the advocate should remember to make any necessary
application for a representation order or to certify a point of law of
general public importance for the Supreme Court.

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Chapter 8

Public funding and pro bono assistance

INTRODUCTION

Three distinct types of funding

8.1 There is publicly funded appeals advice available to those who are
unable to afford a lawyer. This comes in three varieties of ‘legal aid’. The first
two are different types of ‘advice and assistance’ (out-of-court advice) and the
third is ‘representation’ (‘advocacy’) in court.1
As with all forms of state assistance, the rules for accessing this advice and
claiming for the work are labyrinthine and scattered across various statutory
sources. The overarching statutory framework for all types of legal aid is
now set out in the Legal Aid, Sentencing and Punishment of Offenders Act
2012 (LASPO 2012).2 However, the important detail is contained in various
statutory regulations which include: the Criminal Legal Aid (General)
Regulations 2013 (SI 2013/09) (‘General Regulations’), the Criminal
Legal Aid (Remuneration) Regulations 2013 (SI 2013/435) (‘Remuneration
Regulations’),3 and the Criminal Legal Aid (Financial Resources) Regulations
2013 (SI 2013/471) (‘Means Regulations’).4

Advice and assistance under the Crown Court Representation Order

8.2 A limited amount of advice and assistance is provided for by the
defendant’s Crown Court Representation Order. The defendant’s lawyers (the

1 Criminal Legal Aid (General) Regulations 2013 (SI 2013/09) ‘General Regulations’, Reg 2
provides that ‘criminal legal aid’ means ‘advice, assistance and representation made available
under s.13, 15 and 16 of the Act’ (LASPO); General Regulations, Reg 33(c) provides that
‘advice & assistance’ includes ‘an appeal or potential appeal against the outcome of criminal
proceedings’.
2 LASPO, ss 14–19 set out the statutory basis for legal aid in criminal proceedings including
advice and assistance.
3 Remuneration Regulations, Reg 6 refers to Sch 3, which sets out what can be claimed and the
fees for both advice and assistance and advocacy under a representation order.
4 Means Regulations specify who qualifies financially for advice.

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8.3 Public funding and pro bono assistance

solicitor assigned on the order and their instructed advocate) can provide brief
advice at the end of the Crown Court case. If that advice is positive it will also
cover preparing the grounds to lodge at the Court of Appeal.

Advice and assistance under the Standard Criminal Contract

8.3 If the defendant asks a solicitor who is not assigned under the
Crown Court Representation Order to advise then they may be able to
provide ‘freestanding’ advice and assistance under the 2017 Standard
Criminal Contract (SCC). The important contract rules are set out in the
Standard Terms and the Specification to the contract. There is also important
guidance produced by the Legal Aid Agency (LAA) in the Criminal Bills
Assessment Manual (CBAM).5
Any organisation who has a General Crime Contract can carry out work
under the SCC. The rules for advice on appeal is covered in section 11 of
the Specification headed ‘Appeals and Reviews Class’. As it happens, only
a minority of the organisations holding a contract actually do provide
freestanding advice and assistance on appeals. This is because the work is
seen as specialist and badly paid. They will advise those who they have
represented in the Crown Court under their representation order, but will not
provide fresh advice to defendants who say they have been wrongly advised,
or not advised at all.
Partly that is also to do with the widespread assumption that the original trial
lawyers will have provided a full written advice addressing any concerns
the defendant has raised at the end of the Crown Court case. The continued
stagnation of legal aid fees for Crown Court work makes that assumption
less reliable. As advocates and litigators are not actually paid anything
extra to provide a negative advice in writing some do a minimal amount
of work at the end of the case. This is unsurprising given the fixed fee for
the Crown Court work is often very low. This means it can be difficult for
aggrieved defendants and their families to obtain a comprehensive advice
explaining precisely why they do not have an appeal. Often their only option
is to pay privately. The potential problems are exacerbated by the parlous
state of publicly funded fees currently paid to both prosecutors and defence
advocates, which means that there may be even greater need to check that the
original lawyers got it right first time round at the trial.

5 The contract documents can be found at: www.gov.uk/government/publications/standard-

crime-contract-2017

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 Work under a representation order 8.7

Representation under the Court of Appeal Representation Order

8.4 If leave to appeal is granted then the Court of Appeal will usually
grant a representation order if it is requested on the Form NG. The funding
regime under the Court of Appeal representation order is very similar to that
under the original Crown Court representation order. The major difference is
that the order usually extends only to the advocate who drafted the grounds and
does not include a solicitor.6 However, an application can be made to extend its
scope to include a solicitor to do specific work and, if necessary, more than one
advocate.

Actual representation replaces advice and assistance

8.5 Once the Court of Appeal has assigned an advocate under a
representation order it will replace the original Crown Court order so the advice
and assistance on appeal under the previous order will cease. For the avoidance
of doubt, the SCC makes it clear that advice and assistance also available under
the SCC cannot be used as an alternate or supplement to the court’s powers to
grant legal representation, where only an advocate has been authorised.7

Pro bono assistance

8.6 There are also a small number of organisations who provide free
assistance or representation for appeal work. The limited availability of legal
aid means that these can be a vital backstop for those who seek to challenge
their sentence or conviction. The assistance that they may provide is considered
at the end of this chapter.

WORK UNDER A CROWN COURT OR COURT OF

APPEAL REPRESENTATION ORDER

The funding rules

8.7 As already discussed at 8.2 above, the usual starting point for advice
on appeal is the representation order in the Crown Court. That order includes

6 The Court of Appeal exercised the power in LASPO, s 19(1) to grant representation and the
Criminal Legal Aid (Determination by a Court and Choice of Representative) Regulations
2013 (SI 2013/614) allow the Court of Appeal to grant representation of its own motion or on
an application.
7 SCC, para 11.40.

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8.7 Public funding and pro bono assistance

advice and assistance on any appeal.8 The scheme of funding for representation
orders is set out in LASPO (which refers to the grant of funding by the court
as a ‘determination’).9 The rates of pay are set out in the Remuneration
Regulations.10
To appreciate how legal aid works in the Crown Court it is important to
bear in mind that the vast majority of Crown Court work is paid by way
of fixed fees. These are the Litigator Graduated Fee Scheme (LGFS) for
solicitors and the Advocates Graduated Fee Scheme (AGFS) for advocates.
The fixed fee is based on four factors: the type of offence; the outcome; the
page count; and the number of witnesses. No additional fee is paid for a
negative advice on appeal at the end of the case as that work is included in
the fixed fee.
However, if the appeal advice is positive and grounds are lodged at the Court
of Appeal, then an additional claim can be made for the advice and grounds
by both the solicitor and the advocate from the Court of Appeal. If the single
judge refuses leave then a claim for the fees for that additional work is made
by sending it to the Registrar’s costs office.11
If the single judge grants leave, or he or she refers the application to the full
court, then a representation order will usually be only granted for the advocate
who drafted the grounds. They will then be able to claim a further fee for their
preparation and advocacy at the full hearing. If additional work needs to be
done by the solicitor an application needs to be made to the Registrar to extend
the order to cover the solicitor for any specific tasks. It is rare for the Registrar
to agree to extend the order generally to cover a solicitor, but it can be done if
a lot of work is required.
You will find most of the relevant rules and guidance for advice on appeals
under a representation order in the Practice Directions (CPD 2015),12 the
Criminal Procedure Rules (CrimPR)13 and the Remuneration Regulations
(see 8.1).

8 Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 42; ‘representation’ includes
‘advice and assistance as to any appeal’.
9 LASPO, s 16.
10 Given the number of changes in fees in recent years you will need to carefully check the
relevant Remuneration Regulations at the date of the representation order you are providing
advice under. The old rate applies pre-20/03/14; the current rate (with a 8.75% cut) applies
from 20 March 2014 to 1 July 2015, then full 17.5% cut from 1 July 2015 to 31 March 2016
before returning to current rate thereafter.
11 The claim is made on the old ex post facto claim form – see COA Bill of Costs at Appendix E.
12 See Appendix A.
13 See Appendix B.

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 Work under a representation order 8.8

No
Positive advice Bill LGFS/AGFS
on appeal?
Close file

Yes

Record time
under old
Crown
Court Class

Complete
No and submit Send bill
Renew pro
bono? SJ? NG and to
grounds to Registrar
COA

Yes

Prepare for full bearing

Check scope of COA

Representation Order

Apply for extra funding

to Registrar

If point of principle certified

If retrial ordered apply to COA for funding if
COA
open new application is to be made
Decision
LGFS/AGFS for permission to appeal to
the Supreme Court

Figure 8.1 Flowchart for appeals under the Crown Court representation order

What advice is covered?

8.8 The best place to look at what work will be allowed is the Guide to
advocates produced by Her Majesty’s Courts & Tribunals Service’s ‘Guide

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8.9 Public funding and pro bono assistance

to commencing proceedings in the Court of Appeal Criminal Division’ (‘The

Guide’)14. This indicates what work the Registrar will be likely to authorise
and what his or her costs team will consider necessary and reasonable when
they assess the work done on the bill. The Guide instructs the advocate to
provide basic advice as soon as the Crown Court case finishes under the
Crown Court order. If exceptional work needs to be done under a Court of
Appeal representation order, then it is best to lodge provisional grounds with
the Criminal Appeal Office and send a note to the Registrar setting out why a
representation order should be granted to cover that additional work.15

8.9 The Registrar will not usually extend the order to allow work by
a solicitor unless he or she is persuaded that there is good reason to do so.
This is because the Registrar will assume that the appeal involves a discrete
point of law which can be dealt with adequately by the advocate alone. If
the solicitor can show an extension is needed to do specific work, such as
instructing an expert or taking a witness statement, then they should write
to the Registrar explaining why and include a full supporting note from
the advocate. If an extension is granted it will clearly set out the limited
purpose(s) for which the solicitor is assigned on the actual order. Therefore,
it is important to check carefully what work is authorised and if necessary
apply for further extensions.
Once a representation order is granted the Registrar will send a form to the
appellant asking them to confirm their means remain the same as they were
when the Crown Court representation order was granted.

8.10 If there is any doubt about what is allowed, clarification can be

obtained from the Criminal Appeal Office and an extension obtained. This
must be done before carrying out the work. There is no set form of application.
It can be made by letter and it should always include a supporting note from
the assigned advocate setting out why it is needed.

Effect of refusal by single judge

8.11 If the single judge refuses leave they will also refuse the application
for a representation order. This means any further advice will have to be either
privately funded or pro bono. The original Crown Court order does not cover
renewal and the unavailability of legal aid for renewal to the full court does
not breach Article 6 of the ECHR.16 Depending on the comments of the single
judge, and particularly whether they have initialled the ‘loss of time’ box on

14 Note at time of writing the current Practice Direction CPD X Costs, Part 8.1 still makes
reference to the former Guide produced by the Registrar of Criminal Appeals, but this
guidance has been updated and replaced by the HMCTS one (latest version August 2018).
15 The Guide A.1-4.
16 R v Oates [2002] EWCA Crim 1071.

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 Claiming for work done in the Court of Appeal 8.13

the Form SJ, the advocate may be prepared to renew the application pro bono
before the full court. If the renewal of the application for leave is successful
the full court will grant a representation order even if ultimately the substantive
appeal fails. That order will cover the preparation and advocacy for the full
hearing, but it will not usually cover the work done by the solicitor unless it is
specifically requested at the renewal hearing and the court agrees.

Post-SJ refusal advice

8.12 As the court can grant retrospective representation when they
grant leave on a renewed application then it may be worthwhile asking
the court to consider extending the representation order to cover not just
the advocate but also the solicitor who worked on the renewal. As this will
be unusual it will require exceptional justification, but it is possible and
should be considered in preparation for the renewal hearing. It is useful if
the solicitor can provide a schedule of work done so that the advocate can
fully argue it.17

CLAIMING FOR WORK DONE IN THE COURT OF

APPEAL

All claims
8.13 The rules for claiming fees for work done in the Court of Appeal are
mainly contained in Remuneration Regulations.18
The claim for cost must be submitted within three months from the conclusion
of the case.19 The time limit may be extended by the Criminal Appeal Office
if there is ‘good reason’, but any costs allowed may be a reduced if there is
not a good reason for the delay and it is reasonable to reduce them. If the
assessor proposes to reduce the fees they must give the solicitor or advocate
the opportunity to make submissions and they can appeal to the Costs Judge if
there are unsatisfied by the reasons given for the reduction.20
The claim ‘must be in such a manner and form as the appropriate officer may
direct’ and sent to the costs team at the Criminal Appeal Office.21 It should
include a copy of the representation order and any receipts or vouchers for any
disbursements.

17 CBAM, para 6.9.4; Regina v Gibson (Ivano) [1983] 1 WLR 1038.

18 Remuneration Regulations, Reg 6 refers to the fees set out in Sch 3.
19 Remuneration Regulations, Sch 3, paras 2 and 5.
20 Remuneration Regulations, Reg 31.
21 SCC, para 5.25; see Appendix F for the current version of the claim form.

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8.14 Public funding and pro bono assistance

All assessments are based on:

‘all the relevant circumstances of the case including the nature, importance,
complexity or difficulty of the work and;
the time involved and allow a reasonable amount in respect of all work
actually and reasonably done.’22
The solicitor and advocate should draft a full note justify each item of work
and the time spent with the claim. This should also point to any special
circumstances of the case and provide as much information as possible to
assist the costs team in assessing the claim with reference to the above test.

Solicitors’ claims
8.14 The costs assessor has to take account of the ‘class of work done’. The
assessment will look at whether the work done was reasonable and the time
spent.23
Solicitors’ work in the Court of Appeal is broken down into five classes:
(i) preparation (which includes all the general work a solicitor will do on a
case);
(ii) advocacy;
(iii) attending at court with the advocate;
(iv) travelling and waiting; and
(v) dealing with routine letters and telephone calls.24
The claim should group these classes of work separately and set out the date
it was done, the time taken and amount claimed (and whether it was done for
more than one assisted person).
The claim must specify the level of fee-earner and set out any work done
for more than one indictment.25 It must also set out why any enhancement is
claimed (see 8.15).26 If a claim is made under a retrospective representation
order (see 8.11), the claim must confirm that none of the fees have been
claimed under a defence costs order from central funds. As costs from
central funds can no longer include legal fees in the Court of Appeal this is
unlikely.27

22 Remuneration Regulations, Sch 3, para 1(2); CBAM, the general principles in para 2.4 also
would apply.
23 Remuneration Regulations, Sch 3, para 3(2).
24 Remuneration Regulations, Sch 3, para 3(1).
25 Remuneration Regulations, Sch 3, para 2(3).
26 Remuneration Regulations, Sch 3, para 3(2); CBAM, para 3.1 applies to all assessments
27 Prosecution of Offences Act, s 16A.

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 Claiming for work done in the Court of Appeal 8.15

The level of fee earner will be either:

(i) Grade A, which is a senior solicitor (this is normally 10 years post
qualification experience ‘PQE’ or eight years’ specialist experience);
(ii) Grade B, which is a non-senior solicitor or an experienced legal executive;
or
(iii) Grade C, which is a trainee or paralegal.
The rates that can be claimed are set out in the Remuneration Regulations.28
These are fairly modest and have remained pretty much unchanged since
the mid-1990s. The assessor will look at the level of fee-earner for each
item on the bill and firstly decide if that person was the right grade of fee-
earner for that task. Therefore, it is important that the note that is sent with
the claim makes it clear why a solicitor carried out any routine work which
could have been delegated or why a senior solicitor was used. It may well be
the case that as that fee-earner dealt with the original case and knows the
history and the client then overall that will have saved time and this can be
used to justify the overall time as reasonable. You may be able to show that
a more experienced fee-earner has accomplished a task quicker than a less
experienced one would and that this has reduced the claim overall or that a
less experienced one would have needed to do additional work getting up to
speed with the case.

Enhancement
8.15 Given the low basic hourly rates for solicitors it is vital that ‘enhanced’
rates are claimed whenever possible.29 If allowed, the hourly rate will usually
double as it will be enhanced by 100%. Usually it will only apply to non-
routine work as, by definition, it must be exceptional, but sometimes if there
is an exceptional amount of travel or waiting because of the location of the
client or the nature of the case. This would be very rare. Enhanced rates can be
claimed for any of the specified offences.30
To claim enhanced hourly rates the solicitor must show:
(a) the work was done with exceptional competence, skill or expertise;
(b) the work was done with exceptional despatch; or
(c) the case involved exceptional complexity or other exceptional
circumstances.

28 Schedule 3, para 7.
29 Remuneration Regulations, Sch 3, paras 8(2).
30 Remuneration Regulations. Sch 1, Part 7 provides a list of the specified offences A, B, C, D,
G, I, J and K.

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8.15 Public funding and pro bono assistance

If made out the appropriate uplift will depend on:

(i) the degree of responsibility accepted by the fee-earner;
(ii) the care, speed and economy with which the case was prepared; and
(iii) the novelty, weight and complexity of the case.
The usual uplift is up to 100% and for a solicitor based in London the
appropriate uplift should be the full 100% taking account of the local Senior
Courts’ Costs Office (SCCO) rates.31 If it is a very complex or serious fraud it
can be up to 200%.32 The test of ‘exceptional’ means simply ‘unusual or out of
the ordinary’ for the general type of case, it does not mean exceptional for that
type of case.33 A claim for enhancement may be more likely to persuade the
assessor if the solicitor or advocate focuses on the particular tasks that meet
the enhancement criteria rather than claiming a blanket enhancement across
the board.
To maximise the chances of being successful in claiming an enhancement all
actual work which can be shown to be reasonable and necessary to provide
advice on appeal should be clearly recorded. Exceptional ‘competence, skill or
expertise’ may be shown by the standard of work carried out or the favourable
outcome. Exceptional ‘despatch’ will require real urgency. This may be
because of late service of papers or the need to consider a large volume of
work in a short period of time which meant rearranging or cancelling other
work. It will assist if you can point to the need to rearrange other work to
accommodate the urgency of the task and point out any evening or weekend
work. The general factors that may have made the original case exceptional
are set out in CBAM. These include the character of the defendant (including
any vulnerability); if the case was particularly weighty or complex; the type
of case or degree of public interest; significant expert issues; difficulties with
defence witnesses; or the exceptional length of trial.34 They may or may not
apply at the appeal level, which will be on a narrow legal issue so enhancement
submissions will need to focus on the appeal aspects to the work. However, it
is unusual for the Registrar to assign a solicitor so that is a good starting point
for submissions.
The bill will be assessed by a member of the costs team at the Criminal Appeal
Office who will not necessarily be aware of the details of the case so it is
helpful to carefully set out the factors in the case that justify both the level of
fee-earner who worked on the case and any grounds for enhancement with
detailed reference to the individual circumstances of the case and the client. If

31 These are local guideline hourly rates for general litigation approved by the SCCO and they
are much higher than the rates for publicly funded work.
32 CBAM 2018 (June) para 9.1.
33 R v the Legal Aid Board ex parte RM Broudie [1994] 138 SJ 94.
34 CBAM, para 9.1.3.

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 Claiming for work done in the Court of Appeal 8.18

the time spent on a piece of work is longer than one would expect that should
be clearly explained in the note with the claim.

Disbursements
8.16 Disbursements that are abnormally large because of the distance
travelled from the solicitor’s office to the court or the client may be reduced
if not sufficiently justified. The cost of Crown Court transcripts that were not
obtained through the Registrar may also be disallowed unless reasonable.35 The
fees for experts are set out in Schedule 5 of the Remuneration Regulations.
These prescribed rates can be increased if justified in exceptional circumstances.

Advocate’s claim
8.17 The advocate submits their claim on the same form as the litigator
and the matters they are required to set out are much the same apart from the
level of fee-earner as that will be either junior counsel or QC depending on
the representation order. They set out almost identical information including
the date of the work, the time spent and whether it was for more than one
assisted person. They should also draw the assessor’s attention to any special
circumstances.36
The Remuneration Regulations set out the type of work that can be claimed and
the applicable hourly rates, basic fees, refreshers and subsidiary fees. There are
minimum and maximum amounts for subsidiary fees and the assessor should
take account of the hourly rates when assessing the fees. The rates are separate
for QC and junior work.37
The advocate can also claim for a fee higher than the specified rate if the
exceptional circumstances mean that the set fees would not provide ‘reasonable
remuneration’ for the work done.38 The factors set out at 8.15 would equally
apply to the advocate’s claim.

Appealing the assessment

8.18 If the costs are not allowed in full, then further representations can
be made within 21 days of the initial assessment. If those representations are
not completely successful an appeal can be submitted to the Costs Judge at
the Senior Courts’ Costs Office (SCCO).39 If the appeal to the Costs Judge is

35 Remuneration Regulations, Sch 3, para 4.

36 Remuneration Regulations, Sch 3, para 5; see COA Claim Form at Appendix F.
37 Schedule 3, paras 9(1)–(3).
38 Remuneration Regulations, Sch 3, para 9(4).
39 Remuneration Regulations, Sch 3, para 11.

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8.19 Public funding and pro bono assistance

successful, even in part, the judge will usually order the additional costs of
preparing and attending the costs appeal.

Other costs orders

8.19 If the court makes an adverse observation about the conduct of the
case by either the litigator or advocate, the appropriate officer may reduce the
fees. If they intend to do so they must give the person affected an opportunity
to make representations as to whether the fee should be reduced and the extent
of any reduction.40 The Practice Direction addresses this in detail.41 The Court
of Appeal can also order an unsuccessful defendant to pay the costs of another
party and any legal aid costs. It should not be done as a penalty and exceptions
apply.42

FUNDING UNDER THE 2017 STANDARD CRIMINAL

CONTRACT (SCC)

What work can be done?

8.20 The SCC sets out the types of advice that can be provided by
organisations who hold a contract with the LAA (and referred to as ‘providers’).
The SCC is a detailed set of rules which need to be read with the LAA guidance
in CBAM. This sets out the LAA’s approach to the types of work it will allow
providers to do and how funding requests will be viewed by the LAA. The
rules and guidance go into minute detail as to what can and cannot be done.
It should be remembered that the guidance is just that and may be departed
from if justified. The SCC Specification is structured into sections: 1–8 apply
generally to all classes of criminal work; and sections 9–13 refer to specific
areas of work. Appeals and Reviews are covered at section 11.43 If there is
a conflict between any terms then the general sections take precedence over
the specific ones.44 CBAM also has general and specific sections.45 If there
is a conflict between the SCC and CBAM, then SCC takes precedence.46 In
addition there are Points of Principle of General Importance, generally referred
to as ‘PoPs’, that set out general principles which have arisen from appeals to
the LAA Costs Committee. There is a PoP Manual containing useful decisions
that can be used to support funding applications.

40 Remuneration Regulations, Reg 26.

41 CPD X Costs, para 4.3.
42 CPD X Costs, para 3.
43 SCC, para 11 deals specifically with Appeals and Reviews.
44 SCC, para 1.4.
45 CBAM, para 12 deals with Appeals and Reviews.
46 CBAM, para 1.1.

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 Funding under the 2017 SCC 8.22

Advantages of using the SCC

8.21 If a new team of lawyers are instructed after conviction they could,
in theory, apply to transfer the Crown Court representation order and provide
advice and assistance under the Crown Court order. That would involve an
application to the Crown Court where the matter was heard.47 Given the strict
criteria for transfer it is unlikely to be successful unless there has been a complete
breakdown in the relationship between the defendant and the trial lawyers. In
any event the new team will be reluctant to have the order transferred to them
before they can assess the merits because there is no additional payment for a
negative advice under the LGFS and AGFS. Therefore, a better solution is to
see whether the work qualifies under the ‘Appeals and Reviews’ class of work
in the SCC. This ‘Appeal and Reviews’ class of work covers both applications
for leave to the Court of Appeal and requests to the Criminal Cases Review
Commission (CCRC) to review the conviction or sentence. It is important to
gather as much information from the prospective client at the outset in order to
be able to assess whether the case meets the initial sufficient benefits test and
is likely to pass the means test. This can be done using a detailed New Client
Appeals Enquiry Form, which captures sufficient information.48

Disadvantages of using SCC – costs limits and audit compliance

8.22 There are separate costs limits for applications to the Court of
Appeal and the CCRC.49 Once these limits are reached any additional costs
or disbursements will require a specific costs extension by the LAA. As the
work up to the first extension is self-authorised by the provider it is essential
that there are clear file notes complying with both the SCC and the guidance in
CBAM. Apart from the applications for extensions to the upper limit, none of
the work on the file will be subject to any ongoing checks by the LAA unless
the file is requested for an audit, so it is essential that the solicitor checks
the evidence on the file to ensure the contract requirements on application
forms, evidence of means and file notes are in perfect order. Indeed, the further
extensions by the LAA assume that the provider has followed the contract
to the letter at the self-authorisation stage and, if not, those LAA extensions
will be in jeopardy on any audit of being invalidated and all the money being
recouped. In appeals cases lasting many years this can mean substantial costs
can be run up on a longstanding and complex advice file, which may be subject
to minute scrutiny on a LAA audit after the case has concluded. Most of these
costs will have been paid (or be contractually due) to an external advocates or
expert(s). The LAA will audit a selection of files every year. These audits are
thorough and will result in contract notices and recoupment of any monies paid

47 The Legal Aid Manual, ch 7.

48 An example can be seen at Appendix F.
49 For Court of Appeal cases it is currently £273.75 and for CCRC applications £456.25.

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8.23 Public funding and pro bono assistance

where there is a lack of evidence of compliance with the contract requirements.

That is irrespective of whether the work was necessary and reasonably done
or indeed authorised by the LAA retrospectively as all authorities must be
granted before the work is done. This bureaucracy and the fact that there is
no means to obtain payment of disbursements before the case concludes, are
severe disincentives to taking on this type of work. On audit, the main pitfalls
are: incorrect or incomplete application forms, a lack of adequate evidence of
means, or inadequate file notes recording decisions. Files will also be examined
by the LAA to check the costs limit was extended before the work was done.
Payments made when the rules are not complied with or when the limits are
exceeded will be recouped.50 Contract audits can be appealed, and while many
successfully are, it is time-consuming and unpaid work so it is better to try to
avoid them by having tight supervision from the start.

Who can advise under the SCC?

8.23 All organisations holding a current general crime contract or a
specific ‘appeals only’ contract are authorised to provide advice and assistance
on Appeals and Reviews. However, if there is an existing representation order
then the LAA will expect advice to be given under that order (see 8.6 above)
by the existing litigator and advocate unless there has been a justifiable change
of provider. In that case the new provider should carefully consider the advice
the client has already received and whether fresh advice at the public’s expense
is justified.51 If the solicitor who has provided advice under the original
order is asked to readvise under the SCC they may do so but they should
consider whether they should make an application to the Court of Appeal for a
representation order.52
The general supervisor requirements in the SCC apply.53 Where the organisation
holds an appeals only contract there is an additional supervisor requirement
that the supervisor must have held a non-conditional practising certificate for
three years or they must have undertaken a minimum of 350 hours’ casework
in Appeals and Reviews in the past 12 months (or, if part-time, 1050 hours
in the past five years).54 The supervisor is required to sign a declaration to
confirm that. They can supervise a maximum of four designated fee-earners.55
Any advocate instructed to provide an opinion must be independent to the
instructing litigator unless they are undertaking the advocacy:

50 SCC, para 5.19.

51 SCC, paras 11.3–11.5.
52 SCC, para 11.7.
53 SCC, paras 2.1–2.31.
54 SCC, para 2.26.
55 SCC, para 2.30.

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 Funding under the 2017 SCC 8.23

‘An in-house advocate instructed by you to give an opinion must be from

a different organisation from your instructing Solicitor unless undertaking
advocacy on the same case. The use of such an advocate who must not be a
partner in, or employed by, or a consultant to your organisation will ensure
that any opinion obtained is independent and objective (in the same way
that an external opinion would be).’56

Received
advice in
past six
months?

Yes
No

Has
previous No Is the Sufficient
adviser Benefits Test
made a met?
claim?

No
Yes

Yes
Can you No
justify further No advice
advice?
No

Financially
eligible?
Yes

Yes

Open COA or CCRC file

Cost limit £273.75 or £456.25

Get proof of means

Submit CRM 5 if close to limit

Negative advice or SJ decision

Close and bill

Figure 8.2 Flowchart for advice on appeal to COA or CCRC under SCC 2017
Appeals and Reviews Class

56 SCC, para 4.17.

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8.24 Public funding and pro bono assistance

Bars to advising – previous advice and assistance

8.24 You cannot advise a client under this scheme if they have received
advice from another provider within the past six months unless:
(a) there is a gap in time and circumstances have changed materially
between the first and second occasions when the advice and assistance
was sought;
(b) the client has reasonable cause to transfer from the first provider; or
(c) the first provider has confirmed that they will be making no claim for the
payment for the advice and assistance.57

8.25 The six-month rule does not apply if the previous advice was given
under a representation order.58 However, as that advice was likely to be
negative, the justification for fresh advice will need to be carefully considered.
Generally, you will need to wait at least six months before providing fresh
advice. After six months you may provide advice if the means test and the
merits test, which is known as the sufficient benefit test (SBT), are passed (see
8.32). The request will not pass the SBT if the previous advice dealt adequately
with the matters the client is now raising. Providers will be expected to filter
out these requests without opening an advice file. It will be easier for the case
to pass the SBT if the client is in custody so it relates to their liberty or the
conviction is having an ongoing impact on their life.59

PRE-CONDITIONS – FINANCIAL ELIGIBILITY

(MEANS)

The Means Regulations

8.26 The SCC adopts the eligibility rules for financial eligibility that are
contained in Part 2 of the Means Regulations.60 The LAA will enforce them
strictly when auditing any appeal files so it is vital that the information on the
file complies with the LAA requirements. They will look at the guidance in
CBAM at Annex B: Financial Eligibility. If evidence is not satisfactory the
LAA can issue a contract notice and recoup any costs and disbursements that
were already paid. This may well include hefty disbursements to third parties
that the provider will still be contractually liable for.

57 SCC, para 11.26.

58 CBAM, para 12.2.1.
59 CBAM, paras 12.2.2 and 12.2.3.
60 SCC, para 11.9.

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 Pre-conditions – financial eligibility 8.28

Deemed eligibility
8.27 There is ‘deemed’ financial eligibility if the individual (or their
partner) is in receipt of the following benefits:
(a) a ‘qualifying benefit’: income support; income-based jobseeker’s
allowance; guaranteed state pension credit; income-related employment
and support allowance; and universal credit;61 or
(b) they currently receive either:
(i) any working tax credit payable under Part 1 of the 2002 Act
claimed together with child tax credit payable under Part 1 of that
Act; or
(ii) any working tax credit payable under Part 1 of the 2002 Act with a
disability element or severe disability element (or both).
And in the case of (i) or (ii) the individual’s total income from all sources
for the year before signing the CRM1/2 is not more than £14,213,
otherwise the full eligibility calculation must be carried out.
If relying on a qualifying benefit you must keep satisfactory evidence on the
file.62 It will passport them straight through to the sufficient benefit test (see
8.27).

Partner
8.28 If the client has a partner their resources need to be taken into account.
‘“Partner” means –
(a) ‘an individual’s spouse or civil partner, from whom the individual is
not separated due to a breakdown in the relationship which is likely to
be permanent;
(b) a person with whom the individual lives as a couple; or
(c) a person with whom the individual ordinarily lives as a couple, from
whom they are not separated due to a breakdown in the relationship
that is likely to be permanent’
This means that a client serving a custodial sentence may be separated from
their partner physically but still in a relationship. You must not assume they are
single because they are in prison.63

61 Means Regulations, Regs 14 and 2.

62 SCC, para 3.5.
63 CBAM, para 13.3.4.

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8.29 Public funding and pro bono assistance

The financial resources of the individual’s partner must be treated as the

individual’s financial resources unless:
(a) the individual’s partner has a contrary interest in the matter in respect of
which the individual is seeking advice and assistance; or
(b) the Director of Legal Aid Casework considers that, in all the circumstances
of the case, it would be inequitable or impractical to do so.64

Disposable income
8.29 For those who are not deemed eligible, their ‘disposable’ income
cannot exceed £99 and ‘disposable’ capital must be no more than £1,000.65
The period of calculation is the seven days up to and including the date on
which the CRM1 and CRM2 was signed.66
Although CBAM does not deal with specific evidence of means in the Appeals
and Reviews chapter it does in the Prison Law chapter, which must also apply
to appeals files. It warns providers not to assume that prisoners have no income
(or capital). However, noting their prison income on the CRM1/2 will be
sufficient and you are not required to provide further evidence of their prison
income.67
To work out disposable income the following amounts can be deducted:
(a) income tax;
(b) National Insurance contributions;
(c) attendance allowance including constant attendance allowance in
addition to a disability pension;
(d) disability living allowance and any payments out of the Social Fund;
(e) any back-to-work bonus treated as jobseeker’s allowance;
(f) any direct payments under the Health and Social Care Act 2001 or
section 17A of the Children Act 1989;
(g) any reasonable living expenses provided as an exception to a restraint
order under section 41 of the Proceeds of Crime Act 2002; and
(h) any personal independent payment paid under Part 4 of the Welfare
Reform Act 2012.68

64 Means Regulations, reg 9.

65 Means Regulations, reg 8.
66 Means Regulations, reg 2.
67 CBAM, paras 13.2.2 and 13.2.5.
68 Means Regulations, reg 11.

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 Pre-conditions – financial eligibility (means) 8.31

If the individual has dependents then there are fixed deductions of £33.65
for a partner and £47.45 for each child. There is also a list of deductions for
maintenance.69

Disposable capital
8.30 To calculate ‘disposable’ capital deductions can be made:
(a) the value of the individual’s (i) household furniture and effects; (ii)
clothes; and (iii) tools and implements of the individual’s trade; and
(b) any back-to-work bonus received payable by way of a jobseeker’s
allowance.
The value of any interest in land is the sale value less the amount of any
mortgage debt or hereditable security secured on that land, to a maximum of
£100,000. There is a capital disregard of the first £100,000 of the value of the
property where the applicant resides.
Where the client lives with a partner or dependents there is a capital deduction
of £335 for the first, £200 for the second and £100 for each of the rest.70
Usually the proof of financial eligibility needs to be provided before any
work is started unless it is impractical to do so. If it is not subsequently
obtained then any claim is limited to two hours work unless in exceptional
circumstances it can be shown that the personal circumstances of the client
make it impracticable to obtain the proof at any point during the matter. In
that case a note can be made justifying it but generally it will be very risky to
proceed without acceptable proof.71

Children
8.31 A child is a client who is under 18 at the date the application is
signed.72 The general rule in the SCC is that you should deal with the parent,
guardian or other person responsible for the child.73 However, you may accept
instructions directly from a child where there is a good reason provided the
child is old enough to give instructions and understand the nature of the advice
and proceedings.74 In that case the child must sign the form and you must
decide ‘whether it is just and equitable not to aggregate the Child’s means
with those of the person liable to maintain him or her’. There is a presumption

69 Means Regulations, reg 12.

70 Means Regulations, reg 13.
71 SCC, paras 3.5–3.7.
72 Means Regulations, reg 2.
73 SCC, para 4.25.
74 SCC, para 4.28 (c).

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8.32 Public funding and pro bono assistance

that the means should be aggregated, but this can be rebutted if you decide it
would not be equitable and this is more likely to be the case where there is a
conflict between the child and the person liable to maintain them. It should
be easy to justify taking instructions direct from the child. The Law Society
Guidance encourages solicitors to view the child as the client as the wishes
or views of the parent are often in conflict with those of the child. As children
in criminal proceedings do not have an independent guardian to act for them
there is a heavier burden on the solicitor to manage potential conflicts between
the child and those who appear to be responsible for them. There will often be
a potential conflict. Indeed, often the child will be in detention, which would
make the Local Authority ultimately responsible in any event which is another
factor that would justify not aggregating the means.

All work – the sufficient benefits test (merits)

8.32 This is the key test that must be satisfied in order to provide advice
and assistance under the SCC:
‘Advice and Assistance may only be provided on legal issues concerning
English (or Welsh) law and where there is sufficient benefit to the Client,
having regard to the circumstances of the matter, including the personal
circumstances of the Client, to justify work or further work being
carried out.’75

8.33 The same test applies to any application to any extension of funding
under the scheme. As the provider is exercising a delegated function they are
protected by the general principle that the assessor should only depart from
that decision if it was ‘manifestly unreasonable’, which means no reasonably
competent solicitor could have concluded that the SBT was met.76 A clear file
note should prevent any audit issues.77 It applies to all extensions as well which
must be noted on the file 78 (see 8.34 below).

8.34 It is a broad test, but it requires the issue to be a legal one which has
a realistic prospect of success. You must consider the benefit to the client and
the cost involved. Often the test comes down to whether a private paying client
of moderate means would fund the step. This will be easier to justify if they
are in custody or it has an impact on their everyday life. In a case in which
trial lawyers have advised negatively, it is not sufficient that the client wishes
to obtain a second opinion. The LAA will expect the new solicitors to show
that there has been a change of circumstances or grounds for concluding that
the advice may have been incorrect or incomplete. The LAA has indicated the

75 SCC, paras 3.10 and 12.5; CBAM, para 13.4.

76 CBAM, para 2.4.5, CLA 56.
77 SCC, para 12.7, else it will result in nil assessment.
78 SCC, paras 5.14 and 12.6; CBAM, para 8.3.2.

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 Practical issues 8.35

minimum information they expect the provider to record on the file to show
they have properly considered the SBT. This includes details of the offence(s),
whether the client pleaded or was convicted, the name of their trial lawyers and
any advice, the court and the date the case concluded, the date and length of
sentence and, perhaps most importantly, why the client says the conviction is
unsafe or the sentence is wrong.79 There is an assumption that previous advice
was adequate unless rebutted so the LAA will require extra justification if
previous advice was given and if it appears that the previous advice addressed
the issues raised by the client the provider will have to point to an ongoing
substantive issue or a material development since that advice.80

PRACTICAL ISSUES

Completing CRM 1 and CRM 2

8.35 The relevant application forms are currently known as CRM 1 and
CRM 2. The general rule is that the client must be within the jurisdiction of
England and Wales and sign the completed form in your presence.81 A ‘copy’
of the completed application form must be kept on your file for audit purposes;
if you work digitally it can be a scanned or electronic copy without keeping the
wet ink copy.82
As most prospective clients will be serving prisoners it is unlikely that you will
be able to invite them to your office to complete and sign the forms. Instead
you will want to send them the forms by post to complete. In that case you
are allowed to send the forms to them as an exception to the general rule
above. If this is the case, you will need to note this on the CRM2 form, by
ticking to indicate that you have accepted a postal application and setting out
the justification for this, as per the relevant sections of the SCC.83 Alternatively
you are allowed to claim the travel to visit them in order to complete the forms
(see 8.37 below).
Once these forms have been completed the provider will need to check them
for consistency. One area where particular care needs to be taken is whether
there is a ‘partner’ whose income or capital needs to be taken into account
(see 8.23 above). Prospective clients will often tick ‘single’ or ‘separated’ on
the forms and at the same time supply other information that suggests they are
married or in a long-term relationship. The fact that they may be separated due
to the client’s incarceration does not mean the partner’s financial resources can
be ignored unless that has brought about an end to the emotional relationship.

79 CBAM, para 12.2.4.

80 CBAM, paras 12.2.5 and 12.2.7.
81 SCC, paras 4,21 and 4.24.
82 SCC, para 4.2.
83 SCC, paras 11.11–11.12.

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8.36 Public funding and pro bono assistance

The LAA will look at factors such as whether the partner was providing any
regular financial support and/or visiting the client on a regular basis. Sharing
the same address will be taken into consideration when a client is not in custody,
but it may not mean they are in a subsisting relationship as they may be living
together as separate households. If there is any contradictory information it
needs to be addressed before the file is opened and there should be a clear file
note supporting your decision if you have exercised your discretion.

Filtering requests
8.36 You are required to filter requests for advice by checking whether the
client has received negative advice already. If that advice appears to be sound
then you will not be able to accept the case.84

Outward travel or postal applications

8.37 Often clients will be unable to attend the solicitor’s office as they will
be in custody, so you can give advice and travel to a client before the forms
are actually signed. Solicitors can also accept postal applications where there
is good reason.85 If they are outside the European Union special rules apply.86
Telephone advice can also be provided to the client before signature. This work
can be claimed provided the client completes the CRM 1 and CRM 2 and
qualifies for advice. The reason must be noted on the file.87 Unless you are
visiting the prison or detention centre for some other reason that is already
funded, generally it is safer for a solicitor to send the application forms to the
client to complete and return. This is because prison visits are often cancelled
or ineffective for reasons outside your control and if, as a result, the forms do
not get signed you will be unable to claim for your time.

Is further advice justified?

8.38 Further advice can be justified if there appears to be new evidence
or there is an issue with the conviction or sentence that was not addressed
adequately in the previous advice. The LAA will want the file to show that there
are substantive issues outstanding or there has been a material development.88
They suggest up to three hours’ work should be sufficient to investigate these
further and instruct an advocate.89

84 SCC, para 11.5; this can be done using a detailed New Enquiry Form – see Appendix F.
85 SCC, para 4.31.
86 SCC, para 4.31.
87 SCC, paras 11.11–11.15.
88 CBAM, para 12.2.7.
89 SCC, para 11.6.

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 Practical issues 8.39

Applications to extend funding

8.39 The initial costs limits are modest.90 If there is a substantive issue with
either the sentence or the conviction you will need apply to extend the upper
limit. This is best approached in stages. Each stage will set out the minimum
work that needs to be done till the next stage is reached. The LAA will expect
you to have carried out all the work authorised before reapplying. This can
create practical problems if you do not carry out the anticipated work, but there
is other unanticipated work that needs to be carried out. There is no procedure
for amending the extension once it is granted so you can either do the work
and make a clear note for audit purposes or email the LAA for advice. If you
can show it is reasonable to do the work it should be allowed on an audit
assessment.91 The solicitor must then apply for extensions using a CRIM 5
eForm via the LAA portal.92 The application should set out a breakdown of the
work using the correct rates specified in the Criminal Legal Aid (Remuneration)
Regulations 2013.93 The CRIM 5 application will be considered by a specialist
team at the LAA. Extensions cannot be obtained retrospectively.94 The time
spent making the application to extend can be claimed so it should be factored
into the next stage of work as part of the CRIM 5 application as it will be
necessary to spend time drafting a further CRIM 5 for any follow on application
for a further extension.95 Applications for extensions will set out the estimate
of time for the litigator’s work at the applicable hourly rates.96 The application
should show that the proposed work is reasonable and the SBT continues to
be met.97 The application will include any disbursements that will need to be
authorised. The figures should not include VAT.98 There is general guidance in
CBAM on the disbursements that will be allowed under the SCC.99
It is important to note that it will be the actual costs that have been already
incurred and not the previous limit extension that will be taken as the starting
point for the new application. This means that any excess in your previous
upper limit is lost when a new application is submitted. In certain exceptional
circumstances, where it is necessary to urgently apply for further funding, the
LAA may allow you to treat the remainder of the upper limit which not yet
been used as having already been incurred, but this is unusual and it should
be assumed that this will usually not be allowed. A detailed note of any
communication with the LAA regarding this should be kept on file.

90 Currently for Court of Appeal cases £273.75 and for CCRC applications £456.25.
91 SCC, para 5.19.
92 SCC, para 5.10.
93 CBAM, para 5.15; SCC, para 8.2.
94 SCC, para 5.13; CBAM, para 8.3.
95 CBAM, paras 3.3.4 and 7.1.11.
96 Remuneration Regulations Part 8, Sch 4. Routine items: London £3.51, national £3.38;
preparation: London £45.35, national £42.80; travel and waiting £24.00.
97 CBAM, para 8.3.
98 SCC, para 8.18.
99 SCC, paras 5.37–5.49; CBAM para 7.

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8.40 Public funding and pro bono assistance

The LAA assessor may return the CRM5 application with queries about the
contents. A response with clarification can be sent back electronically via a
text box on the eForms portal. This response must be provided within five
working days of the query.
If an application for an extension is refused, submissions can be made to the
crime finance team at the LAA. If these are unsuccessful then the usual appeals
procedure applies. Any request must be made within 28 days of the decision.
The matter is referred to an Independent Costs Assessor (ICA). Submissions to
the ICA should succinctly address the LAA’s reasons for refusal and these are
more likely to succeed if they contain specific references to relevant sections
of the SCC, CBAM and the PoP Manual. The ICA should look at the issues
completely afresh and they can confirm, increase or decrease the previous
assessment. The solicitor and advocate can request an oral hearing if the issues
are complex though the vast majority of appeals are dealt with on paper.100 If
you are still dissatisfied the only remedy would be judicial review. It should
be noted that, when an application is made to the ICA it is not only the current
application which can be reconsidered. The ICA has the power to reconsider
any previous application for extensions of the upper limit and reduce or remove
any prior authorities which had been previously granted.

SPECIFIC APPLICATIONS AND APPEALS AGAINST

REFUSALS
8.40 The usual applications will include:
(a) Transcripts – These can be obtained for the relevant parts of the
proceedings. In a sentence case this will be the sentencing remarks and
possibly the prosecution opening and mitigation. In a conviction case it
will usually be the relevant parts of the summing up or the rulings in issue.
If you may need evidential transcripts, you should consider whether the
summary of the evidence in the summing up is sufficient without the actual
transcript of the evidence.101 In CCRC cases that have already been to the
single judge or full Court it is worth checking if there are any transcripts
on the court file. Also in CCRC cases you should obtain a transcript of the
full Court of Appeal judgment to show that new issues are being raised on
the application to the CCRC that were not previously raised on the appeal.
(b) The EX107 Form procedure must be followed for Crown Court
transcripts.102. This is a two-part process: the first is to get a quote by

100 CBAM, paras 8.19–8.29 and 4.4.

101 CBAM, para 12.3.5.
102 For Court of Appeal transcripts it is not necessary to request the permission of the court –
this is automatically granted. The completed EX107 must simply be sent to the transcribers
directly.

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 Specific applications and appeals 8.40

completing and sending the Form EX107 to the Crown Court via email,
copying in the transcription company, and the second is to complete and
send the Form EX107 to the court.103 There is a list of transcribers for
the different Crown Courts set out in the EX107 guidance. The request
must be approved by a judge, who will sign a section of the form to
confirm their approval of a transcript being obtained. Once approved,
the Court will send the completed EX107 to the defence team and to
the transcription company, who will then provide a quote. The Form
EX107 has a declaration that you agree to be responsible for the costs.
However, there is a section of the form where you can indicate that you
require a quote to be provided and approved by you before they will
begin the transcription. Once a quote has been obtained you will need
to apply to the LAA for an extension to cover the estimate provided.
Often the actual cost will be less than that quoted, but if it is more you
will need to apply for a further extension. (b) Advocate’s advice – Once
a realistic appeal point has been identified an advocate will need to be
instructed for an advice and, if it is positive, to draft the grounds. This
will usually be an external advocate given the restrictions on advice by
an in-house advocate and the additional requirement that they must also
be the advocate in the case, which is not always possible to guarantee
(see 8.18 above). The going rate for a junior advocate is £80 per hour
for drafting and advising. This should include a breakdown of the hours
needed to advise. For sentence this will usually involve four to six hours’
reading and drafting, though this will be very case-dependent. While
care should be taken to avoid unnecessary reading of documents that can
be passed to the advocate to read, the litigator is not just a post box for
the advocate.104 For more complex cases, especially CCRC applications
involving expert issues, the number of hours could be 20–30 or more.
These applications will be carefully scrutinised by the LAA and if not
granted in full despite further representations, they may need an appeal
to the ICA (see 8.34 above). The SCC recognises that specialist advice
will be needed in CCRC applications.105 They will allow a higher hourly
rate of £120 per hour for ‘exceptional’ cases, as these will usually involve
a QC, but the fact that you have instructed a QC to advise on a case does
not necessarily mean that the LAA will agree to grant the higher rate as
it is difficult to persuade the LAA that the higher rate is justified.106
(c) Expert opinion – it is often necessary to instruct an expert. There is
general guidance on what factors the LAA will look at when assessing

103 Guidance at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/

attachment_data/file/763958/ex107-gn-eng.pdf
104 CBAM, para 7.2.
105 SCC, paras 11.24–11.25.
106 The current guidance the LAA employ appears to consider ‘exceptional’ as meaning for that
type of case which is contrary to the guidance in Broudie that it should be compared to cases
in general (see 8.15).

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8.41 Public funding and pro bono assistance

an application to pay their assistance.107 The application may be stronger

if supported by an advice from an advocate explaining the need for one.
However, you should bear in mind that will lead to further costs so it may
be better to apply without one in a straightforward case. The LAA may
ask for at least two quotes in less straightforward cases, but often an expert
you have used before for LAA work will be approved. Generally the rates
payable to experts are those set out in the regulations.108 In exceptional
cases the LAA may agree to increase these rates. If the expert is in a very
specialist field and you cannot find a suitable one for LAA approved rates
it can be useful to get the expert to provide details of other recent publicly
funded cases they have done for either the prosecution or the defence
where their higher rate was paid. There is a presumption that a further
report will not be paid for so if you are unhappy with the first one, you will
face resistance from the LAA to any application for a new one.109
(d) Travel – The LAA take a starting point that any return travel time over
two hours will be disallowed unless justified. Good reason may be that
your client has made several requests for advice from local providers
without any response or that this is a complex matter and there are no
solicitors with specialist criminal appeal experience who are closer
to the client. Another good reason might be that you have significant
knowledge of the case or the client. Generally, return travel over four
hours will not be granted unless exceptional. The usual exception relied
upon would be that your specific knowledge of the client or the case
means it would not be cost-effective to instruct a firm closer to the
prison or detention centre. That would be because it would take more
preparation or attendance time for the new provider get up to speed than
the additional amount of travel being asked for. Likewise, if your client
is transferred to a different prison that is further away from your office it
is possible to justify additional travel time being granted on this basis.

Criminal Cases Review Commission applications – special

considerations
8.41 There are some obvious distinctions between an application for
permission to appeal to the Court of Appeal and an application to the CCRC.
The tests are different and usually the applicant will have to have already
unsuccessfully appealed the conviction or sentence. As that is a pre-requisite to
making an application unless exceptional circumstance apply (see Chapter 9)
the first question is to check whether an application for permission has already

107 CBAM, para 7.2.

108 The Criminal Legal Aid (Remuneration) Regulations 2013 (SI 2013/435) (updated version),
Sch 5.
109 CBAM, para 7.2.8.

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 Specific applications and appeals 8.42

refused by the single judge or the full Court. If leave has not been refused the
advice you are providing will not be about an application to the CCRC but the
normal application to the Court of Appeal. In that case a file needs to be opened
for that advice bearing in mind the guidance (see 8.24 and 8.25 above).
In a small number of cases the exceptional circumstances test might be met
for an application direct to the CCRC bypassing the Court of Appeal; this
may because a lot of investigative work needs to be done which you will need
the assistance of the CCRC and their extensive powers (see Chapter 9). These
types of cases may include developments in forensic science, concerns about
credibility of witnesses or police conduct, PII issues or undisclosed material
which you would not have the resources or powers to pursue adequately.
Another issue that often arises at the outset which will affect funding is whether
to renew an application for permission to the full Court when it was refused
by the single judge. Usually that will be a better option as an application to the
Commission is the last resort which the client will still have if the full Court
refuses permission. The SCC recognises these initial considerations apply.110
If the CCRC is the correct option then your file opening note showing the SBT
has been met should say why you think the CCRC referral criteria was met.111

8.42 The LAA recognises that it is not easy to show that the referral
criteria are met without some investigation of the history of the appeal. You
will generally be able to open a file if the case potentially passes the referral
test.112 A lawyer coming to the case afresh will be unable to decide immediately
whether the case is likely to meet the referral criteria so you are allowed to
provide ‘initial case screening’ to an eligible client who it appears may have
an application.113 The LAA expects the lawyer to obtain a statement from the
client to carry this out and it suggests that this will ‘normally’ take two hours
for a client in the locality of the office.114 It is useful to have a detailed enquiry
form for prospective clients to complete with questions covering the specific
details you will need to consider. There is an example in the Annex.115 Often
it will take longer and, as with all work in this area, file notes should justify
the time spent. In making an assessment ‘the provider should initially take
instructions and ascertain whether the case is both suitable to be heard by the
Commission and whether the case meets the referral criteria applied by the
Commission’. Often this work will give rise to difficult decisions as to whether
the costs of further investigation are justified. The LAA expects the lawyer
to make these decisions ‘in light of the available information and using your
professional skill and common sense’.116

110 SCC, para 11.19.

111 SCC, para 11.20.
112 SCC, para 11.22.
113 SCC, para 11.21.
114 SCC, para 11.22; CBAM, para 12.3.4.
115 See Appendix F.
116 SCC, para 11.21.

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8.43 Public funding and pro bono assistance

8.43 It may be necessary to obtain transcripts of the evidence but you

should check whether any were already obtained by the Court of Appeal or
are adequately covered by the Summing Up if already available.117 The LAA
acknowledge the need to get the opinion of an advocate in these cases.118 The
reality is that these cases are often grave and complex. They can involve novel
and complex areas of legal interpretation which may require advice from a
leading advocate. The LAA will be reluctant to incur the costs of a leading
advocate especially if a junior advocate has already advised. Therefore, the
solicitor must decide whether to involve a QC from the start and ask them to
justify the higher rate or instruct a junior advocate and see whether they feel
the issues are within their competence. Often if the higher rate is refused the
QC will agree to work for a lesser rate, though in principle if a case justifies the
instruction of a QC the higher rate should be applied for and, if refused without
good reason, the decision should be appealed to the ICA. Sometimes the ICA
refuse these appeals on the basis that the higher rate is above that quoted in the
general criminal regulations, but as the majority of general crime work is paid
by the way of fixed fees the comparison is not helpful and should be challenged.
The test is whether the case justifies a much more experienced advocate.

8.44 It may be necessary to obtain, prior to the referral, expert evidence

where there is an issue that is crucial to the safety of the conviction, although
the LAA expects the defence lawyers to bear in mind that the CCRC can
obtain or pay for expert reports.119 It should be noted that if the CCRC obtain
expert reports, these will not normally be disclosed to the applicant’s lawyers
during the CCRC’s assessment and review process. This means that it is not
possible to make representations to the CCRC on behalf of your client until
the provisional statement of reasons is provided by the CCRC referencing any
expert advice they have obtained. At that stage you may request sight of any
expert opinion referred to in the CCRC’s provisional conclusions so you can
address the issues. They may agree to provide it though it is often preferable to
instruct your own expert at an earlier stage so you are in control of the issues.

8.45 Once a case is referred back to the Court of Appeal by the CCRC the
Registrar will usually grant a representation order to include an advocate and
litigator. As soon as that is granted you should close and bill your advice and
assistance file.

Claiming for work done under the advice and assistance scheme
8.46 You cannot advise under freestanding advice and assistance where
there is a representation order in the proceedings and advice on appeal or

117 CBAM, para 12.3.5–12.3.7.

118 SCC, para 11.24.
119 CBAM, para 12.3.3.

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 Specific applications and appeals 8.48

sentence can be claimed under that representation order, except where the
client has changed provider since the original proceedings.120 However, this
means you are allowed to advise and claim under freestanding advice and
assistance for any fresh issue that arises subsequently. If that relates to an issue
that you have not previously advised on regarding either a possible appeal to
the Court of Appeal or a CCRC referral then an Appeals and Reviews matter
can be opened as there is no other way to claim for this work under the original
representation order. Of course, if it is a matter that you should have advised on
originally, or it relates to an error or omission by you, you will need to consider
whether a conflict of interest arises and whether the client should be advised
to instruct a new team. If the point now raised was due to a questionable legal
decision taken by the original external advocate, it may be possible to continue
to act but with a new advocate instructed.

8.47 A claim should only be submitted when:121

(a) the matter has concluded;
(b) it is known that no further work will be undertaken for the client in the
same matter;
(c) it is unclear whether further work will be undertaken and at least one
month has elapsed since the last work was undertaken; or
(d) in the case of a claim for advice and assistance on an appeal against
conviction or sentence, including an appeal by way of case stated or an
application to vary a sentence, where a determination has been made by
the relevant court as soon as the representation order has been issued.
Often in CCRC cases you will want to close and bill your file under condition
(c) as soon as the application is acknowledged by the CCRC as it will be a
long time before you will hear from them again. Once you have received their
provisional reasons you can then re-open the file and start to record time again
(see 8.48 below).

Further instructions after a matter ends or a claim has been

submitted
8.48 Once you have closed and billed your file any subsequent advice
and assistance in relation to the same matter will require a new application
but will be subject to the previous upper limit. This can only be done if there
are substantive issues outstanding from the first occasion or there has been a
material development or change in the client’s circumstances such that further
advice is now required. The client must complete a further CRM 1 and CRM 2

120 SCC, para 11.40.

121 SCC, para 11.4.

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8.49 Public funding and pro bono assistance

and the means test and SBT must be passed. The same unique reference number
(UFN) must be used and the second file should include a reference to the first
and kept together for audit purposes.122

ALTERNATIVE SOURCES OF ADVICE AND

ASSISTANCE
8.49 There are limitations to the type of work that the LAA may be willing
to fund. Funding is rarely extended to complex cases or lengthy investigations.
Moreover, the availability of funding does not guarantee that there will be
competent lawyers who will be willing to undertake the work in question.
Not only are the number of solicitors firms who undertake work in this area
threatened by cuts to legal aid, but the limitations in the extent of funding may
mean that competent firms who do have LAA contracts may feel that they
cannot justify extensive work on complex cases for the limited funding that is
available.

8.50 Whilst it is always open to a defendant with the means to pay for their
legal representation, this is not an option for many of those who have been
convicted of serious crimes, particularly when the conviction is followed by a
substantial custodial sentence. It may, therefore, be necessary for the defendant
to consider alternative means of advice or assistance.

Innocence projects
8.51 Innocence projects were first established in the USA. They are
university-based projects in which students, under an academic supervisor
and often also with the assistance of practising lawyers, investigate potential
miscarriages with a view to obtaining evidence that is capable of proving the
innocence of the convicted person. In the USA many of the projects have had
success in obtaining the evidence that leads to the overturning of convictions.

8.52 The innocence projects that are based in England and Wales have
been established more recently than many of their US counterparts and they
have yet to achieve the success of which many US projects can boast. The first
UK project was established at Bristol University in 2005 and there are now
approximately 30 located at various universities.123 Until 2014 many operated
as affiliates to the Innocence Network UK, which was run by the founders
of the Bristol University project and provided training and support for other

122 SCC, para 11.36–38.

123 Article by Lee Glendinning, Guardian, 3 September 2004. See: www.theguardian.com/
uk/2004/sep/03/ukcrime.prisonsandprobation/print.

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 Alternative sources of advice and assistance 8.55

projects.124 Despite this activity, the work of the UK innocence projects has yet
to lead to the overturning of a single conviction. Certain projects, particularly
Bristol and Cardiff, have had successes in getting cases are referred back to the
Court of Appeal by the CCRC as a result of evidence that they have uncovered.
But in 2013 a lawyer from the CCRC remarked in a speech that the number of
referrals that they had received from innocence projects was very low (17 in
ten years from a total of five universities).125

8.53 There a number of limitations to the innocence project model. The

fact that they will usually only assist those who proclaim their total non-
involvement with their alleged offence (precluding, for example, assistance
being given to the defendant convicted of murder who claims to have suffered
from provocation or diminished responsibility that would render them guilty of
manslaughter) acts as a limit on the number of people that innocence projects
can assist. However, it is the experience of lawyers that prisons are not short
of prisoners who proclaim their innocence and seek to have their convictions
overturned. It seems that there are limitations to what students, who lack
legal training and can give neither full-time nor long-term commitment to a
particular case can achieve.

8.54 They may be no substitute for qualified legal assistance but innocence
projects can supplement the work of lawyers, particularly in undertaking
the investigative work for which funding may not be available. For those
who seek to prove their innocence and cannot find a lawyer to take on their
case, innocence projects may, for months or years, be their sole source of
assistance.

The Centre for Criminal Appeals

8.55 The Centre for Criminal Appeals is a charitable organisation that was
founded, on the model of American civil rights-era non-profit legal practices
in order to assist those who wish make an application to the CCRC and/or
appeal a conviction in the Court of Appeal but lack the means to pay for their
own representation. As a charity the Centre can raise private funds and have
access to pro bono experts and advocates that will enable its lawyers to focus
solely on appeals and overcome the limitations imposed by the public funding
regime. The Centre takes on carefully selected cases which they believe will
have strategic impact upon the criminal appeals system. Their model of work
includes substantial hands-on investigative work to uncover new evidence,
a methodology which is not generally achievable by legal aid funding. The

124 See the Innocence Network UK website at www.innocencenetwork.org.uk for the history of
the organisation and its present role.
125 Article by Jon Robbins, Guardian, 20 November 2013. See: www.theguardian.com/law/2013/
nov/20/appeal-court-innocence-projects-dwaine-george.

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8.56 Public funding and pro bono assistance

Centre provides valuable advice and assistance, particularly in those cases

requiring significant investigation work and a long-term commitment by the
legal team.126

Advocate (formerly known as the Bar Pro Bono Unit)

8.56 A number of advocates are prepared to provide advice and assistance
in particular cases for free. The best chance of obtaining such assistance is
through Advocate, which can obtain the details of a particular case and
forward it to advocates who may have the experience and willingness to assist.
However, it is not altogether clear that an advocate would have the willingness
or the best professional expertise to undertake the type of extensive work for
which funding would not be available under the advice and assistance scheme.

SUMMARY OF KEY POINTS

• The three regimes for public funding are: representation orders that are
granted by the Crown Court; representation orders granted by the Court
of Appeal; and funding for advice and assistance under the Standard
Crime Contract. These sources of funding are mutually exclusive.
• Positive advice and assistance in lodging an appeal can be claimed by both
the trial litigator and the advocate under the Crown Court representation
order. No claim can be made for a negative advice.
• Funding for advice and assistance under the Standard Crime Contract
will enable lawyers who did not represent the defendant at trial to
provide advice and assistance (but not representation). It is subject to the
criteria of means and merits. An application may not be made until six
months have elapsed since the client was last advised under the scheme.
The scheme also allows the original lawyers to look at a fresh issue that
arises later provided they are not being criticised.
• Application for funding for advice and assistance is by way of CRM 1 and
CRM 2. Each application for an extension of funds, including funding to
cover the advice of an independent advocate, transcript, experts’ reports
or extensive work by defence solicitors, must be made through CRIM 5.
• It will assist an application for extension of funding if it is supported
by an advocate’s advice that explains why the funding that is sought is
necessary to the case.
• The merits criteria must be satisfied in respect of each application for
extension of funding. In order to meet the merits criteria the application

126 See the Centre for Criminal Appeals Project website at www.criminalappeals.org.uk. It
should be noted that lawyers from the Centre contributed to Chapter 5 of this book.

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 Summary of key points 8.56

must provide some reason to show that the work could benefit the
client. It is not sufficient simply to suggest that there should be a second
opinion.
• For those cases which involve extensive work for which funding may
not be granted, the defendant may wish to seek the assistance of an
innocence project or the Centre for Criminal Appeals.

145
Part 3
Applications from the Court of Appeal
Chapter 9

The Criminal Cases Review Commission

INTRODUCTION

Yes
Appeal (or leave) Real possibility
rejected/refused/abandoned? of referral on new
argument or point?
No

Yes

Yes
CONVICTION ONLY
CCRC makes referral to
Exceptional circumstances Court of Appeal

No

End of line

No limit on applications to
refer

Figure 9.1 Flowchart for referrals by the CCRC

9.1 The Court of Appeal will not allow a second application for leave to
appeal conviction or sentence after a previous such appeal has been dismissed.
The only route back to a second appeal to the Court of Appeal is by way of a
reference back by the Criminal Cases Review Commission.

9.2 In addition to its power to send cases back to the Court of Appeal,
the Criminal Cases Review Commission (CCRC) can investigate convictions
and has powers beyond those otherwise available to a convicted person and

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9.3 The Criminal Cases Review Commission

their lawyers. The CCRC can use those powers either when considering an
application by a convicted person to refer a case to the Court of Appeal or,
more rarely, when the Court of Appeal directs it to do so.

THE ESTABLISHMENT AND ROLE OF THE CRIMINAL

CASES REVIEW COMMISSION
9.3 For many years, the only route back to the Court of Appeal, Criminal
Division, for a second appeal was a reference by the Home Secretary; such
references were rare and the process by which applications were considered
was slow and opaque. After a series of miscarriages of justice in the late
1980s and early 1990s,1 a Royal Commission2 recommended the power to
refer possible miscarriages of justice be removed from the Home Secretary
and placed in the hands of an independent body. Parliament enacted those
recommendations through the Criminal Appeal Act 1995 (CAA 1995), which
established the CCRC as an independent, non-governmental body3 with the
following powers:
(a) to refer any sentence or conviction in the Crown Court to the Court of
Appeal if the Commission is of the opinion that there is a real possibility
that an appeal will be allowed;
(b) to conduct any investigation that the Court of Appeal may direct it to
undertake in order to assist the Court in the determination of an appeal;
(c) to refer, on the same basis, any sentence or conviction in the Magistrates
Court to the Crown Court;
(d) to assist the Home Secretary by providing an opinion on whether
to recommend the exercise of Her Majesty’s prerogative of mercy in
relation to a conviction.4

THE COMMISSION’S POWER TO REFER TO THE

COURT OF APPEAL
9.4 The Commission has a power to refer a conviction or sentence to the
Court of Appeal where a person has been convicted of an offence on indictment

1 The late 1980s and early 1990s saw the exposure of a series of miscarriages of justice, related
to wrongful convictions for terrorist crimes, which culminated with the ‘Birmingham Six’
appeal in 1991.
2 The Royal Commission on Criminal Justice, commonly referred to as the ‘Runciman
Commission’, was established by the Home Secretary in March 1991 and reported in July 1993.
3 CAA 1995, s 8 establishes its constitution.
4 CAA 1995, s 16(1). The Commission has never been called upon to make a recommendation
under this section.

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 The test for referral 9.9

in England, Wales or Northern Ireland.5 The power extends to a verdict of not

guilty by reason of insanity and a finding that a person was under a disability
when they did an act or made an omission.6

9.5 It may refer following an application or of its own motion where no

application has been made.7 A referral will be treated as an appeal, with leave,
under CAA 1968 and must be heard by the Court.8

9.6 Although the CCRC only refers a small percentage of applications

that it receives, there is a high success rate.9

THE TEST FOR REFERRAL

9.7 Section 13 of CAA 1995 provides that no reference shall be made
unless the Commission considers that there is a ‘real possibility’ that:
(a) the conviction, verdict or finding under appeal would not be upheld
because of an argument, or evidence, not raised in the proceedings which
led to it (or on any appeal or application for leave against it); or
(b) in the case of a sentence, because of an argument on a point of law or
information not so raised; and
(c) an appeal against the conviction, verdict, finding or sentence has been
determined or leave to appeal has been refused.

9.8 However, section 13 gives the Commission the power to refer even
when (a) or (c) do not apply if there are ‘exceptional circumstances’ which
justify making it; thus, there can be a reference back even where there is no
new evidence or argument and/or when there has not been a previous appeal.
The ‘no new point’ exception, however, only applies to an appeal against
conviction, so for a sentence appeal there must be a new argument.

The discretion whether to refer

9.9 It is important to note that the Commission has discretion not to refer
even if the test under section 13 is satisfied. For example, if the conviction is

5 CAA 1995, s 9. By virtue of s 12A it has also been extended to include references of
convictions and sentences by the Court Martial to the Court Martial Appeal Court and by the
Service Civilian Court to the Court Martial.
6 CAA 1995, s 9(5), (6).
7 CAA 1995, s 14(1).
8 CAA 1995, s 9(2), (3).
9 Of the six referrals decided by the appeal courts in 2017/2018, four appeals were allowed and
two dismissed (CCRC Annual Report and Accounts, 2017/2018).

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9.10 The Criminal Cases Review Commission

likely to be quashed but only to be substituted by an alternative conviction,

allowing the original conviction to stand may cause no real injustice to the
applicant.10 The appellate courts have been robust in protecting the CCRC’s use
of this discretion, no doubt fearing the opening of flood gates such as would
drown the Court of Appeal in further cases, were the CCRC’s ‘gatekeeper’ role
undermined.

APPLYING TO THE COMMISSION FOR A REFERRAL

Who may apply?

9.10 An application does not have to be made by the defendant him or
herself. This means that a family member with a substantial interest in the
outcome of an appeal could make an application on behalf of someone who had
died after conviction. However, when a defendant has died, the Commission
will only consider the application if an ‘approved person’11 (such as a family
member) can be identified in whose name any application for leave might
be made.

When to apply
9.11 Normally an application should be made to the Commission only if:
(a) an appeal has been considered and refused by the Court of Appeal; or
(b) leave has been refused by the single judge (it need not have been renewed
before the full Court); or
(c) an application for leave or an appeal with leave has been abandoned; and
(d) there is argument, evidence or information in the terms of section 13(a)
or (b) that was not considered by the Court of Appeal in that initial
appeal.

9.12 What counts as ‘new argument’ is a matter to be considered in each

case. However, a change in the law will not itself be regarded as giving rise
to new argument that raises a real possibility of an appeal being allowed.
Section 16C of CAA 196812 now provides that the Court may dismiss any
reference based solely on the change of law where, had the application for
extension of time been made by the defendant, that application would have
been refused. The Commission should now only refer cases involving a change

10 Smith (Duncan Wallace) [2004] EWCA Crim 631.

11 CCA 1968, s 46A makes the nomination of an approved person following the death of a
defendant a pre-condition for a valid appeal.
12 As inserted by the Criminal Justice and Immigration Act 2008, s 42.

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 Applying to the Commission 9.16

in the law where the test of a change in the law giving rise to ‘substantial
injustice’(R v Fletcher; R v Cottrell)13 may be said to be met. The Commission
has published guidance on this aspect of its discretion.14

9.13 There are no time limits for making an application, but this does not
mean that the applicant should delay making it. There is no formal restriction
on reapplying; indeed a recent successful referral was made at the third
time of asking where fresh DNA evidence further undermined questionable
identification evidence.15 However, applications which are substantially the
same as those which have already been refused should clearly not be made.

‘Exceptional circumstances’
9.14 As indicated, the Commission may, in exceptional circumstances,
make a reference to the Court of Appeal even if there was no previous appeal.
Whilst there is no statutory definition of ‘exceptional circumstances’, the
Commission’s own guidance sets out a number of non-exhaustive situations in
which exceptional circumstances may be made out.16

9.15 Among them are cases where there may be an arguable appeal but
this will depend on further investigations being carried out and third party
material being obtained and considered. If the Commission concludes that it
is not possible for the applicant and their legal representatives to carry out
this investigation but that it might be carried out by the Commission, then this
might give rise to exceptional circumstances. However, the Court has stressed
that the mere existence of relevant third party material should not necessarily
be regarded as giving rise to exceptional circumstances.17

Making the application

9.16 The Commission’s website contains guidance for the making of an
application.18 In addition, it has published individual memoranda on various
aspects of its work describing how it deals with common issues. These can be
found in the ‘casework’ section of the website.

13 [2007] EWCA Crim 2016.

14 CCRC Formal Memorandum – Discretion in Referrals (including applications based on a
change in the law), Version 1.
15 Regina v Victor Nealon [2014] EWCA Crim 574.
16 CCRC Formal Memorandum – Exceptional Circumstances
17 R v Gerald [1999] Crim LR 315.
18 www.justice.gov.uk/downloads/about/criminal-cases-review/policies-and-procedures/ccrc-
q-and-a.pdf.

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9.17 The Criminal Cases Review Commission

9.17 It is advisable, although not necessary, that an application be made with

the assistance of a lawyer. Funding may be available for legal representation
under the ‘Advice and Assistance’ scheme (see 8.36–8.40 for details). While
there have been a number of successful references back to the Court of Appeal
by applicants in person, the involvement of a lawyer will (or at least, should)
weed out the bad points, set out more clearly the good and thereby make the
CCRC’s task easier and increase the chances of a successful application.

9.18 The application should be made using the Commission’s application

form. However, applicants are likely to benefit by submitting additional
grounds which should set out the legal and factual issues that are relevant to the
application, address the relevant statutory questions and include all material
that may be of assistance to the Commission in making its decision.

Requesting an investigation
9.19 If an applicant wishes the Commission to carry out an investigation,
it is important to explain why the material sought is of importance to the
application. It is also important to explain what steps the applicant and their
lawyers have already taken to obtain the material sought and the outcome of
any such enquiries.

9.20 There has been increasing demand for the Commission to use its
powers to investigate the adequacy of legal advice given to those who may
have been prosecuted in contravention of international conventions or pleaded
guilty in ignorance of a defence, in particular section 31 of the Immigration
and Asylum Act 1999.19 The Commission has published specific guidance for
potential applicants who may be refugees or the victims of trafficking.20

The decision-making process

9.21 An initial screening takes place to ensure that the application is valid.
Early steps are taken to secure potentially relevant material that is held by
a public body. Certain cases will be given priority.21 The case will then be
allocated to a case review manager who will examine the issues raised in
the application to see if there might be anything that could give grounds for
referring the case. The Commission is allowed to consider any representations

19 In Regina v Mateta [2013] EWCA Crim 1372 the Commission referred a number of cases to
the Court concerning the defence under s 31.
20 www.justice.gov.uk/downloads/about/criminal-cases-review/policies-and-procedures/ccrc-
seeker-refugee-leaflet.pdf.
21 For example, if the applicant is serving a sentence that is soon to expire or is suffering from a
potentially fatal illness.

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 Applying to the Commission 9.25

and any matters that appear to be relevant.22 Investigations are carried out when
they are appropriate. Most are carried out by Commission staff. However,
investigators may be appointed to assist in carrying out enquiries. If necessary,
the Commission can, at any stage, ask the Court of Appeal to provide an
opinion on a relevant matter of law.23

9.22 When the review is complete it is considered by either a single

commissioner or a committee of three commissioners. A single commissioner
may decide not to make a referral. However, only a committee of three
commissioners can make a referral.24 If they are of the view that a referral is
justified then a final statement of reasons will be completed and sent to the
applicant and the Court of Appeal. If it is decided not to refer, a provisional
statement of reasons is drafted.

The provisional statement of reasons

9.23 The applicant and their lawyers will be sent a copy of the provisional
statement of reasons and be given the opportunity to respond to any points
made or to provide further information. The correspondence will usually
indicate that any response must be received by a particular date. If more time
is needed it should be requested with an explanation.

The final decision

9.24 The final decision will be contained in the ‘Final Statement of
Reasons’ which will be provided to the applicant and their legal representative.
The decision must be clear and fully reasoned in order that the applicant can
understand how it has been reached. Fairness may require the disclosure of
information that the Commission has taken into account when reaching its
decision (R v Secretary of State for the Home Department, ex p Hickey (No.
2)).25

Likely timeframe for a decision

9.25 The CCRC reports the timings of its process in two stages: the time
between an application being received and assigned to a case review manager
(CRM); and the time then taken to reach a provisional view to either refer or to
refuse to refer the case to the Court of Appeal. In 2017/18 the average time from
receipt to allocation was 15.9 weeks for custody and at liberty cases, and 23.3

22 CAA 1995, s 14(2).

23 CAA 1995, s 14(3).
24 CAA 1995, Sch 1, para 6(3).
25 [1995] 1 WLR 734 (DC).

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9.26 The Criminal Cases Review Commission

weeks for liberty cases. In the same period, the average time from allocation
to a CRM to a provisional view being taken was 32.6 weeks.26 The CCRC has
ambitions to lower both waiting times but for the present, an applicant would
need to be advised that the average wait from application to decision is in the
region of a year. However, the length of time can vary from weeks to many
months depending on, amongst other things, whether the Commission needs to
undertake any investigations.

CHALLENGING A REFUSAL TO MAKE A REFERENCE

9.26 A decision not to refer the case may be challenged by way of judicial
review. As with any judicial review, the Court will not be concerned with
whether the decision was right but only whether it was lawful and reasonable
(Ex p Pearson).27 The Administrative Court has indicated that a high threshold
will have to be crossed to persuade it that a decision of the Commission not to
refer should be quashed (Cleeland v CCRC).28

THE PROCEDURE FOLLOWING A REFERENCE

BEING MADE TO THE COURT OF APPEAL
9.27 The procedure, which is largely governed by section 14 of CAA 1995
and Part 39 of the CPR, can be summarised as follows:
(a) If the Commission decides to make a reference to the Court of Appeal
it must send that decision to every person who is likely be party to the
appeal.29
(b) The decision is also passed to the Registrar of Criminal Appeals who must
also serve notice of the decision on the appellant and ‘any party directly
affected by the appeal’ (which obviously includes the Respondent).30
(c) The Registrar is likely at this stage to grant representation orders for
solicitors and counsel for the purpose of preparing the appeal.
(d) A Form NG should be served by the legal representatives of the appellant
within 28 days of receipt of the Registrar’s notice of appeal (application
to extend that time can be made) on the Registrar, not the Crown Court.31

26 The CCRC Annual Report and Accounts 2017/2018.

27 [2000] 1 Cr App R 141.
28 [2009] EWHC 474 (Admin), para 48.
29 CAA 1995, s 14(4)(b).
30 Part 39.6 CrimPR.
31 Part 39. 2 CrimPR.

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 The Commission’s investigatory powers 9.28

(e) Permission of the Court is required if the appellant seeks to advance

grounds that are not related to the reasons given in the reference.32 The
term ‘related to’, however, gives some latitude provided the grounds
advanced are founded on one of the points on which the CCRC has sent
the case back.
(f) Directions may be made for a particular case. However, the Court in R v
Siddall and Brooke33 suggested a timetable that parties should adhere to
and indicated delay caused by a failure to adhere to the timetable may
give rise to a risk of a wasted costs order being made.

AN OVERVIEW OF THE COMMISSION’S

INVESTIGATORY POWERS
9.28 The Commission’s investigatory powers are largely contained in
sections 17 to 25 of CAA 1995. The law in relation to those powers can be
summarised as follows:
(a) The Commission is authorised to obtain access to (and copy) all
documents and material from public bodies if it believes it may assist
the investigation. The duty of the public body to comply with a request is
not affected by any obligation of secrecy or other limitation on disclosure
and therefore will often include material not disclosed or available to
the defence at trial,34 for example social services’ files or other sensitive
information.
(b) The power includes a power to direct that such material is preserved in
an unaltered state until the Commission further directs.35 This may be
important if there is a risk that efforts may be made to conceal or alter
potentially relevant material.
(c) However, the person providing information to the Commission may
withhold consent for it to be disclosed to another party if an obligation of
secrecy would otherwise have prevented disclosure to the Commission
and it is reasonable to do so.36
(d) Although the public body is required to provide such material to the
Commission as it requests, there is no formal sanction for any failure to
do so, although the Commission may seek a remedy by way of judicial
review.

32 CAA 1995, s 14(4A), (4B); and see Regina v Hallam [2012] EWCA Crim 1158.
33 [2006] EWCA Crim 1353.
34 CAA 1995, s 17(4).
35 CAA 1995, s 17(2).
36 CAA 1995, s 25.

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9.29 The Criminal Cases Review Commission

(e) In addition to carrying out its own investigations, the Commission may
require the appointment of an investigating officer to carry out inquiries
on its behalf. Such a person may be from a public body or (more usually)
from the police. The Commission can direct that particular individuals
are not appointed or that police officers should not be from the police
force that carried out the original investigation.37
(f) With the two exceptions set out in (g) and (h) below, the Commission is
empowered only to obtain material from public bodies, not from private
corporations. The meaning of ‘public body’ is narrowly defined.38
(g) As a ‘relevant public body’39 the Commission may, in accordance with
the provisions of the Regulation of Investigatory Powers Act 2000,
obtain communication data from private individuals and bodies.
(h) If police officers are appointed to carry out an investigation, they may
employ their powers under the Police and Criminal Evidence Act 1984
to obtain material from private individuals or bodies.
(i) It is a criminal offence under section 23 of CAA 1995 for present or
former members or employees of the Commission, or investigating
officers appointed by the Commission, to disclose information obtained
in the course of the investigation save for one of the purposes contained
in section 24 of CAA 1995.
(j) There is no obligation to disclose all material obtained in an investigation
to an applicant or appellant. Indeed, there may be material which should
not be disclosed. However, the Commission should provide the applicant
with sufficient disclosure to enable them to properly present their best
case (Ex p Hickey (No 2)).40

9.29 As can be seen from the powers listed above, the CCRC have far wider
powers than those available to applicants and their lawyers. In many cases
the CCRC have obtained social services records and/or material that would
be withheld from any defendant as being subject to public interest immunity.
While the CCRC guard their discretion to choose which enquiries they make, it
is always worthwhile considering where fruitful material might be found when
drafting an application.

37 CAA 1995, s 19. R v Hallam [2012] EWCA Crim 1158 is a recent example of the successful
use of s 19 to investigate a police investigation.
38 CAA 1995, s 22(1).
39 By virtue of the Regulation of Investigatory Powers (Communications Data) (Additional
Functions and Amendment) Order 2006 (SI 2006/1878).
40 [1995] 1 WLR 734 (DC).

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 Investigations for the Court of Appeal 9.32

COMMISSION INVESTIGATIONS AT THE DIRECTION

OF THE COURT OF APPEAL
9.30 On any appeal against conviction the Court of Appeal may direct the
Commission to investigate and report to the Court on any matter, if it appears
to the Court that:
(a) the matter is relevant to the determination of the case and ought, if
possible, to be resolved before the case is determined;
(b) an investigation of the matter by the Commission is likely to result in the
Court being able to resolve it; and
(c) the matter cannot be resolved by the Court without an investigation by
the Commission.41

9.31 The Court may direct the Commission to carry out such an
investigation if any of the potential grounds turn on alleged irregularity in a
jury’s deliberations.42 Serious failures by the prosecution in their duties of
disclosure have also been the subject of investigations at the direction of the
Court.43 However, the only limits to the type of matter that the Court may ask
the Commission to investigate are those in (a) to (c) above.

9.32 The procedure for such investigations is governed by section 23A of

CAA 1968 and section 15 of CAA 1995, which provide as follows:
(a) The Court may, at any time, either before leave44 is considered or after it
is granted, make such a direction. However, a direction may not be given
by a single judge.45
(b) The copies of direction must also be made available to the appellant and
respondent.46
(c) The investigation must be carried out ‘in such manner as the Commission
sees fit’.47
(d) In doing so it may investigate any related matter that it believes to be
relevant to the determination of the case by the Court, which ought to be
and can be resolved by the Court.48

41 CAA 1995, s 15(1).

42 Regina v Shabir Ahmed [2014] EWCA Crim 619; Regina v Emma Mitchell [2013] EWCA Crim
1072; Regina v Ian Lewis [2013] EWCA Crim 776.
43 For example, R v Joof [2012] EWCA Crim 1475.
44 CAA 1968, s 23A(1)(aa), inserted by CJA 2003, s 313.
45 CAA 1968, s 23A(1A).
46 CAA 1968, s 23A(5).
47 CAA 1995, s 15(1).
48 CAA 1995, s 15(2).

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9.33 The Criminal Cases Review Commission

(e) The Commission must keep the Court informed of the progress of the
investigation49 and must file a report either at the conclusion of the
investigation or when directed to do so by the Court.50 The report should
detail the enquiries that were pursued51 and should be accompanied
by any statements and opinions received by the Commission in the
investigation.52
(f) The Court must notify the appellant and the respondent that the
Commission has reported and may make available to them the report
of the Commission and any statements, opinions and reports which
accompanied it.53

TOO HIGH A TEST?

9.33 The CCRC has not been without its critics. Many lawyers who
regularly advise would-be appellants and applicants argue that over the course
of its existence the Commission has grown more conservative and less willing
to refer cases back to the Court of Appeal. Another common observation is that
the outcome of a particular application may depend not just on the merits but
on which of the various CRMs is assigned to consider it. For all such criticisms,
however, the CCRC remains an intellectually rigorous organisation staffed by
well-intentioned individuals who do their best to deal with the problems and
challenges that they face. On any view, it remains a vast improvement on what
went before.

SUMMARY OF KEY POINTS

• The Commission has the power to refer appeals against sentence or
conviction from the Crown Court to the Court of Appeal or from the
Magistrates’ Court to the Crown Court when it is of the view that there is
a real possibility that the appeal will be allowed.
• It normally makes referrals following a failed or abandoned appeal if
there is new evidence or arguments not originally advanced. However, it
has discretion, in exceptional circumstances, to refer a conviction even
when there was no initial appeal.

49 CAA 1995, s 15(3).

50 CAA 1995, s 15(4).
51 CAA 1995, s 15(5).
52 CAA 1995, s 15(6). However, the Commission need not include any reports that were made
to the Commission by an investigating officer, pursuant to s 20(6).
53 CAA 1968, s 23A(4).

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 Summary of key points 9.33

• The effect of a referral is that the case will be returned to the Court to be
heard as an appeal with leave. However, the Court may dismiss such an
appeal when the only ground for a referral is a change in the law.
• In determining whether to refer the Commission may carry out such
investigations as it deems necessary.
• It must carry out an investigation when directed to do so by the Court
of Appeal in relation to an appeal or an application for leave to appeal
against sentence or conviction.
• In carrying out these investigations it has extensive powers to obtain
material in the hands of public bodies and, in accordance with the
relevant provisions of the Regulation of Investigatory Powers Act 2000,
communication data in the hands of private bodies or individuals.
• It may carry out investigations itself or appoint police officers or members
of other public bodies to do so.

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Chapter 10

Appealing to the Supreme Court

INTRODUCTION
10.1 On 1 October 2009 the Supreme Court was established by the
Constitutional Reform Act 2005 (CRA 2005). Its jurisdiction corresponds to
that of the Appellate Committee of the House of Lords, which it replaced as the
final court of appeal.1

10.2 The Supreme Court rarely grants leave to appeal from the Court of
Appeal (Criminal Division). The effect of this is that when leave is granted
the appellant’s lawyers may be faced with a procedure that is entirely new to
them. Supreme Court procedure has its own terminology and imposes upon
the parties a number of exacting procedural requirements. However, there are a
number of reasons why case preparation should not be as daunting as it might
at first appear:
(a) Section 33 of the Criminal Appeal Act 1968 sets out the decisions of the
Court of Appeal which may and may not be appealed to the Supreme
Court.
(b) Rules relevant to the procedure for appealing to the Supreme Court are
set out in the Criminal Procedure Rules Part 43.
(c) The Supreme Court also has its own Rules and Practice Directions (PD)
which are clear and detailed. Practice Directions 1–11 and 13 governing
civil proceedings apply to criminal proceedings in the Supreme Court
subject to any modifications or additional provisions made by Practice
Direction 12, which applies only to criminal proceedings.
(d) The staff of the Registry, which is headed by the Registrar of the Supreme
Court, are usually helpful and tend to have more time to devote to a
particular case than the staff in lower courts.
(e) A representation order for a leading advocate is routinely granted,
even if there was none in the Court of Appeal. Earlier instruction of an
experienced leading advocate should assist.

1 CRA 2005, s 40, Sch 9.

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10.3 Appealing to the Supreme Court

(f) The mystery that always surrounded appeals to the House of Lords has
not attached itself to the Supreme Court because from the outset its
proceedings have been broadcast. An appellant or his lawyers who want
to know what to expect can turn on and see the judges who are likely to
hear their case at work on another.2

10.3 Note on terminology: The right of appeal to the Supreme Court exists
by virtue of section 33 of CAA 1968 which speaks of ‘leave’ to appeal. The
Court’s own Rules and Practice Directions, which apply also to civil appeals,
use the term ‘permission’ to appeal. This chapter follows the statute and uses
the term ‘leave’.

THE TYPES OF CASES FOR WHICH LEAVE IS GIVEN

10.4 The test set for granting leave to appeal to the Supreme Court is that
a point of law of general public importance is involved in the decision and it
appears to the Court of Appeal or the Supreme Court (as the case may be) that
the point is one which ought to be considered by the Supreme Court.3

10.5 The Supreme Court does hear a number of appeals that arise out
of criminal litigation, but the number of appeals from the Court of Appeal
Criminal Division is low. In 2018 the Court delivered only two judgments in
appeals from the Court of Appeal Criminal Division.4

10.6 The reason for this low number is not hard to discern. The job of the
Court of Appeal is to develop and clarify the criminal law. It is presided over
by the Lord Chief Justice, the head of the judiciary, who can and does identify
those cases that involve important questions of law and may allocate them to a
Court of seven judges. There will be a limited number of cases that then justify
further consideration.

10.7 Leave to appeal from the Court of Appeal appears to be given not
simply to those cases which involve issues of particular importance but to
those cases which involve genuinely difficult points of law and raise wide
questions of principle which justify the sustained consideration and analysis
that the Supreme Court provides.

2 Hearings may be viewed by accessing the website of the Supreme Court or Sky Supreme
Court Live.
3 CAA 1968, s 33.
4 R v Sally Lane and John Letts (AB and CD) [2018] UKSC 36 (interpretation of s 17 Terrorism
Act 2000); R v Mackinlay and others [2018] UKSC 42 (ambit of requirement to declare
election expenses).

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 Applying for leave 10.13

10.8 Application for leave should seek to awaken the interest of the justices
in the point of public importance which the Court of Appeal has certified,
indicating why the point is sufficiently rich in its implications and calls for a
depth of analysis that justifies consideration by the Supreme Court.

APPLYING FOR LEAVE

10.9 Before an application for leave to appeal can be made to the Supreme
Court, an application for leave and for a certificate of a point of law of public
importance must already have been made to the Court of Appeal within 28 days
of the relevant decision (or 14 days where the appeal is against the decision on
an appeal by the Attorney-General against sentence).5 The application for leave
to appeal will usually be refused. However, it can only be made again before
the Supreme Court if the Court of Appeal has certified a point of law of public
importance.

10.10 The applicant has 28 days from the refusal of leave by the Court of
Appeal to apply to the Supreme Court for leave.6 The procedure for making
such an application is contained in Part 3 of the Supreme Court Practice
Direction.

10.11 However, if the applicant wishes to apply for funding to cover the
cost of making the application for leave, an application for a representation
order must be made to the Court of Appeal.7 If a copy of the application for
a representation order and the decision that is being appealed is then sent to
the Registry of the Supreme Court, the 28-day time limit will stop running
until the application for a representation order is determined.8 If granted it will
usually cover only solicitors and junior advocate at the leave stage and will be
extended to cover the instruction of a leading advocate if leave is granted.

10.12 Additional papers can be lodged within seven days of the application
for leave.9 If the respondent wishes to make any objections it must do so within
14 days of the application having been lodged.10

10.13 The application is considered by a panel of Supreme Court justices.

They may decide to hold an oral hearing but decisions are generally made on
the papers.

5 CAA 1968, s 34; para 43.2 CrimPR.

6 Supreme Court Rules 2009 (SI 2009/1603), r 11.
7 PD 12.3.6.
8 PD 8.12.
9 Supreme Court Rules 2009 (SI 2009/1603), r 14.2.
10 Supreme Court Rules 2009 (SI 2009/1603), r 13.

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10.14 Appealing to the Supreme Court

PREPARING THE CASE FOLLOWING LEAVE

10.14 Once leave has been granted it is necessary to get to grips with the
process of preparing the case for hearing. There is no substitute for acquainting
oneself with the relevant practice directions that apply at each stage of the case.

10.15 However, the drafting is an exercise in advocacy as much as in rule

compliance. Therefore, the leading advocate should be involved at each stage.

The form and content of Supreme Court documents

10.16 The following paragraphs of the Practice Direction provide the
guidance as to the form and contents of the significant documents:
• The form of all documents to be presented to the Court: PD 5.1.2.
• The form and content of the statement of facts and issues: PD 5.1.3.
• The form and content of the appendix: PD 5.1.4 and 5.1.5.
• The form and content of authorities: PD 6.5.2 to 6.5.9.
• The form of core volumes: PD 6.4 (electronic form PD 14).

Timetable following the granting of leave by the Supreme

Court
10.17 If leave is granted,11 the steps required and timetable for preparation
are set out in Parts 4 to 6 of the PD. Of particular note are the following
requirements:
(a) The appellant must, within 14 days, file a notice of intention to proceed.12
When the notice is filed, the application for leave to appeal will be re-
sealed and the appellant must then serve a copy on each respondent, on
any recognised intervener (that is, an intervener whose submissions have
been taken into account under rule 15) and on any intervener in the court
below; and file seven copies.13
(b) In a case in which a declaration of incompatibly with the European
Convention on Human Rights is sought, Form 1 or 3 must be completed
and served and filed along with the notice.

11 Separate rules apply when permission has already been granted by a lower Court; see
Supreme Court Rules 2009 (SI 2009/1603), r 19.
12 PD 4.1.1.
13 Supreme Court Rules 2009 (SI 2009/1603), r 18(2).

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 Hearings 10.18

(c) The statement of facts and issues and the appendix must be filed by the
appellant within 112 days after the filing of the notice. If the appellant
is unable to comply with the relevant time limit, an application for an
extension of time must be made.14
(d) Within seven days after the filing of the statement of facts and issues
and the appendix, the parties must notify the Registrar that the appeal is
ready to list and specify the number of hours that their respective counsel
estimate to be necessary for their oral submissions.15
(e) No later than six weeks before the proposed date of the hearing, the
appellants must file at the Registry the original and two copies of their
case and serve it on the respondents.16
(f) No later than four weeks before the proposed date of the hearing, the
respondents must serve on the appellants a copy of their case in response
and file at the Registry the original and two copies of their case, as must
any other party filing a case (for example, an intervener or advocate to
the court).17
(g) As soon as the parties’ cases have been exchanged, and in any event not
later than 14 days before the date fixed for the hearing, the appellant
must file ten bound core volumes in accordance with PD 6.4.3 and (if
necessary) additional volumes containing further parts of the appendix
and ten copies of every case filed by the parties or any intervener. These
copies of the cases must contain cross-references (in a footnote or in the
body of the text) to the appendix and authorities volumes.18
(h) Ten copies of all authorities that may be referred to during the hearing
must be filed by the appellant at the same time as the core volumes.19

HEARINGS
10.18 Cases are generally heard by a panel of five justices. In particular
cases the Justices may sit as a larger panel. It is only in ‘wholly exceptional
circumstances’20 that the Court would sit in private. Most hearings take place in
public and are broadcast. The average time for a hearing is two days. Judgments
are reserved. PD 6.6.1 to 6.6.10 should be consulted for further details.

14 Supreme Court Rules 2009 (SI 2009/1603), r 5 and PD 5.2.3.

15 PD 6.2.1 and Supreme Court Rules 2009 (SI 2009/1603), r 22(3).
16 PD 6.3.9.
17 PD 6.3.10.
18 PD6.4.1.
19 PD 6.4.2.
20 PD 6.6.4.

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10.19 Appealing to the Supreme Court

PARTICULAR ISSUES

Bail
10.19 Bail is not determined by the Supreme Court but by the Court of
Appeal.21

Attendance of the appellant

10.20 There is no right for an appellant to be present at the hearing. The
effect of this is that whilst an applicant on bail can attend, and is usually
required to do so in order to surrender,22 an appellant who is in custody will not
be produced unless the Court deems it necessary.23

Costs
10.21 The Court ‘may make such orders as it considers just in respect of the
costs of any appeal, application for permission to appeal, or other application
to or proceeding before the Court’.24 PD 13.4 gives specific guidance on
the making of costs against publically funded parties. PD 13.6 sets out the
circumstances in which costs may be claimed against a party who made an
unsuccessful application for leave. The subsequent parts of PD 13 provide
detailed guidance on costs assessment.

Death of a party
10.22 In the event of the death of a party, the power to appoint an approved
person to continue an appeal following the death of the party applies to appeals
from the Court of Appeal (Criminal Division) to the Supreme Court.25

SUMMARY OF KEY POINTS

• The Supreme Court is the highest court of the land having been
established by the Constitutional Reform Act 2005 to replace the House
of Lords.
• It hears appeals from the Court of Appeal (Criminal Division) although
permission to appeal from that Court is rarely granted.

21 CAA 1968, s 36.

22 PD 12.13.2.
23 PD 12.13.2.
24 Supreme Court Rules 2009 (SI 2009/1603), r 46(1).
25 CAA 1968, s 44A(2)(b).

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 Summary of key points 10.22

• An application for leave can only be made if the Court of Appeal has
first certified a point of law of public importance. The applicant generally
has 28 days to apply to the Supreme Court itself for leave. The time
will be extended if application is made to the Court of Appeal for a
representation order.
• That application must be made in accordance with the Rules of the
Supreme Court.
• If leave is granted there is a particular procedure to be followed for the
preparation of the case, which is clearly set out in the Supreme Court
Rules and Practice Directions.
• All documents lodged must be in a form that is prescribed by the Rules
and Practice Directions.
• A representation order to allow for the instruction of the leading advocate
will usually be granted only if leave is granted.
• Bail may be granted by the Court of Appeal.
• Hearings take place in public and may be broadcast live. The average
length of a hearing is two days.
• The appellant has no right to be present at the hearing. Therefore,
appellants will not generally be produced from custody.
• The Supreme Court has the power to award costs on such terms as it
considers just.

169
Chapter 11

Applications to the European Court of

Human Rights

INTRODUCTION
11.1 Making an application to the European Court of Human Rights is for
those who are prepared to play a long game in order to keep alive their chances
of achieving a favourable result.

11.2 It is not part of the appeal process. The ECtHR cannot quash a
conviction or reduce a sentence. However, the impact of a finding by the
ECtHR that a conviction or sentence was obtained in a manner that breached an
applicant’s rights under the European Convention on Human Rights can have a
profound impact on the appeal process. It may provide a reason for the Criminal
Cases Review Commission (CCRC) to refer the case to the Court of Appeal.

11.3 However, the fact that the ECtHR has found that there has been a
violation of Convention rights does not necessarily require the CCRC to make
a reference (Dowsett v Criminal Cases Review Commission1). A violation of
a Convention right, even of the right to a fair trial under Article 6, does not
necessarily render a conviction unsafe (see Chapter 3). Moreover, the domestic
courts are not bound to agree with the ECtHR on what Article 6 requires.

11.4 However, the Convention has proved to be a powerful force in

shaping the criminal law in significant and often unpredictable ways. A ruling
from the ECtHR may lead the Commission and ultimately the Court of Appeal
to consider familiar issues in a new light and so open up the possibility of a
successful appeal.

WHETHER TO APPLY
11.5 Before embarking on litigation that may take years to conclude,
a potential applicant should consider carefully what he wants to gain from

1 [2007] EWHC 1923 (Admin).

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11.6 Applications to the European Court of Human Rights

the process. Does he want the satisfaction of a finding that his rights were
violated? If so, it is necessary to consider the case law of the ECtHR in order
to determine the prospects of obtaining such a finding. Does he want to be paid
compensation? If so, it is also important to consider the level of compensation
that might be awarded (remembering that sometimes the ECtHR decides not to
award compensation at all) in the event that the application succeeds. Does he
want to challenge the conviction or sentence? If so, it is necessary to consider
whether there is a real chance that a finding by the ECtHR that the applicant’s
rights were violated will lead the Commission to refer the case to the Court
of Appeal. This final point must be considered in the light of the time that it
is likely to take for an application to be determined. A sentence of three years
or less is likely to have been completed by the time that the ECtHR makes a
finding that the applicant’s rights were violated.

APPLYING TO THE ECTHR

Exhaustion of domestic remedies

11.6 The ECtHR ‘may only deal with the matter after all domestic remedies
have been exhausted’.2 However, the domestic remedies must be available and
effective. The applicant does not need to exhaust domestic remedies that have
no reasonable prospect of success.

11.7 Applying this approach to the criminal appeal process:

(a) The applicant must have lodged an application for leave to appeal to the
Court of Appeal.
(b) If that application was refused by the single judge and not renewed
before the full Court, the ECtHR may well find the applicant had not
exhausted his remedies (Reilly v UK).3
(c) If a renewed application for leave was refused by the full Court, the
domestic remedies will normally have been exhausted (although see (e),
below).
(d) If the Court of Appeal heard and dismissed an appeal, it may be held
that domestic remedies would only be exhausted once an application for
leave to appeal to the Supreme Court had been sought. In Selvanayagam
v UK,4 the ECtHR accepted that domestic remedies had been exhausted
when the applicant presented the separate opinions of a number of
counsel that appeal to the House of Lords (the predecessor of the Supreme

2 Convention, Art 35(1).

3 App No 53731/00 (Dec) 26 June 2003.
4 App No 57981/00 (Dec) 12 December 2002.

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 Applying to the ECTHR 11.10

Court) would not have succeeded. However, it may be better not to take
a risk and, in a case in which an application to the ECtHR may be made,
apply for leave to appeal to the Supreme Court, notwithstanding the
unlikelihood of the application being granted.
(e) An application to the CCRC will not usually be regarded as giving rise
to an available remedy but may do in unusual cases where it was highly
likely that the Commission would have referred the case to the Court of
Appeal. Such a situation might arise where a number of references had
been made in similar cases (see Tucka v UK (No. 1)5).

Time limits for lodging an application

11.8 The current time limit for lodging an application with the ECtHR is six
months from the date of the final decision by the UK courts which exhausted
the process of seeking domestic remedies.6 This period is due to be reduced
to four months when all member states have ratified Protocol 15.7 The time
limit is strict and there is no discretion to extend it. It stops running when the
application is physically received by the Court, with all the required supporting
documents. It is therefore important when preparing the application to dispatch
it by recorded delivery and to allow time for any potential delays and for the
possibility that the Registry of the ECtHR will indicate that a further document
is required.

Standing
11.9 Domestic rules on standing will not be decisive.8 An individual
or organisation may bring an action on behalf of another if they have clear
written authority to act on their behalf. An application cannot be made on
behalf of a deceased person.9 However, if an applicant dies before the case is
determined, the ECtHR usually permits a spouse or close relative to continue
the proceedings on his behalf.

Drafting the application

11.10 Rule 47 of the Rules of the European Court of Human Rights sets
out the information that needs to be included with the application. A failure to
comply with its requirements will at best add to the delays that are a pronounced
feature of proceedings before the ECtHR. At worst it will lead the Registry

5 App No 34566/10 (Dec) 18 January 2011.

6 Convention, Art 35.
7 App No 53731/00 (Dec) 26 June 2003.
8 Scozzai v Italy, 13 July 2000, ECHR 2000-VIII, paras 138–139.
9 Dupin v Croatia, App No 363868/03 (Dec) 7 July 2009.

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11.11 Applications to the European Court of Human Rights

to refuse to register the application and, if a second, properly completed,

application is then lodged too late, to declare the application inadmissible
through being out of time.

11.11 All the documents that are required should be supplied as copies, not
originals. The exception is the requirement for an original dated and signed
authority from the applicant authorising his lawyer to act on his behalf in the
ECtHR proceedings.

11.12 The application form is to be found on the ECtHR website along with
the technical requirements, such as page size, font size, spacing, and the like.
Three sections of the form require careful drafting:
(a) the statement of the facts;
(b) the alleged violation(s) of the Convention and the relevant arguments;
(c) confirmation of the exhaustion of domestic remedies and that the final
domestic decision was made not more than six months before the
application was made.

11.13 The statement of facts needs to be concise. It must not mislead or

omit crucial unhelpful facts, but it is perfectly proper to focus on matters
that support the argument that there has been a violation of the applicant’s
Convention rights.

11.14 The ‘alleged violations’ section of the application form allows several
pages for submissions. An additional 20 pages can be appended. In drafting
this section every lawyer will follow his own style and preferences. However,
the following points should be borne in mind:
(a) The ECtHR is not concerned with whether the UK courts have complied
with UK law, practice and precedent, but whether the outcome is such as
to breach Convention rights. Therefore, although the domestic law must
be accurately stated, it is best to focus on the practical effect of the events
in the UK courts and to contrast those effects with the guarantees of the
Convention as amplified and explained by decisions of the ECtHR.
(b) Each of the 47 member states of the Council of Europe has its own
legal system, so the enforcement of human rights has to be flexible in
its application. The ECtHR is concerned with substance not form. In an
Article 6 argument, it is concerned with fairness not with technicalities.
(c) The judges of the Court will not necessarily speak English as their first
language. To allow for this, submissions about violations of Convention
rights are best drafted in clear and direct language. An application has to
deal with technical legal matters, but the excessive use of legalistic terms
or national jargon or idiom may not help the application find favour
further down the judicial line.

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 Applying to the ECTHR 11.21

11.15 Once the application has been posted and received, the Registry will
send the applicant’s lawyers a letter giving the application number and, of late,
a set of printed bar codes. The number and the bar codes can then be used in all
future correspondence.

11.16 Then the applicant has to wait. At the time of writing that wait can
be a few months or even a few years. Delay has been a persistent feature of
proceedings before the ECtHR, although it is taking significant steps to reduce
it.10

Progress of the application

11.17 Once they are received by the ECtHR applications may be allocated
to a single judge, a committee of three judges or a Chamber.

11.18 The application will be allocated to a single judge if it appears on its

face to be inadmissible.11 The judge may declare it inadmissible, a decision
from which there is no appeal. Alternatively he may forward it to a committee
of three judges or to a Chamber.

11.19 A committee has the power to declare a case inadmissible or may

declare it admissible and go on to deliver judgment on the merits if the
underlying question in the case is already the subject of well-established case
law.12

11.20 A Chamber is composed of seven judges, one of whom must be from

the state against whom the application is brought.13 If a Chamber does not, at the
outset, conclude that the case is inadmissible, it will make a ‘communication’
of the complaint to the government of the state which stands accused of
violating the applicant’s rights. This is an invitation to the government to
answer a series of questions, both about the admissibility and the merits of the
application. These will often be directly taken from the application, and will
directly address the matter in issue. For example, ‘Was the [event at trial that
is complained about] a violation of the Applicant’s right to a fair trial under
Article 6?’

11.21 The fact a communication is made is, of course, an encouraging sign.

However, many cases in which a communication takes place are later declared
inadmissible or no violation of the Convention is found.

10 Changes to Rule 47 in 2014 and the introduction of Protocols 14 and 15.

11 Convention, Art 27.
12 Convention, Art 28.
13 Convention, Art 29.

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11.22 Applications to the European Court of Human Rights

11.22 The applicant has a right of reply to any response from the government.
In this way, the case is argued on paper and the Chamber will often make
final determinations of admissibility and merits on the papers without an oral
hearing.

11.23 In a small number of cases Chambers do decide to hold a hearing

before determining a case. It will set a date for both sides to travel to the Court
and present brief, time-limited, oral arguments, followed by questions from the
Court. The Registry supplies full and helpful directions about what is required
of the lawyers on these occasions.

11.24 It is the normal practice of Chambers to make a final determination

of admissibility and merits in the same judgment, having considered all the
representations from the parties.

Referral to a Grand Chamber

11.25 If either party wishes to challenge a judgment they can apply, within
three months of judgment being given, for referral to a Grand Chamber, which
is composed of 17 judges.14 A panel of five judges will decide whether to
accept the referral. If it is accepted the case will be considered afresh by the
Grand Chamber as a complete re-determination. The Grand Chamber almost
always holds an oral hearing before reaching its determination. In addition, a
Chamber that is hearing the application may transfer it to the Grand Chamber,
as long as neither party objects.15

A ‘friendly settlement’ in criminal litigation

11.26 In the course of the correspondence the Registry will offer the two
parties the chance to discuss a ‘friendly settlement’. Such a settlement involves
an agreement by the government to pay compensation and, in some cases,
to vary its policies or its actions towards an applicant so as to remove the
event or conduct that is claimed to amount to a violation. This mechanism will
almost never provide a means of resolving a claim arising out of a sentence
or conviction, as the government can obviously not agree to ignore a judicial
finding or order, such as a conviction or prison sentence.

11.27 An exception might arise in a case where an applicant has a good

claim that the time taken for his trial is too long to comply with Article 6. In
such cases, the UK government may sometimes offer to make a payment. It

14 Convention, Art 43.

15 Convention, Art 30.

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 The consequences of a successful outcome 11.30

may be worth considering accepting such an offer as the chances of such a

violation leading to a conviction being quashed may be slim.

Representation
11.28 There is no requirement that an application be submitted by a lawyer.
However, if the application is communicated to the respondent government the
ECtHR requires an applicant to be represented by an advocate who is qualified
within one of the 47 signatory states. 16 There is no right to self-representation
nor is there a right to be represented by a lawyer or another from outside the
contracting territories. Any request for self-representation or representation
from someone outside the contracting territories must be made in writing to
the president of the ECtHR.17

Legal aid
11.29 The right to legal aid does not arise unless and until a communication
is made to the government of the state which is accused of violating the
applicant’s Convention rights. At that point means forms may be sent out to
the applicant to be completed and returned to the ECtHR. Legal aid is granted
only if the ECtHR is satisfied that the applicant does not have the means to
pay for all or part of his own representation.18 Although legal aid is paid by the
ECtHR, it asks the domestic legal aid authority to conduct an assessment of
means on the basis of the information the applicant provided. It is the practice
of the ECtHR to only pay for work undertaken by one lawyer. Reasonable
travel expenses will be reimbursed if the advocate is required to attend an oral
hearing.

THE CONSEQUENCES OF A SUCCESSFUL OUTCOME

The judgment
11.30 For the applicant who wants to return to the domestic courts to appeal
his conviction or sentence, the most important outcome is a ruling that contains
a finding that his rights have been violated. It will need to be studied with care
in order to determine whether it provides the basis for an application to the
Commission for a reference.

16 Rules of the Court, r 36(2), (3).

17 Manoussos v Czech Republic, App No 46488/99 (Dec) 7 September 2002.
18 Rules of the Court, r 101(b).

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11.31 Applications to the European Court of Human Rights

Compensation
11.31 Even if the ECtHR finds that there has been a violation of the applicant’s
Convention rights, it will not necessarily order financial compensation. The
finding of breach is often considered to be a sufficient remedy. If it does
decide to award compensation it may do so on the basis of pecuniary and non-
pecuniary loss. However, an application for compensation may be made within
two months of the application being declared admissible.

Costs
11.32 There is no provision for the applicant to pay costs to the responding
government in the event that the application is withdrawn or dismissed.
However, a successful applicant may be awarded his costs, to be paid by the
government. It is, therefore, a good idea to keep a record of the tasks completed
by solicitors, senior and junior counsel, the hours worked and the hourly rate
charged. This should be submitted with the applicant’s reply to the government’s
observations as there is no separate costs stage of proceedings. Although the
ECtHR will seek submissions from the government on the applicant’s costs,
it will generally award what seems to the Court to be a reasonable amount for
the work undertaken; often this will be less than claimed, but is always better
than nothing. Costs, if awarded, have to be paid within three months of the
judgment becoming final.

SUMMARY OF KEY POINTS

• An application to the ECtHR may only be made after domestic remedies
have been exhausted.
• It must be received by the Registry within six months of the decision of
the domestic courts that exhausted the domestic remedies.
• A finding by the ECtHR that the conviction or sentence gave rise to
a breach of Convention rights may lead the Criminal Cases Review
Commission to refer the case back to the Court of Appeal, but only if it
was capable of leading the Court of Appeal to conclude that a conviction
was unsafe or the sentence wrong and should be reduced on appeal.
• The requirement to exhaust domestic remedies does not involve an
obligation to pursue those remedies that have no realistic prospect of
success. A failure to lodge an application for leave to appeal will be
a failure to exhaust domestic remedies, so may a failure to renew an
application for leave before the full Court. Whether an application
for leave to appeal to the Supreme Court was required, following an
unsuccessful appeal in the Court of Appeal, may depend on the facts of
the case. The ECtHR would not normally find that the applicant should

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 Summary of key points 11.32

have made an application to the Criminal Cases Review Commission for

a reference, but may do in certain circumstances.
• The application should be made using the forms available on the ECtHR
website. Copies of all the documents required by Rule 47 must be
included or the application may not be considered.
• The application will be allocated to a single judge, committee or
Chamber, any one of whom may make a declaration of inadmissibility.
• Should the Court not take the view that the application is clearly
inadmissible it will issue a communication to the relevant government.
It will give the applicant the right of reply to any response from the
government.
• Both the final determination of admissibility and the merits of the case are
likely to be made on the basis of these documents in a single judgment.
• The Chamber occasionally conducts oral hearings before making its
judgment.
• The Chamber can send the case to the Grand Chamber (of 17 judges)
for a determination. Alternatively, an unsuccessful party can request a
re-hearing before the Grand Chamber (a request that is considered by a
panel of five judges).
• Legal aid may be available after a communication has been made to
the government of the state that is accused of breaching the applicant’s
rights.
• A successful applicant may apply for costs and compensation but the
Court has no power to order costs to a responding government in the
event that the application is withdrawn or dismissed.

179
Part 4
Other Rights of Appeal
Chapter 12

Appeals against interlocutory rulings

INTRODUCTION
12.1 The right of appeal most commonly arises at the conclusion of the
case. However, Parliament has created a number of exceptions in which
appeals may be brought against interlocutory rulings. One of those exceptions,
the right of prosecution to appeal against certain rulings, is considered in
Chapter 13.

12.2 Other exceptions include the following appeals:

(a) appeals against rulings made at preparatory hearings in serious or
complex fraud cases;
(b) appeals against rulings at preparatory hearings in complex, serious or
lengthy cases;
(c) appeals against a ruling that a case should be tried by a judge alone
because of the risk of jury tampering;
(d) appeals against a decision of the trial judge to discharge a jury and
continue to try the case alone;
(e) appeals against a ruling that certain counts on an indictment should
be tried by judge alone, following a conviction by a jury on sample
counts.

12.3 The procedures in relation to each appeal are very similar. They
follow, in truncated form, the procedures for appealing against conviction
and sentence. They are all governed by Part 37 of the Criminal Procedure
Rules as well as their own specific statutory provisions. However, with
the exception of appeals against rulings against a decision of the judge to
discharge a jury and try the case alone, those statutory provisions replicate or
adopt the statutory scheme for appeals from preparatory hearings in complex
or lengthy fraud cases that were introduced in the Criminal Justice Act 1987
(CJA 1987).

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12.4 Appeals against interlocutory rulings

APPEALS AGAINST RULINGS MADE AT

PREPARATORY HEARINGS IN SERIOUS OR
COMPLEX FRAUD CASES
12.4 If a judge has made a wrongful ruling at the beginning of a complex or
lengthy case, it would be a waste of time and money for the case to proceed for
weeks or months on an incorrect footing when the matter might be immediately
appealed and the matter corrected so that the trial can proceed on a correct
basis (R v Hedworth1).

12.5 Such was the thinking behind section 9 of CJA 1987 which established
a right of appeal from a ruling of the judge made in serious or complex fraud
cases.

The circumstances in which a ruling may be appealed

12.6 Section 7(1) of CJA 1987 provides that:
‘Where it appears to a judge of the Crown Court that the evidence on an
indictment reveals a case of fraud of such seriousness or complexity that
substantial benefits are likely to accrue from a hearing (in this Act referred
to as a “preparatory hearing”) before the jury are sworn, for the purpose of –
(a) identifying issues which are likely to be material to the verdict of
the jury;
(b) assisting their comprehension of any such issues;
(c) expediting the proceedings before the jury; or
(d) assisting the judge’s management of the trial,
he may order that such a hearing shall be held.’

12.7 The right of appeal to the Court of Appeal arises in relation to any
ruling made by the judge, in the course of a preparatory hearing on:
(a) a question arising under section 6 of the Criminal Justice Act 1993
(relevance of external law to certain charges of conspiracy, attempt and
incitement);
(b) any question as to the admissibility of evidence; and
(c) any other question of law relating to the case.2

1 [1997] 1 Cr App R 421.

2 CJA 1987, s 9(3).

184
 Rulings made at preparatory hearings 12.10

12.8 Such a ruling may be appealed to the Court of Appeal.3

12.9 In R v H4 the House of Lords held that whilst it was open to a judge to
determine disclosure applications at the preparatory hearing, rulings in relation
to disclosure were not questions of law within the meaning of section 9(3)(b)
of CJA 1987 and could not, therefore, be subject to an interlocutory appeal.

Appealing a ruling
12.10 The procedure for appealing is as follows:
(a) Leave is needed from the trial judge or the Court of Appeal.5 Application
for leave from the trial judge must be made orally immediately after, or
in writing within two days, of the decision having been made.6
(b) Application for leave to the Court of Appeal must be made in writing not
more than five business days either after the decision that is the subject
of the appeal or after the Crown Court judge refuses to give leave.7 This
time limit may be extended on application to the Court, by the Court,
single judge or Registrar. The Registrar should be asked to exercise his
or her power to refer a case directly to the full Court due to its urgency,
and the advocate should set out the reasons why.
(c) An application for leave to appeal is made on Form NG(Prep).
(d) The application must be served on the Crown Court, the Registrar and
any party directly affected by the application.8
(e) It must be made in the terms prescribed in rule 37.3 of the Criminal
Procedure Rules.
(f) If the application is opposed, a respondent’s notice (Form RN) should be
served within five days of the application having been made.9
(g) It is considered by the single judge. If refused it may be renewed before
the full court within five days of refusal.10
(h) Once leave is granted the preparatory hearing can continue but trial of
facts must not take place until it is determined or abandoned.11 The party

3 CJA 1987, s 9(11).

4 [2007] UKHL 7.
5 CJA 1987, s 9(11); CPIA 1996, s 35(1).
6 Part 37.4 CrimPR.
7 Part 37.2 CrimPR.
8 Part 37.2 CrimPR.
9 Part 37.5 CrimPR.
10 Part 37.7 CrimPR.
11 CJA 1987, s 9(13); CPIA 1996, s 35(2).

185
12.11 Appeals against interlocutory rulings

in custody has the right to attend; this will often be a virtual attending by
way of a video link.12
(i) The Court can confirm, vary or reverse the decision that is the subject
of the appeal.13 A right of appeal lies from the Court of Appeal to the
Supreme Court.14
(j) Funding for the proceedings will generally be covered by the existing
Crown Court representation order.

Reporting restrictions on appeals from preparatory hearings

12.11 Section 11(1) of CJA 1987 restricts the reporting of an appeal from
a preliminary ruling to those matters specified within that section, which
contains lists of the basic information about the case. However, the Court of
Appeal may make an order to remove or amend them.15

APPEALS UNDER SECTION 35 OF THE CRIMINAL

PROCEDURE AND INVESTIGATIONS ACT 1996
12.12 Section 29 of the Criminal Procedure and Investigations Act 1996
(‘CPIA 1996’) provides that a preparatory hearing may be held where the judge
determines that the case is likely to be of such length, seriousness or complexity
that there will be significant benefits from holding a hearing in order to:
(a) identify issues that are likely to be material to the determinations and
findings that are likely to be required during the trial;
(b) if there is to be a jury, assist their comprehension of those issues and
expedite the proceedings before them;
(c) determine an application to which section 45 of the Criminal Justice Act
2003 (‘CJA 2003’) applies (where the prosecution have applied, under
section 43 or 44 of CJA 2003 for the trial to take place without a jury);
(d) assist the judge’s management of the trial;
(e) consider questions as to the severance or joinder of charges.

12.13 In addition the judge must order a preparatory hearing in a terrorist

case.16

12 Part 37.8 CrimPR.

13 CJA 1987, s 9(14); CPIA 1996, s 13(3).
14 CAA 1968, s 33.
15 CJA 1987, s 11(5).
16 CPIA 1996, s 29(1C), (6).

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 Against a ruling at risk of jury tampering 12.18

12.14 The right of appeal exists against ruling, made at the preparatory
hearing, in relation to:
(i) any question as to the admissibility of evidence;
(ii) any other question of law relating to the case;
(iii) any question as to the severance or joinder of charges.

12.15 In R v I (C)17 the Court of Appeal confirmed that the principles

established in R v H regarding disclosure rulings (see 12.9 above) applied to
appeals under section 35 of CPIA 1996.

The procedure for appealing

12.16 The procedures for appealing a ruling under section 35 of CPIA 1996
are the same as for the appeals against rulings in serious or complex fraud
cases set out in 12.10 and 12.11, above. The relevant references for appeals
under section 35 are contained in the footnotes.

Reporting restrictions
12.17 Section 37(1) of CPIA 1996 mirrors section 11 of CJA 1987 in
creating an automatic reporting restriction (which may be removed or varied
by the Court of Appeal) that applies to appeals against rulings made under
section 35 and restricts reporting to certain basic facts.

APPEALS AGAINST A RULING THAT A CASE SHOULD

BE TRIED BY A JUDGE AND NOT A JURY WHEN
THERE IS A RISK OF JURY TAMPERING
12.18 A judge may, following an application by the prosecution, order
that a trial take place without a jury in a case where there is a risk of jury
tampering.18 If such an application is made, a preparatory hearing must be
held at which the application may be determined. The Court must be satisfied
to the criminal standard (section 46(3) of CJA 2003) that the following
criteria is made out:
‘(4) The first condition is that there is evidence of a real and present danger
that jury tampering would take place.

17 [2009] EWCA Crim 1793.

18 CJA 2003, s 44.

187
12.19 Appeals against interlocutory rulings

(5) The second condition is that, notwithstanding any steps (including the
provision of police protection) which might reasonably be taken to
prevent jury tampering, the likelihood that it would take place would
be so substantial as to make it necessary in the interests of justice for
the trial to be conducted without a jury.’

The procedure
12.19 Section 45 of CJA 2003 amends the relevant provisions of CJA 1987
and CPIA 1996 so as to ensure that the procedure for preparatory hearings
and subsequent appeals applies to the decision of the judge as to whether to
order that a trial take place without a jury under section 44. Therefore, the
procedure for appeals and powers of the Court and reporting restrictions as
set out at 12.10 and 12.11, above apply to appeals against such an order.

APPEALS AGAINST A DECISION TO ORDER A TRIAL

WITHOUT A JURY WHERE JURY TAMPERING HAS
TAKEN PLACE
12.20 If, after a trial has commenced, the trial judge is satisfied of the
following;
(a) that jury tampering has taken place, and
(b) that to continue the trial without a jury would be fair to the defendant or
defendants,
the judge may discharge the jury and proceed to try the case alone.19

12.21 However, if the judge decides that it is necessary in the interests of

justice for the trial to be terminated, he must instead terminate the trial.20

12.22 Before determining whether the above test is satisfied, the judge
must inform the parties of his grounds for concern and allow them to make
representations.

12.23 Such an order may be appealed to the Court of Appeal. The Court
may confirm or revoke the order.

12.24 As an order does not take place within the context of a preparatory
hearing, the relevant powers of the Court of Appeal in relation to appeals from
preparatory hearings do not apply to appeals against a decision. However, rule

19 CJA 2003, s 47.

20 CJA 2003, s 47(4).

188
 Summary of key points 12.28

37.1 of the Criminal Procedure Rules applies to appeals against a decision

under section 46 of CJA 2003.

12.25 For this reason, what is said above about appeals from preparatory
hearings applies also to appeals against decisions made under section 46, with
the following exceptions:
(a) Leave may be given by the trial judge or the full court,21 but because it
may not be given by the single judge, there is no procedure for renewing
the application for leave.
(b) The power of the Court is simply to confirm or revoke the order.22
(c) The right to appeal to the Supreme Court against the decision of the
Court of Appeal arises under section 47(6), which inserts the right into
section 33(1) of CAA 1968.

RULING THAT A JUDGE SHOULD TRY CERTAIN

COUNTS ALONE FOLLOWING CONVICTION BY A
JURY ON SAMPLE COUNTS
12.26 In a case involving multiple counts the prosecution may apply to the
Crown Court for an order that certain counts are to be tried by a judge alone in
the absence of a jury. If such an order is made, the trials without jury may only
take place if a jury has first tried and convicted the defendant of counts which
are to properly be regarded as sample counts of those which may be tried by
the judge.

12.27 The conditions of the making of such an order are set out in section
17(3) to (5) of the Domestic Violence, Crime and Victims Act 2004.

12.28 Such an order may only be made at a preparatory hearing and may be
appealed to the Court of Appeal. The Domestic Violence, Crime and Victims
Act 2004 amends the relevant sections of CJA 1987 and CPIA 1996 so as to
ensure that appeals from decisions under section 17 are subject to their statutory
regime. Therefore, the powers of the Court of Appeal and the procedure for
appealing are as set out at 12.10, above.

SUMMARY OF KEY POINTS

• There are a number of situations in which an appeal against an
interlocutory ruling may be brought.

21 CJA 2003, s 47(2).

22 CJA 2003, s 47(4).

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12.28 Appeals against interlocutory rulings

• These appeal rights largely follow the procedures set down in relation
to appeals against rulings at preparatory hearings that were established
by CJA 1987 in relation to appeals against rulings in serious or complex
fraud cases.
• The procedure for such appeals is contained in Part 37 of the CrimPR,
which sets out a truncated version of the procedure for appealing against
conviction or sentence.
• Applications should be made using adapted forms for appeals against
conviction and sentence.
• There are restrictions on the reporting of such appeals, which can, on
application, be removed or amended by the Court of Appeal.

190
Chapter 13

Responding to prosecution appeals

INTRODUCTION
13.1 This chapter sets out the circumstances in which the prosecution
may appeal to the Court of Appeal against a decision of the lower Court and
then moves on to focus on responding to two common types of prosecution
appeal:
(a) Appeals under section 58 of CJA 2003 against a trial judge’s ruling
(often misleadingly referred to as appeals against ‘terminating rulings’).
(b) Appeals against sentences known as ‘Attorney-General’s References’.

THE PROSECUTION’S RIGHTS OF APPEAL

13.2 The prosecution’s rights of appeal are far more restricted than those
of the defence. The principle of the finality of the jury’s verdict is respected
and there is no general right of appeal against an acquittal. However,
Parliament has established the following rights of appeal by the prosecution:
1 Appeals against rulings
(a) Appeals against interlocutory rulings: these are considered in
Chapter 12.
(b) Appeals against a ruling of the trial judge pursuant to section 58 of
CJA 2003 (see paras 13.3 to 13.19 below).
(c) Appeals against evidentiary rulings in relation to qualifying
offences pursuant to section 62 of CJA 2003. However, section
62 is yet to be brought into force. At the time of writing it is
understood there are no plans to do so.
(d) A reference by the Attorney-General of a point of law to the Court
of Appeal following an acquittal on indictment pursuant to section
36(1) of the Criminal Justice Act 1972. The acquittal will be
unaffected by the Court of Appeal’s decision but the judgment of
the Court will be available for the benefit of future cases.

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13.3 Responding to prosecution appeals

2 Appeals against acquittals

(a) Section 54 of CPIA 1996 gives the prosecution the right to appeal
to the High Court against an acquittal when there has been a
conviction for interference or intimidation of a witness or juror
in the proceedings that lead to the acquittal and there is a real
possibility that the acquittal would not have taken place but for the
interference or intimidation.
(b) Under Part 10 of CJA 2003 the prosecution may apply to the Court
of Appeal to quash an acquittal in England and Wales and order a
re-trial or for a ruling that a foreign acquittal should be no bar to the
defendant being tried for the same offence. This is the exception to
the double jeopardy rule and the application will only be granted
where there is ‘new or compelling evidence’.
3 Appeals against sentence
(a) The prosecution have a right to appeal against a refusal to make
a confiscation order under the Proceeds of Crime Act 2002 (see
4.52–4.53).
(b) Under section 14A(5A) of the Football Spectators Act 1989 the
prosecution have a right to appeal against the refusal to make a
banning order.
(c) Under sections 35 and 36 of the Criminal Justice Act 1988 the
Attorney-General may refer a sentence to the Court of Appeal on
the basis that it is unduly lenient (see paras 13.20 onwards, below).

PROSECUTION APPEALS AGAINST RULINGS UNDER

SECTION 58 OF CJA 2003
13.3 Section 58 of CJA 2003 gives the prosecution the right of appeal
against a trial judge’s ruling. This is often referred to as a right to appeal against
a ‘terminating’ ruling but the Court of Appeal has deprecated the use of the
term (R v Arnold1). It is misleading because the prosecution can appeal against
a ruling even when it will not necessarily result in the defendant’s acquittal.
If, for example, a judge were to exclude a significant part of the evidence, the
prosecution could appeal even if there was still some evidence remaining such
as might enable the case to continue past a later submission of ‘no case to
answer’.

13.4 That said, the defining feature of these appeals is that the prosecution
may only seek leave to appeal if it is prepared to accept that the defendant will

1 [2008] EWCA Crim 1034.

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 Rulings under CJA 2003, s 58 13.7

be acquitted of the count that is the subject of the appeal if it fails. For this
reason it will most usually be deployed where the ruling either does terminate
the case on that count, or where it is comes close to doing so.

When an appeal under section 58 may be brought

13.5 Leave to appeal may only be sought if the following conditions
are met:
(a) The appeal must be against a ruling that was made before the summing
up.2
(b) It must not be a ruling to discharge the jury.3
(c) There must be no other right of appeal available to the prosecution –
it follows that where an appeal may be brought under the regime for
appeals against interlocutory rulings it must be brought under those
provisions.4
(d) The prosecution must have given notice of intention to appeal after the
ruling was given or have applied for an adjournment in order to consider
whether to appeal.5
(e) The prosecution must have given a valid acquittal agreement at the time
when the indication of intention to appeal is given (section 58(8)).

13.6 The Court of Appeal has interpreted these preconditions strictly. If

they are not met the appeal will be refused (R v Arnold6).

What is an acquittal agreement?

13.7 Section 58(8) of CJA 2003 requires the prosecution to give the
undertaking that in the event of leave to appeal being refused or the appeal
being abandoned, they will agree to the defendant being acquitted.7 The
undertaking has to be given at or before the time that the prosecution notifies
the Crown Court of its intention to appeal; a failure to give the undertaking at
that time will be fatal to the appeal (R v Arnold8).

2 See s 74(1) for the broad definition given to ruling; s 58(13) for the requirement that it be
before the summing up.
3 CJA 2003, s 57(2)(a).
4 CJA 2003, s 57(2)(b).
5 CJA 2003, s 58(4).
6 [2008] EWCA Crim 1034.
7 CJA 2003, s 61(3).
8 [2008] EWCA Crim 1034; see also LSA [2008] EWCA Crim 1034. NT [2010] EWCA Crim
711; B [2014] EWCA Crim 2078.

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13.8 Responding to prosecution appeals

13.8 If the defendant cannot be formally ‘acquitted’ because of the stage

the case has reached, no such undertaking can be given and therefore the right
of appeal does not arise. This has the effect of precluding an appeal under this
section against a ruling made before arraignment (R v Thompson9).

The procedure for appealing

13.9 The procedure for applications for leave and subsequent appeals is to
be found in Part 38 of the Criminal Procedure Rules. The General Rules found
in Part 36 also apply.

13.10 The prosecution must inform the Court that it intends to appeal or
request an adjournment to consider whether to appeal,10 which, if granted, will
be until the next business day.11 The Judge has discretion to so adjourn if there
is a real reason for doing so.12 The prosecution must give the undertaking in
relation to an acquittal agreement at the time when it informs the Court of its
intention to appeal. Once a decision has been taken, a notice and application
to appeal13 must be served on the Crown Court, Registrar and every defendant
affected by the ruling the next business day if the trial Judge expedites the
appeal or otherwise five business days of giving notice of the intent to appeal.14

13.11 Permission to appeal is required and may be granted either by the trial
judge or by the Court of Appeal.15 Application for permission to the trial judge
must be made orally immediately after the ruling is given or in writing at the
expiry of the time given for consideration of whether to appeal. The trial judge
must hear representations from the defence and generally reach a decision on
permission the same day that the application is made.16

13.12 Leave should be granted only where the trial judge considers there is
a real prospect of success and not to speed up the hearing of the appeal.17

The respondent’s notice

13.13 Once a notice of appeal has been lodged the defendant, now the
respondent must within five days (or one day if the appeal is expedited) serve

9 [2006] EWCA Crim 2849.

10 CJA 2003, s 58(4).
11 Part 38.2(2) CrimPR.
12 H [2008] EWCA Crim 483.
13 See Part 38.8 CrimPR for the relevant requirements of the notice.
14 Part 38.3 CrimPR.
15 CJA 2003, s 57(4).
16 Part 38.5 CrimPR.
17 JG [2006] EWCA Crim 3276.

194
 Rulings under CJA 2003, s 58 13.17

a respondent’s notice including grounds of opposition, if it wishes to make any

representations or if directed to do so by the Court.18

13.14 The requirements of the form and service of the respondent’s notice
are set out in Crim PR 38.7.The notice should be served on the prosecution,
the Crown Court, the Registrar, and any co-defendants who are also the subject
of the application to appeal within five days (or no later than the next business
day if the appeal is expediated).

13.15 The respondent’s notice must:

‘(a) give the date on which the respondent was served with the appeal
notice;
(b) identify each ground of opposition on which the respondent relies,
numbering them consecutively (if there is more than one), concisely
outlining each argument in support and identifying the ground of
appeal to which each relates;
(c) summarise any relevant facts not already summarised in the appeal
notice;
(d) identify any relevant authorities;
(e) include or attach any application for the following, with reasons –
(i) an extension of time within which to serve the respondent’s
notice,
(ii) a direction to attend in person any hearing that the respondent
could attend by live link, if the respondent is in custody;
(f) identify any other document or thing that the respondent thinks the
court will need to decide the appeal.’

The Hearing
13.16 The defendant has the right to attend the appeal hearing, though the
Registrar can direct that this occurs via a video link.19 There is an automatic
restriction on the reporting of appeals which may be lifted or varied by the
Court.20

13.17 Resisting an appeal will often involve persuading the Court to rely on
the trial judge’s experience and any advantages the trial judge had in hearing live

18 Part 38.7 CrimPR.

19 Part 38.11 CrimPR.
20 CJA 2003, s 71.

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13.18 Responding to prosecution appeals

evidence in the case. In R v B21 Lord Judge CJ laid emphasis on the trial judge’s
experience and reputation and indicated that the decision had to be shown to be
clearly wrong before the Court of Appeal would think it right to interfere.

13.18 The Court of Appeal’s powers in such an appeal are wider than simply
to uphold or overturn a trial level ruling. Section 61 of CJA 2003 also permits
the Court to vary a ruling. Where the ruling by the trial judge is difficult to
defend in its precise terms the respondent may wish to argue that the overall
merits of the ruling should lead the Court to uphold the ruling in modified
terms.

13.19 Either party may appeal to the Supreme Court, subject to the Court of
Appeal certifying a point of law of general public importance.

ATTORNEY-GENERAL’S REFERENCES
13.20 Section 36 of the Criminal Justice Act 1988 (CJA 1988) permits the
Attorney-General to appeal against unduly lenient sentences in certain serious
cases. The offences in relation to which the sentence may be appealed under
section 36 include all indictable-only offences and any other offence set out in
the relevant statutory instrument made under the Act:22

Grounds for an appeal

13.21 Section 36(1) makes it clear that the overarching basis upon which the
Attorney-General can appeal is that the sentence passed was ‘unduly lenient’.
Section 36(2) goes on to specify that the test of undue leniency may be met
where a sentencing judge has either erred in law as to his powers of sentencing
or failed to pass one of the minimum sentences required by statute.

The procedure
13.22 The procedure is governed by Part 41 of the CrimPR. The general
rules contained in Part 36 also apply.

Notification of an appeal and reply

13.23 Schedule 3 to CJA 1988 allows 28 days for the prosecution to lodge
an application for leave to refer a sentencing case. The CrimPR impose

21 [2008] EWCA Crim 1144.

22 See CJA 1988 s 35 and Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006
(SI 2006/1116) Sch 1.

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 Rulings under CJA 2003, s 58 13.28

requirements as to the form and content of the application.23 In practice the

prosecution will usually send out a standard letter with supporting documents
within 28 days of the sentence being passed.

13.24 The Registrar will serve those papers on the respondent who must
make any represenations within 14 days. Most respondents will be keen to do
so. The CrimPR impose requirements as to the form, content and service of the
respondent’s notice.24

Funding for respondent’s representation

13.25 Representation Orders are granted by the Registrar in order to enable
the defendant to respond to an Attorney-General’s Reference.

Permission and full hearings

13.26 Attorney-General’s References require leave from the Court but the
practice is to list the case and allow the Court to consider both leave and, if
leave is given, to deal with the substantive appeal all in one hearing.

13.27 A respondent who is in custody has the right to attend at the substantive
hearing though this may be by video link if the Registrar directs.25 There is no
right to be produced at any permission or other incidental hearings.

The Court’s approach to Attorney-General’s References

13.28 The Court must first decide whether the sentence was unduly
lenient. In doing so, it has frequently made clear that sentencing judges are
entitled to depart from sentencing guidelines provided there is a rational and
justifiable basis to do so. Lord Phillips CJ emphasised in Attorney-General ’s
Reference (No. 8 of 2007)26 that a judge who took such a decision should
not waver from it for fear of a reference. The power to allow an appeal is for
sentences that are unduly lenient, not just lenient. The test is a high one and
is intend to capture those sentences which cause public concern and affect
the confidence in the criminal justice system (Attorney-General ’s Reference
(Nos 3 and 5 of 1989)).27

23 Parts 41.2 and 41.3 CrimPR.

24 Part 41.4 CrimPR.
25 Part 41.6 CrimPR.
26 [2007] EWCA Crim 922.
27 (1990) 90 Cr App R 358.

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13.29 Responding to prosecution appeals

13.29 In the event that the Court decides that the sentence was unduly
lenient, it must then go on to consider whether and to what extent to reduce
or vary the sentence. This is a matter that is within the discretion of the Court;
there is no statutory guidance on the exercise of that discretion and the Court
has been known to take into account a wide range of factors.

13.30 In determining whether the sentence was unduly lenient, the Court
considers the facts as they were before the sentencing judge. It will not take
account of new material (see Attorney-General’s Reference (No. 19 of 2005)28).
The Court has, however, been prepared to look at new material in deciding
what the new sentence should be (Attorney-General’s Reference (No. 74 of
2010)29; Att-Gen’s Reference (No 79 of 2015)30. In both those cases, the new
material in question consisted of probation reports but the Court’s approach
has wider application; in the event that the Court decides that a sentence was
unduly lenient it will often consider material in relation to the progress of the
respondent from the time when the sentence was passed in order to assist in
determining whether to interfere with it.

13.31 Difficulties have occurred where a defendant has been given reasons
to expect a certain sentence, most commonly when a Goodyear31 indication
has been given. The fact that an indication was given does not necessarily
mean that the Court will not interfere with the sentence, nor does the fact that
the prosecution at the time raised no objection to the indicated sentence (see
A-G’s Refs (Nos 86 and 87 of 1999).32 However, the prosecution’s seeming
consent may be a powerful reason not to increase a sentence, especially if
the offender acted in reliance on the indication that was given (see Attorney-
General’s References (Nos 25 and 26 of 2008)33). In the more recent case of
Powell,34 where prosecution counsel had agreed to an erroneous categorisation
under the aggravated burglary sentencing guideline, the court ruled that the
sentence was unduly lenient, but it would not be just to permit the Attorney-
General to go so far behind what was said to the sentencing judge as to raise
the case to a higher category.

Discount for double jeopardy

13.32 Double jeopardy is the term used for the fear and distress that arises
from being sentenced a second time. When, following a finding of undue
leniency, the Court considers what new sentence to impose, it will often make a

28 [2006] EWCA Crim 785.

29 [2011] EWCA Crim 873.
30 [2016] EWCA Crim 448
31 R v Goodyear [2005] EWCA Crim 888.
32 [2001] 1 Cr App R (S) 141 (505).
33 [2008] EWCA Crim 2665.
34 [2018] 1 Cr App R (S).

198
 Rulings under CJA 2003, s 58 13.36

discount from what would have been the correct sentence, had it been imposed
at first instance, to take account of this.

13.33 In Attorney-General’s References (Nos 14 and 15 of 2006),35 the

Court reviewed the authorities in relation to double jeopardy. It concluded that
deductions at or near the top of the range which was 30 per cent might be
made in relation to: offenders who faced a custodial sentence when one had not
originally been passed; offenders who had committed the offence in question
when young and immature; and those offenders who were about to be released
from prison. In relation to those cases where the offender had a lengthy
determinate sentence to serve or was serving a discretionary life sentence it was
not necessarily wrong to make deductions for double jeopardy. However, those
deductions would generally be smaller and in some cases no deduction would
need to be made. In Att-Gen’s Reference (No 45 of 2014)36 the Court of Appeal
explained that cases in which the principle is likely to arise are now rare by
reason of a number of factors: the changes in the sentencing regime, including
greater clarity and uniformity in relation to sentencing for most offences as a
result of sentencing guidelines, such that advocates can advise of the risk of a
reference where a judge has departed from the guidelines without explanation
or good reason; the rapid consideration by the Attorney General of sentences,
leading to quick references to the court; and an approach to sentencing that
has become more victim-oriented since 2006. For rare, recent examples of the
Court of Appeal making an allowance on for double jeopardy, see Att-Gen’s
Reference (R v Ferizi)37 and R v Phelps.38

13.34 Under section 36A of CJA 1988 the Court should not make any
allowance for double jeopardy when the reference relates to a minimum term
for a mandatory life sentence under section 269(2) of CJA 2003.

13.35 If and when it comes into force (no date has yet been fixed) section 46
of the Criminal Justice and Immigration Act 2008 will amend section 36A of
CJA 1988 so as to extend its application to discretionary life sentences.

Responding to the appellant’s case

13.36 The respondent may seek to persuade the Court both that the sentence
was not unduly lenient and that, even if it was, the Court should exercise its
discretion not to increase the sentence. In cases where the correctness of the
original sentence is very difficult to justify, the focus of the submissions should
often be on the latter point.

35 [2006] EWCA Crim 1335.

36 [2014] EWCA Crim 1566.
37 [2016] EWCA Crim 2022.
38 [2017] EWCA Crim 2403.

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13.37 Responding to prosecution appeals

13.37 In seeking to persuade the Court that the sentence is not unduly
lenient, arguments that are commonly advanced include:
(a) the high threshold that must be passed for a sentence to be regarded as
unduly excessive;
(b) the fact that the judge was experienced (if true) and the advantage that
the judge had of having heard the evidence (if sentence was imposed
after trial or voire dire);
(c) the particular facts of the case which justified the judge in departing from
the guidelines or the usual sentencing practice.

13.38 In certain cases, the problem may be not that the judge passed an
unjustifiable sentence but that he failed to justify it in his sentencing remarks.
The appellant will seek to set out the facts of the case which justify the sentence
that was imposed.

13.39 When seeking to persuade the Court not to increase sentence, the
respondent will wish to focus on double jeopardy, any significant progress that
the respondent has made in the completion of the sentence or any significant
change of circumstances that has occurred since sentence was passed that
would make it wrong to now increase it.

Appeal to the Supreme Court

13.40 Either party can appeal to the Supreme Court, subject to certification
of a point of general public importance and permission. The period for
applying to the Court of Appeal for certification and permission is 14 days and
a subsequent application for permission to the Supreme Court must be brought
within 14 days after refusal of permission by the Court of Appeal.39

SUMMARY OF KEY POINTS

• Parliament has established a number of prosecution rights of appeal. The
most commonly used are the right to appeal against rulings under section
58 of CJA 2003 and the Attorney-General’s right to appeal against a
sentence that is unduly lenient.
• The procedure for appealing under section 58 of CJA 2003 is governed
by Part 38 of the CrimPR. Attorney-General’s References are governed
by Part 41. Part 36 applies to both.

39 CJA 1988, s 36 and Sch 3.

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 Summary of key points 13.40

• There are a number of preconditions on the right to appeal against a ruling,

including a requirement that the prosecution provides an agreement that
it will seek the acquittal of the defendant if the appeal fails.
• Such an undertaking must be given at the time an indication of an
intention to appeal is given.
• Leave to appeal under section 58 may be given by the trial judge or the
Court of Appeal.
• In respect of an Attorney-General’s Reference, leave must be granted by
the Court of Appeal. However, it is the normal practice of the Court to
hold a single permission/appeal hearing.
• In these appeals the defendant becomes the respondent who must, if he
wishes to be heard, serve and lodge a respondent’s notice.
• In both types of appeal either party has the right to appeal to the Supreme
Court.

201
Chapter 14

Appeals in relation to defendants

suffering from a mental disorder

INTRODUCTION
14.1 As a matter of principle, once a defendant is found to be suffering
either from a disability that makes him unfit to be tried or from insanity, the
case is no longer a criminal case.
Appeals against findings of a disability or insanity are covered in this chapter.
These are appeals where the mental incapacity was raised at the time of
trial. This type of appeal is in contrast to those where the incapacity was
not identified at the time of trial. Those appeals are covered by Chapters 3
and 6, which include common issues for appeal lawyers arising in murder
cases where a partial defence may be available that reduces culpability from
murder to involuntary manslaughter.1 Those cases raise issues of fresh expert
evidence. They will inevitably involve criticism of the previous lawyers and
an application to admit fresh evidence (see especially 6.28, 6.30 and 6.31).
Likewise, in any case where the appeal lawyer identifies the issue of non-
insane automatism as a potential defence that should have been considered
at the original trial, the same considerations will apply. In sentencing cases
similar issues can arise where the court shoud have considered a hospital
order or a ‘hybrid’ order.2 However, this chapter is concerned with the reverse
scenario as it looks at the means of appealing a trial finding of incapacity.
A finding that the defendant committed the act with which he is charged does
not amount to a conviction nor should a hospital or supervision order made
against such a defendant be regarded as a sentence (R v H).3 However, the
procedures for dealing with those suffering from mental disorders who commit
criminal acts closely follow criminal law procedures. Appeals are no exception.

1 Partial defences are available to murder under s 2 Homicide Act 1957 for offences before
4 October 2010 and since under s 52; s 54 and 55 Coroners and Justice Act 2009 (diminished
responsibility and loss of control); and under s 4 Homicide Act 1957 as part of a suicide pact
or under s .1 Infanticide Act 1938.
2 See R v Vowles [2015] EWCA Crim 45; R v Edwards [2018] EWCA Crim 595.
3 [2003] UKHL 1.

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14.2 Appeals in relation to defendants suffering from a mental disorder

The Criminal Appeal Act 1968 (CCA 1968) establishes the following rights of
appeal from decisions of the Crown Court, the procedures for which follow the
procedural scheme for appeals against conviction or sentence:
(a) A finding of unfitness to be tried may be appealed under section 15 of
CAA 1968.
(b) A defendant who has been found to be unfit to be tried did the act or
made the omission with which he is charged may appeal under section
15 of CAA 1968.
(c) A verdict of not guilty by reason of insanity may be appealed under
section 12 of CAA 1968.
(d) A hospital or supervision order that was imposed following a finding
under (b) or (c), above may be appealed under section 16A of CAA 1968.

14.2 The test to be applied and the powers of disposal which the Court
may exercise following a successful appeal differ for appeals under each of
the above provisions (and are considered at 14.6–14.19 below). However,
appeals under these provisions share a number of common features. The law
in relation to who has the right to appeal, the availability of public funding and
the procedures to be followed are the same for each and are considered first.

Who may appeal

14.3 These are defence, not prosecution appeals. Given the nature of the
disabilities in question, the rights of appeal can be exercised by a defendant’s
lawyer without the need for the defendant’s consent. In R v Antoine (Pierre
Harrison)4 the Court held that counsel who had appeared in the Crown Court
had the authority to settle grounds, lodge notice of appeal and present the
appeal on behalf of a defendant who suffered from a mental disability such that
he was incapable of giving instructions.

Funding
14.4 There is no statutory provision for the granting of representation
orders in respect of any of these appeals. The successful appellant may apply
for a defendant’s costs order. Moreover, advocates who are instructed by the
Court to represent a defendant who suffers from a mental disorder may claim
costs from central funds (see Antoine, above).

4 [1999] 2 Cr App R 225.

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 Appeals against findings of unfitness to plead 14.7

The appeal process

14.5 The procedure for these appeals follows that for appeals against
conviction or sentence. They are contained in the particular provisions of
CAA 1968 that apply to each appeal. In addition, Part 36 and 398 of the CPR
apply to all of them. The main features of the process are:
(a) An application for certification of fitness to appeal may be made to
the trial judge within 28 days of the decision which is the subject of
challenge (but see 14.7 below in relation to when the 28-day period runs
in appeals under section 15).
(b) An application for leave to the Court of Appeal must be made using Form
NG within 28 days of the decision but may be extended on application.
Leave may be granted by the single judge or the full Court.
(c) An application for leave that is refused may be renewed orally before the
Court.
(d) The defendant who is in custody as a result of a finding of unfitness to
stand trial or insanity does not have a right to be present at the hearing.
(e) An appeal or application for leave may be abandoned using Form A.
(f) Under section 33 of CAA 1968 there is a right of appeal from the Court
of Appeal to the Supreme Court, which involves the usual requirements
of certification and leave.

APPEALS AGAINST FINDINGS OF UNFITNESS TO

PLEAD AND FINDINGS THAT THE ACCUSED MADE
THE ACT OR OMISSION CHARGED
14.6 Sections 4 and 4A of the Criminal Procedure (Insanity) Act 1964
set out a two-stage procedure whereby the Crown Court must first determine
whether an accused, who appears to be suffering from some mental illness or
disorder, is fit to stand trial and, if found not to be fit, must go on to determine
whether he did the acts of which he is accused.

14.7 Under section 15 of CAA 1968 an appeal may be brought against both
or either of these findings. The procedural requirements contained in section 15
are as set out at 14.3–14.5 above. The 28-day period for lodging an appeal is
calculated from the date of the decision against which leave is sought. However,
the trial judge may only grant a certificate of fitness to appeal within 28 days of
the finding that the accused did the act or made the omission charged.5

5 CAA 1968, s 15(2)(b).

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14.8 Appeals in relation to defendants suffering from a mental disorder

14.8 The test for an appeal under section 15 is whether the finding that
is the subject of the appeal is unsafe. If the Court allows an appeal against a
finding of disability, it may order that a trial take place and may make orders
that are necessary and expedient for custody or release on bail.6

14.9 The Court’s powers to dispose of an appeal under section 15 are

contained in section 16. If the Court allows an appeal against a finding that the
defendant committed the act or made the omission in question, it must quash
the order and direct that a verdict of acquittal be recorded.

14.10 The Court has no power to order a retrial. However, where the
Court finds that there has been a procedural irregularity such as to render
the proceedings in the Crown Court a nullity, it may, instead of allowing the
appeal, issue a writ of venire de novo (discussed more fully in Chapter 3)
and order that the case be remitted for fresh proceedings to take place.
It did so in R v D (David Michael)7 when it transpired that one of the
doctors upon whose opinion the finding of unfitness had been based was
not qualified.

14.11 There is no appeal against a finding that the accused is fit to be tried. If
such a finding is made and the accused goes on to be convicted, leave to appeal
against conviction may be applied for in the usual way. If, in the course of
that appeal, the Court is satisfied on the requisite evidence8 that the convicted
person is not fit but did carry out the acts or make the omission charged, then
it may not quash the conviction but must substitute one of the orders under
section 5 of the Criminal Procedures (Insanity) Act 1964 (see 14.16, below) for
any sentence that had been imposed.

APPEALS AGAINST A VERDICT OF NOT GUILTY BY

REASON OF INSANITY
14.12 Section 2 of the Trial of Lunatics Act 1883 allows a jury to return a
special verdict of not guilty by reason of insanity. Appeal against such an order
may be brought under section 12 of CAA 1968 and follows the procedures set
out at 14.3–14.5, above. The test is whether the special verdict is unsafe.9

14.13 The Court’s powers to dispose of an appeal are contained in section

13 of CAA 1968. If the Court finds that the verdict of insanity was unsafe but
that the proper verdict would have been guilty of the offence charged or any

6 CAA 1968, s 16(3)(a), (b).

7 [2001] EWCA Crim 911.
8 The written or oral evidence of two medical practitioners, one of whom must be duly approved
(Criminal Procedure (Insanity) Act 1964, s 4(5), (6)).
9 CAA 1968, s 13.

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Appeals against orders under Criminal Procedure (Insanity) Act 1964 14.18

other offence for which the jury might have found the accused guilty, it may
substitute a verdict of guilty of that offence for the verdict of not guilty by
reason of insanity.

14.14 If the Court finds that the verdict of insanity is unsafe but that, on the
evidence of appropriately qualified and approved practitioners,10 the accused
suffered from a disability within the meaning of sections 4 and 4A of the
Criminal Procedure (Insanity) Act 1964 and that he made the act or omission
charged, it may make an order under section 5 of the Criminal Procedure
(Insanity) Act 1964.

14.15 In all other cases in which an appeal is allowed the Court must
substitute a verdict of acquittal.

APPEALS AGAINST AN ORDER MADE UNDER

SECTION 5 OF THE CRIMINAL PROCEDURE
(INSANITY) ACT 1964
14.16 Following a verdict of insanity or a finding that the defendant did the
act or omission with which he is charged, the Crown Court may make one of
the following orders under section 5 of the Criminal Procedure (Insanity) Act
1964. Those orders are:
(a) a hospital order (with or without a restriction order);
(b) a supervision order; or
(c) an absolute discharge.

14.17 Under section 16A of CAA 196811 an appeal may be brought against
such an order (although it is not clear when a defendant would seek to appeal
an order for an absolute discharge). The procedural requirements for such an
appeal are as set out at 14.3–14.5, above. If it allows the appeal, the Court
may vary the order or may quash it and substitute it for another order under
section 5.

14.18 The test on appeal is simply whether the Court ‘considers that the
appellant should be dealt with differently to the way in which the Court below
dealt with him’.12

10 See fn 8 above.
11 As inserted by the Domestic Violence, Crime and Victims Act 2004, s 25.
12 CAA 1968, s 16B(1).

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14.19 Appeals in relation to defendants suffering from a mental disorder

14.19 If the Court of Appeal disposes of an appeal by making an interim

hospital order or a supervision order, that order may be revoked or varied by
the Crown Court. The Crown Court also has the power to revoke or vary an
interim hospital order or a supervision order when an appeal against that order
is still pending.13

13 CAA 1968, s 16B(2)–(5).

208
Appendix A

Criminal Practice Directions, Division IX

DIVISION IX
APPEAL

34A: Appeals to the Crown Court

34A.1 On an appeal against conviction CrimPR 34.3 requires the appellant
and respondent to supply information needed for the effective case management
of the appeal, but allows the Crown Court to relieve the appellant – not the
respondent – of that obligation, in whole or part.

34A.2 The court is most likely to exercise that discretion in an appellant’s

favour where he or she is not represented and is unable, without assistance, to
provide reliable such information. The notes to the standard form of appeal
notice invite the appellant to answer the relevant questions in that form to the
extent that he or she is able, explaining that while the appellant may not be
able to answer all those questions nevertheless any answers that can be given
will assist in making arrangements for the hearing of the appeal. Where an
appellant uses the prescribed form of easy read appeal notice the court usually
should assume that the appellant will not be able to supply case management
information, and that form contains no questions corresponding with those in
the standard appeal notice. In such a case relevant information will be supplied
by the respondent in the respondent’s notice and may be gleaned from material
obtained from magistrates’ court records by Crown Court staff.

34B: Appeal to the Crown Court: Information from the

magistrates’ court
34B.1 CrimPR 34.4 applies when a defendant appeals to the Crown Court
against conviction or sentence and specifies the information and documentation
that must be made available by the magistrates’ court.

34B.2 In all cases magistrates’ court staff must ensure that Crown Court
staff are notified of the appeal as soon as practicable: CrimPR 34.4(2)(b).

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In most cases Crown Court staff will be able to obtain the other information
required by CrimPR 34.4(3) or (4) by direct access to the electronic records
created by magistrates’ court staff. However, if such access is not available then
alternative arrangements must be made for the transfer of such information to
Crown Court staff by electronic means. Paper copies of documents should be
created and sent only as a last resort.

34B.3 On an appeal against conviction, the reasons given by the magistrates

for their decision should not be included with the documents; the appeal
hearing is not a review of the magistrates’ court’s decision but a re-hearing.
There is no requirement for the Notice of Appeal form to be redacted in any
way; the judge and magistrates presiding over the rehearing will base their
decision on the evidence presented during the rehearing itself.

34B.4 On an appeal solely against sentence, the magistrates’ court’s reasons

and factual finding leading to the finding of guilt should be included, but any
reasons for the sentence imposed should be omitted as the Crown Court will be
conducting a fresh sentencing exercise. Whilst reasons for the sentence imposed
are not necessary for the rehearing, the Notice of Appeal form may include
references to the sentence that is being appealed. There is no requirement to redact
this before the form is given to the judge and magistrates hearing the appeal.

39A Appeals against conviction and sentence – the provision

of notice to the prosecution
39A.1 When an appeal notice served under CrimPR 39.2 is received by the
Registrar of Criminal Appeals, the Registrar will notify the relevant prosecution
authority, giving the case name, reference number and the trial or sentencing
court.

39A.2 If the court or the Registrar directs, or invites, the prosecution

authority to serve a respondent’s notice under CrimPR 39.6, prior to the
consideration of leave, the Registrar will also at that time serve on the
prosecution authority the appeal notice containing the grounds of appeal
and the transcripts, if available. If the prosecution authority is not directed or
invited to serve a respondent’s notice but wishes to do so, the authority should
request the grounds of appeal and any existing transcript from the Criminal
Appeal Office. Any respondent’s notice received prior to the consideration of
leave will be made available to the single judge.

39A.3 The Registrar of Criminal Appeals will notify the relevant prosecution
authority in the event that:
(a) leave to appeal against conviction or sentence is granted by the single
Judge; or

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(b) the single Judge or the Registrar refers an application for leave to appeal
against conviction or sentence to the Full Court for determination; or
(c) there is to be a renewed application for leave to appeal against
sentence only.

If the prosecution authority has not yet been served with the appeal notice and
transcript, the Registrar will serve these with the notification, and if leave is
granted, the Registrar will also serve the authority with the comments of the
single judge.

39A.4 The prosecution should notify the Registrar without delay if they wish to
be represented at the hearing. The prosecution should note that the Registrar will
not delay listing to await a response from the Prosecution as to whether they wish
to attend. Prosecutors should note that occasionally, for example, where the single
Judge fixes a hearing date at short notice, the case may be listed very quickly.

39A.5 If the prosecution wishes to be represented at any hearing, the

notification should include details of Counsel instructed and a time estimate.
An application by the prosecution to remove a case from the list for Counsel’s
convenience, or to allow further preparation time, will rarely be granted.

39A.6 There may be occasions when the Court of Appeal Criminal Division
will grant leave to appeal to an unrepresented applicant and proceed forthwith
with the appeal in the absence of the appellant and Counsel. The prosecution
should not attend any hearing at which the appellant is unrepresented. Nasteska
v. The former Yugoslav Republic of Macedonia ( Application No.23152/05) As
a Court of Review, the Court of Appeal Criminal Division would expect the
prosecution to have raised any specific matters of relevance with the sentencing
Judge in the first instance.

39A.7 Where there is a renewed application for leave to appeal against a

sentence imposed for an offence involving a fatality, the Crown Prosecution
Service has indicated that it wishes to be represented at all sentence
appeals in order to ensure that they are in a position, if appropriate, to make
representations as to the impact of the offence upon the victim and their family.
In those circumstances, if the court is minded to grant the application for leave
to appeal the court should consider adjourning the hearing of the appeal to
allow prosecution counsel to attend and for the victim’s family to be notified
and attend if they so wish.

39B Listing of appeals against conviction and sentence in the

Court of Appeal Criminal Division (CACD)
39B.1 Arrangements for the fixing of dates for the hearing of appeals will be
made by the Criminal Appeal Office Listing Officer, under the superintendence

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of the Registrar of Criminal Appeals who may give such directions as he deems
necessary.

39B.2 Where possible, regard will be had to an advocate’s existing

commitments. However, in relation to the listing of appeals, the Court of Appeal
takes precedence over all lower courts, including the Crown Court. Wherever
practicable, a lower court will have regard to this principle when making
arrangements to release an advocate to appear in the Court of Appeal. In case of
difficulty the lower court should communicate with the Registrar. In general an
advocate’s commitment in a lower court will not be regarded as a good reason
for failing to accept a date proposed for a hearing in the Court of Appeal.

39B.3 Similarly when the Registrar directs that an appellant should appear
by video link, the prison must give precedence to video-links to the Court of
Appeal over video-links to the lower courts, including the Crown Court.

39B.4 The copy of the Criminal Appeal Office summary provided to

advocates will contain the summary writer’s time estimate for the whole
hearing including delivery of judgment. It will also contain a time estimate
for the judges’ reading time of the core material. The Listing Officer will
rely on those estimates, unless the advocate for the appellant or the Crown
provides different time estimates to the Listing Officer, in writing, within 7
days of the receipt of the summary by the advocate. Where the time estimates
are considered by an advocate to be inadequate, or where the estimates have
been altered because, for example, a ground of appeal has been abandoned, it
is the duty of the advocate to inform the Court promptly, in which event the
Registrar will reconsider the time estimates and inform the parties accordingly.

39B.5 The following target times are set for the hearing of appeals. Target
times will run from the receipt of the appeal by the Listing Officer, as being
ready for hearing.

39B.6

NATURE OF FROM RECEIPT FROM TOTAL TIME

APPEAL BY LISTING FIXING OF FROM RECEIPT
OFFICER TO HEARING BY LISTING
FIXING OF DATE TO OFFICER TO
HEARING DATE HEARING HEARING
Sentence Appeal 14 days 14 days 28 days
Conviction Appeal 21 days 42 days 63 days
Conviction 28 days 52 days 80 days
Appeal where
witness to attend

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39B.7 Where legal vacations impinge, these periods may be extended.

Where expedition is required, the Registrar may direct that these periods be
abridged.

39B.8 ‘Appeal’ includes an application for leave to appeal which requires an

oral hearing.

39C Appeal notices containing grounds of appeal

39C.1 The requirements for the service of notices of appeal and the time
limits for doing so are as set out in CrimPR Part 39. The Court must be provided
with an appeal notice as a single document which sets out the grounds of
appeal. Advocates should not provide the Court with an advice addressed to
lay or professional clients. Any appeal notice or grounds of appeal served on
the Court will usually be provided to the respondent.

39C.2 Advocates should not settle grounds unless they consider that they
are properly arguable. Grounds should be carefully drafted; the court is not
assisted by grounds of appeal which are not properly set out and particularised
in accordance with CrimPR 39.3. The grounds must:
i. be concise; and
ii. be presented in A4 page size and portrait orientation, in not less than 12
point font and in 1.5 line spacing.

Appellants and advocates should keep in mind the powers of the court and
the Registrar to return for revision, within a directed period, grounds that do
not comply with the rule or with these directions, including grounds that are
so prolix or diffuse as to render them incomprehensible. They should keep in
mind also the court’s powers to refuse permission to appeal on any ground
that is so poorly presented as to render it unarguable and thus to exclude it
from consideration by the court: see CrimPR 36.14. Should leave to amend the
grounds be granted, it is most unlikely that further grounds will be entertained.

39C.3 Where the appellant wants to appeal against conviction, transcripts

must be identified in accordance with CrimPR 39.3(1)(c). This includes
specifying the date and time of transcripts in the notice of appeal. Accordingly,
the date and time of the summing up should be provided, including both
parts of a split summing-up. Where relevant, the date and time of additional
transcripts (such as rulings or early directions) should be provided. Similarly,
any relevant written materials (such as route to verdict) should be identified.

39C.4 Where the appellant wants to rely on a ground of appeal that is

not identified by the appeal notice, an application under CrimPR 36.14(5)
is required. In R v James and Others [2018] EWCA Crim 285 the Court of

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Appeal identified as follows the considerations that obtain and the criteria that
the court will apply on any such application:
(a) as a general rule all the grounds of appeal that an appellant wishes to
advance should be lodged with the appeal notice, subject to their being
perfected on receipt of transcripts from the Registrar.
(b) the application for permission to appeal under section 31 of the Criminal
Appeal Act 1968 is an important stage in the process. It may not be
treated lightly or its determination in effect ignored merely because fresh
representatives would have done or argued things differently to their
predecessors. Fresh grounds advanced by fresh representatives must be
particularly cogent.
(c) as well as addressing the factors material to the determination of an
application for an extension of time within which to renew an application
for permission to appeal, if that is required, on an application under
CrimPR 36.14(5) the appellant or his or her representatives must address
directly the factors which the court is likely to consider relevant when
deciding whether to allow the substitution or addition of grounds of
appeal. Those factors include (but this list is not exhaustive):
(i) the extent of the delay in advancing the fresh ground or grounds;
(ii) the reasons for that delay;
(iii) whether the facts or issues the subject of the fresh ground were
known to the appellant’s representatives when they advised on
appeal;
(iv) the interests of justice and the overriding objective in Part 1 of the
Criminal Procedure Rules.
(d) on the assumption that an appellant will have received advice on appeal
from his or her trial advocate, who will have settled the grounds of appeal
in the original appeal notice or who will have advised that there are no
reasonably arguable grounds to challenge the safety of the conviction:
(i) fresh representatives should comply with the duty of due diligence
explained in McCook [2014] EWCA Crim 734. Waiver of privilege
by the appellant is very likely to be required.
(ii) once the trial lawyers have responded, the fresh representatives
should again consider with great care their duty to the court
and whether the proposed fresh grounds should be advanced as
reasonably arguable and particularly cogent.
(iii) the Registrar will obtain, before the determination of the application
under CrimPR 36.14(5), transcripts relevant to the fresh grounds
and, where required, a respondents’ notice relating to the fresh
grounds.

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(e) while an application under CrimPR 36.14(5) will not require ‘exceptional
leave’, and hence the demonstration of substantial injustice should it
not be granted, the hurdle for the applicant is a high one nonetheless.
Representatives should remind themselves of the provisions of
paragraph 39C.2 above.
(f) permission to renew out of time an application for permission to appeal
is not given unless the applicant can persuade the court that very good
reasons exist. If that application to renew out of time is accompanied by an
application to vary the grounds of appeal, the hurdle will be higher still.
(g) any application to substitute or add grounds will be considered by a fully
constituted court and at a hearing, not on the papers.
(h) on any renewal of an application for permission to appeal accompanied
by an application under CrimPR 36.14(5), if the court refuses those
applications it has the power to make a loss of time order or an order
for costs in line with R v Gray and Others [2014] EWCA Crim 2372.
By analogy with R v Kirk [2015] EWCA Crim 1764 (where the court
refused an extension of time) the court has the power to order payment
of the costs of obtaining the respondent’s notice and any additional
transcripts.

Direct Lodgement
39C.5 With effect from 1st October 2018, Forms NG and Grounds of Appeal
which are covered by Part 39 of the Criminal Procedure Rules (appeal to the
Court of Appeal about conviction or sentence) are to be lodged directly with
the Criminal Appeal Office and not with the Crown Court where the appellant
was convicted or sentenced. This Practice Direction must be read alongside the
detailed guidance notes that have been produced to accompany the new forms.
They are available: http://www.justice.gov.uk/courts/procedure-rules/criminal/
forms. From this date the Crown Court will no longer accept Forms NG and
will return them to the sender. Forms NG and Grounds of Appeal should only
be lodged once. They should, where possible, be lodged by email. Applications
should not be lodged directly onto the Digital Case System. Applications
must be lodged at the following address: criminalappealoffice.applications@
hmcts.x.gsi.gov.uk

If you do not have access to an email account, you should post Form NG and
the Grounds of Appeal to:
The Registrar, Criminal Appeal Office, Royal Courts of Justice, Strand,
London WC2A 2LL.

Once an application has been effectively lodged, the Registrar will confirm
receipt within 7 days.

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Service
39C.6 Legal representatives should make sure they provide their secure
email address for the purposes of correspondence and service of document.
The date of service for new applications lodged by email will be the day on
which it is sent, if that day is a business day and if sent no later than 2:30pm on
that day, otherwise the date of service will be on the next business day after it
was sent.

Completing the Form NG

39C.7 All applications must be compliant with the relevant Criminal
Procedure Rules, particularly those in Part 39. A separate Form NG should
be completed for each substantive application which is being made. Each
application (conviction, sentence and confiscation order) has its own Form NG
and must be drafted and lodged as a stand-alone application.

39D Respondents’ notices

39D.1 The requirements for the service of respondents’ notices and the time
limits for doing so are as set out in CrimPR Part 39. Any respondent’s notice
served should be in accordance with CrimPR 39.6. The Court does not require
a response to the respondent’s notice.

39E Loss of time

39E.1 Both the Court and the single judge have power, in their discretion,
under the Criminal Appeal Act 1968 sections 29 and 31, to direct that part of
the time during which an applicant is in custody after lodging his notice of
application for leave to appeal should not count towards sentence. When leave
to appeal has been refused by the single judge, it is necessary to consider the
reasons given by the single judge before making a decision whether to renew
the application. Where an application devoid of merit has been refused by the
single judge he may indicate that the Full Court should consider making a
direction for loss of time on renewal of the application. However, the Full
Court may make such a direction whether or not such an indication has been
given by the single judge.

39E.2 The case of R v Gray & Others [2014] EWCA Crim 2372 makes clear
‘that unmeritorious renewal applications took up a wholly disproportionate
amount of staff and judicial resources in preparation and hearing time. They
also wasted significant sums of public money… The more time the Court
of Appeal Office and the judges spent on unmeritorious applications, the
longer the waiting times were likely to be….The only means the court has

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 Appeal

of discouraging unmeritorious applications which waste precious time and

resources is by using the powers given to us by Parliament in the Criminal
Appeal Act 1968 and the Prosecution of Offenders Act 1985.’

39E.3 Further, applicants and counsel are reminded of the warning given by
the Court of Appeal in R v Hart and Others [2006] EWCA Crim 3239, [2007]
1 Cr. App. R. 31, [2007] 2 Cr. App. R. (S.) 34 and should ‘heed the fact that
this court is prepared to exercise its power … The mere fact that counsel has
advised that there are grounds of appeal will not always be a sufficient answer
to the question as to whether or not an application has indeed been brought
which was totally without merit.’

39E.4 Where the single judge has not indicated that the Full Court should
consider making a Loss of Time Order because the defendant has already been
released, the case of R v Terence Nolan [2017] EWCA Crim 2449 indicates
that the single judge should consider what, if any, costs have been incurred
by the Registrar and the Prosecution and should make directions accordingly.
Reference should be made to the relevant Costs Division of the Criminal
Practice Direction.

39F Skeleton arguments

39F.1 Advocates should always ensure that the court, and any other party
as appropriate, has a single document containing all of the points that are
to be argued. The appeal notice must comply with the requirements of
CrimPR 39.3. In cases of an appeal against conviction, advocates must serve
a skeleton argument when the appeal notice does not sufficiently outline the
grounds of the appeal, particularly in cases where a complex or novel point
of law has been raised. In an appeal against sentence it may be helpful for an
advocate to serve a skeleton argument when a complex issue is raised.

39F.2 The appellant’s skeleton argument, if any, must be served no later

than 21 days before the hearing date, and the respondent’s skeleton argument,
if any, no later than 14 days before the hearing date, unless otherwise directed
by the Court.

39F.3 Paragraphs XII D.17 to D.23 of these Practice Directions set out
the general requirements for skeleton arguments. A skeleton argument, if
provided, should contain a numbered list of the points the advocate intends
to argue, grouped under each ground of appeal, and stated in no more than
one or two sentences. It should be as succinct as possible. Advocates should
ensure that the correct Criminal Appeal Office number and the date on which
the document was served appear at the beginning of any document and that
their names are at the end.

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39G Criminal Appeal Office summaries

39G.1 To assist the Court, the Criminal Appeal Office prepares summaries
of the cases coming before it. These are entirely objective and do not contain
any advice about how the Court should deal with the case or any view about its
merits. They consist of two Parts.

39G.2 Part I, which is provided to all of the advocates in the case, generally
contains:
(a) particulars of the proceedings in the Crown Court, including
representation and details of any co-accused,
(b) particulars of the proceedings in the Court of Appeal (Criminal Division),
(c) the facts of the case, as drawn from the transcripts, appeal notice,
respondent’s notice, witness statements and / or the exhibits,
(d) the submissions and rulings, summing up and sentencing remarks.

39G.3 The contents of the summary are a matter for the professional
judgment of the writer, but an advocate wishing to suggest any significant
alteration to Part I should write to the Registrar of Criminal Appeals. If the
Registrar does not agree, the summary and the letter will be put to the Court for
decision. The Court will not generally be willing to hear oral argument about
the content of the summary.

39G.4 Advocates may show Part I of the summary to their professional or

lay clients (but to no one else) if they believe it would help to check facts
or formulate arguments, but summaries are not to be copied or reproduced
without the permission of the Criminal Appeal Office; permission for this will
not normally be given in cases involving children, or sexual offences, or where
the Crown Court has made an order restricting reporting.

39G.5 Unless a judge of the High Court or the Registrar of Criminal

Appeals gives a direction to the contrary, in any particular case involving
material of an explicitly salacious or sadistic nature, Part I will also be
supplied to appellants who seek to represent themselves before the Full
Court, or who renew to the full court their applications for leave to appeal
against conviction or sentence.

39G.6 Part II, which is supplied to the Court alone, contains

(a) a summary of the grounds of appeal and
(b) in appeals against sentence (and applications for such leave), summaries
of the antecedent histories of the parties and of any relevant pre-sentence,
medical or other reports.

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 Appeal

39G.7 All of the source material is provided to the Court and advocates are
able to draw attention to anything in it which may be of particular relevance.

44A References to the European Court of Justice

44A.1 Further to CrimPR 44.3 of the Criminal Procedure Rules, the order
containing the reference shall be filed with the Senior Master of the Queen’s
Bench Division of the High Court for onward transmission to the Court of
Justice of the European Union. The order should be marked for the attention of
Mrs Isaac and sent to the Senior Master:
c/o Queen’s Bench Division Associates Dept Room WG03 Royal Courts of
Justice Strand London WC2A 2LL

44A.2 There is no longer a requirement that the relevant court file be sent to
the Senior Master. The parties should ensure that all appropriate documentation
is sent directly to the European Court at the following address:
The Registrar Court of Justice of the European Union Kirchberg L-2925
Luxemburg

44A.3 There is no prescribed form for use but the following details must be
included in the back sheet to the order:
i. Solicitor’s full address;
ii. Solicitor’s and Court references;
iii. Solicitor’s e-mail address.

44A.4 The European Court of Justice regularly updates its Recommendation

to national courts and tribunals in relation to the initiation of preliminary
ruling proceedings. The current Recommendation is 2012/C 338/01:
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:338:00
01:0006:EN:PDF

44A.5 The referring court may request the Court of Justice of the
European Union to apply its urgent preliminary ruling procedure where
the referring court’s proceedings relate to a person in custody. For
further information see Council Decision 2008/79/EC [2008] OJ L24/42:
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:024:00
42:0043:EN:PDF

44A.6 Any such request must be made in a document separate from the
order or in a covering letter and must set out:
iv. The matters of fact and law which establish the urgency;
v. The reasons why the urgent preliminary ruling procedure applies; and

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vi. In so far as possible, the court’s view on the answer to the question
referred to the Court of Justice of the European Union for a preliminary
ruling.

44A.7 Any request to apply the urgent preliminary ruling procedure should
be filed with the Senior Master as described above.

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Appendix B

The Criminal Procedure Rules, Parts 36

to 44

CRIMINAL PROCEDURE RULES 2015

SI 2015/1490

PART 36
APPEAL TO THE COURT OF APPEAL: GENERAL RULES
36.1.  this Part applies
(1) This Part applies to all the applications, appeals and references to the
Court of Appeal to which Parts 37, 38, 39, 40, 41 and 43 apply.
(2) In this Part and in those, unless the context makes it clear that something
different is meant ‘court’ means the Court of Appeal or any judge of that
court.
[Note. See rule 2.2 for the usual meaning of ‘court’.
Under section 53 of the Senior Courts Act 1981, the criminal division of
the Court of Appeal exercises jurisdiction in the appeals and references to
which Parts 37, 38, 39, 40 and 41 apply.
Under section 55 of that Act, the Court of Appeal must include at least two
judges, and for some purposes at least three.
For the powers of the Court of Appeal that may be exercised by one
judge of that court or by the Registrar, see sections 31, 31A, 31B, 31C and
44 of the Criminal Appeal Act 1968; section 49 of the Criminal Justice Act
2003; the Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in
Transitional Cases) Order 2005; the Serious Organised Crime and Police Act
2005 (Appeals under section 74) Order 2006; the Serious Crime Act 2007
(Appeals under Section 24) Order 2008; and the power conferred by section
53(4) of the 1981 Act.]

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

36.2. Case management in the Court of Appeal

(1) The court and the parties have the same duties and powers as under
Part 3 (Case management).
(2) The Registrar—
(a) must fulfil the duty of active case management under rule 3.2; and
(b) in fulfilling that duty may exercise any of the powers of case
management under—
(i) rule 3.5 (the court’s general powers of case management),
(ii) rule 3.10(3) (requiring a certificate of readiness), and
(iii) rule 3.11 (requiring a party to identify intentions and
anticipated requirements)
subject to the directions of the court.
(3) The Registrar must nominate a case progression officer under rule 3.4.

36.3. Power to vary requirements

The court or the Registrar may—
(a) shorten a time limit or extend it (even after it has expired) unless
that is inconsistent with other legislation;
(b) allow a party to vary any notice that that party has served;
(c) direct that a notice or application be served on any person;
(d) allow a notice or application to be in a different form, or presented
orally.
[Note. The time limit for serving an appeal notice—
(a) under section 18 of the Criminal Appeal Act 1968 on an appeal
against conviction or sentence, and
(b) under section 18A of that Act on an appeal against a finding of
contempt of court
may be extended but not shortened: see rule 39.2.
The time limit for serving an application for permission to refer a
sentencing case under section 36 of the Criminal Justice Act 1988 may be
neither extended nor shortened: see [rule 41.2(4)]1.
The time limits in rule 43.2 for applying to the Court of Appeal for
permission to appeal or refer a case to the Supreme Court may be extended or
shortened only as explained in the note to that rule.]

Amendment
1 Substituted by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 15(a).

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 Part 36

36.4. Application for extension of time

A person who wants an extension of time within which to serve a notice or
make an application must—
(a) apply for that extension of time when serving that notice or making
that application; and
(b) give the reasons for the application for an extension of time.

36.5. Renewing an application refused by a judge or the Registrar

(1) This rule applies where a party with the right to do so wants to renew—
(a) to a judge of the Court of Appeal an application refused by the
Registrar; or
(b) to the Court of Appeal an application refused by a judge of that
court.
(2) That party must—
(a) renew the application in the form set out in the Practice Direction,
signed by or on behalf of the applicant;
(b) serve the renewed application on the Registrar not more than 14
days after—
(i) the refusal of the application that the applicant wants to
renew; or
(ii) the Registrar serves that refusal on the applicant, if the
applicant was not present in person or by live link when the
original application was refused.
[Note. The time limit of 14 days under this rule is reduced to 5 days where
Parts 37, 38 or 40 apply: see rules 37.7, 38.10 and 40.7.
For the right to renew an application to a judge or to the Court of Appeal,
see sections 31(3), 31C and 44 of the Criminal Appeal Act 1968, the Criminal
Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional Cases)
Order 2005, the Serious Organised Crime and Police Act 2005 (Appeals
under section 74) Order 2006 and the Serious Crime Act 2007 (Appeals under
Section 24) Order 2008.
A party has no right under section 31C of the 1968 Act to renew to the
Court of Appeal an application for procedural directions refused by a judge,
but in some circumstances a case management direction might be varied: see
rule 3.6.
If an applicant does not renew an application that a judge has refused,
including an application for permission to appeal, the Registrar will treat it as
if it had been refused by the Court of Appeal.

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

Under section 22 of the Criminal Appeal Act 1968, the Court of Appeal
may direct that an appellant who is in custody is to attend a hearing by live
link.]

36.6. Hearings
(1) The general rule is that the Court of Appeal must hear in public—
(a) an application, including an application for permission to appeal;
and
(b) an appeal or reference,
but it may order any hearing to be in private.
(2) Where a hearing is about a public interest ruling, that hearing must be in
private unless the court otherwise directs.
(3) Where the appellant wants to appeal against an order restricting public
access to a trial, the court—
(a) may decide without a hearing—
(i) an application, including an application for permission to
appeal, and
(ii) an appeal; but
(b) must announce its decision on such an appeal at a hearing in
public.
(4) Where the appellant wants to appeal or to refer a case to the Supreme
Court, the court—
(a) may decide without a hearing an application—
(i) for permission to appeal or to refer a sentencing case, or
(ii) to refer a point of law; but
(b) must announce its decision on such an application at a hearing in
public.
[(5) Where a party wants the court to reopen the determination of an
appeal—
(a) the court—
(i) must decide the application without a hearing, as a general
rule, but
(ii) may decide the application at a hearing; and
(b) need not announce its decision on such an application at a hearing
in public.]1

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 Part 36

[(6)]2 A judge of the Court of Appeal and the Registrar may exercise any of
their powers—
(a) at a hearing in public or in private; or
(b) without a hearing.
[Note. For the procedure on an appeal against an order restricting public
access to a trial, see Part 40.
[For the procedure on an application to reopen the determination of an
appeal, see rule 36.15.]1]

Amendments
1 Inserted by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 15(b)
(ii), (iii).
2 Substituted by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 15(b)(i).

36.7. Notice of hearings and decisions

(1) The Registrar must give as much notice as reasonably practicable of
every hearing to—
(a) the parties;
(b) any party’s custodian;
(c) any other person whom the court requires to be notified; and
(d) the Crown Court officer, where Parts 37, 38 or 40 apply.
(2) The Registrar must serve every decision on—
(a) the parties;
(b) any other person whom the court requires to be served; and
(c) the Crown Court officer and any party’s custodian, where the decision
determines an appeal or application for permission to appeal.
(3) But where a hearing or decision is about a public interest ruling, the
Registrar must not—
(a) give notice of that hearing to; or
(b) serve that decision on,
anyone other than the prosecutor who applied for that ruling, unless the
court otherwise directs.

36.8. Duty of Crown Court officer

(1) The Crown Court officer must provide the Registrar with any document,
object or information for which the Registrar asks, within such period as
the Registrar may require.

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(2) Where someone may appeal to the Court of Appeal, the Crown Court
officer must keep any document or object exhibited in the proceedings in
the Crown Court, or arrange for it to be kept by some other appropriate
person, until—
(a) 6 weeks after the conclusion of those proceedings; or
(b) the conclusion of any appeal proceedings that begin within that 6 weeks,
unless the court, the Registrar or the Crown Court otherwise directs.
(3) Where Part 37 applies (Appeal to the Court of Appeal against ruling at
preparatory hearing), the Crown Court officer must as soon as practicable
serve on the appellant a transcript or note of—
(a) each order or ruling against which the appellant wants to appeal;
and
(b) the decision by the Crown Court judge on any application for
permission to appeal.
(4) Where Part 38 applies (Appeal to the Court of Appeal against ruling
adverse to prosecution), the Crown Court officer must as soon as
practicable serve on the appellant a transcript or note of—
(a) each ruling against which the appellant wants to appeal;
(b) the decision by the Crown Court judge on any application for
permission to appeal; and
(c) the decision by the Crown Court judge on any request to expedite
the appeal.
(5) Where Part 39 applies (Appeal to the Court of Appeal about conviction
or sentence), the Crown Court officer must as soon as practicable [serve
on or make available to the Registrar]1—
…2
[(a)]1 any Crown Court judge’s certificate that the case is fit for appeal;
[(b)]1 the decision on any application at the Crown Court centre for bail
pending appeal;
[(c)]1 such of the Crown Court case papers as the Registrar requires; and
[(d)]1 such transcript of the Crown Court proceedings as the Registrar
requires.
(6) Where Part 40 applies (Appeal to the Court of Appeal about reporting or
public access) and an order is made restricting public access to a trial, the
Crown Court officer must—
(a) immediately notify the Registrar of that order, if the appellant has
given advance notice of intention to appeal; and

226
 Part 36

(b) as soon as practicable provide the applicant for that order with a
transcript or note of the application.
[Note. See also section 87(4) of the Senior Courts Act 1981 and rules 5.5
(Recording and transcription of proceedings in the Crown Court), 36.9 (duty
of person transcribing record of proceedings in the Crown Court) and 36.10
(Duty of person keeping exhibit).]

Amendments
1 Substituted by the Criminal Procedure (Amendment No. 2) Rules 2018, SI 2018/847, rr 2,
10(a)(i), (iii).
2 Revoked by the Criminal Procedure (Amendment No. 2) Rules 2018, SI 2018/847, rr 2,
10(a)(ii).

36.9. Duty of person transcribing proceedings in the Crown Court

A person who transcribes a recording of proceedings in the Crown Court under
arrangements made by the Crown Court officer must provide the Registrar with
any transcript for which the Registrar asks, within such period as the Registrar
may require.
[Note. See also section 32 of the Criminal Appeal Act 1968 and rule 5.5
(Recording and transcription of proceedings in the Crown Court).]

36.10. Duty of person keeping exhibit

A person who under arrangements made by the Crown Court officer keeps a
document or object exhibited in the proceedings in the Crown Court must—
(a) keep that exhibit until—
(i) 6 weeks after the conclusion of the Crown Court proceedings,
or
(ii) the conclusion of any appeal proceedings that begin within
that 6 weeks,
unless the court, the Registrar or the Crown Court otherwise
directs; and
(b) provide the Registrar with any such document or object for which
the Registrar asks, within such period as the Registrar may require.
[Note. See also rule 36.8(2) (Duty of Crown Court officer).]

36.11. Registrar’s duty to provide copy documents for appeal or reference

Unless the court otherwise directs, for the purposes of an appeal or reference—
(a) the Registrar must—
(i) provide a party with a copy of any document or transcript
held by the Registrar for such purposes, or

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

(ii) allow a party to inspect such a document or transcript,

on payment by that party of any charge fixed by the Treasury;
but
(b) the Registrar must not provide a copy or allow the inspection of—
(i) a document provided only for the court and the Registrar, or
(ii) a transcript of a public interest ruling or of an application for
such a ruling.
[Note. Section 21 of the Criminal Appeal Act 1968 requires the Registrar
to collect, prepare and provide documents needed by the court.]

36.12. Declaration of incompatibility with a Convention right

(1) This rule applies where a party—
(a) wants the court to make a declaration of incompatibility with a
Convention right under section 4 of the Human Rights Act 1998;
or
(b) raises an issue that the Registrar thinks may lead the court to make
such a declaration.
(2) The Registrar must serve notice on—
(a) the relevant person named in the list published under section 17(1)
of the Crown Proceedings Act 1947; or
(b) the Treasury Solicitor, if it is not clear who is the relevant person.
(3) That notice must include or attach details of—
(a) the legislation affected and the Convention right concerned;
(b) the parties to the appeal; and
(c) any other information or document that the Registrar thinks
relevant.
(4) A person who has a right under the 1998 Act to become a party to the
appeal must—
(a) serve notice on—
(i) the Registrar, and
(ii) the other parties,
if that person wants to exercise that right; and
(b) in that notice—
(i) indicate the conclusion that that person invites the court to
reach on the question of incompatibility, and

228
 Part 36

(ii) identify each ground for that invitation, concisely outlining

the arguments in support.
(5) The court must not make a declaration of incompatibility—
(a) less than 21 days after the Registrar serves notice under paragraph
(2); and
(b) without giving any person who serves a notice under paragraph (4)
an opportunity to make representations at a hearing.

36.13. bandoning an appeal

(1) This rule applies where an appellant wants to—
(a) abandon—
(i) an application to the court for permission to appeal, or
(ii) an appeal; or
(b) reinstate such an application or appeal after abandoning it.
(2) The appellant—
(a) may abandon such an application or appeal without the court’s
permission by serving a notice of abandonment on—
(i) the Registrar, and
(ii) any respondent
before any hearing of the application or appeal; but
(b) at any such hearing, may only abandon that application or appeal
with the court’s permission.
(3) A notice of abandonment must be in the form set out in the Practice
Direction, signed by or on behalf of the appellant.
(4) On receiving a notice of abandonment the Registrar must—
(a) date it;
(b) serve a dated copy on—
(i) the appellant,
(ii) the appellant’s custodian, if any,
(iii) the Crown Court officer, and
(iv) any other person on whom the appellant or the Registrar
served the appeal notice; and
(c) treat the application or appeal as if it had been refused or dismissed
by the Court of Appeal.

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

(5) An appellant who wants to reinstate an application or appeal after

abandoning it must—
(a) apply in writing, with reasons; and
(b) serve the application on the Registrar.
[Note. The Court of Appeal has power only in exceptional circumstances
to allow an appellant to reinstate an application or appeal that has been
abandoned.]

[36.14. Grounds of appeal and opposition

(1) If the court gives permission to appeal then unless the court otherwise
directs the decision indicates that—
(a) the appellant has permission to appeal on every ground identified
by the appeal notice; and
(b) the court finds reasonably arguable each ground on which the
appellant has permission to appeal.
(2) If the court gives permission to appeal but not on every ground identified
by the appeal notice the decision indicates that—
(a) at the hearing of the appeal the court will not consider representations
that address any ground thus excluded from argument; and
(b) an appellant who wants to rely on such an excluded ground needs
the court’s permission to do so.
(3) An appellant who wants to rely at the hearing of an appeal on a ground of
appeal excluded from argument by a judge of the Court of Appeal when
giving permission to appeal must—
(a) apply [for permission to do so]1, with reasons, and identify each
such ground;
(b) serve the application on—
(i) the Registrar, and
(ii) any respondent;
(c) serve the application not more than 14 days after—
(i) the giving of permission to appeal, or
(ii) the Registrar serves notice of that decision on the applicant,
if the applicant was not present in person or by live link when
permission to appeal was given.
[(4) Paragraph (5) applies where one of the following Parts applies—
(a) Part 37 (Appeal to the Court of Appeal against ruling at preparatory
hearing);

230
 Part 36

(b) Part 38 (Appeal to the Court of Appeal against ruling adverse to

prosecution);
(c) Part 39 (Appeal to the Court of Appeal about conviction or
sentence); or
(d) Part 40 (Appeal to the Court of Appeal about reporting or public
access restriction).
(5) An appellant who wants to rely on a ground of appeal not identified by
the appeal notice must—
(a) apply for permission to do so and identify each such ground;
(b) in respect of each such ground—
(i) explain why it was not included in the appeal notice, and
(ii) where Part 39 applies, comply with rule 39.3(2);
(c) serve the application on—
(i) the Registrar, and
(ii) any respondent;
(d) serve the application—
(i) as soon as reasonably practicable, and in any event
(ii) at the same time as serving any renewed application for
permission to appeal which relies on that ground.]2
[(6)]1 Paragraph (5) applies where a party wants to abandon—
(a) a ground of appeal on which that party has permission to appeal; or
(b) a ground of opposition identified in a respondent’s notice.
[(7)] Such a party must serve notice on—
1

(a) the Registrar; and

(b) each other party,
before any hearing at which that ground will be considered by the court.
[Note. In some legislation, including the Criminal Appeal Act 1968,
permission to appeal is described as ‘leave to appeal’.
Under rule 36.5 (Renewing an application refused by a judge or the
Registrar), if permission to appeal is refused the application for such permission
may be renewed within the time limit (14 days) set by that rule.]]3

Amendments
1 Substituted by the Criminal Procedure (Amendment No. 2) Rules 2018, SI 2018/847, rr 2,
10(b)(i), (ii).

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

2 Inserted by the Criminal Procedure (Amendment No. 2) Rules 2018, SI 2018/847, rr 2, 10(b)(iii).
3 Substituted by the Criminal Procedure (Amendment) Rules 2017, SI 2017/144, rr 2, 9(a).

[36.15. Reopening the determination of an appeal

(1) This rule applies where—
(a) a party wants the court to reopen a decision which determines an
appeal or reference to which this Part applies (including a decision
on an application for permission to appeal or refer);
(b) the Registrar refers such a decision to the court for the court to
consider reopening it.
(2) Such a party must—
(a) apply in writing for permission to reopen that decision, as soon as
practicable after becoming aware of the grounds for doing so; and
(b) serve the application on the Registrar.
(3) The application must—
(a) specify the decision which the applicant wants the court to reopen;
and
(b) explain—
(i) why it is necessary for the court to reopen that decision in
order to avoid real injustice,
(ii) how the circumstances are exceptional and make it appropriate
to reopen the decision notwithstanding the rights and interests
of other participants and the importance of finality,
(iii) why there is no alternative effective remedy among any
potentially available, and
(iv) any delay in making the application.
(4) The Registrar—
(a) may invite a party’s representations on—
(i) an application to reopen a decision, or
(ii) a decision that the Registrar has referred, or intends to refer,
to the court; and
(b) must do so if the court so directs.
(5) A party invited to make representations must serve them on the Registrar
within such period as the Registrar directs.
(6) The court must not reopen a decision to which this rule applies unless
each other party has had an opportunity to make representations.

232
 Part 37

[Note. The Court of Appeal has power only in exceptional circumstances

to reopen a decision to which this rule applies.]]1

Amendment
1 Inserted by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 15(c).

PART 37
APPEAL TO THE COURT OF APPEAL AGAINST
RULING AT PREPARATORY HEARING
37.1. When this Part applies
(1) This Part applies where a party wants to appeal under—
(a) section 9(11) of the Criminal Justice Act 1987 or section 35(1) of
the Criminal Procedure and Investigations Act 1996; or
(b) section 47(1) of the Criminal Justice Act 2003.
(2) A reference to an ‘appellant’ in this Part is a reference to such a party.
[Note. Under section 9(11) of the Criminal Justice Act 1987 (which applies
to serious or complex fraud cases) and under section 35(1) of the Criminal
Procedure and Investigations Act 1996 (which applies to other complex,
serious or long cases) a party may appeal to the Court of Appeal against an
order made at a preparatory hearing in the Crown Court.
Under section 47(1) of the Criminal Justice Act 2003 a party may appeal
to the Court of Appeal against an order in the Crown Court that because of
jury tampering a trial will continue without a jury or that there will be a new
trial without a jury.
Part 3 contains rules about preparatory hearings.
The rules in Part 36 (Appeal to the Court of Appeal: general rules) also
apply where this Part applies.]

37.2. Service of appeal notice

(1) An appellant must serve an appeal notice on—
(a) the Crown Court officer;
(b) the Registrar; and
(c) every party directly affected by the order or ruling against which
the appellant wants to appeal.

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

(2) The appellant must serve the appeal notice not more than 5 business days
after—
(a) the order or ruling against which the appellant wants to appeal; or
(b) the Crown Court judge gives or refuses permission to appeal.

37.3. Form of appeal notice

(1) An appeal notice must be in the form set out in the Practice Direction.
(2) The appeal notice must—
(a) specify each order or ruling against which the appellant wants to
appeal;
(b) identify each ground of appeal on which the appellant relies,
numbering them consecutively (if there is more than one) and
concisely outlining each argument in support;
(c) summarise the relevant facts;
(d) identify any relevant authorities;
(e) include or attach any application for the following, with reasons—
(i) permission to appeal, if the appellant needs the court’s
permission,
(ii) an extension of time within which to serve the appeal notice,
(iii) a direction to attend in person a hearing that the appellant
could attend by live link, if the appellant is in custody;
(f) include a list of those on whom the appellant has served the appeal
notice; and
(g) attach—
(i) a transcript or note of each order or ruling against which the
appellant wants to appeal,
(ii) all relevant skeleton arguments considered by the Crown
Court judge,
(iii) any written application for permission to appeal that the
appellant made to the Crown Court judge,
(iv) a transcript or note of the decision by the Crown Court judge
on any application for permission to appeal, and
(v) any other document or thing that the appellant thinks the
court will need to decide the appeal.
[Note. An appellant needs the court’s permission to appeal in every case to
which this Part applies unless the Crown Court judge gives permission.]

234
 Part 37

37.4. Crown Court judge’s permission to appeal

(1) An appellant who wants the Crown Court judge to give permission to
appeal must—
(a) apply orally, with reasons, immediately after the order or ruling
against which the appellant wants to appeal; or
(b) apply in writing and serve the application on—
(i) the Crown Court officer, and
(ii) every party directly affected by the order or ruling
not more than 2 business days after that order or ruling.
(2) A written application must include the same information (with the
necessary adaptations) as an appeal notice.
[Note. For the Crown Court judge’s power to give permission to appeal,
see section 9(11) of the Criminal Justice Act 1987, section 35(1) of the Criminal
Procedure and Investigations Act 1996 and section 47(2) of the Criminal
Justice Act 2003.]

37.5. Respondent’s notice

(1) A party on whom an appellant serves an appeal notice may serve a
respondent’s notice, and must do so if—
(a) that party wants to make representations to the court; or
(b) the court so directs.
(2) Such a party must serve the respondent’s notice on—
(a) the appellant;
(b) the Crown Court officer;
(c) the Registrar; and
(d) any other party on whom the appellant served the appeal notice.
(3) Such a party must serve the respondent’s notice not more than 5 business
days after—
(a) the appellant serves the appeal notice; or
(b) a direction to do so.
(4) The respondent’s notice must be in the form set out in the Practice
Direction.
(5) The respondent’s notice must—
(a) give the date on which the respondent was served with the appeal
notice;

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

(b) identify each ground of opposition on which the respondent

relies, numbering them consecutively (if there is more than one),
concisely outlining each argument in support and identifying the
ground of appeal to which each relates;
(c) summarise any relevant facts not already summarised in the appeal
notice;
(d) identify any relevant authorities;
(e) include or attach any application for the following, with reasons—
(i) an extension of time within which to serve the respondent’s
notice,
(ii) a direction to attend in person any hearing that the respondent
could attend by live link, if the respondent is in custody;
(f) identify any other document or thing that the respondent thinks the
court will need to decide the appeal.

37.6. Powers of Court of Appeal judge

A judge of the Court of Appeal may give permission to appeal as well as
exercising the powers given by other legislation (including these Rules).
[Note. See section 31 of the Criminal Appeal Act 1968 and section 49 of
the Criminal Justice Act 2003.]

37.7. Renewing applications

Rule 36.5 (Renewing an application refused by a judge or the Registrar) applies
with a time limit of 5 business days.

37.8. Right to attend hearing

(1) A party who is in custody has a right to attend a hearing in public.
(2) The court or the Registrar may direct that such a party is to attend a
hearing by live link.
[Note. See rule 36.6 (Hearings).]

PART 38
APPEAL TO THE COURT OF APPEAL AGAINST
RULING ADVERSE TO PROSECUTION
38.1. When this Part applies
(1) This Part applies where a prosecutor wants to appeal under section 58(2)
of the Criminal Justice Act 2003.

236
 Part 38

(2) A reference to an ‘appellant’ in this Part is a reference to such a prosecutor.

[Note. Under section 58(2) of the Criminal Justice Act 2003 a prosecutor
may appeal to the Court of Appeal against a ruling in the Crown Court. See
also sections 57 and 59 to 61 of the 2003 Act.
The rules in Part 36 (Appeal to the Court of Appeal: general rules) also
apply where this Part applies.]

38.2. Decision to appeal

(1) An appellant must tell the Crown Court judge of any decision to appeal—
(a) immediately after the ruling against which the appellant wants to
appeal; or
(b) on the expiry of the time to decide whether to appeal allowed
under paragraph (2).
(2) If an appellant wants time to decide whether to appeal—
(a) the appellant must ask the Crown Court judge immediately after
the ruling; and
(b) the general rule is that the judge must not require the appellant to
decide there and then but instead must allow until the next business
day.
[Note. If the ruling against which the appellant wants to appeal is a ruling
that there is no case to answer, the appellant may appeal against earlier rulings
as well: see section 58(7) of the Criminal Justice Act 2003.
Under section 58(8) of the 2003 Act the appellant must agree that a
defendant directly affected by the ruling must be acquitted if the appellant (a)
does not get permission to appeal or (b) abandons the appeal.
The Crown Court judge may give permission to appeal and may expedite
the appeal: see rules 38.5 and 38.6.]

38.3. Service of appeal notice

(1) An appellant must serve an appeal notice on—
(a) the Crown Court officer;
(b) the Registrar; and
(c) every defendant directly affected by the ruling against which the
appellant wants to appeal.
(2) The appellant must serve the appeal notice not later than—
(a) the next business day after telling the Crown Court judge of the
decision to appeal, if the judge expedites the appeal; or

237
Appendix B The Criminal Procedure Rules, Parts 36 to 44

(b) 5 business days after telling the Crown Court judge of that decision,
if the judge does not expedite the appeal.
[Note. If the ruling against which the appellant wants to appeal is a public
interest ruling, see rule 38.8.]

38.4. Form of appeal notice

(1) An appeal notice must be in the form set out in the Practice Direction.
(2) The appeal notice must—
(a) specify each ruling against which the appellant wants to appeal;
(b) identify each ground of appeal on which the appellant relies,
numbering them consecutively (if there is more than one) and
concisely outlining each argument in support;
(c) summarise the relevant facts;
(d) identify any relevant authorities;
(e) include or attach any application for the following, with reasons—
(i) permission to appeal, if the appellant needs the court’s
permission,
(ii) an extension of time within which to serve the appeal notice,
(iii) expedition of the appeal, or revocation of a direction
expediting the appeal;
(f) include a list of those on whom the appellant has served the appeal
notice;
(g) attach—
(i) a transcript or note of each ruling against which the appellant
wants to appeal,
(ii) all relevant skeleton arguments considered by the Crown
Court judge,
(iii) any written application for permission to appeal that the
appellant made to the Crown Court judge,
(iv) a transcript or note of the decision by the Crown Court judge
on any application for permission to appeal,
(v) a transcript or note of the decision by the Crown Court judge
on any request to expedite the appeal, and
(vi) any other document or thing that the appellant thinks the
court will need to decide the appeal; and
(h) attach a form of respondent’s notice for any defendant served with
the appeal notice to complete if that defendant wants to do so.

238
 Part 38

[Note. An appellant needs the court’s permission to appeal unless the

Crown Court judge gives permission: see section 57(4) of the Criminal Justice
Act 2003. For ‘respondent’s notice’ see rule 38.7.]

38.5. Crown Court judge’s permission to appeal

(1) An appellant who wants the Crown Court judge to give permission to
appeal must—
(a) apply orally, with reasons, immediately after the ruling against
which the appellant wants to appeal; or
(b) apply in writing and serve the application on—
(i) the Crown Court officer, and
(ii) every defendant directly affected by the ruling
on the expiry of the time allowed under [rule 38.2]1 to decide
whether to appeal.
(2) A written application must include the same information (with the
necessary adaptations) as an appeal notice.
(3) The Crown Court judge must allow every defendant directly affected by
the ruling an opportunity to make representations.
(4) The general rule is that the Crown Court judge must decide whether
or not to give permission to appeal on the day that the application for
permission is made.
[Note. For the Crown Court judge’s power to give permission to appeal,
see section 57(4) of the Criminal Justice Act 2003.
Rule 38.5(3) does not apply where the appellant wants to appeal against a
public interest ruling: see rule 38.8(5).]

Amendment
1 Substituted by the Criminal Procedure (Amendment) Rules 2016, SI 2016/120, rr 2, 12.

38.6. Expediting an appeal

(1) An appellant who wants the Crown Court judge to expedite an appeal
must ask, giving reasons, on telling the judge of the decision to appeal.
(2) The Crown Court judge must allow every defendant directly affected by
the ruling an opportunity to make representations.
(3) The Crown Court judge may revoke a direction expediting the appeal
unless the appellant has served the appeal notice.
[Note. For the Crown Court judge’s power to expedite the appeal, see
section 59 of the Criminal Justice Act 2003.

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

Rule 38.6(2) does not apply where the appellant wants to appeal against a
public interest ruling: see rule 38.8(5).]

38.7. Respondent’s notice

(1) A defendant on whom an appellant serves an appeal notice may serve a
respondent’s notice, and must do so if—
(a) the defendant wants to make representations to the court; or
(b) the court so directs.
(2) Such a defendant must serve the respondent’s notice on—
(a) the appellant;
(b) the Crown Court officer;
(c) the Registrar; and
(d) any other defendant on whom the appellant served the appeal
notice.
(3) Such a defendant must serve the respondent’s notice—
(a) not later than the next business day after—
(i) the appellant serves the appeal notice, or
(ii) a direction to do so
if the Crown Court judge expedites the appeal; or
(b) not more than 5 business days after—
(i) the appellant serves the appeal notice, or
(ii) a direction to do so
if the Crown Court judge does not expedite the appeal.
(4) The respondent’s notice must be in the form set out in the Practice
Direction.
(5) The respondent’s notice must—
(a) give the date on which the respondent was served with the appeal
notice;
(b) identify each ground of opposition on which the respondent
relies, numbering them consecutively (if there is more than one),
concisely outlining each argument in support and identifying the
ground of appeal to which each relates;
(c) summarise any relevant facts not already summarised in the appeal
notice;

240
 Part 38

(d) identify any relevant authorities;

(e) include or attach any application for the following, with reasons—
(i) an extension of time within which to serve the respondent’s
notice,
(ii) a direction to attend in person any hearing that the respondent
could attend by live link, if the respondent is in custody;
(f) identify any other document or thing that the respondent thinks the
court will need to decide the appeal.

38.8. Public interest ruling

(1) This rule applies where the appellant wants to appeal against a public
interest ruling.
(2) The appellant must not serve on any defendant directly affected by the
ruling—
(a) any written application to the Crown Court judge for permission to
appeal; or
(b) an appeal notice,
if the appellant thinks that to do so in effect would reveal something that
the appellant thinks ought not be disclosed.
(3) The appellant must not include in an appeal notice—
(a) the material that was the subject of the ruling; or
(b) any indication of what sort of material it is,
if the appellant thinks that to do so in effect would reveal something that
the appellant thinks ought not be disclosed.
(4) The appellant must serve on the Registrar with the appeal notice an
annex—
(a) marked to show that its contents are only for the court and the
Registrar;
(b) containing whatever the appellant has omitted from the appeal
notice, with reasons; and
(c) if relevant, explaining why the appellant has not served the appeal
notice.
(5) Rules 38.5(3) and 38.6(2) do not apply.
[Note. Rules 38.5(3) and 38.6(2) require the Crown Court judge to allow
a defendant to make representations about (i) giving permission to appeal and
(ii) expediting an appeal.]

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

38.9. Powers of Court of Appeal judge

A judge of the Court of Appeal may—
(a) give permission to appeal;
(b) revoke a Crown Court judge’s direction expediting an appeal; and
(c) where an appellant abandons an appeal, order a defendant’s
acquittal, his release from custody and the payment of his costs,
as well as exercising the powers given by other legislation (including
these Rules).
[Note. See section 73 of the Criminal Justice Act 2003.]

38.10. Renewing applications

Rule 36.5 (Renewing an application refused by a judge or the Registrar) applies
with a time limit of 5 business days.

38.11. Right to attend hearing

(1) A respondent who is in custody has a right to attend a hearing in public.
(2) The court or the Registrar may direct that such a respondent is to attend
a hearing by live link.
[Note. See rule 36.6 (Hearings).]

PART 39
APPEAL TO THE COURT OF APPEAL ABOUT
CONVICTION OR SENTENCE
39.1. When this Part applies
(1) This Part applies where—
(a) a defendant wants to appeal under—
(i) Part 1 of the Criminal Appeal Act 1968,
(ii) section 274(3) of the Criminal Justice Act 2003,
(iii) paragraph 14 of Schedule 22 to the Criminal Justice Act 2003,
or
(iv) section 42 of the Counter Terrorism Act 2008;
(b) the Criminal Cases Review Commission refers a case to the Court
of Appeal under section 9 of the Criminal Appeal Act 1995;
(c) a prosecutor wants to appeal to the Court of Appeal under section
14A(5A) of the Football Spectators Act 1989;

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(d) a party wants to appeal under section 74(8) of the Serious Organised
Crime and Police Act 2005;
(e) a person found in contempt of court wants to appeal under section
13 of the Administration of Justice Act 1960 and section 18A of
the Criminal Appeal Act 1968; or
(f) a person wants to appeal to the Court of Appeal under—
(i) section 24 of the Serious Crime Act 2007, or
(ii) regulation 3C or 3H of The Costs in Criminal Cases (General)
Regulations 1986.
(2) A reference to an ‘appellant’ in this Part is a reference to such a party or
person.
[Note. Under Part 1 (sections 1 to 32) of the Criminal Appeal Act 1968, a
defendant may appeal against—
(a) a conviction (section 1 of the 1968 Act);
(b) a sentence (sections 9 and 10 of the 1968 Act);
(c) a verdict of not guilty by reason of insanity (section 12 of the 1968
Act);
(d) a finding of disability (section 15 of the 1968 Act);
(e) a hospital order, interim hospital order or supervision order under
section 5 or 5A of the Criminal Procedure (Insanity) Act 1964
(section 16A of the 1968 Act).
See section 50 of the 1968 Act for the meaning of ‘sentence’.
Under section 274(3) of the 2003 Act, a defendant sentenced to life
imprisonment outside the United Kingdom, and transferred to serve the
sentence in England and Wales, may appeal against the minimum term fixed
by a High Court judge under section 82A of the Powers of Criminal Courts
(Sentencing) Act 2000 or under section 269 of the 2003 Act.
Under paragraph 14 of Schedule 22 to the Criminal Justice Act 2003 a
defendant sentenced to life imprisonment may appeal against the minimum
term fixed on review by a High Court judge in certain cases.
Under section 42 of the Counter Terrorism Act 2008 a defendant may
appeal against a decision of the Crown Court that an offence has a terrorist
connection.
See section 13 of the Criminal Appeal Act 1995 for the circumstances
in which the Criminal Cases Review Commission may refer a conviction,
sentence, verdict or finding to the Court of Appeal.
Under section 14A(5A) of the Football Spectators Act 1989 a prosecutor may
appeal against a failure by the Crown Court to make a football banning order.

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

Under section 74(8) of the Serious Organised Crime and Police Act 2005 a
prosecutor or defendant may appeal against a review by a Crown Court judge
of a sentence that was reduced because the defendant assisted the investigator
or prosecutor.
Under section 13 of the Administration of Justice Act 1960 a person in
respect of whom an order or decision is made by the Crown Court in the
exercise of its jurisdiction to punish for contempt of court may appeal to the
Court of Appeal.
Under section 24 of the Serious Crime Act 2007 a person who is the
subject of a serious crime prevention order, or the relevant applicant authority,
may appeal to the Court of Appeal against a decision of the Crown Court in
relation to that order. In addition, any person who was given an opportunity
to make representations in the proceedings by virtue of section 9(4) of the Act
may appeal to the Court of Appeal against a decision of the Crown Court to
make, vary or not vary a serious crime prevention order.
Under regulation 3C of the Costs in Criminal Cases (General) Regulations
1986, a legal representative against whom the Crown Court makes a wasted
costs order under section 19A of the Prosecution of Offences Act 1985 and
regulation 3B may appeal against that order to the Court of Appeal.
Under regulation 3H of the Costs in Criminal Cases (General) Regulations
1986, a third party against whom the Crown Court makes a costs order under
section 19B of the Prosecution of Offences Act 1985 and regulation 3F may
appeal against that order to the Court of Appeal.
The rules in Part 36 (Appeal to the Court of Appeal: general rules) also
apply where this Part applies.]

[39.2. Service of appeal notice

The appellant must serve an appeal notice on the Registrar—
(a) not more than 28 days after—
(i) the conviction, verdict, or finding,
(ii) the sentence,
(iii) the order (subject to paragraph (b)), or the failure to make an
order, or
(iv) the minimum term review decision under section 274(3) of,
or paragraph 14 of Schedule 22 to, the Criminal Justice Act
2003
about which the appellant wants to appeal;
(b) not more than 21 days after the order in a case in which the
appellant appeals against a wasted or third party costs order;

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(c) not more than 28 days after the Registrar serves notice that the
Criminal Cases Review Commission has referred a conviction to
the court.
[Note. The time limit for serving an appeal notice (a) on an appeal under
Part 1 of the Criminal Appeal Act 1968 and (b) on an appeal against a finding
of contempt of court is prescribed by sections 18 and 18A of the Criminal
Appeal Act 1968. It may be extended, but not shortened.
For service of a reference by the Criminal Cases Review Commission, see
rule 39.5.]]1

Amendment
1 Substituted by the Criminal Procedure (Amendment No. 2) Rules 2018, SI 2018/847, rr 2,
11(a).

39.3. Form of appeal notice

…1
[(1)]2 [An appeal notice]2 must—
(a) specify—
(i) the conviction, verdict, or finding,
(ii) the sentence, or
(iii) the order, or the failure to make an order
about which the appellant wants to appeal;
[(b) identify each ground of appeal on which the appellant relies (and
see paragraph (2));]2
(c) identify the transcript that the appellant thinks the court will need,
if the appellant wants to appeal against a conviction;
(d) identify the relevant sentencing powers of the Crown Court, if
sentence is in issue;
[(e) include or attach any application for the following, with reasons—
(i) permission to appeal, if the appellant needs the court’s
permission,
(ii) an extension of time within which to serve the appeal notice,
(iii) bail pending appeal,
(iv) a direction to attend in person a hearing that the appellant
could attend by live link, if the appellant is in custody,
(v) the introduction of evidence, including hearsay evidence and
evidence of bad character,

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

(vi) an order requiring a witness to attend court,

(vii) a direction for special measures for a witness,
(viii) a direction for special measures for the giving of evidence by
the appellant;
(f) identify any other document or thing that the appellant thinks the
court will need to decide the appeal.]2
…1
…3
[(2) The grounds of appeal must—
(a) include in no more than the first two pages a summary of the
grounds that makes what then follows easy to understand;
(b) in each ground of appeal identify the event or decision to which
that ground relates;
(c) in each ground of appeal summarise the facts relevant to that ground,
but only to the extent necessary to make clear what is in issue;
(d) concisely outline each argument in support of each ground;
(e) number each ground consecutively, if there is more than one;
(f) identify any relevant authority and—
(i) state the proposition of law that the authority demonstrates,
and
(ii) identify the parts of the authority that support that proposition;
and
(g) where the Criminal Cases Review Commission refers a case to the
court, explain how each ground of appeal relates (if it does) to the
reasons for the reference.]4
[Note. [The Practice Direction sets out [forms of appeal notice]5 for use in
connection with this rule.]4
In some legislation, including the Criminal Appeal Act 1968, permission
to appeal is described as ‘leave to appeal’.
An appellant needs the court’s permission to appeal in every case to which
this Part applies, except where—
(a) the Criminal Cases Review Commission refers the case;
(b) the appellant appeals against—
(i) an order or decision made in the exercise of jurisdiction to
punish for contempt of court, or
(ii) a wasted or third party costs order; or

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 Part 39

(c) the Crown Court judge certifies under sections 1(2)(a), 11(1A),
12(b), 15(2)(b) or 16A(2)(b) of the Criminal Appeal Act 1968,
under section 81(1B) of the Senior Courts Act 1981, under section
14A(5B) of the Football Spectators Act 1989, or under section
24(4) of the Serious Crime Act 2007, that a case is fit for appeal.
A judge of the Court of Appeal may give permission to appeal under
section 31 of the Criminal Appeal Act 1968.
[See also rule 39.7 (Introducing evidence).]6]

Amendments
1 Revoked by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 16(a)(i), (v).
2 Substituted by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 16(a)
(ii)-(v).
3 Revoked by the Criminal Procedure (Amendment No. 2) Rules 2018, SI 2018/847, rr 2, 11(b)(i).
4 Inserted by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 16(a)(vi), (vii).
5 Substituted by the Criminal Procedure (Amendment No. 2) Rules 2018, SI 2018/847, rr 2,
11(b)(ii).
6 Inserted by the Criminal Procedure (Amendment) Rules 2017, SI 2017/144, rr 2, 10(a).

39.4. Crown Court judge’s certificate that case is fit for appeal
(1) An appellant who wants the Crown Court judge to certify that a case is
fit for appeal must—
(a) apply orally, with reasons, immediately after there occurs—
(i) the conviction, verdict, or finding,
(ii) the sentence, or
(iii) the order, or the failure to make an order
about which the appellant wants to appeal; or
(b) apply in writing and serve the application on the Crown Court
officer not more than 14 days after that occurred.
(2) A written application must include the same information (with the
necessary adaptations) as an appeal notice.
[Note. The Crown Court judge may certify that a case is fit for appeal
under sections 1(2)(b), 11(1A), 12(b), 15(2)(b) or 16A(2)(b) of the Criminal
Appeal Act 1968, under section 81(1B) of the Senior Courts Act 1981, under
section 14A(5B) of the Football Spectators Act 1989 or under section 24(4) of
the Serious Crime Act 2007.
See also rule 39.2 (service of appeal notice required in all cases).]

39.5. Reference by Criminal Cases Review Commission

(1) The Registrar must serve on the appellant a reference by the Criminal
Cases Review Commission.

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

(2) The court must treat that reference as the appeal notice if the appellant
does not serve such a notice under rule 39.2.

39.6. Respondent’s notice

(1) The Registrar—
(a) may serve an appeal notice on any party directly affected by the
appeal; and
(b) must do so if the Criminal Cases Review Commission refers a
conviction, verdict, finding or sentence to the court.
(2) Such a party may serve a respondent’s notice, and must do so if—
(a) that party wants to make representations to the court; or
(b) the court or the Registrar so directs.
(3) Such a party must serve the respondent’s notice on—
(a) the appellant;
(b) the Registrar; and
(c) any other party on whom the Registrar served the appeal notice.
(4) Such a party must serve the respondent’s notice—
(a) not more than 14 days after the Registrar serves—
(i) the appeal notice, or
(ii) a direction to do so; or
(b) not more than 28 days after the Registrar serves notice that the
Commission has referred a conviction.
(5) The respondent’s notice must be in the form set out in the Practice
Direction.
(6) The respondent’s notice must—
(a) give the date on which the respondent was served with the appeal
notice;
(b) identify each ground of opposition on which the respondent
relies, numbering them consecutively (if there is more than one),
concisely outlining each argument in support and identifying the
ground of appeal to which each relates;
(c) identify the relevant sentencing powers of the Crown Court, if
sentence is in issue;
(d) summarise any relevant facts not already summarised in the appeal
notice;

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(e) identify any relevant authorities;

(f) include or attach any application for the following, with reasons—
(i) an extension of time within which to serve the respondent’s
notice,
(ii) bail pending appeal,
(iii) a direction to attend in person a hearing that the respondent
could attend by live link, if the respondent is in custody,
(iv) the introduction of evidence, including hearsay evidence and
evidence of bad character,
(v) an order requiring a witness to attend court,
(vi) a direction for special measures for a witness; and
(g) identify any other document or thing that the respondent thinks the
court will need to decide the appeal.
[Note. The Practice Direction sets out the circumstances in which the
Registrar usually will serve a defendant’s appeal notice on the prosecutor.
[See also rule 39.7 (Introducing evidence).]1]

Amendment
1 Inserted by the Criminal Procedure (Amendment) Rules 2017, SI 2017/144, rr 2, 10(b).

[39.7. Introducing evidence

(1) The following Parts apply with such adaptations as the court or the
Registrar may direct—
(a) Part 16 (Written witness statements);
(b) Part 18 (Measures to assist a witness or defendant to give evidence);
(c) Part 19 (Expert evidence);
(d) Part 20 (Hearsay evidence);
(e) Part 21 (Evidence of bad character); and
(f) Part 22 (Evidence of a complainant’s previous sexual behaviour).
(2) But the general rule is that—
(a) a respondent who opposes an appellant’s application or notice to
which one of those Parts applies must do so in the respondent’s
notice, with reasons;
(b) an appellant who opposes a respondent’s application or notice to
which one of those Parts applies must serve notice, with reasons, on—
(i) the Registrar, and

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

(ii) the respondent

not more than 14 days after service of the respondent’s notice; and
(c) the court or the Registrar may give directions with or without a hearing.
(3) A party who wants the court to order the production of a document,
exhibit or other thing connected with the proceedings must—
(a) identify that item; and
(b) explain—
(i) how it is connected with the proceedings,
(ii) why its production is necessary for the determination of the
case, and
(iii) to whom it should be produced (the court, appellant or
respondent, or any two or more of them).
(4) A party who wants the court to order a witness to attend to be questioned
must—
(a) identify the proposed witness; and
(b) explain—
(i) what evidence the proposed witness can give,
(ii) why that evidence is capable of belief,
(iii) if applicable, why that evidence may provide a ground for
allowing the appeal,
(iv) on what basis that evidence would have been admissible in
the case which is the subject of the application for permission
to appeal or appeal, and
(v) why that evidence was not introduced in that case.
(5) Where the court orders a witness to attend to be questioned, the witness
must attend the hearing of the application for permission to appeal or of
the appeal, as applicable, unless the court otherwise directs.
(6) Where the court orders a witness to attend to be questioned before an
examiner on the court’s behalf, the court must identify the examiner and
may give directions about—
(a) the time and place, or times and places, at which that questioning
must be carried out;
(b) the manner in which that questioning must be carried out, in
particular as to—
(i) the service of any report, statement or questionnaire in
preparation for the questioning,

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 Part 39

(ii) the sequence in which the parties may ask questions, and
(iii) if more than one witness is to be questioned, the sequence in
which those witnesses may be questioned; and
(c) the manner in which, and when, a record of the questioning must
be submitted to the court.
(7) Where the court orders the questioning of a witness before an examiner,
the court may delegate to that examiner the giving of directions under
paragraph (6)(a), (b) and (c).
[Note. An application to introduce evidence or for directions about
evidence must be included in, or attached to, an appeal notice or a respondent’s
notice: see [39.3(1)(e)(v), (vi)]1 and 39.6(6)(f)(iv), (v).
Under section 23 of the Criminal Appeal Act 1968, the Court of Appeal may
order the production of a document, exhibit or other thing, may order a witness
to attend to be examined before the court and may allow the introduction
of evidence that was not introduced at trial. Under section 23(4), if it thinks
it necessary or expedient in the interests of justice the court may order the
examination of a witness to be conducted before any judge, court officer
or other person, and allow the admission of a record of that examination as
evidence before the court.]]2

Amendments
1 Substituted by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 16(b).
2 Substituted by the Criminal Procedure (Amendment) Rules 2017, SI 2017/144, rr 2, 10(c).

39.8. Application for bail pending appeal or retrial

(1) This rule applies where a party wants to make an application to the court
about bail pending appeal or retrial.
(2) That party must serve an application in the form set out in the Practice
Direction on—
(a) the Registrar, unless the application is with the appeal notice; and
(b) the other party.
(3) The court must not decide such an application without giving the other
party an opportunity to make representations, including representations
about any condition or surety proposed by the applicant.
(4) This rule and rule 14.16 (Bail condition to be enforced in another
European Union member State) apply where the court can impose as a
condition of bail pending retrial a requirement—
(a) with which a defendant must comply while in another European
Union member State; and
(b) which that other member State can monitor and enforce.

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

[Note. See section 19 of the Criminal Appeal Act 1968, section 3(8) of
the Bail Act 1976 and regulations 77 to 84 of the Criminal Justice and Data
Protection (Protocol No. 36) Regulations 2014. An application about bail or
about the conditions of bail may be made either by an appellant or respondent.
Under section 81(1) of the Senior Courts Act 1981, a Crown Court judge
may grant bail pending appeal only (a) if that judge gives a certificate that the
case is fit for appeal (see rule 39.4) and (b) not more than 28 days after the
conviction or sentence against which the appellant wants to appeal.
See also rule 14.16. Under the 2014 Regulations, where an appellant or
respondent is to live or stay in another European Union member State pending
his or her trial in England and Wales, the court may grant bail subject to a
requirement to be monitored and enforced by the competent authority in that
other state. The types of requirement that can be monitored and enforced are
set out in Article 8 of EU Council Framework Decision 2009/829/JHA. A list
of those requirements is at the end of Part 14.]

39.9. Conditions of bail pending appeal or retrial

(1) This rule applies where the court grants a party bail pending appeal
or retrial subject to any condition that must be met before that party is
released.
(2) The court may direct how such a condition must be met.
(3) The Registrar must serve a certificate in the form set out in the Practice
Direction recording any such condition and direction on—
(a) that party;
(b) that party’s custodian; and
(c) any other person directly affected by any such direction.
(4) A person directly affected by any such direction need not comply with it
until the Registrar serves that person with that certificate.
(5) Unless the court otherwise directs, if any such condition or direction
requires someone to enter into a recognizance it must be—
(a) in the form set out in the Practice Direction and signed before—
(i) the Registrar,
(ii) the custodian, or
(iii) someone acting with the authority of the Registrar or
custodian;
(b) copied immediately to the person who enters into it; and
(c) served immediately by the Registrar on the appellant’s custodian
or vice versa, as appropriate.

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 Part 39

(6) Unless the court otherwise directs, if any such condition or direction
requires someone to make a payment, surrender a document or take
some other step—
(a) that payment, document or step must be made, surrendered or
taken to or before—
(i) the Registrar,
(ii) the custodian, or
(iii) someone acting with the authority of the Registrar or custodian;
(b) the Registrar or the custodian, as appropriate, must serve
immediately on the other a statement that the payment, document
or step has been made, surrendered or taken, as appropriate.
(7) The custodian must release the appellant where it appears that any
condition ordered by the court has been met.
(8) For the purposes of section 5 of the Bail Act 1976 (record of decision
about bail), the Registrar must keep a copy of—
(a) any certificate served under paragraph (3);
(b) a notice of hearing given under rule 36.7(1); and
(c) a notice of the court’s decision served under rule 36.7(2).
(9) Where the court grants bail pending retrial the Registrar must serve on the
Crown Court officer copies of the documents kept under paragraph (8).

39.10. Forfeiture of a recognizance given as a condition of bail

(1) This rule applies where—
(a) the court grants a party bail pending appeal or retrial; and
(b) the bail is subject to a condition that that party provides a surety to
guarantee that he will surrender to custody as required; but
(c) that party does not surrender to custody as required.
(2) The Registrar must serve notice on—
(a) the surety; and
(b) the prosecutor,
of the hearing at which the court may order the forfeiture of the
recognizance given by that surety.
(3) The court must not forfeit a surety’s recognizance—
(a) less than 7 days after the Registrar serves notice under paragraph (2);
and

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

(b) without giving the surety an opportunity to make representations at

a hearing.
[Note. If the purpose for which a recognizance is entered is not fulfilled,
that recognizance may be forfeited by the court. If the court forfeits a surety’s
recognizance, the sum promised by that person is then payable to the Crown.]

39.11. Right to attend hearing

A party who is in custody has a right to attend a hearing in public unless—
(a) it is a hearing preliminary or incidental to an appeal, including the
hearing of an application for permission to appeal; …1
[(b) it is the hearing of an appeal and the court directs that—
(i) the appeal involves a question of law alone, and
(ii) for that reason the appellant has no permission to attend; or]2
[(c)]3 that party is in custody in consequence of—
(i) a verdict of not guilty by reason of insanity, or
(ii) a finding of disability.
[Note. See rule 36.6 (Hearings) and section 22 of the Criminal Appeal Act
1968. There are corresponding provisions in the Criminal Justice Act 2003
(Mandatory Life Sentences: Appeals in Transitional Cases) Order 2005, the
Serious Organised Crime and Police Act 2005 (Appeals under section 74)
Order 2006 and the Serious Crime Act 2007 (Appeals under Section 24) Order
2008. Under section 22 of the 1968 Act and corresponding provisions in those
Orders, the court may direct that an appellant who is in custody is to attend a
hearing by live link.]

Amendments
1 Revoked by the Criminal Procedure (Amendment) Rules 2017, SI 2017/144, rr 2, 10(e)(i).
2 Inserted by the Criminal Procedure (Amendment) Rules 2017, SI 2017/144, rr 2, 10(e)(ii).
3 Substituted by the Criminal Procedure (Amendment) Rules 2017, SI 2017/144, rr 2, 10(e)(iii).

39.12. Power to vary determination of appeal against sentence

(1) This rule applies where the court decides an appeal affecting sentence in
a party’s absence.
(2) The court may vary such a decision if it did not take account of something
relevant because that party was absent.
(3) A party who wants the court to vary such a decision must—
(a) apply in writing, with reasons;
(b) serve the application on the Registrar not more than 7 days after—

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 Part 39

(i) the decision, if that party was represented at the appeal hearing,
or
(ii) the Registrar serves the decision, if that party was not
represented at that hearing.
[Note. Section 22(3) of the Criminal Appeal Act 1968 allows the court to
sentence in an appellant’s absence. There are corresponding provisions in the
Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional
Cases) Order 2005 and in the Serious Organised Crime and Police Act 2005
(Appeals under Section 74) Order 2006.]

39.13. Directions about re-admission to hospital on dismissal of appeal

(1) This rule applies where—
(a) an appellant subject to—
(i) an order under section 37(1) of the Mental Health Act 1983
(detention in hospital on conviction), or
(ii) an order under section 5(2) of the Criminal Procedure
(Insanity) Act 1964 (detention in hospital on finding of
insanity or disability)
has been released on bail pending appeal; and
(b) the court—
(i) refuses permission to appeal,
(ii) dismisses the appeal, or
(iii) affirms the order under appeal.
(2) The court must give appropriate directions for the appellant’s—
(a) re-admission to hospital; and
(b) if necessary, temporary detention pending re-admission.

39.14. Renewal or setting aside of order for retrial

(1) This rule applies where—
(a) a prosecutor wants a defendant to be arraigned more than 2 months
after the court ordered a retrial under section 7 of the Criminal
Appeal Act 1968; or
(b) a defendant wants such an order set aside after 2 months have
passed since it was made.
(2) That party must apply in writing, with reasons, and serve the application
on—

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

(a) the Registrar;

(b) the other party.
[Note. Section 8(1) and (1A) of the Criminal Appeal Act 1968 set out the
criteria for making an order on an application to which this rule applies.]

PART 40
APPEAL TO THE COURT OF APPEAL ABOUT
REPORTING OR PUBLIC ACCESS RESTRICTION
40.1. When this Part applies
(1) This Part applies where a person directly affected by an order to which
section 159(1) of the Criminal Justice Act 1988 applies wants to appeal
against that order.
(2) A reference to an ‘appellant’ in this Part is a reference to such a party.
[Note. Section 159(1) of the Criminal Justice Act 1988 gives a ‘person
aggrieved’ (in this Part described as a person directly affected) a right of
appeal to the Court of Appeal against a Crown Court judge’s order—
(a) under section 4 or 11 of the Contempt of Court Act 1981;
(b) under section 58(7) of the Criminal Procedure and Investigations
Act 1996;
(c) restricting public access to any part of a trial for reasons of national
security or for the protection of a witness or other person; or
(d) restricting the reporting of any part of a trial.
See also Part 6 (Reporting, etc. restrictions) and Part 18 (Measures to
assist a witness or defendant to give evidence).
The rules in Part 36 (Appeal to the Court of Appeal: general rules) also
apply where this Part applies.]

40.2. Service of appeal notice

(1) An appellant must serve an appeal notice on—
(a) the Crown Court officer;
(b) the Registrar;
(c) the parties; and
(d) any other person directly affected by the order against which the
appellant wants to appeal.

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 Part 40

(2) The appellant must serve the appeal notice not later than—
(a) the next business day after an order restricting public access to the
trial;
(b) 10 business days after an order restricting reporting of the trial.

40.3. Form of appeal notice

(1) An appeal notice must be in the form set out in the Practice Direction.
(2) The appeal notice must—
(a) specify the order against which the appellant wants to appeal;
(b) identify each ground of appeal on which the appellant relies,
numbering them consecutively (if there is more than one) and
concisely outlining each argument in support;
(c) summarise the relevant facts;
(d) identify any relevant authorities;
(e) include or attach, with reasons—
(i) an application for permission to appeal,
(ii) any application for an extension of time within which to
serve the appeal notice,
(iii) any application for a direction to attend in person a hearing
that the appellant could attend by live link, if the appellant is
in custody,
(iv) any application for permission to introduce evidence, and
(v) a list of those on whom the appellant has served the appeal
notice; and
(f) attach any document or thing that the appellant thinks the court
will need to decide the appeal.
[Note. An appellant needs the court’s permission to appeal in every case
to which this Part applies.
A Court of Appeal judge may give permission to appeal under section
31(2B) of the Criminal Appeal Act 1968.]

40.4. Advance notice of appeal against order restricting public access

(1) This rule applies where the appellant wants to appeal against an order
restricting public access to a trial.
(2) The appellant may serve advance written notice of intention to appeal
against any such order that may be made.

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(3) The appellant must serve any such advance notice—

(a) on—
(i) the Crown Court officer,
(ii) the Registrar,
(iii) the parties, and
(iv) any other person who will be directly affected by the order
against which the appellant intends to appeal, if it is made;
and
(b) not more than 5 business days after the Crown Court officer
displays notice of the application for the order.
(4) The advance notice must include the same information (with the
necessary adaptations) as an appeal notice.
(5) The court must treat that advance notice as the appeal notice if the order
is made.

40.5. Duty of applicant for order restricting public access

(1) This rule applies where the appellant wants to appeal against an order
restricting public access to a trial.
(2) The party who applied for the order must serve on the Registrar—
(a) a transcript or note of the application for the order; and
(b) any other document or thing that that party thinks the court will
need to decide the appeal.
(3) That party must serve that transcript or note and any such other document
or thing as soon as practicable after—
(a) the appellant serves the appeal notice; or
(b) the order, where the appellant served advance notice of intention to
appeal.

40.6. Respondent’s notice on appeal against reporting restriction

(1) This rule applies where the appellant wants to appeal against an order
restricting the reporting of a trial.
(2) A person on whom an appellant serves an appeal notice may serve a
respondent’s notice, and must do so if—
(a) that person wants to make representations to the court; or
(b) the court so directs.
(3) Such a person must serve the respondent’s notice on—
(a) the appellant;

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(b) the Crown Court officer;

(c) the Registrar;
(d) the parties; and
(e) any other person on whom the appellant served the appeal notice.
(4) Such a person must serve the respondent’s notice not more than 3
business days after—
(a) the appellant serves the appeal notice; or
(b) a direction to do so.
(5) The respondent’s notice must be in the form set out in the Practice
Direction.
(6) The respondent’s notice must—
(a) give the date on which the respondent was served with the appeal
notice;
(b) identify each ground of opposition on which the respondent
relies, numbering them consecutively (if there is more than one),
concisely outlining each argument in support and identifying the
ground of appeal to which each relates;
(c) summarise any relevant facts not already summarised in the appeal
notice;
(d) identify any relevant authorities;
(e) include or attach any application for the following, with reasons—
(i) an extension of time within which to serve the respondent’s
notice,
(ii) a direction to attend in person any hearing that the respondent
could attend by live link, if the respondent is in custody,
(iii) permission to introduce evidence; and
(f) identify any other document or thing that the respondent thinks the
court will need to decide the appeal.

40.7. Renewing applications

Rule 36.5 (Renewing an application refused by a judge or the Registrar) applies
with a time limit of 5 business days.

40.8. Right to introduce evidence

No person may introduce evidence without the court’s permission.
[Note. Section 159(4) of the Criminal Justice Act 1988 entitles the parties
to give evidence, subject to procedure rules.]

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40.9. Right to attend hearing

(1) A party who is in custody has a right to attend a hearing in public of an
appeal against an order restricting the reporting of a trial.
(2) The court or the Registrar may direct that such a party is to attend a
hearing by live link.
[Note. See rule 36.6 (Hearings). The court may decide an application and
an appeal without a hearing where the appellant wants to appeal against an
order restricting public access to a trial: rule 36.6(3).]

PART 41
REFERENCE TO THE COURT OF APPEAL OF POINT
OF LAW OR UNDULY LENIENT SENTENCING
41.1. When this Part applies
This Part applies where the Attorney General wants to—
(a) refer a point of law to the Court of Appeal under section 36 of the
Criminal Justice Act 1972; or
(b) refer a sentencing case to the Court of Appeal under section 36 of
the Criminal Justice Act 1988.
[Note. Under section 36 of the Criminal Justice Act 1972, where a
defendant is acquitted in the Crown Court the Attorney General may refer to
the Court of Appeal a point of law in the case.
Under section 36 of the Criminal Justice Act 1988, if the Attorney General
thinks the sentencing of a defendant in the Crown Court is unduly lenient he
may refer the case to the Court of Appeal: but only if the sentence is one to
which Part IV of the 1988 Act applies, and only if the Court of Appeal gives
permission. See also section 35 of the 1988 Act and the Criminal Justice Act
1988 (Reviews of Sentencing) Order 2006.
The rules in Part 36 (Appeal to the Court of Appeal: general rules) also
apply where this Part applies.]

[41.2. Service of notice of reference and application for permission

(1) The Attorney General must serve any notice of reference and any
application for permission to refer a sentencing case on—
(a) the Registrar; and
(b) the defendant.
(2) Where the Attorney General refers a point of law—

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(a) the Attorney must give the Registrar details of—

(i) the defendant affected,
(ii) the date and place of the relevant Crown Court decision, and
(iii) the relevant verdict and sentencing; and
(b) the Attorney must give the defendant notice that—
(i) the outcome of the reference will not make any difference to
the outcome of the trial, and
(ii) the defendant may serve a respondent’s notice.
(3) Where the Attorney General applies for permission to refer a sentencing
case, the Attorney must give the defendant notice that—
(a) the outcome of the reference may make a difference to that
sentencing, and in particular may result in a more severe sentence;
and
(b) the defendant may serve a respondent’s notice.
(4) The Attorney General must serve an application for permission to refer
a sentencing case on the Registrar not more than 28 days after the last of
the sentences in that case.
[Note. The time limit for serving an application for permission to refer a
sentencing case is prescribed by paragraph 1 of Schedule 3 to the Criminal
Justice Act 1988. It may be neither extended nor shortened.]]1

Amendment
1 Substituted by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 17(a).

41.3. Form of notice of reference and application for permission

[(1) A notice of reference and an application for permission to refer a
sentencing case must give the year and number of that reference or that
case.]1
(2) A notice of reference of a point of law must—
(a) specify the point of law in issue and indicate the opinion that the
Attorney General invites the court to give;
(b) identify each ground for that invitation, numbering them
consecutively (if there is more than one) and concisely outlining
each argument in support;
(c) exclude any reference to the defendant’s name and any other
reference that may identify the defendant;
(d) summarise the relevant facts; and

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(e) identify any relevant authorities.

(3) An application for permission to refer a sentencing case must—
(a) give details of—
(i) the defendant affected,
(ii) the date and place of the relevant Crown Court decision, and
(iii) the relevant verdict and sentencing;
(b) explain why that sentencing appears to the Attorney General
unduly lenient, concisely outlining each argument in support; and
(c) include the application for permission to refer the case to the court.
(4) A notice of reference of a sentencing case must—
(a) include the same details and explanation as the application for
permission to refer the case;
(b) summarise the relevant facts; and
(c) identify any relevant authorities.
(5) Where the court gives the Attorney General permission to refer a
sentencing case, it may treat the application for permission as the notice
of reference.

Amendment
1 Substituted by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 17(b).

[41.4]1. Respondent’s notice

(1) [A defendant on whom the Attorney General serves a notice of reference]1
or an application for permission to refer a sentencing case may serve a
respondent’s notice, and must do so if—
(a) the defendant wants to make representations to the court; or
(b) the court so directs.
(2) Such a defendant must serve the respondent’s notice on—
(a) the Attorney General; and
(b) the Registrar.
(3) Such a defendant must serve the respondent’s notice—
(a) where the Attorney General refers a point of law, not more than 28
days after—
(i) the [Attorney]1 serves the reference, or
(ii) a direction to do so;

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(b) where the Attorney General applies for permission to refer a

sentencing case, not more than 14 days after—
(i) the [Attorney]1 serves the application, or
(ii) a direction to do so.
(4) Where the Attorney General refers a point of law, the respondent’s notice
must—
[(a) give the date on which the respondent was served with the notice
of reference;]2
[(b)]1 identify each ground of opposition on which the respondent
relies, numbering them consecutively (if there is more than one),
concisely outlining each argument in support and identifying the
Attorney General’s ground or reason to which each relates;
[(c)]1 summarise any relevant facts not already summarised in the reference;
[(d)]1 identify any relevant authorities; and
[(e)]1 include or attach any application for the following, with reasons—
(i) an extension of time within which to serve the respondent’s
notice,
(ii) permission to attend a hearing that the respondent does not
have a right to attend,
(iii) a direction to attend in person a hearing that the respondent
could attend by live link, if the respondent is in custody.
(5) Where the Attorney General applies for permission to refer a sentencing
case, the respondent’s notice must—
[(a) give the date on which the respondent was served with the application;]2
[(b)]1 say if the respondent wants to make representations at the hearing
of the application or reference; and
[(c)]1 include or attach any application for the following, with reasons—
(i) an extension of time within which to serve the respondent’s
notice,
(ii) permission to attend a hearing that the respondent does not
have a right to attend,
(iii) a direction to attend in person a hearing that the respondent
could attend by live link, if the respondent is in custody.

Amendments
1 Substituted by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 17(d), (e)
(i)-(iii), (v).
2 Inserted by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 17(e)(iv), (vi).

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[41.5]1. Variation or withdrawal of notice of reference or application for

permission
(1) This rule applies where the Attorney General wants to vary or withdraw—
(a) a notice of reference; or
(b) an application for permission to refer a sentencing case.
(2) The Attorney General—
(a) may vary or withdraw the notice or application without the court’s
permission by serving notice on—
(i) the Registrar, and
(ii) the defendant
before any hearing of the reference or application; but
(b) at any such hearing, may only vary or withdraw that notice or
application with the court’s permission.

Amendment
1 Substituted by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 17(d).

[41.6]1. Right to attend hearing

(1) A respondent who is in custody has a right to attend a hearing in public
unless it is a hearing preliminary or incidental to a reference, including
the hearing of an application for permission to refer a sentencing case.
(2) The court or the Registrar may direct that such a respondent is to attend
a hearing by live link.
[Note. See rule 36.6 (Hearings) and paragraphs 6 and 7 of Schedule 3 to
the Criminal Justice Act 1988. Under paragraph 8 of that Schedule, the Court
of Appeal may sentence in the absence of a defendant whose sentencing is
referred.]

Amendment
1 Substituted by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 17(d).

[41.7]1. Anonymity of defendant on reference of point of law

Where the Attorney General refers a point of law, the court must not allow
anyone to identify the defendant during the proceedings unless the
defendant gives permission.

Amendment
1 Substituted by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 17(d).

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PART 42
APPEAL TO THE COURT OF APPEAL IN
CONFISCATION AND RELATED PROCEEDINGS

General rules
42.1. Extension of time
(1) An application to extend the time limit for giving notice of application
for permission to appeal under Part 2 of the Proceeds of Crime Act 2002
must—
(a) be included in the notice of appeal; and
(b) state the grounds for the application.
(2) The parties may not agree to extend any date or time limit set by this Part
or by the Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003.

42.2. Other applications

Rule 39.3(2)(h) (Form of appeal notice) applies in relation to an application—
(a) by a party to an appeal under Part 2 of the Proceeds of Crime Act
2002 that, under article 7 of The Proceeds of Crime Act 2002
(Appeals under Part 2) Order 2003, a witness be ordered to attend or
that the evidence of a witness be received by the Court of Appeal; or
(b) by the defendant to be given permission by the court to be present
at proceedings for which permission is required under article 6 of
the 2003 Order,
as it applies in relation to applications under Part I of the Criminal Appeal
Act 1968 and the form in which rule 39.3 requires notice to be given may
be modified as necessary.

42.3. Examination of witness by court

Rule 36.7 (Notice of hearings and decisions) applies in relation to an order of
the court under article 7 of the Proceeds of Crime Act 2002 (Appeals under
Part 2) Order 2003 to require a person to attend for examination as it applies
in relation to such an order of the court under Part I of the Criminal Appeal
Act 1968.

42.4. Supply of documentary and other exhibits

Rule 36.11 (Registrar’s duty to provide copy documents for appeal or reference)
applies in relation to an appellant or respondent under Part 2 of the Proceeds of
Crime Act 2002 as it applies in relation to an appellant and respondent under
Part I of the Criminal Appeal Act 1968.

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42.5. Registrar’s power to require information from court of trial

The Registrar may require the Crown Court to provide the Court of Appeal with
any assistance or information which it requires for the purposes of exercising
its jurisdiction under Part 2 of the Proceeds of Crime Act 2002, the Proceeds of
Crime Act 2002 (Appeals under Part 2) Order 2003 or this Part.

42.6. Hearing by single judge

Rule [36.6(6)]1 (Hearings) applies in relation to a judge exercising any of the
powers referred to in article 8 of the Proceeds of Crime Act 2002 (Appeals
under Part 2) Order 2003 or the powers in rules 42.12(3) and (4) (Respondent’s
notice), 42.15(2) (Notice of appeal) and 42.16(6) (Respondent’s notice), as it
applies in relation to a judge exercising the powers referred to in section 31(2)
of the Criminal Appeal Act 1968.

Amendment
1 Substituted by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 18(a).

42.7. Determination by full court

Rule 36.5 (Renewing an application refused by a judge or the Registrar) applies
where a single judge has refused an application by a party to exercise in that
party’s favour any of the powers listed in article 8 of the Proceeds of Crime Act
2002 (Appeals under Part 2) Order 2003, or the power in rule 42.12(3) or (4)
as it applies where the judge has refused to exercise the powers referred to in
section 31(2) of the Criminal Appeal Act 1968.

42.8. Notice of determination

(1) This rule applies where a single judge or the Court of Appeal has
determined an application or appeal under the Proceeds of Crime Act
2002 (Appeals under Part 2) Order 2003 or under Part 2 of the Proceeds
of Crime Act 2002.
(2) The Registrar must, as soon as practicable, serve notice of the
determination on all of the parties to the proceedings.
(3) Where a single judge or the Court of Appeal has disposed of an application
for permission to appeal or an appeal under section 31 of the 2002 Act,
the Registrar must also, as soon as practicable, serve the order on a court
officer of the court of trial and any magistrates’ court responsible for
enforcing any confiscation order which the Crown Court has made.

42.9. Record of proceedings and transcripts

Rule 5.5 (Recording and transcription of proceedings in the Crown Court) and
rule 36.9 (Duty of person transcribing proceedings in the Crown Court) apply
in relation to proceedings in respect of which an appeal lies to the Court of

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Appeal under Part 2 of the Proceeds of Crime Act 2002 as they apply in relation
to proceedings in respect of which an appeal lies to the Court of Appeal under
Part I of the Criminal Appeal Act 1968.

42.10. Appeal to the Supreme Court

(1) An application to the Court of Appeal for permission to appeal to the
Supreme Court under Part 2 of the Proceeds of Crime Act 2002 must be
made—
(a) orally after the decision of the Court of Appeal from which an
appeal lies to the Supreme Court; or
(b) in the form set out in the Practice Direction, in accordance with
article 12 of the Proceeds of Crime Act 2002 (Appeals under Part
2) Order 2003 and served on the Registrar.
(2) The application may be abandoned at any time before it is heard by the
Court of Appeal by serving notice in writing on the Registrar.
(3) Rule [36.6(6)]1 (Hearings) applies in relation to a single judge exercising
any of the powers referred to in article 15 of the 2003 Order, as it applies
in relation to a single judge exercising the powers referred to in section
31(2) of the Criminal Appeal Act 1968.
(4) Rule 36.5 (Renewing an application refused by a judge or the Registrar)
applies where a single judge has refused an application by a party to
exercise in that party’s favour any of the powers listed in article 15 of
the 2003 Order as they apply where the judge has refused to exercise the
powers referred to in section 31(2) of the 1968 Act.
(5) The form in which rule 36.5(2) requires an application to be made may
be modified as necessary.

Amendment
1 Substituted by the Criminal Procedure (Amendment) Rules 2018, SI 2018/132, rr 2, 18(b).

Confiscation: appeal by prosecutor or by person with interest

in property
42.11. Notice of appeal
(1) Where an appellant wishes to apply to the Court of Appeal for permission
to appeal under section 31 of the Proceeds of Crime Act 2002, the
appellant must serve a notice of appeal in the form set out in the Practice
Direction on—
(a) the Crown Court officer; and
(b) the defendant.

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

(2) When the notice of a prosecutor’s appeal about a confiscation order

is served on the defendant, it must be accompanied by a respondent’s
notice in the form set out in the Practice Direction for the defendant to
complete and a notice which—
(a) informs the defendant that the result of an appeal could be that
the Court of Appeal would increase a confiscation order already
imposed, make a confiscation order itself or direct the Crown
Court to hold another confiscation hearing;
(b) informs the defendant of any right under article 6 of the Proceeds
of Crime Act 2002 (Appeals under Part 2) Order 2003 to be present
at the hearing of the appeal, although in custody;
(c) invites the defendant to serve any notice on the Registrar—
(i) to apply to the Court of Appeal for permission to be present
at proceedings for which such permission is required under
article 6 of the 2003 Order, or
(ii) to present any argument to the Court of Appeal on the hearing
of the application or, if permission is given, the appeal, and
whether the defendant wishes to present it in person or by
means of a legal representative;
(d) draws to the defendant’s attention the effect of rule 42.4 (Supply of
documentary and other exhibits); and
(e) advises the defendant to consult a solicitor as soon as possible.
(3) The appellant must provide the Crown Court officer with a certificate of
service stating that the appellant has served the notice of appeal on the
defendant in accordance with paragraph (1) or explaining why it has not
been possible to do so.

42.12. Respondent’s notice

(1) This rule applies where a defendant is served with a notice of appeal
under rule 42.11.
(2) If the defendant wishes to oppose the application for permission to
appeal, the defendant must, not more than 14 days after service of the
notice of appeal, serve on the Registrar and on the appellant a notice in
the form set out in the Practice Direction—
(a) stating the date on which the notice of appeal was served;
(b) summarising the defendant’s response to the arguments of the
appellant; and
(c) specifying the authorities which the defendant intends to cite.
(3) The time for giving notice under this rule may be extended by the
Registrar, a single judge or by the Court of Appeal.

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 Part 42

(4) Where the Registrar refuses an application under paragraph (3) for
the extension of time, the defendant is entitled to have the application
determined by a single judge.
(5) Where a single judge refuses an application under paragraph (3) or (4)
for the extension of time, the defendant is entitled to have the application
determined by the Court of Appeal.

42.13. Amendment and abandonment of appeal

(1) The appellant may amend a notice of appeal served under rule 42.11 or
abandon an appeal under section 31 of the Proceeds of Crime Act 2002—
(a) without the permission of the court at any time before the Court of
Appeal has begun hearing the appeal; and
(b) with the permission of the court after the Court of Appeal has
begun hearing the appeal,
by serving notice in writing on the Registrar.
(2) Where the appellant serves a notice abandoning an appeal under
paragraph (1), the appellant must send a copy of it to—
(a) the defendant;
(b) a court officer of the court of trial; and
(c) the magistrates’ court responsible for enforcing any confiscation
order which the Crown Court has made.
(3) Where the appellant serves a notice amending a notice of appeal under
paragraph (1), the appellant must send a copy of it to the defendant.
(4) Where an appeal is abandoned under paragraph (1), the application
for permission to appeal or appeal must be treated, for the purposes of
section 85 of the 2002 Act (Conclusion of proceedings), as having been
refused or dismissed by the Court of Appeal.

Appeal about compliance, restraint or receivership order

42.14. Permission to appeal
(1) Permission to appeal to the Court of Appeal under section 13B, section
43 or section 65 of the Proceeds of Crime Act 2002 may only be given
where—
(a) the Court of Appeal considers that the appeal would have a real
prospect of success; or
(b) there is some other compelling reason why the appeal should be
heard.

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(2) An order giving permission to appeal may limit the issues to be heard
and be made subject to conditions.

42.15. Notice of appeal

(1) Where an appellant wishes to apply to the Court of Appeal for permission
to appeal under section 13B, 43 or 65 of the Proceeds of Crime Act 2002
Act, the appellant must serve a notice of appeal in the form set out in the
Practice Direction on the Crown Court officer.
(2) Unless the Registrar, a single judge or the Court of Appeal directs
otherwise, the appellant must serve the notice of appeal, accompanied
by a respondent’s notice in the form set out in the Practice Direction for
the respondent to complete, on—
(a) each respondent;
(b) any person who holds realisable property to which the appeal
relates; and
(c) any other person affected by the appeal,
as soon as practicable and in any event not later than 5 business days
after the notice of appeal is served on the Crown Court officer.
(3) The appellant must serve the following documents with the notice of
appeal—
(a) four additional copies of the notice of appeal for the Court of
Appeal;
(b) four copies of any skeleton argument;
(c) one sealed copy and four unsealed copies of any order being
appealed;
(d) four copies of any witness statement or affidavit in support of the
application for permission to appeal;
(e) four copies of a suitable record of the reasons for judgment of the
Crown Court; and
(f) four copies of the bundle of documents used in the Crown Court
proceedings from which the appeal lies.
(4) Where it is not possible to serve all of the documents referred to in
paragraph (3), the appellant must indicate which documents have not yet
been served and the reasons why they are not currently available.
(5) The appellant must provide the Crown Court officer with a certificate of
service stating that the notice of appeal has been served on each respondent
in accordance with paragraph (2) and including full details of each
respondent or explaining why it has not been possible to effect service.

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42.16. Respondent’s notice

(1) This rule applies to an appeal under section 13B, 43 or 65 of the Proceeds
of Crime Act 2002.
(2) A respondent may serve a respondent’s notice on the Registrar.
(3) A respondent who—
(a) is seeking permission to appeal from the Court of Appeal; or
(b) wishes to ask the Court of Appeal to uphold the decision of the
Crown Court for reasons different from or additional to those given
by the Crown Court,
must serve a respondent’s notice on the Registrar.
(4) A respondent’s notice must be in the form set out in the Practice Direction
and where the respondent seeks permission to appeal to the Court of
Appeal it must be requested in the respondent’s notice.
(5) A respondent’s notice must be served on the Registrar not later than 14
days after—
(a) the date the respondent is served with notification that the Court of
Appeal has given the appellant permission to appeal; or
(b) the date the respondent is served with notification that the application
for permission to appeal and the appeal itself are to be heard together.
(6) Unless the Registrar, a single judge or the Court of Appeal directs
otherwise, the respondent serving a respondent’s notice must serve the
notice on the appellant and any other respondent—
(a) as soon as practicable; and
(b) in any event not later than 5 business days,
after it is served on the Registrar.

42.17. Amendment and abandonment of appeal

(1) The appellant may amend a notice of appeal served under rule 42.15 or
abandon an appeal under section 13B, 43 or 65 of the Proceeds of Crime
Act 2002—
(a) without the permission of the court at any time before the Court of
Appeal has begun hearing the appeal; and
(b) with the permission of the court after the Court of Appeal has
begun hearing the appeal,
by serving notice in writing on the Registrar.
(2) Where the appellant serves a notice under paragraph (1), the appellant
must send a copy of it to each respondent.

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42.18. Stay
Unless the Court of Appeal or the Crown Court orders otherwise, an appeal
under section 13B, 43 or 65 of the Proceeds of Crime Act 2002 does not
operate as a stay of any order or decision of the Crown Court.

42.19. Striking out appeal notices and setting aside or imposing

conditions on permission to appeal
(1) The Court of Appeal may—
(a) strike out the whole or part of a notice of appeal served under rule
42.15; or
(b) impose or vary conditions upon which an appeal under section
13B, 43 or 65 of the Proceeds of Crime Act 2002 may be brought.
(2) The Court of Appeal may only exercise its powers under paragraph (1)
where there is a compelling reason for doing so.
(3) Where a party is present at the hearing at which permission to appeal was
given, that party may not subsequently apply for an order that the Court
of Appeal exercise its powers under paragraph (1)(b).

42.20. Hearing of appeals

(1) This rule applies to appeals under section 13B, 43 or 65 of the Proceeds
of Crime Act 2002.
(2) Every appeal must be limited to a review of the decision of the Crown
Court unless the Court of Appeal considers that in the circumstances of
an individual appeal it would be in the interests of justice to hold a re-
hearing.
(3) The Court of Appeal may allow an appeal where the decision of the
Crown Court was—
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the
proceedings in the Crown Court.
(4) The Court of Appeal may draw any inference of fact which it considers
justified on the evidence.
(5) At the hearing of the appeal a party may not rely on a matter not
contained in that party’s notice of appeal unless the Court of Appeal
gives permission.

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 Part 43

PART 43
APPEAL OR REFERENCE TO THE SUPREME COURT
43.1. When this Part applies
(1) This Part applies where—
(a) a party wants to appeal to the Supreme Court after—
(i) an application to the Court of Appeal to which Part 27 applies
(Retrial following acquittal), or
(ii) an appeal to the Court of Appeal to which applies Part 37
(Appeal to the Court of Appeal against ruling at preparatory
hearing), Part 38 (Appeal to the Court of Appeal against
ruling adverse to prosecution), or Part 39 (Appeal to the
Court of Appeal about conviction or sentence); or
(b) a party wants to refer a case to the Supreme Court after a reference
to the Court of Appeal to which Part 41 applies (Reference to the
Court of Appeal of point of law or unduly lenient sentencing).
(2) A reference to an ‘appellant’ in this Part is a reference to such a party.
[Note. Under section 33 of the Criminal Appeal Act 1968, a party may
appeal to the Supreme Court from a decision of the Court of Appeal on—
(a) an application to the court under section 76 of the Criminal Justice
Act 2003 (prosecutor’s application for retrial after acquittal for
serious offence). See also Part 27.
(b) an appeal to the court under—
(i) section 9 of the Criminal Justice Act 1987 or section 35 of
the Criminal Procedure and Investigations Act 1996 (appeal
against order at preparatory hearing). See also Part 37.
(ii) section 47 of the Criminal Justice Act 2003 (appeal against
order for non-jury trial after jury tampering.) See also Part
37.
(iii) Part 9 of the Criminal Justice Act 2003 (prosecutor’s appeal
against adverse ruling). See also Part 38.
(iv) Part 1 of the Criminal Appeal Act 1968 (defendant’s appeal
against conviction, sentence, etc.). See also Part 39.
Under section 13 of the Administration of Justice Act 1960, a person found
to be in contempt of court may appeal to the Supreme Court from a decision
of the Court of Appeal on an appeal to the court under that section. See also
Part 39.

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

Under article 12 of the Criminal Justice Act 2003 (Mandatory Life

Sentence: Appeals in Transitional Cases) Order 2005, a party may appeal to
the Supreme Court from a decision of the Court of Appeal on an appeal to
the court under paragraph 14 of Schedule 22 to the Criminal Justice Act 2003
(appeal against minimum term review decision). See also Part 39.
Under article 15 of the Serious Organised Crime and Police Act 2005
(Appeals under Section 74) Order 2006, a party may appeal to the Supreme
Court from a decision of the Court of Appeal on an appeal to the court under
section 74 of the Serious Organised Crime and Police Act 2005 (appeal against
sentence review decision). See also Part 39.
Under section 24 of the Serious Crime Act 2007, a party may appeal to
the Supreme Court from a decision of the Court of Appeal on an appeal to that
court under that section (appeal about a serious crime prevention order). See
also Part 39.
Under section 36(3) of the Criminal Justice Act 1972, the Court of Appeal
may refer to the Supreme Court a point of law referred by the Attorney General
to the court. See also Part 41.
Under section 36(5) of the Criminal Justice Act 1988, a party may refer to
the Supreme Court a sentencing decision referred by the Attorney General to
the court. See also Part 41.
Under section 33(3) of the Criminal Appeal Act 1968, there is no appeal
to the Supreme Court—
(a) from a decision of the Court of Appeal on an appeal under section
14A(5A) of the Football Spectators Act 1989 (prosecutor’s appeal
against failure to make football banning order). See Part 39.
(b) from a decision of the Court of Appeal on an appeal under section
159(1) of the Criminal Justice Act 1988 (appeal about reporting or
public access restriction). See Part 40.
The rules in Part 36 (Appeal to the Court of Appeal: general rules) also
apply where this Part applies.]

43.2. Application for permission or reference

(1) An appellant must—
(a) apply orally to the Court of Appeal—
(i) for permission to appeal or to refer a sentencing case, or
(ii) to refer a point of law
immediately after the court gives the reasons for its decision; or
(b) apply in writing and serve the application on the Registrar and
every other party not more than—

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 Part 43

(i) 14 days after the court gives the reasons for its decision if that
decision was on a sentencing reference to which [Part 41]1
applies (Attorney General’s reference of sentencing case), or
(ii) 28 days after the court gives those reasons in any other case.
(2) An application for permission to appeal or to refer a sentencing case
must—
(a) identify the point of law of general public importance that the
appellant wants the court to certify is involved in the decision; and
(b) give reasons why—
(i) that point of law ought to be considered by the Supreme
Court, and
(ii) the court ought to give permission to appeal.
(3) An application to refer a point of law must give reasons why that point
ought to be considered by the Supreme Court.
(4) An application must include or attach any application for the following,
with reasons—
(a) an extension of time within which to make the application for
permission or for a reference;
(b) bail pending appeal;
(c) permission to attend any hearing in the Supreme Court, if the
appellant is in custody.
(5) A written application must be in the form set out in the Practice Direction.
[Note. In some legislation, including the Criminal Appeal Act 1968,
permission to appeal is described as ‘leave to appeal’.
Under the provisions listed in the note to rule 43.1, except section 36(3) of
the Criminal Justice Act 1972 (Attorney General’s reference of point of law),
an appellant needs permission to appeal or to refer a sentencing case. Under
those provisions, the Court of Appeal must not give permission unless it first
certifies that—
(a) a point of law of general public importance is involved in the
decision, and
(b) it appears to the court that the point is one which the Supreme
Court ought to consider.
If the Court of Appeal gives such a certificate but refuses permission, an
appellant may apply for such permission to the Supreme Court.
Under section 36(3) of the Criminal Justice Act 1972 an appellant needs
no such permission. The Court of Appeal may refer the point of law to the
Supreme Court, or may refuse to do so.

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

For the power of the court or the Registrar to shorten or extend a time
limit, see rule 36.3. The time limit in this rule—
(a) for applying for permission to appeal under section 33 of the
Criminal Appeal Act 1968 (28 days) is prescribed by section 34
of that Act. That time limit may be extended but not shortened by
the court. But it may be extended on an application by a prosecutor
only after an application to which Part 27 applies (Retrial after
acquittal).
(b) for applying for permission to refer a case under section 36(5)
of the Criminal Justice Act 1988 (Attorney General’s reference
of sentencing decision: 14 days) is prescribed by paragraph 4 of
Schedule 3 to that Act. That time limit may be neither extended nor
shortened.
(c) for applying for permission to appeal under article 12 of the
Criminal Justice Act 2003 (Mandatory Life Sentence: Appeals
in Transitional Cases) Order 2005 (28 days) is prescribed by
article 13 of that Order. That time limit may be extended but not
shortened.
(d) for applying for permission to appeal under article 15 of the
Serious Organised Crime and Police Act 2005 (Appeals under
Section 74) Order 2006 (28 days) is prescribed by article 16 of
that Order. That time limit may be extended but not shortened.
For the power of the Court of Appeal to grant bail pending appeal to the
Supreme Court, see—
(a) section 36 of the Criminal Appeal Act 1968;
(b) article 18 of the Serious Organised Crime and Police Act 2005
(Appeals under Section 74) Order 2006.
For the right of an appellant in custody to attend a hearing in the Supreme
Court, see—
(a) section 38 of the Criminal Appeal Act 1968;
(b) paragraph 9 of Schedule 3 to the Criminal Justice Act 1988;
(c) article 15 of the Criminal Justice Act 2003 (Mandatory Life
Sentences: Appeals in Transitional Cases) Order 2005;
(d) article 20 of the Serious Organised Crime and Police Act 2005
(Appeals under Section 74) Order 2006.]

Amendment
1 Substituted by the Criminal Procedure (Amendment) Rules 2016, SI 2016/120, rr 2, 13.

276
 Part 44

43.3. Determination of detention pending appeal, etc.

On an application for permission to appeal, the Court of Appeal must—
(a) decide whether to order the detention of a defendant who would
have been liable to be detained but for the decision of the court; and
(b) determine any application for—
(i) bail pending appeal,
(ii) permission to attend any hearing in the Supreme Court, or
(iii) a representation order.
[Note. For the liability of a defendant to be detained pending a prosecutor’s
appeal to the Supreme Court and afterwards, see—
(a) section 37 of the Criminal Appeal Act 1968;
(b) article 19 of the Serious Organised Crime and Police Act 2005
(Appeals under Section 74) Order 2006.
For the grant of legal aid for proceedings in the Supreme Court, see sections
14, 16 and 19 of the Legal Aid, Sentencing and Punishment of Offenders Act
2012.]

43.4. Bail pending appeal

Rules 39.8 (Application for bail pending appeal or retrial), 39.9 (Conditions of
bail pending appeal or re-trial) and 39.10 (Forfeiture of a recognizance given
as a condition of bail) apply.

PART 44
REQUEST TO THE EUROPEAN COURT FOR A
PRELIMINARY RULING
44.1. When this Part applies
This Part applies where the court can request the Court of Justice of the
European Union (‘the European Court’) to give a preliminary ruling, under
Article 267 of the Treaty on the Functioning of the European Union.
[Note. Under Article 267, if a court of a Member State considers that a
decision on the question is necessary to enable it to give judgment, it may
request the European Court to give a preliminary ruling concerning—
(a) the interpretation of the Treaty on European Union, or of the Treaty
on the Functioning of the European Union;
(b) the validity and interpretation of acts of the institutions, bodies,
offices or agencies of the Union.]

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Appendix B The Criminal Procedure Rules, Parts 36 to 44

44.2. Preparation of request

(1) The court may—
(a) make an order for the submission of a request—
(i) on application by a party, or
(ii) on its own initiative;
(b) give directions for the preparation of the terms of such a request.
(2) The court must—
(a) include in such a request—
(i) the identity of the court making the request,
(ii) the parties’ identities,
(iii) a statement of whether a party is in custody,
(iv) a succinct statement of the question on which the court seeks
the ruling of the European Court,
(v) a succinct statement of any opinion on the answer that
the court may have expressed in any judgment that it has
delivered,
(vi) a summary of the nature and history of the proceedings,
including the salient facts and an indication of whether those
facts are proved, admitted or assumed,
(vii) the relevant rules of national law,
(viii) a summary of the relevant contentions of the parties,
(ix) an indication of the provisions of European Union law that
the European Court is asked to interpret, and
(x) an explanation of why a ruling of the European Court is
requested;
(b) express the request in terms that can be translated readily into
other languages; and
(c) set out the request in a schedule to the order.

44.3. Submission of request

(1) The court officer must serve the order for the submission of the request
on the Senior Master of the Queen’s Bench Division of the High Court.
(2) The Senior Master must—
(a) submit the request to the European Court; but

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 Part 44

(b) unless the court otherwise directs, postpone the submission of the
request until—
(i) the time for any appeal against the order has expired, and
(ii) any appeal against the order has been determined.

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Appendix C

A Guide to Commencing Proceedings in

the Court of Appeal (Criminal Division)

CONTENTS
A. Applications for Leave to Appeal Conviction, Sentence and
Confiscation orders
A1. Advice and Assistance
A2. Lodging Form NG and grounds of appeal
A3. Form NG and grounds of appeal
A4. Applications by fresh legal representatives
A5. Specific grounds of appeal
A6. Time Limits
A7. Transcripts and notes of evidence
A8. Perfection of grounds of appeal
A9. Respondent’s Notice
A10. Referral by the Registrar
A11. Oral applications for leave to appeal
A12. Powers of the single Judge
A13. Bail pending appeal (CrimPR 39.8)
A14. Funding for grant of leave or reference to full Court
A15. Refusal by the single Judge
A16. Directions for loss of time
A17. Abandonment
A18. Case Management duties
B. Interlocutory Appeals against rulings in Preparatory Hearings
C. Appeals by a Prosecutor against a “terminating” ruling
D. Other Appeals
D1. Prosecution appeal against the making of a confiscation
order or where the Court declines to make one (save on
reconsideration of benefit)
D2. Prosecution and third party appeal against a determination,
under s.10A Proceeds of Crime Act 2002, of the extent of the
defendant’s interest in property
D3. Appeal in relation to a restraint order

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Appendix C A Guide to Commencing Proceedings in the Court of Appeal

D4. Appeal in relation to a receivership order

D5. Appeal against an order of the Crown Court in the exercise of
its jurisdiction to punish for contempt – usually a finding of
contempt or sentence for contempt
D6. Appeal against a minimum term set or reviewed by a High
Court Judge
D7. Attorney General’s reference of an unduly lenient sentence
D8. Attorney General’s reference of a point of law on an acquittal
D9. Appeal against a finding of unfitness to plead or a finding that
the accused did the act or made the omission charged
D10. Appeal against a verdict of not guilty by reason of insanity
D11. Appeal against the order following a verdict of not guilty by
reason of insanity or a finding of unfitness to plead
D12. Appeal against review of sentence
D13. Appeal against an order for trial by jury of sample counts
D14. Appeal against an order relating to a trial to be conducted
without a jury where there is a danger of jury tampering
D15. Appeal against an order that a trial should continue without a
jury or a new trial take place without a jury after jury tampering
D16. Appeal against orders restricting or preventing reports or
restricting public access
D17. Appeal against a wasted costs order
D18. Appeal relating to Serious Crime Prevention Orders
D19. Appeal against the non-making of a football banning order
E. Application for a Retrial for a Serious Offence
E1. Application by a prosecutor to quash an acquittal and seek a
retrial of aqualifying offence
E2. Application by a prosecutor for a determination whether a
foreign acquittal is a bar to a trial and if so, an order that it not be a bar
E3. Application for restrictions on publication relating to an
application under s.76
E4. Representation orders

A. APPLICATIONS FOR LEAVE TO APPEAL

CONVICTION, SENTENCE AND CONFISCATION
ORDERS

A1. Advice and Assistance

A1-1 Provision for advice and assistance on appeal is included in the trial
representation order issued by the Crown Court. Solicitors should not wait to
be asked for advice by the defendant. Immediately following the conclusion
of the case, the legal representatives should see the defendant and advocates

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 Applications for Leave to Appeal

should express orally a view as to the prospects of a successful appeal (whether

against conviction or sentence or both). If there are reasonable grounds, grounds
of appeal should be drafted, signed and sent to instructing solicitors as soon as
possible, bearing in mind the time limits that apply to lodging an appeal (see
section A6. Time Limits). Solicitors should immediately send a copy of the
documents received from the advocate to the defendant.

A1-2 Prior to the lodging of the notice and grounds of appeal by service
of Form NG, the Registrar has no power to grant a representation order. The
Crown Court can only amend a representation order in favour of fresh legal
representatives if advice on appeal has not been given by trial representatives
and it is necessary and reasonable for another legal representative to be
instructed. Where advice on appeal has been given by trial legal representatives,
application for funding prior to the lodging of the notice and grounds of appeal
may only be made to the Legal Aid Authority (LAA).

A1-3 Once the Form NG has been lodged, the Registrar is the relevant
authority for decisions about whether an individual qualifies for representation
for the purposes of criminal proceedings before the Court of Appeal Criminal
Division (ss.16(1) & 19(1) Legal Aid, Sentencing and Punishment of Offenders
Act 2012 and Reg.8 Criminal Legal Aid (Determinations by a Court and Choice
of Representative) Regulations 2013).

A1-4 Where, in order to settle grounds of appeal, work of an exceptional

nature is contemplated or where the expense will be great, legal representatives
should not contact the LAA for funding but should submit a Form NG with
provisional grounds of appeal and with a note to the Registrar requesting a
representation order to cover the specific work considered necessary to enable
final grounds of appeal to be settled. The Registrar will then consider whether
it is appropriate to grant funding for this purpose.

A2. Lodging Form NG and grounds of appeal

A2-1 In respect of applications lodged before 1 October 2018, where the
advocate has advised an appeal and the defendant’s instructions have been
obtained, the solicitor should lodge Form NG and signed grounds of appeal at
the Crown Court where the defendant appeared accompanied by such other
forms as may be appropriate.

A2-2 Following a change in procedure, which comes into force on

the 1 October 2018, Form NG, signed grounds of appeal and any such
accompanying forms must be lodged directly on the Registrar of Criminal
Appeals (CrimPR 39.2). A separate Form NG should be completed for each
substantive application which is being made. Each application (conviction,

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Appendix C A Guide to Commencing Proceedings in the Court of Appeal

sentence and confiscation order) has its own Form NG and must be drafted and
lodged as a stand-alone application (CPD IX Appeal 39C).

A2-3 Electronic service at [email protected].

gov.uk is encouraged, with large attachments being sent in clearly marked
separate emails. Service will be accepted by post at the Criminal Appeal
Office, Royal Courts of Justice, Strand, London, WC2A 2LL. Representatives
must not lodge Form NG and grounds of appeal on to the Digital Case System
(DCS), as this will not alert the Criminal Appeal Office (“CAO”) and service
will not be effected. However, should the grounds of appeal rely upon trial
documents that are already uploaded to the DCS, advocates are encouraged to
identify the location of the document on the DCS in their grounds of appeal,
which can then be obtained by the CAO. If Form NG and grounds of appeal
are lodged with the Crown Court on or after the 1 October 2018, service will
not be effected and the Crown Court will send the documents back to the
representatives.

A2-4 Direct Lodgment on the Registrar of Criminal Appeals applies to all

applications to appeal conviction, sentence and confiscation falling within Part
39 of the CrimPR (see Section D. Other Appeals for specific information on
where to lodge applications in relation to other types of appeal).

A2.5 It should be noted that Form NG and grounds of appeal are required
to be served within the relevant time limit in all cases whether or not leave
to appeal is required (e.g. where a trial Judge’s certificate has been granted).
However, on a reference by the Criminal Cases Review Commission (CCRC),
if no Form NG and grounds are served within the required period, then the
reference shall be treated as the appeal notice (CrimPR 39.5 (2)).

A3. Form NG and grounds of appeal

A3-1 Grounds must be settled with sufficient particularity to enable the
Registrar, and subsequently the Court, to identify clearly the matters relied
upon. A mere formula such as “the conviction is unsafe” or “the sentence is in
all the circumstances too severe” will be deemed ineffective.

A3-2 CrimPR 39.3 (1) sets out the information that must be contained in
the appeal notice. The notice must:
(a) Specify:
(i) the conviction, verdict or finding,
(ii) the sentence, or
(iii) the order, or the failure to make an order
about which the appellant wants to appeal;

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 Applications for Leave to Appeal

(b) identify each ground of appeal on which the appellant relies (and see
paragraph (2));
(c) identify the transcript that the appellant thinks the Court will need,
if the appellant wants to appeal against a conviction (see section A7.
Transcripts and notes of evidence);
(d) identify the relevant sentencing powers of the Crown Court, if sentence
is inissue;
(e) include or attach any application for the following, with reasons–
(i) permission to appeal, if the appellant needs the court’s permission,
(ii) an extension of time within which to serve the appeal notice,
(iii) bail pending appeal,
(iv) a direction to attend in person a hearing that the appellant could
attend by live link, if the appellant is in custody,
(v) the introduction of evidence, including hearsay evidence and
evidence of bad character,
(vi) an order requiring a witness to attend court,
(vii) a direction for special measures for a witness,
(viii) a direction for special measures for the giving of evidence by the
appellant;
(f) identify any other document or thing that the appellant thinks the Court
will need to decide the appeal.

A3-3 The grounds of appeal should set out the relevant facts and nature
of the proceedings concisely in one all-encompassing document, not separate
grounds of appeal and advice (CPD IX Appeal 39C). Pursuant to CrimPR
39.3(2) the grounds must:
(a) include in no more than the first two pages a summary of the grounds
that makes what then follows easy to understand;
(b) in each ground of appeal identify the event or decision to which that
ground relates;
(c) in each ground of appeal summarise the facts relevant to that ground, but
only to the extent necessary to make clear what is in issue;
(d) concisely outline each argument in relation to each ground;
(e) number each ground consecutively if there is more than one;
(f) identify any relevant authority and-
(i) state the proposition of law that the authority demonstrates, and
(ii) identify the parts of the authority that support that proposition; and

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Appendix C A Guide to Commencing Proceedings in the Court of Appeal

(g) where the Criminal Cases Review Commission refers a case to the court,
explain how each ground of appeal relates (if it does) to the reasons for
the reference.

A3-4 The intended readership of this document is the Court and not the lay
or professional client. Its purpose is to enable the single Judge to grasp quickly
the facts and issues in the case. In appropriate cases, draft grounds of appeal
may be perfected before submission to the single Judge. A separate list of
authorities must be provided which should contain the appellant’s name and
refer to the relevant paragraph numbers in each authority (CPD XII General
Application D1) (see section A8-5).

A3-5 Failure to comply with the requirements in CrimPR 39 and the CPD
referred to above, will result in a direction from the Registrar that the defects
be remedied prior to the case being allocated to a single Judge. Failure to do
so may be brought to the attention of the single Judge and/or full Court and
legal representatives may be personally required to explain the reasons for non-
compliance.

A3-6 Advocates should not settle or sign grounds unless they consider that
they are properly arguable. An advocate should not settle grounds they cannot
support because they are “instructed” to do so by a defendant.

A4. Applications by fresh legal representatives

A4-1 In all cases where fresh solicitors or fresh advocates are instructed,
who did not act for the appellant at trial, it is necessary for the fresh solicitors
or advocate to approach the solicitors and/or advocate who previously acted to
ensure that the facts upon which the grounds of appeal are premised are correct,
unless there are exceptional circumstances and good and compelling reasons
not to do so. Such exceptional circumstances would likely be very rare (R v
McCook [2014] EWCA Crim 734; [2016] 2 Cr App R 30). Where necessary,
further steps should be taken to obtain objective and independent evidence to
establish the factual basis for the appeal (R v Lee [2014] EWCA Crim 2928).
The duty to make proper and diligent enquiries of previous representatives is
not restricted to cases where criticism is being made of the trial representatives.
It extends to all cases where there are fresh representatives acting (R v McGill
& others [2017] EWCA Crim 1228).

A4-2 In cases where fresh representatives seek to adduce fresh evidence

that was not adduced at trial, not only will the fresh representatives be
required to comply with their duties pursuant to McCook; but the Registrar
will usually also instigate the “waiver of privilege” procedure or require
written reasons as to why the procedure should not be instigated (R v Singh
[2017] EWCA Crim 466).

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 Applications for Leave to Appeal

A4-3 Where a ground of appeal by fresh representatives criticises trial

advocates and/or trial solicitors and in any other circumstance the Registrar
considers necessary as set out above, the Registrar will instigate the waiver of
privilege procedure. The appellant will be asked to waive privilege in respect
of instructions to and advice at trial from legal representatives. If the appellant
does waive privilege, the grounds of appeal are sent to the appropriate trial
representative(s) and they are invited to respond. Any response will be sent
to the appellant and his fresh legal representatives for comment. All of these
documents will be sent to the single Judge when considering the application for
leave. If the criticism is implicit, the Registrar may still instigate the procedure
or he will refer the decision whether to instigate the procedure to a single Judge
(R v JH [2014] EWCA Crim 2618). The single Judge may draw inferences
from any failure to participate in the process. Waiver of privilege is a procedure
that should be instigated by the Registrar and not by fresh legal representatives.
However, if it is clear that the procedure will need to be instigated, the fresh
representatives should lodge a signed waiver of privilege with the grounds of
appeal (and any fresh evidence) but go no further.

A5. Specific grounds of appeal

A5-1. Applications to call fresh evidence
A5-1.1 Where grounds of appeal rely upon fresh evidence that was not
adduced at trial, an application pursuant to s. 23 Criminal Appeals Act 1968
must be made. If the fresh evidence is provided by a witness, representatives
should obtain a statement from the witness in the form prescribed by s9 of
the Criminal Justice Act 1967. If the fresh evidence is documentary or real
evidence, the representatives should obtain statements from all those involved
formally exhibiting the evidence. A Form W should be lodged in respect of
each witness dealing with the fresh evidence. The Form W should indicate
whether there is an application for a witness order. The Registrar or single
Judge may direct the issue of a witness order but only the Court hearing the
appeal may give leave for a witness to be called and then formally receive the
evidence under s23 of the Criminal Appeal Act 1968.

A5-1.2 A supporting witness statement (in s9 form), or an affidavit from the

appellant’s solicitor must accompany the fresh evidence and Form W(s), setting
out why the evidence was not available at trial and how it has come to light (Gogana
The Times 12/07/1999). This will implicitly require fresh representatives to
comply with McCook (see section A4. Applications by fresh legal representatives).

A5-2. Insufficient weight given to assistance to prosecution

authorities
Where a ground of appeal against sentence is that the Judge has given
insufficient weight to the assistance given to the prosecution authorities, the

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“text” which had been prepared for the sentencing Judge is obtained by the
Registrar. Grounds of appeal should be drafted in an anodyne form with a
note to the Registrar alerting him to the existence of a “text”. The CAO will
obtain the “text” and the single Judge will have seen it when considering leave
as will the full Court before the appeal hearing and it need not be alluded to
in open Court.

A5-3. Applications based on a change in law

A5-3.1 If an application to appeal which is based on a change in law is lodged
within time, (see A6. Time Limits) the test to be applied by the Court of Appeal
is whether the conviction is unsafe (R v Johnson & Ors [2016] EWCA Crim
1613).

A5-3.2 If an application which is based on a change in law is lodged outside

the time limits, exceptional leave will be required. Exceptional leave will
only be granted if the applicant would otherwise suffer “substantial injustice”
due to the change in law. Grounds of appeal should therefore set out why the
substantial injustice test is met (R v Johnson & Ors [2016] EWCA Crim 1613).
For examples of how the Court of Appeal has applied these principles see: R v
Uthayakumar [2014] EWCA Crim 123 and R v Ordu [2017] EWCA Crim 4.

A6. Time Limits

A6-1 Notice and grounds should be lodged within 28 days from the date of
conviction, sentence, verdict, finding or decision that is being appealed (s. 18
Criminal Appeal Act 1968 and CrimPR 39.2(1)). On a reference by the CCRC,
Form NG and grounds should be served on the Registrar not more than 28 days
after the Registrar has served notice that the CCRC has referred a conviction or
sentence (CrimPR 39.2 (2)).

A6-2 Where sentences were passed on different dates there may be two
appeals against sentence. For example, there may be an appeal against a
custodial term and an appeal against a confiscation order (R v Neal [1992] 2 Cr
App R (S) 352).

A6-3 An application for an extension of the 28 day period in which to give

notice of an application must always be supported by details of the delay and
the reasons for it (R v Wilson [2016] EWCA Crim 65). Often a chronology will
assist. It is not enough merely to tick the relevant box on the Form NG.

A6-4 For out of time applications based on a change in law see A5-3. above.

A6-5 Applications for an extension of time should be submitted when the

application for leave to appeal against either conviction or sentence is made

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 Applications for Leave to Appeal

and not in advance. Notwithstanding the terms of s18 (3) Criminal Appeal Act
1968, it has long been the practice of the Registrar to require the extension of
time application to be made at the time of service of the notice and grounds of
appeal. This practice is now reflected in CrimPR 36.4 and 39.3(2)(h)(ii).

A7. Transcripts and notes of evidence

A7-1 In publicly funded conviction cases, transcripts of the summing up
and proceedings up to and including verdict are obtained as a matter of course.
There is an obligation under CrimPR 39.3(2)(c) for advocates to identify any
further transcript which they consider the Court will need and to provide a
note of dates and times to enable an order to be placed with the transcription
company. This is particularly important where there have been early directions
and/or a split summing-up. Whether or not any further transcript is required is
a matter for the judgment of the Registrar or his staff. Transcripts of evidence
are not usually ordered; it may be appropriate for the advocate to provide an
agreed note of evidence.

A7-2 In sentence cases, transcripts of the prosecution opening of facts on

a guilty plea and the Judge’s observations on passing sentence are usually
obtained. The Registrar will also obtain the relevant transcript in an application
for leave to appeal against a confiscation order, an interlocutory appeal from a
preparatory hearing or any other appeal providing the application has not been
made by the prosecution.

A7-3 A transcript should only be requested if it is essential for the proper

conduct of the appeal in light of the grounds. If the Registrar and the advocate
are unable to agree the extent of the transcript to be obtained, the Registrar may
refer that matter to a Judge.

A7-4 In certain circumstances the costs of unnecessary transcripts may be

ordered to be paid by the appellant. Where a transcript is obtained otherwise
than through the Registrar, the cost may be disallowed on taxation of public
funding.

A7-5 If an appellant is paying privately for his legal representation, an

order for transcripts should be placed directly with the transcription company
and a copy provided to the Registrar upon receipt. If the Registrar has already
obtained transcripts in a private case, the appellant’s legal representatives will
be required to pay the cost of the transcripts before they are released to them.

A8. Perfection of grounds of appeal

A8-1 The purpose of perfection is (a) to save valuable judicial time by
enabling the Court to identify at once the relevant parts of the transcript and (b)

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to give the advocate the opportunity to reconsider the original grounds in the
light of the transcript. Perfected grounds should consist of a fresh document
which supersedes the original grounds of appeal and contains inter alia
references by page number and letter (or paragraph number) to all relevant
passages in the transcript.

A8-2 In conviction or confiscation appeals, the Registrar will almost

certainly invite the advocate to perfect grounds to assist the single Judge or full
Court. As a general rule, the advocate will not be invited to perfect the grounds
of appeal in a sentence case. Where an advocate indicates a wish to perfect
grounds of appeal against sentence, the Registrar will consider the request and
will only invite perfection where he considers it necessary for the assistance of
the single Judge or full Court.

A8-3 If perfection is appropriate, the advocate will be sent a copy of the

transcript and asked to perfect the grounds, usually within 14 days. In the
absence of any response from the advocate, the existing notice and grounds
of appeal will be placed before the single Judge or the Court without further
notice. If an advocate does not wish to perfect the grounds, a note to that effect
will ensure that the case is not unnecessarily delayed.

A8-4 If, having considered the transcript, the advocate is of the opinion that
there are no valid grounds, the reasons should be set out in a further advice and
sent to his instructing solicitors. The Registrar should be informed that this
has been done, but the advocate should not send the Registrar a copy of that
advice. Solicitors should send a copy to the appellant and obtain instructions,
at the same time explaining that if the appellant persists with his application the
Court may consider whether to make a loss of time order.

A8-5 Advocates should identify any relevant authorities (CrimPR 39.3(2)

(g)) and submit a separate list of authorities with the perfected grounds of
appeal and include copies of any unreported authorities.

A9. Respondent’s Notice

A9-1 The Criminal Procedure Rules provide for the service of a Respondent’s
Notice. Pursuant to CrimPR 39.6(1) the Registrar may serve the appeal notice on
any party directly affected by the appeal (usually the prosecution) and must do
so in a CCRC case. That party may then serve a Respondent’s Notice if it wishes
to make representations and must do so if the Registrar so directs (CrimPR
39.6(2)(b)). If directed, the Respondent’s Notice should be served within 14
days (CrimPR 39.6(4)(a)). However, unless the case is urgent (in which case
the Registrar may impose a deadline shorter than 14 days), 21 days is normally
allowed for service. The Respondent’s Notice should be served on the Registrar
and any other party on whom the Registrar served the appeal notice.

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A9-2 The Respondent’s Notice must be in the specified Form RN and should
set out the grounds of opposition (CrimPR 39.6(5)) including the information
set out in CrimPR 39.6(6).

A9-3 In practice, this procedure primarily applies prior to consideration

of leave by the single Judge. However, a Respondent’s Notice may be
sought at any time in the proceedings including at the direction of the single
Judge. The Attorney General and the Registrar, following consultation with
representatives from the Crown Prosecution Service (CPS) and the Revenue
and Customs Prosecution Office (RCPO), have agreed guidance on types of
cases and/or issues where the Registrar should consider whether to serve an
appeal notice and direct or invite a party to serve a Respondent’s Notice before
the consideration of leave by the single Judge.
Examples of when the Registrar might direct a Respondent’s Notice include:
(i) where the grounds concern matters which were the subject of public
interest immunity (PII);
(ii) allegations of jury irregularity;
(iii) criticisms of the prosecution or the conduct of the Judge;
(iv) complex frauds;
(v) inconsistent verdicts;
(vi) fresh evidence;
(vii) where the grounds claim that the wrong statute, rule or regulation was
applied.
The CPS will always be invited to lodge a Respondent’s Notice in the following
cases:
(i) all conviction and sentence applications involving a fatality;
(ii) all conviction applications involving rape, attempted rape or a serious
sexual offence;
(iii) all conviction applications where a CPS Complex Casework Unit dealt
with the case;
(iv) all conviction applications where the offence was perverting the course
of justice, misconduct in public office and any conspiracy.

A9-4 In conviction cases where leave to appeal has been granted or where
the application for leave has been referred to the full Court, the Crown is
briefed to attend the hearing and required to submit a Respondent’s Notice/
skeleton argument. In relation to sentence cases where leave has been granted,
referred or an appellant is represented on a renewed application, the sentence
protocol set out in CPD IX Appeal 39A Appeals against conviction and

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sentence – the provision of notice to the prosecution, will apply. In those

cases, a Respondent’s Notice/skeleton argument will have to be served when
the Crown indicates a wish to attend a hearing or when the Registrar directs
the Crown to attend. There is no need to serve a skeleton argument in addition
to a Respondent’s Notice.

A10. Referral by the Registrar

A10-1 Where leave to appeal is required, the Registrar, having obtained the
necessary documents, will usually refer the application(s) to a single Judge
for a decision (on the papers) under s. 31 Criminal Appeal Act 1968. The
Registrar does have the power to refer an application for leave directly to the
full Court, in which case he will usually grant the advocate a representation
order for the hearing. Where an application is referred because an unlawful
sentence has been passed or other procedural error identified, a representation
order will ordinarily be granted unless the error is such that the Court could
correct it on the papers, but advocates should be aware that the Court may
make observations for the attention of the determining officer that a full fee
should not be allowed on taxation. A representation order will not be granted
where the presence of an advocate is not required, such as where there has been
a technical error that the Court can correct without the need for oral argument.
An applicant would not have the right to attend the hearing because the appeal
is on a point of law only (s.22 Criminal Appeal Act 1968; R v Hyde and others
[2016] EWCA Crim 1031; [2016] 1 WLR 4020).

A10-2 Leave to appeal is required in all cases except:

• Where the trial or sentencing Judge has certified that the case is fit for
appeal;
• Where the appeal has been referred by the Criminal Cases Review
Commission (CCRC);
• Where the appeal is under s13 Administration of Justice Act 1960
(contempt proceedings);
• Where there is no provision for the grant of leave by a Single Judge; for
example an appeal against an order for trial without jury (see Section D
Other Appeals).

A10-3 Where leave to appeal is not required, the Registrar will usually grant
a representation order for the hearing of the appeal.

A11. Oral applications for leave to appeal

All applications for leave (together with any ancillary applications such as
for bail, extension of time, or a representation order) are normally considered

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by a single Judge on the papers, unless it can be demonstrated that there are
exceptional reasons why an oral hearing is required. An advocate or solicitors
may request an oral hearing, but that request must be supported by written
reasons stating why the case is exceptional and any reasons why that hearing
should be expedited (expedition will be a matter for the Registrar). That
application should be copied to the prosecution. The single Judge determining
the substantive application will then decide whether an oral hearing should
be arranged. An advocate may make an application for a representation order
at the hearing itself. Oral applications for leave and bail are usually heard in
Court but in chambers at 9.30am before the normal Court sittings. Advocates
appear unrobed. If the advocate considers that an application may take longer
than 20 minutes, the Registrar must be notified. If the single Judge declines to
hear the application at an oral hearing, the application will then be considered
on the papers by that Judge.

A12. Powers of the single Judge

The single Judge may grant the application for leave, refuse it or refer it to
the full Court. In conviction cases and in sentence cases where appropriate,
the single Judge may grant limited leave i.e. leave to argue some grounds
but not others. Advocates must notify the Registrar within 14 days whether
the grounds upon which leave has been refused are to be renewed before the
full Court. If a representation order is granted, in a limited leave case, public
funding will only cover grounds of appeal which the single Judge or the full
Court say are arguable (R v Cox & Thomas [1999] 2 Cr App Rep 6 and R v
Hyde and others [2016] EWCA Crim 1031; [2016] 1 WLR 4020). The single
Judge may also grant, refuse or refer any ancillary application.

A13. Bail pending appeal (CrimPR 39.8)

A13-1 Bail may be granted (a) by a single Judge or the full Court or (b) by a
trial or sentencing Judge who has certified the case fit for appeal. In the latter
case, bail can only be granted within 28 days of the conviction or sentence
which is the subject of the appeal and may not be granted if an application for
bail has already been made to the Court of Appeal (CPD III Custody and bail
14H.5).

A13-2 An application to the Court of Appeal for bail pending appeal must be
supported by a completed Form B which must be served on the Registrar and
the prosecution. The Court must not decide such an application without giving
the prosecution the opportunity to make representations.

A13-3 An application for bail will not be considered by a single Judge or

the Court until notice of application for leave to appeal conviction or sentence
or notice of appeal has first been given. In practice, Judges will also require

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the relevant transcripts to be available so they may consider the merits of the
substantive application at the same time as the bail application.

A13-4 Where bail is granted pending appeal, the Court may attach any
condition that must be met before the party is released, and may direct how
such a condition must be met. The Registrar must serve a certificate recording
any such condition on the party, the party’s custodian and any other person
directly affected by the condition (CrimPR 39.9). A condition of residence is
always attached.

A14. Funding for grant of leave or reference to full Court

A14-1 Where the single Judge grants leave or refers an application to
the Court, it is usual to grant a representation order for the preparation and
presentation of the appeal. This is usually limited to the services of an advocate
only. The advocate who settled grounds of appeal will usually be the assigned
advocate. If the applicant is a litigant in person, an advocate may be assigned
by the Registrar. In such cases the Registrar will provide a brief but does not act
as an appellant’s solicitor. The Registrar may assign one advocate to represent
more than one appellant if appropriate. If it is considered that a representation
order for two advocates and/or solicitors is required, the advocate should
notify the Registrar and provide written justification in accordance with
Criminal Legal Aid (Determinations by a Court and Choice of Representative)
Regulations 2013 (S.I. 2013/614).

A14-2 If solicitors are assigned, it should be noted that by virtue of Regulation

12 of the Criminal Legal Aid (Determinations by a Court and Choice of
Representative) Regulations 2013, SI 2013/614, a representation order can
only be issued to a solicitor if they hold a Standard Crime Contract with the
LAA. A solicitor not holding such a franchise may apply to the LAA for an
individual case contract (ICC) by virtue of which the solicitor is employed on
behalf of the LAA to represent an appellant in a given case.

A14-3 In some circumstances, the Registrar may refer an application to the

full Court. This may be because there is a novel point of law, there is fresh
evidence to be considered pursuant to s.23 of the Criminal Appeal Act 1968 or
because in a sentence case, the sentence passed is very short. A representation
order for an advocate is usually granted. The advocate for the prosecution
usually attends a Registrar’s referral.

A15. Refusal by the Single Judge

A15-1 Where the single Judge refuses leave to appeal, the Registrar sends
a notification of the refusal, including any observations which the Judge may
have made, to the appellant, who is informed that he may require the application

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to be considered by the Court by serving a renewal notice (Form SJ-Renewal)

upon the Registrar within 14 days from the date on which the notice of refusal
was served on him.

A15-2 A refused application which is not renewed within 14 days lapses. An

appellant may apply for an extension of time in which to renew his application
for leave (CrimPR 36.3 – 36.5 and s.31 Criminal Appeal Act 1968). The
Registrar will normally refer such an application to the Court to be considered
at the same time as the renewed application for leave to appeal. An application
for an extension of time in which to renew must be supported by cogent reasons.

A15-3 If it is intended that an advocate should represent the appellant at

the hearing of the renewed application for leave to appeal, whether privately
instructed or on a pro bono basis, such intention must be communicated to the
CAO in writing as soon as that decision has been made. Whilst a representation
order is not granted by the Registrar in respect of a renewed application for
leave, the advocate may apply at the hearing to the Court for a representation
order to cover that appearance and any further work done in preparation of the
renewal retrospectively. In practice, this is only granted where the application
for leave is successful.

A16. Directions for loss of time

A16-1 S.29 Criminal Appeal Act 1968 empowers the Court to direct that
time spent in custody as an appellant shall not count as part of the term of any
sentence to which the appellant is for the time being subject. The Court will do
so where it considers that an application is wholly without merit. Such an order
may not be made where leave to appeal or a trial Judge’s certificate has been
granted, on a reference by the CCRC or where an appeal has been abandoned.
An appeal is not built into the trial process but must be justified on properly
arguable grounds (R v Fortean [2009] EWCA Crim 437; [2009] Crim LR 798).

A16-2 The only means the Court has of discouraging unmeritorious

applications which waste precious time and resources is by using the powers
in the Criminal Appeal Act 1968 and the Prosecution of Offences Act 1985.
In every case where the Court is presented with an unmeritorious application,
consideration should be given to exercising these powers.

A16-3 The mere fact that an advocate has advised that there are grounds
of appeal will not be a sufficient answer to the question as to whether or not
an application has indeed been brought which was wholly without merit (R v
Gray and Others [2014] EWCA Crim 2372; [2015] 1 Cr App Rep (S) 197).

A16-4 The Form SJ, on which the single Judge records his decisions, and the
reverse of which is used by appellants to indicate their wish to renew, includes:

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• a box for the single Judge to initial in order to indicate that that the full
Court should consider loss of time or a costs order if the application is
renewed; and
• a box for the applicant to give reasons why such an order should not be
made, whether or not an indication has been given by a single Judge.

A16-5 Where the single Judge has not indicated that the full Court should
consider making a loss of time order because the applicant is not in custody, the
single Judge also has the option of considering whether to make any directions
in respect of costs, which could include the prosecution costs (usually in
providing a Respondent’s Notice). The Practice Direction in relation to costs
should be followed.

A17. Abandonment
A17-1 An appeal or application may be abandoned at any time before the
hearing without leave by completing and lodging Form A. An oral instruction
or letter indicating a wish to abandon is insufficient.

A17-2 At the hearing, an application or appeal can only be abandoned with

the permission of the Court (CrimPR 36.13(2)(b)). An appeal or application
which is abandoned is treated as being a final determination of the full Court
(CrimPR 36.13(4)(c)).

A17-3 A notice of abandonment cannot be withdrawn nor can it be conditional.

A person who wants to reinstate an application or appeal after abandonment
must apply in writing to the Registrar with reasons (CrimPR 36.13(5)). The
Court has power to allow reinstatement only where the purported abandonment
can be treated as a nullity and the applicant must provide the Court with the
relevant information to determine the application (R v Medway (1976) 62 Cr
App R 85 and R v Zabotka [2016] EWCA Crim 1771).

A17-4 An application to treat the abandonment as a nullity is heard by the

full Court. If the Court does agree to treat the abandonment as a nullity, the
status of the application is restored as if there had been no interruption.

A18. Case Management Duties

A18-1 CrimPR 36.2 gives the Court and parties the same powers and duties
of case management as in Part 3 of the Rules. In accordance with those duties,
for each application received, the Registrar nominates a case progression
officer, (the ‘responsible officer’). There is also a duty on the parties to actively
assist the Court to progress cases. Close contact between the advocate and
solicitors and the responsible officer is encouraged in order to facilitate the

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efficient preparation and listing of appeals, especially in complex cases and

those involving witnesses.

A18-2 Powers under the Criminal Appeal Act 1968 exercisable by the single
Judge and the Registrar are contained in s.31 Criminal Appeal Act 1968 (as
amended by s.87 Courts Act 2003, s.331 & Sched.32 Criminal Justice Act
2003 and Sched.8 Criminal Justice and Immigration Act 2008). These powers
include the power to make procedural directions for the efficient and effective
preparation of an application or appeal and the power to make an order under
s.23(1)(a) Criminal Appeal Act 1968 for the production of evidence etc.
necessary for the determination of the case.

A18-3 Where the Registrar refuses an application by an appellant to exercise

any of the Registrar’s case management powers under s.31 Criminal Appeal Act
1968 in the appellant’s favour, the appellant is entitled to have the application
determined by a single Judge (s. 31A (4) of the Act). There is no provision for
any appeal against a procedural direction given by a single Judge and thus such
decisions are final.

B. INTERLOCUTORY APPEALS AGAINST RULINGS

IN PREPARATORY HEARINGS
Appeal against a ruling pursuant to s.9 of the Criminal Justice Act 1987 or
a decision pursuant to s.35 of the Criminal Procedure and Investigations
Act 1996 (Part 37 CrimPR)

B1 Where a Judge has ordered a preparatory hearing, they may make a

ruling as to the admissibility of evidence and any other question of law relating
to the case (s.9(3)(b) & (c) CJA 1987 and s.31(3)(a) &(b) CPIA 1996). Given
the co-extensive powers of case management outside the preparatory hearing
regime, Courts should now be very cautious about directing a preparatory
hearing (barring terrorist cases) (R v L & L [2018] EWCA Crim 69; R v BM
[2018] EWCA Crim 560).

B2 Pursuant to s.9(11) CJA 1987 and s.35(1) CPIA 1996 the defence
or the prosecution may appeal to the CACD (and ultimately to the Supreme
Court) against such a ruling, but only with the leave of the trial Judge, single
Judge or the full Court. As to the scope of a Judge’s powers in relation to a
preparatory hearing and thus the extent of appeal rights, see the decision of
the House of Lords in H [2007] UKHL 7 on appeal from [2006] EWCA Crim
1975; R v VGA [2010] EWCA Crim 2742.

B3 If the trial date is imminent and the application is urgent, the Registrar
should be notified so that he may consider referring the application directly to
the full Court.

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B4 If an application for leave to appeal is made to the trial Judge, it should

be made orally immediately after the ruling, or within two business days by
serving a notice of an application on the appropriate officer of the Crown Court
and all parties directly affected (CrimPR 37.4). Whether leave is granted by the
trial Judge or not or no such application is made to the trial Judge, notice of an
appeal or application for leave to appeal (Form NG (Prep)) is to be served on
the Registrar, the Crown Court and the parties within five business days of the
ruling or the trial Judge’s decision whether to grant leave (CrimPR 37.2).

B5 The notice and grounds of appeal having been served on the other
parties, grounds of opposition should be served in a Respondent’s Notice
(Form RN (Prep)) within five business days of service of the appeal notice
(CrimPR 37.5).

B6 Defence representatives are usually covered by the Crown Court

representation order if one is in force (Paragraph 2(2), Schedule 3, Access to
Justice Act 1999).

B7 If the relevant time limits are not complied with, the Court has power
to grant an extension of time. Where a single Judge refuses leave to appeal or
an extension of time within which to serve a notice, the application may be
renewed for determination by the full Court by serving the notice of renewal,
appropriately completed, upon the Registrar within five business days of the
refusal being served (CrimPR 37.7).

C. APPEALS BY A PROSECUTOR AGAINST A

“TERMINATING” RULING

S.58 Criminal Justice Act 2003 (Part 38 CrimPR)

C1 S.58 Criminal Justice Act 2003 provides the prosecution with a right
of appeal in relation to a “terminating” ruling: a ruling where the prosecution
agree to the defendant’s acquittal if the appeal is not successful (Y [2008]
EWCA Crim 10). This is wide enough to encompass a case-management
decision (C [2007] EWCA Crim 2532).

C2 There is no right of appeal in respect of a ruling that the jury be

discharged or a ruling in respect of which there is a right of appeal to the Court
of Appeal by virtue of another enactment (s.57(2) CJA 2003). The prosecution
should therefore consider whether there is a right of appeal under s.9 CJA 1987
or s.35 CPIA 1996.

C3 The prosecution must inform the Court that it intends to appeal or

request an adjournment to consider whether to appeal (s.58(4) CJA 2003), which

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will be until the next business day (CrimPR 38.2(2)). The Judge has discretion
to adjourn for longer if there is a real reason for doing so (H [2008] EWCA
Crim 483). The prosecution can ask the trial Judge to grant leave to appeal
immediately after the ruling or after the granted adjournment to consider the
same (CrimPR 38.5). Leave should be granted only where the Judge considers
there is a real prospect of success and not to speed up the hearing of the appeal
(JG [2006] EWCA Crim 3276). If the prosecution do not ask the trial judge
for leave to appeal, the notice and application to appeal (Form NG (Pros))
must be served on the Crown Court, Registrar and every defendant affected by
the ruling the next business day if the trial Judge expedites the appeal or five
business days after telling the Judge of the intent to appeal if the Judge does not
expedite the same (CrimPR 38.3). The prosecution must give the undertaking
(as to the defendant’s acquittal if the appeal is abandoned or leave to appeal is
not obtained) at the time when it informs the Court of its intention to appeal.
The failure to give it then is fatal to an application to the Court of Appeal for
leave (ss.58(8) CJA 2003) (LSA [2008] EWCA Crim 1034; NT [2010] EWCA
Crim 711; B [2014] EWCA Crim 2078).

C4 Whether or not leave is granted, the trial Judge must decide if the
appeal is to be expedited and if so, adjourn the case. If he decides that the
appeal should not be expedited then he can adjourn the case or discharge the
jury (s.59 CJA 2003).

C5 The notice and grounds of appeal having been served on the other
parties, grounds of opposition should be served in a Respondent’s Notice
(Form RN (Prep)). The Respondent’s Notice must be served the next business
day if the trial judge expedites the appeal or within five business days of service
of the appeal notice if the appeal is not expedited (CrimPR 37.5).

C.6 Defence representatives are usually covered by the Crown Court

representation order if one is in force (such proceedings being considered
incidental within Paragraph 5(3) of Schedule 3 to the Legal Aid, Sentencing
and Punishment of Offenders Act 2012).

C7 Expedition does not impose time limits on the Registrar or Court

of Appeal. However, if leave has not been granted by the trial Judge, the
application may be referred to the full Court by the Registrar to ensure that the
matter is dealt with quickly.

C8 The Registrar endeavours to list prosecution appeals where a jury

has not been discharged as quickly as possible. He is unlikely to be able to list
an appeal in less than a week from the ruling because it is necessary for the
prosecution to obtain transcripts, papers to be copied and the Judges to read their
papers. It is of great assistance if it is anticipated that there is to be an appeal
against a ruling where the jury has not been discharged that a phone call is made
to the Registrar or CAO General Office (020 7947 6011) notifying the office even

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before the appeal notice is sent, so that preliminary views can be taken as to the
constitution which may be able to hear the appeal. The listing of an urgent appeal
invariably means that other cases have to be removed from the list.

D. OTHER APPEALS

D1. Prosecution appeal against the making of a confiscation

order or where the Court declines to make one (save on
reconsideration of benefit)
• S.31(1) & (2) Proceeds of Crime Act 2002
• Part 42 CrimPR
• Proceedings are commenced by serving a Form PoCA 1 on the defendant
and the Crown Court within 28 days of the decision appealed against
(Article 3(2)(a) Proceeds of Crime Act (Appeals under Part 2) Order
2003)
• A Respondent’s Notice Form PoCA 2 is to be served on the Registrar of
Criminal Appeals and the appellant not later than 14 days after receiving
Form PoCA 1
• An undischarged Crown Court representation order will cover advice
and assistance on the merits of opposing the appeal and drafting the
Respondent’s Notice, otherwise an application for a representation
order can be made to the Registrar. In any event where an application
for a representation order is made on Form PoCA 2, the Registrar will
consider a representation order for the hearing
• Leave to appeal can be granted by a single Judge or the full Court

D2. Prosecution and third party appeal against a

determination, under S.10A Proceeds of Crime Act 2002, of
the extent of the defendant’s interest in property
• S.31(4) & (5) Proceeds of Crime Act 2002
• Part 42 CrimPR
• Proceedings are commenced by serving a Form PoCa 1 on the defendant
and the Crown Court within 28 days of the decision appealed against
• A Respondent’s Notice Form PoCA 2 is to be served on the Registrar of
Criminal Appeals and the appellant not later than 14 days after receiving
Form PoCA 1
• An undischarged Crown Court representation order will cover advice
and assistance on the merits of opposing the appeal and drafting the

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Respondent’s Notice, otherwise an application for a representation

order can be made to the Registrar. In any event where an application
for a representation order is made on Form PoCA 2, the Registrar will
consider a representation order for the hearing
• Leave to appeal can be granted by a single Judge or the full Court

D3. Appeal in relation to a restraint order

• S.43 Proceeds of Crime Act 2002
• Part 42 CrimPR
• The prosecution or an accredited financial investigator can appeal a
refusal to make a restraint order. A person who applied for an order or
who is affected by the order can apply to the Crown Court to vary or
discharge the order and then appeal that decision to the Court of Appeal
• Proceedings are commenced by serving a Form PoCA 3 on the Crown
Court within 28 days of the decision being appealed. Form PoCA 3
must then be served on any respondent, any person who holds realisable
property to which the appeal relates, or is affected by the appeal, not
later than seven days after the form is lodged at the Crown Court. The
documents which are to be served with Form PoCA3 are set out in
CrimPR 42.15
• A Respondent’s Notice Form PoCA 4 is to be served on the Registrar of
Criminal Appeals not later than 14 days after the respondent is notified
that the appellant has leave to appeal or notified that the application for
leave and the appeal are to be heard together. Form PoCA 4 is then to be
served on the appellant and any other respondent as soon as is practicable
and not later than seven days after it was served on the Registrar
• Criminal Defence Service Regulations do not apply to these proceedings
and thus no representation orders will be granted by the Registrar or the
Court
• Leave to appeal can be granted by a single Judge or full Court
• An application for a restraint order can be made as soon as a criminal
investigation has begun. The proposed defendant may not have been
charged (s.40 Proceeds of Crime Act 2002)

D4. Appeal in relation to a receivership order

• S.65 Proceeds of Crime Act 2002
• Part 42 CrimPR
• The appointment, non-appointment or powers of a receiver can be
appealed, as can an order giving a direction to a receiver and the variation

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or discharge of a receivership order. An appeal can be brought by the

person who applied for the order, a person who is affected by the order
or the receiver
• Proceedings are commenced by serving a Form PoCA 3 on the Crown
Court within 28 days of the decision being appealed
• Form PoCA 3 must then be served on any respondent and any person
who holds realizable property to which the appeal relates, or is affected
by the appeal, not later than seven days after the form is lodged at the
Crown Court
• A Respondent’s Notice Form PoCA 4 to be served on the Registrar of
Criminal Appeals not later than 14 days after the respondent is notified
that the appellant has leave to appeal or is notified that the application for
leave and the appeal are to be heard together. Form PoCA 4 is then to be
served on the appellant and any other respondent as soon as is practicable
and not later than seven days after it was served on the Registrar
• Criminal Defence Service Regulations do not apply to these proceedings
and thus no representation orders will be granted by the Registrar or the
Court
• Leave to appeal can be granted by a single Judge or full Court

D5. Appeal against an order of the Crown Court in the

exercise of its jurisdiction to punish for contempt – usually a
finding of contempt or sentence for contempt
• S.13 Administration of Justice Act 1960
• Part 39 CrimPR
• Anyone dealt with by the Crown Court for contempt may appeal
• Proceedings are commenced by lodging a Form NG at the Crown Court
(if the notice and grounds are lodged before 1 October 2018) or directly
on the Registrar of Criminal Appeals (if the notice and grounds are lodged
on or after 1 October 2018) not more than 28 days after the order to be
appealed (see section A2. Lodging Form NG and grounds of appeal)
• The Registrar may direct a Respondent’s Notice Form RN or the
prosecution may serve one if they wish to make representations to the
Court
• An undischarged Crown Court representation order will cover advice
and assistance on appeal. The Registrar will consider a representation
order for the hearing (s.19 Legal Aid, Sentencing and Punishment of
Offenders Act 2012; Reg.8 Criminal Legal Aid (Determinations by
Court and Choice of Representative) Regulations 2013 [SI 2013/614])

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 Other Appeals

• No leave to appeal is required. The appeal is as of right (s. 13

Administration of Justice Act 1960)
• Appeals occur most frequently when an appellant wishes to appeal a
sentence for failing to appear at the Crown Court as the failing to appear
is dealt with as if it were contempt

D6. Appeal against a minimum term set or reviewed by a

High Court Judge
• Para. 14 of Schedule 22 Criminal Justice Act 2003
• Part 39 CrimPR
• A defendant with a mandatory life sentence imposed before 18 December
2003 who has had his minimum term set or reviewed by a High Court
Judge can appeal
• Proceedings are commenced by service of Form NG (MT) on the
Registrar not more than 28 days after the decision
• The Registrar may direct a Respondent’s Notice Form RN or the
prosecution may serve one if they wish to make representations to the Court
• An application for a representation order can be made to the Registrar
(s.19 Legal Aid, Sentencing and Punishment of Offenders Act 2012;
Reg.8 Criminal Legal Aid (Determinations by Court and Choice of
Representative) Regulations 2013 [SI 2013/614])
• Leave to appeal is required and can be granted by the full Court or a
single Judge (Part 2 Para.8 Criminal Justice Act 2003 (Mandatory Life
Sentences: Appeals in Transitional Cases Order 2003) [S.I. 2005/2798])

D7. Attorney General’s reference of an unduly lenient sentence

• S.36 Criminal Justice Act 1988
• Part 41 CrimPR
• The Attorney General can refer sentences only in relation to specific
offences or sentences (ss.35 & 36 Criminal Justice Act 1988 and Criminal
Justice Act 1988 (Reviews of Sentencing) Order 2006)
• Although CrimPR 41.3(1) implies there is a specific form to commence
proceedings, in practice a standard letter with supporting documents
is sent to the Registrar of Criminal Appeals by the Attorney General’s
Office no more than 28 days after sentence
• If the defendant wishes to make representations to the Court he must
serve a Respondent’s Notice within 14 days of the Registrar serving the
application upon him. Again, there is no specific form available

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Appendix C A Guide to Commencing Proceedings in the Court of Appeal

• Representation orders are granted by the Registrar to respond to an

Attorney General’s reference
• The leave of the Court of Appeal is required

D8. Attorney General’s reference of a point of law on an

acquittal
• S.36 Criminal Justice Act 1972
• Part 41 Crim PR
• The Attorney General can refer a point of law to the Court of Appeal for
their opinion on the acquittal on indictment of the defendant
• Although CrimPR 41.3(1) implies there is a specific form to commence
proceedings, there is no such form and CrimPR 70.3 sets out what should
be included in the reference. All references which identify the defendant
should be excluded
• There is no time limit
• If the defendant wishes to make representations to the Court he must
serve a Respondent’s Notice within 28 days of the Registrar serving the
application upon him. Again there is no specific form available
• Representation orders are granted by the Registrar to respond to an
Attorney General’s reference
• Leave is not required

D9. Appeal against a finding of unfitness to plead or a finding

that the accused did the act or made the omission charged
• S.15 Criminal Appeal Act 1968
• Part 39 CrimPR
• The accused can appeal (by the person appointed to represent the
accused) against a finding of unfitness to plead (but not fitness to plead)
and that he did the act or made the omission charged. The appeal does
not lie until both findings have been made
• Proceedings are commenced by the service of Form NG on the Crown
Court (if the application is lodged prior to the 1 October 2018) or directly
on the Registrar of Criminal Appeals (if the application is lodged on or
after the 1 October 2018) not more than 28 days after the finding made
which the accused wishes to appeal (see section A2. Lodging of Form NG
and grounds of appeal)
• The prosecution should serve a Respondent’s Notice Form RN if directed
by the Registrar or if they wish to make representations to the court

304
 Other Appeals

• The costs of the person appointed to put the case on appeal are paid
from central funds, but the mechanism will depend on the outcome of
the appeal proceedings, thus the issue should be considered only at the
conclusion of proceedings. Where an appeal is allowed, the Court may
make a defendant’s costs order under s16(4)(a)(iii) of the Prosecution of
Offences Act 1985, which will include legal costs (s16A(3)(c)). Where
leave to appeal is not granted or the appeal is not successful, the costs of
the person appointed to put the case on appeal are covered by Part IIIA
of the regulations made under s19(3)(d) of the 1985 Act (Antoine [1999]
2 Cr. App.R.225)
• Leave to appeal may be granted by the Crown Court Judge, a single
Judge or the full Court

D10. Appeal against a verdict of not guilty by reason of insanity

• S.12 Criminal Appeal Act 1968
• Part 39 CrimPR
• The defendant can appeal a verdict of not guilty by reason of insanity
• Proceedings are commenced by the service of Form NG on the Crown
Court (if the application is lodged prior to the 1 October 2018) or directly
on the Registrar of Criminal Appeals (if the application is lodged on or
after 1 October 2018) not more than 28 days after the verdict (see section
A2. Lodging of Form NG and grounds of appeal)
• The prosecution should serve a Respondent’s Notice Form RN if directed
by the Registrar or if they wish to make representations to the court
• S.16(4) Prosecution of Offences Act 1985 provides that where the Court
of Appeal allows an appeal then the court may make a defendant’s costs
order. If the appeal is not allowed costs from central funds should be
available on the same basis as was allowed in Antoine (above) in the
absence of any statutory provision
• Leave to appeal may be granted by the Crown Court Judge, a single
Judge or the full Court

D11. Appeal against the order following a verdict of not

guilty by reason of insanity or a finding of unfitness to plead
• S.16A Criminal Appeal Act 1968
• Part 39 CrimPR
• An accused who, as a result of a verdict of not guilty by reason of insanity
or a finding of fitness to plead has a hospital order, interim hospital order
or supervision order made against him may appeal against the order

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Appendix C A Guide to Commencing Proceedings in the Court of Appeal

• Proceedings are commenced by the service of Form NG on the Crown

Court (if the application is lodged prior to the 1 October 2018) or directly
on the Registrar of Criminal Appeals (if the application is lodged on or
after 1 October 2018) not more than 28 days after the verdict (see section
A”. Lodging Form NG and grounds of appeal)
• The prosecution should serve a Respondent’s Notice Form RN if
directed by the Registrar or if they wish to make representations to the
court
• S.16(4) Prosecution of Offences Act 1985 provides that where the Court
of Appeal allows an appeal then the court may make a defendant’s costs
order. If the appeal is not allowed costs from central funds should be
available on the same basis as was allowed in Antoine (above) in the
absence of any statutory provision
• Leave to appeal may be granted by the Crown Court Judge, a single
Judge or the full Court

D12. Appeal against review of sentence

• S.74(8) Serious Organised Crime and Police Act 2005
• Part 39 Crim PR
• A defendant or specified prosecutor may appeal
• Proceedings are commenced by serving a Form NG (RD) on the Crown
Court (if the application is lodged prior to 1 October 2018) or directly on
the Registrar of Criminal Appeals (if the application is lodged on or after
1 October 2018) not more than 28 days after the review (see section A2.
Lodging Form NG and grounds of appeal)
• A Respondent’s Notice Form RN should be served if directed by the
Registrar or if the respondent wishes to make representations to the
Court
• An application for a representation order can be made to the Registrar
(Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.19;
Reg .9 Criminal Legal Aid (General) Regulations 2013)
• Leave to appeal can be granted by the single Judge or full Court (Serious
Organised Crime and Police Act 2005 (Appeals under s.74) Order
2006/21)

D13. Appeal against an order for trial by jury of sample counts

• S.18 Domestic Violence, Crime and Victims Act 2004
• Part 37 Crim PR

306
 Other Appeals

• The defendant and the prosecution can appeal the determination of an

application to make the order
• An application for the jury to try some counts as sample counts and the
Judge to try the remainder if the jury convict, must be determined at
a preparatory hearing and s.18 confers rights of interlocutory appeal.
A Form NG (Prep) must be served on the Crown Court, the Registrar
and any party directly affected not more than five business days after
the order or the Crown Court Judge granting or refusing leave (For
applications to the Crown Court Judge see Part B above)
• A Respondent’s Notice Form RN (Prep) should be served if the
Court directs or the prosecution (or any party affected) wants to make
representations to the Court
• Defence representatives are usually covered by the Crown Court
representation order if one is in force, the proceedings being considered
incidental within Paragraph 5(3) of Schedule 3 to Legal Aid, Sentencing
and Punishment of Offenders Act 2012
• The Crown Court Judge, single Judge or full Court can grant leave

D14. Appeal against an order relating to a trial to be

conducted without a jury where there is a danger of jury
tampering
• S.45(5) and (9) Criminal Justice Act 2003 amending s.9(11) Criminal
Justice Act 1987 and s.35(1) Criminal Procedure and Investigations Act
1994
• Part 37 CrimPR
• The prosecution can appeal the refusal to make an order; the defence can
appeal the making of an order
• A Form NG (Prep) must be served on the Crown Court, the Registrar
and any party directly affected not more than five business days after
the order or the Crown Court Judge granting or refusing leave (For
applications to the Crown Court Judge see Part B above)
• A Respondent’s Notice Form RN (Prep) should be served if the Court
directs or the Crown (or any party affected) wants to make representations
to the Court
• Defence representatives are usually covered by the Crown Court
representation order if one is in force, the proceedings being considered
incidental within Paragraph 5(3) of Schedule 3 to Legal Aid, Sentencing
and Punishment of Offenders Act 2012
• The Crown Court Judge, single Judge or full Court can grant leave

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Appendix C A Guide to Commencing Proceedings in the Court of Appeal

D15. Appeal against an order that a trial should continue

without a jury or a new trial take place without a jury after
jury tampering
• S.47 Criminal Justice Act 2003
• Part 37 CrimPR (relating to appeals against an order made in a preparatory
hearing notwithstanding there will have been no preparatory hearing)
• Both the prosecution and defence can appeal a decision that the trial
should continue without a jury or a new trial should take place without
a jury
• A Form NG (Prep) must be served on the Crown Court, the Registrar
and any party directly affected not more than five business days after
the order or the Crown Court Judge granting or refusing leave (For
applications to the Crown Court Judge see Part B above)
• A Respondent’s Notice Form RN (Prep) should be served if the Court
directs or the Crown (or any party affected) wants to make representations
to the Court
• Defence representatives are usually covered by the Crown Court
representation order if one is in force, the proceedings being considered
incidental within Paragraph 5(3) of Schedule 3 to Legal Aid, Sentencing
and Punishment of Offenders Act 2012
• The Crown Court Judge, single Judge or full Court can grant leave

D16. Appeal against orders restricting or preventing reports

or restricting public access
• S.159 Criminal Justice Act 1988
• Part 40 CrimPR
• A person aggrieved may appeal
• Applications against orders restricting reporting shall be made within
10 business days after the date on which the order was made by lodging
Form NG (159) on the Registrar, the Crown Court, the prosecutor and
defendant and any other affected person. Applications against orders
to restrict public access must be made the next business day after the
order was made. If advance notice of an order restricting public access
is given, then advance notice of an intention to appeal may be made not
more than five business days after the advance notice is displayed
• A person on whom an appeal notice is served should serve a Respondent’s
Notice Form RN (159) if he wishes to make representations to the Court
or the Court so directs within three business days

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 Other Appeals

• The Court may make such order as to costs as it thinks fit (s.159(5)(c)
Criminal Justice Act 1988), but not out of central funds (Holden and
others v. CPS No.2 [1994] 1 AC 22)
• A single Judge or the full Court can grant leave (s.31(2B) Criminal
Appeal Act 1968)
• Applications for leave to appeal and appeals in relation to reporting
restrictions may be heard in private (CrimPR 36.6(1)). Applications
for leave to appeal and appeals relating to restricting public access
may be decided without a hearing but the decision must be announced
at a hearing in public (Crim PR 36.6(3)). In either case, if the hearing
relates to public interest immunity, it must be in private unless the Court
otherwise directs (Crim PR 36.6(2))

D17. Appeal against a wasted costs order

• Regulation 3C Costs in Criminal Cases (General) Regulations 1986
• A legal or other representative against whom a wasted costs order has
been made in the Crown Court
• There is no specific form. Notice of appeal should be served on any
interested party within 21 days of the order being made.
• Any interested party can make representations orally or in writing
• Leave to appeal is not required (s. 19 A Prosecution of Offences Act 1985)

D18. Appeal relating to Serious Crime Prevention Orders

• S.24 Serious Crime Act 2007
• Part 39 CrimPR
• A person subject to the order, an applicant authority or anyone given
the opportunity to make representations at the Crown Court about the
making, variation or non-variation of an order
• Proceedings are commenced by the service of Form NG (SCPO) on the
Crown Court (if the application is lodged prior to 1 October 2018) or
directly on the Registrar of Criminal Appeals (if the application is lodged
on or after 1 October 2018) not more than 28 days after the order (see
section A2. Lodging Form NG and grounds of appeal)
• A Respondent’s Notice Form RN should be served if directed by the
Registrar or if the respondent wishes to make representations to the
Court. Proceedings before the Crown Court or the Court of Appeal
relating to serious crime prevention orders and arising by virtue of ss.19,
20, 21 or 24 of the Serious Crime Act 2007 are criminal proceedings
for the purposes of Legal Aid, Sentencing and Punishment of Offenders

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Appendix C A Guide to Commencing Proceedings in the Court of Appeal

Act 2012 s.19; Reg.9(s) Criminal Legal Aid (General) Regulations 2013.
Accordingly, the Registrar may grant a representation order to a person
subject to the order. A person who made representations at the Crown
Court can apply to the LAA for a representation order. The Court has
discretion to order costs as it thinks fit (Part 3 Orders as to costs Serious
Crime Act 2007 (Appeals under s.24) Order 2008/1863)
• Leave can be granted by the Crown Court Judge, full Court or single
Judge (Art.9 Serious Crime Act 2007 (Appeals under s.24) Order
2008/1863)

D19. Appeal against the failure to make a football banning

order
• S.14A(5A) Football Spectators Act 1989
• Part 39 CrimPR
• The CACD has no power to deal with these. An appeal lies to the Civil
Division (R v Boggild [2011] EWCA Crim 1928)

E. APPLICATION FOR A RETRIAL FOR A SERIOUS

OFFENCE

E1. Application by a prosecutor to quash an acquittal and

seek a retrial of a qualifying offence
(S.76(1) Criminal Justice Act 2003 and Part 27 CrimPR)
E1-1 There must be new and compelling evidence and it must be in the interests
of justice for the acquitted person to be re-tried (ss.78 and 79 Criminal Justice
Act 2003 and Dunlop [2006] EWCA Crim 1354; Sanjuliano [2007] EWCA Crim
3130). Evidence was “new” if it had not been adduced at trial and for the purposes
of s.78(2) evidence was “adduced” if it had been put forward in evidence (R v
Henry [2014] EWCA Crim. 1816; [2015] 2 Cr.App.R. 1).

E1-2 Proceedings can begin in one of two ways:

(1) By serving notice of the application under s.76 on the Registrar of
Criminal Appeals and the acquitted person within two days of the
decision having been made (s.80 Criminal Justice Act 2003). This notice
charges the acquitted person with the offence. It requires the personal
written consent of the Director of Public Prosecutions (DPP) (s.76(3)).
If the acquitted person is not in custody the prosecution can ask the
Crown Court to issue:

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 Application for a Retrial for a Serious Offence

i) A summons for the acquitted person to appear before the Court of

Appeal for the hearing of the application
ii) A warrant for his arrest (s.89(3))
Once arrested on the warrant the acquitted person must be brought before
the Crown Court within 48 hours (s.89(6)).
(2) An acquitted person may be charged with the offence before an
application under s76 has been made. This may be after an arrest in an
investigation authorised by the DPP (s 85(2)) or where no authorisation
has been given, after arrest under a warrant issued by a justice of the
peace (s87(1) Criminal Justice Act 2003). Having been charged, the
acquitted person must be brought before the Crown Court to consider
bail within 24 hours (s.88(2) Criminal Justice Act 2003). He can then be
remanded in custody or on bail for 42 days whilst an application under
s.76 is prepared (s.88(6)) unless extended by s.88(8) Criminal Justice
Act 2003). Once a notice of application under s.76 has been made,
stating that the acquitted person has previously been charged with the
offence, the acquitted person must be brought before the Crown Court to
consider bail within 48 hours of the notice being given to the Registrar,
if the acquitted person is already in custody under s.88 (above) (s.89(2)).

E1-3 Thus in either case, bail is dealt with largely by the Crown Court. The
Court of Appeal only considers bail on the adjournment of the hearing of the
application under s.76 (s.90 (1) Criminal Justice Act 2003).

E1-4 The notice (Form NG (ACQ)) should where practicable be

accompanied by the witness statements which are relied on as the new and
compelling evidence, the original witness statements, unused statements,
indictment, paper exhibits from the original trial, any relevant transcripts from
the original trial and any other documents relied on (CrimPR 27.2(2)).

E1-5 An acquitted person who wants to oppose a s.76 application must

serve a response (Form RN (ACQ)) not more than 28 days after receiving the
notice (CrimPR 27.3(2)).

E2. Application by a prosecutor for a determination whether

a foreign acquittal is a bar to a trial and if so, an order that it
not be a bar
(S.76(2) Criminal Justice Act 2003 and Part 27 CrimPR)
E2-1 The prosecution can apply, with the personal written consent of
the DPP (s.76(3) Criminal Justice Act 2003) for a determination whether an
acquittal outside the UK is a bar to the acquitted person being tried in England

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Appendix C A Guide to Commencing Proceedings in the Court of Appeal

and Wales and if it is found to be so, an order that the acquittal not be a bar.
Proceedings can begin in the same way as for an application under s.76(1).

E3. Application for restrictions on publication relating to an

application under s.76
(S.82 Criminal Justice Act 2003 and Part 27 CrimPR)
E3-1 An application can be made by the DPP for reporting restrictions.
This can be made after a notice of an application for a re-trial has been made
and may also be made by the Court of its own motion (s.82(5) Criminal
Justice Act 2003). An application can also be made by the DPP for reporting
restrictions before a notice of an application for a retrial if an investigation
has been commenced (s.82(6) Criminal Justice Act 2003). The application for
reporting restrictions must be served on the Registrar (Form REP (ACQ)) and
(usually) the acquitted person (CrimPR 27.8(1)).

E3-2 A party who wants to vary or revoke an order for restrictions on

publication under s.82(7) may apply to the Court of Appeal in writing at any
time after the order was made (CrimPR 27.9(1)).

E4. Representation orders

E4-1 The Registrar will grant a representation order to the acquitted person
for solicitors and counsel to respond to any of the above applications.

312
Appendix D

Sample pleadings

1 SAMPLE GROUNDS OF APPEAL AGAINST

CONVICTION AND APPLICATION TO EXTEND THE
TIME LIMITS
The following is a sample that has been drafted in order to indicate a possible
approach to a straightforward application for leave to appeal against
conviction and an application for extension of the time limit within which
to give notice of application for leave to appeal. It is not intended as a rigid
blueprint.

IN THE COURT OF APPEAL

CRIMINAL DIVISION

REGINA
-v-
NED KELLY

GROUNDS OF APPEAL AGAINST CONVICTION AND

APPLICATION FOR EXTENSION OF TIME WITHIN WHICH
TO APPLY LEAVE TO APPEAL

Introduction
1. The Applicant appeals against his conviction for possessing an offensive
weapon. He does so on the grounds of a material misdirection at his trial,
whereby the Judge failed to tell the jury what, in law, they would have to
find proved to be sure the petrol bomb was an ‘offensive weapon’. Had
the jury been directed that it was for the prosecution to make them sure
that the bomb was made to injure a person, they may well have doubted
whether the prosecution had proved its case.

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Appendix D Sample pleadings

2. The Applicant also apples for an extension of time within which to apply
for leave, given these Grounds are submitted approximately 18 months
after conviction. That application is dealt with as a discrete topic at the
end of these Grounds.

Facts
3. The allegations concerned an incident that took place on 11 August
2011. Police in the London Borough of Tower Hamlets were patrolling
the local area in a police carrier as violent disturbances took place across
London. At around 1:20 am, the carrier was travelling along Mile End
Road, E1 the location of the rear entrance to Stepney Police Station.
Officers saw four to six males standing near to the rear gates of the police
station. On seeing the carrier, the males ran and entered a parked Ford
Escort car. The Applicant, who had been part of that group, did not enter
the car but ran off. It later transpired that the car belonged to him.
4. The carrier attempted to stop the car but was unable to do so. One of the
officers chased and caught up with the Applicant. He stopped, turned
towards the officer and raised his hands above his head. He was detained.
An officer found a pair of gloves on the route that the Applicant had run.
While speaking to the Applicant it was noted that he smelt of petrol.
5. A search of the area around the rear of the police station revealed four petrol
bombs. The Applicant was arrested for possession of an offensive weapon.
He was taken back to the police stationed and interviewed. In interview,
the Applicant denied the offence saying that he had been walking towards
his girlfriend’s house when he had been confronted by a group of young
men wearing gloves and masks. He denied that it was his vehicle that the
men had fled into and that he had ever seen the petrol bombs before.
6. Further enquiries by the police demonstrated that much of what the
Applicant had said in interview was untrue. At trial, he accepted that he
had travelled to the police station in his car. He claimed that he had been
kidnapped and taken there by drug dealers to whom he owed money.
Once at the scene he had been forced to assist in making petrol bombs
by pouring petrol into beer bottles. He had no involvement with the
bombs thereafter and had just been standing alongside the group when
the police carrier had turned the corner.

The trial
7. The Applicant stood trial before His Honour Judge Jones at Inner London
Crown Court in February 2012 charged with the following two counts:
(1) Count 1. Possessing petrol bombs with intent to destroy or damage
property, contrary to section 3(a) of the Criminal Damage Act 1971.

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 Sample grounds of appeal against conviction

(2) Count 2. Possessing an offensive weapon, the petrol bombs,

contrary to section 1 of the Prevention of Crime Act 1953.
8. The two counts were in the alternative. In opening the case Prosecution
Counsel said in terms:1
‘You will see there are two counts on the indictment and these counts
are in the alternative … If [count 1] is proved … then you don’t need
to consider count 2.’
9. In summing up the Judge:
(1) Made clear the two counts were in the alternative.2
(2) Directed the jury that petrol bombs were offensive weapons and
‘no-one has suggested” otherwise, given “there is no lawful or
peaceful reason to put petrol in a bottle with a paper wick that
anyone can think of. It is designed specifically for use as a weapon,
as a missile, to cause fire and damage’.3
(3) Explored the issues the jury would need to consider on count
1, including ‘did he share the intention in count 1 to destroy or
damage property, whether the police station or some other building
or a car or whatever, by the use of those items?’4
10. After lengthy deliberations and following a majority direction, the jury
acquitted the Applicant of count 1, but convicted him of count 2 by a
majority of 10 to 2 on 20 February 2012.

Events after trial

11. After the Applicant was convicted and imprisoned he and his family
sought fresh advice. After some delay those now acting for the Applicant
were supplied with the papers in the case and have settled these Grounds.
The history of the new representation is dealt with in more detail in the
final section below, seeking an extension of the normal leave period.
12. Pursuant to the Court’s guidance in R v McCook [2014] EWCA Crim 734,
those now representing the Applicant, who did not act at trial, have sent
these Grounds in draft form to the trial advocate; his reply is attached to
this document. In essence he accepts that it would have been preferable
had he raised the point taken in these Grounds with the trial judge before
the summing up. The Applicant is grateful for that concession and would
note that the judge and prosecuting advocate fell into what is submitted
to be the same error.

1 Transcript 1, 5B then 6B.

2 Transcript 2, 6B and 27D.
3 Transcript 2, 6E to H.
4 Transcript 2, 9A.

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Appendix D Sample pleadings

Submissions
13. Section 1 of the Prevention of Crime Act 1953 [as amended], insofar as
relevant to this appeal, states:
‘(1) Any person who without lawful authority or reasonable excuse, the
proof whereof shall lie on him, has with him in any public place any
offensive weapon shall be guilty of an offence …
…
(4) In this section … “offensive weapon” means any article made or
adapted for use for causing injury to the person, or intended by the
person having it with him for such use by him or by some other
person.’
14. In R v Simpson (1984) 78 Cr App R 115, Lord Lane CJ identified three
categories of offensive weapon: those made for use for causing injury to the
person (offensive per se), those adapted for such a purpose, and those not
so made or adapted, but carried with the intention of causing injury to the
person. In the first two categories, the prosecution do not have to prove that
the defendant had the weapon with him for the purpose of inflicting injury.
Once a jury are sure that the weapon is offensive per se, the defendant will
only be acquitted if he establishes lawful authority or reasonable excuse.
15. The jury at the Applicant’s trial were told that petrol bombs were
offensive weapons and ‘no-one has suggested’ otherwise, given ‘there is
no lawful or peaceful reason to put petrol in a bottle with a paper wick
that anyone can think of. It is designed specifically for use as a weapon,
as a missile, to cause fire and damage’.5
16. It is submitted this is wrong. An incendiary device can be made either
to injure people or damage property. Indeed, it was the prosecution case
that the latter was probably what was intended here; see the nature of
count 1 and the summing up in respect of that count:
‘did he share the intention in count 1 to destroy or damage property,
whether the police station or some other building or a car or whatever,
by the use of those items?’6
17. There may be many cases in which the circumstances of the possession
of a petrol bomb may provide an irresistible basis for an inference that
it was made with the intent of injuring a person or persons. However,
on the facts of this case there was an alternative possibility, that the
Applicant was in possession of the bomb with the intention of causing
damage to property; indeed that alternative was the main thrust of the
prosecution case.

5 Transcript 2, 6E to H.
6 Transcript 2, 9A.

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 Sample grounds of appeal against conviction

18. It follows that had the issue been left to the jury they may have entertained
at the very least a doubt, and consequently the conviction for count 2 is
unsafe and this appeal should be allowed.

Application for an extension of leave period

19. The Solicitor who now acts for the Applicant has made a witness
statement, attached to these Grounds, setting out the history of the
passage of time between the Applicant’s conviction and these Grounds
being lodged. In essence the time was taken up as follows:
(1) Trial Counsel advised that there were no grounds of appeal; given
the concession now made by Counsel, it is submitted that that
advice may not have been correct.
(2) Thereafter the Applicant and his family made numerous efforts to
seek fresh advice. Those efforts were handicapped both by their
lack of wealth and the fact that, perhaps unsurprisingly, they did
not spot the technical legal point now pursued.
(3) Some months later they made contact with the Solicitor now acting
who agreed to consider whether there were grounds for an appeal.
There was then a very considerable delay while the trial papers
were obtained from the previous solicitors. Those papers were
‘chased’ on numerous and regular occasions.
(4) Once the papers were located and passed on, Counsel was
instructed and she advised that a transcript of the summing up was
required. The Legal Aid Authority then refused the application for
funding and that refusal had to be appealed to the area Committee.
(5) Once the transcript was finally obtained and supplied to Counsel
along with all the trial papers, these Grounds were drafted and
lodged within three weeks.

Conclusion
20. In conclusion, it is submitted that this Applicant has always protested his
innocence and he and his family have done all that was practically possible
to get fresh advice. Once new lawyers were in place it is submitted that
they acted properly and efficiently in getting these Grounds in a fit state
to be lodged. For all these reasons it is submitted that the Court should
allow the extension now sought.
[Signed by the advocate drafting]
Quality Street Chambers
25 September 2014

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Appendix D Sample pleadings

2 SAMPLE GROUNDS OF APPEAL AGAINST

SENTENCE
This is a sample that has been drafted in order to indicate a possible approach
to a straightforward application for leave to appeal against sentence. It is not
intended as a rigid blueprint.
IN THE COURT OF APPEAL
CRIMINAL DIVISION

REGINA
-v-
KARON JOSEPH

GROUNDS OF APPEAL AGAINST SENTENCE

Introduction
1. The Applicant applies for leave to appeal against her sentence of seven
years’ imprisonment, passed by HHJ Jolly at Acton Crown Court on
13 February 2014. In summary the grounds advanced are:
(1) The Judge was wrong to reject the basis of plea without at least
warning that he was minded to do so. Such a warning would have
allowed the Applicant’s advocate to make submissions and inform
the Judge of unused material of which he was unaware.
(2) The Judge was wrong to only allow a reduction of 12.5 per cent
for the Applicant’s guilty plea at the pleas and case management
hearing.

Facts
2. The Applicant was arrested on 23 September 2013 after police officers
entered and searched the address where she lived. They found a knotted
carrier bag under the Applicant’s bed that contained some 25 wraps of
crack cocaine. Each wrap was made from cling film, with a total weight
of 120 grams. They also found electronic scales with two pans that a
scientist was later to say had ‘very probably’ been used to make crack
cocaine from the powered form of the drug, 14 rolls of cling film [all
in the kitchen] and three mobile phones in the sitting room that rang
on numerous occasions during the search. A police officer attempted
to answer these calls but when he did so the calls were immediately
terminated. These facts were all evident from the prosecution papers that
were supplied to the Judge.

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 Sample grounds of appeal against sentence

3. The unused material contained the following material [as attached to

these Grounds] that was not served on the Court and consequently was
not known to the Judge:
(1) Various documents that suggested at least three other people lived
in the same house, including Martin Jones and Ken Owen.
(2) Jones had a number of previous convictions for supplying cannabis
and heroin, and a recent conviction for possession of a small
amount of cocaine.
(3) Owen had two previous convictions for possessing cocaine and
cannabis and seven for offences of violence, mainly of a low level
but he had served a six-year sentence for wounding with intent
some eight years before the time of the search.
4. The Applicant did not speak at all when the house was being searched or
when she was arrested on suspicion of possession with intent to supply
the crack cocaine. She was later interviewed under caution and answered
‘no comment’ to all the questions asked of her. She had one previous
conviction for assault police some five years previously for which she
had received a community order. She was aged 27 at the time of sentence
and worked part time as a carer.
5. In preparing the case her solicitor had taken a number of statements from
her mother, father and elder sister who between them suggested that she
had little money and would often borrow small sums of money from
them or allow them to buy her drinks on social occasions.
6. The Applicant was committed to the Crown Court. At a preliminary
hearing no plea was entered despite HHJ Dour QC reminding her and
her advocate that under the authority of Caley, maximum credit for any
guilty plea could only be guaranteed by a plea indicated or entered at that
hearing.
7. At the PCMH the Applicant pleaded guilty to the single count she faced,
that of possessing cocaine with intent to supply. She did so on the basis
of a written basis of plea [copy attached] that included the passage:
‘The defendant was not a drug dealer in the sense that she did not
sell to drug users or anybody else, but she admits by her plea that she
possessed the drugs intending to supply them; another person had
given her the drugs to look after. While she does not claim to have
been acting under duress, she did feel obliged to help out another who
lived in the same house from time to time, so she put the drugs under
her bed until that other person would ask for them back.’
8. The Prosecution opened the facts of the case to HHJ Jolly, but made
clear they ‘could not gainsay’ the basis of plea and did not seek a Newton
hearing. The mitigation advanced on behalf of the Applicant included:

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(1) Reliance on the basis of plea and the submission that this placed
the Applicant in the category of ‘lesser role’ in the sentencing
guidelines. Given the Prosecution’s stance and the very heavy list
that HHJ Jolly was dealing with, no further time was taken up
rehearsing the items of unused material or familial evidence, as set
out above, such as supported the basis.
(2) A submission that the Applicant, as a woman of almost good
character, could be forgiven for being too scared of the inevitable
custodial sentence that would follow to plead at the preliminary
hearing, and that therefore the Court should grant her maximum,
or close to maximum, credit for her timely plea at the PCMH.
9. In passing sentence HHJ Jolly said:
(1) He did not believe a word of the basis of plea. The Defendant was
a grown woman. It was all too easy for any major drug dealer to
claim, when caught red handed, that they were only minding the
drugs for no profit. Yet here was a defendant arrested in her own
house, surrounded by all the accoutrements of a busy commercial
drug dealer. She had not said a word about any lesser role either
upon arrest or in her interviews under caution. Therefore he would
take her role to be a ‘leading role’ under the sentencing guidelines.
Given that the drugs were clearly being packaged and prepared
for sale to street level users [which was not in dispute] this was
a category 3 case. He therefore adopted a starting point of eight
years six months.
(2) Caley makes clear the sentencing judge is not deprived of all
flexibility; this was a defendant who had chosen to stay silent
at interview, had not indicated a plea at the preliminary hearing
despite being specifically warned, and now entered a guilty plea
when confronted with overwhelming evidence of guilt; the drugs,
the wrappings, the scales, the pans and the ‘dealer phones’. As
such while he would of course make a reduction for the guilty plea,
it would be a moderate one.
10. The judge then took the above starting point, eight years six months,
deducted six months for the defendant’s lack of relevant previous
convictions and deducted one year (thus an eighth or 12.5 per cent) for
the guilty plea. The Judge consequently passed a sentence of seven years
imprisonment.

Submissions
11. It is submitted the Judge was wrong to disregard the basis of plea without
at least warning the Applicant that he was minded to do so, see R v
Smith (Patrick) (1988) 87 Cr App R 393 and R v Dudley [2012] 2 Cr

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 Sample grounds of appeal against sentence

App R (S) 15. Similarly, paragraph B10, Criminal Practice Directions

(Sentencing) [2013] 1 WLR 3164 states in terms that, ‘A Judge is not
entitled to reject a defendant’s basis of plea absent a Newton hearing
unless it is determined by the court that it is manifestly false’. It is
submitted that the basis advanced was not manifestly false and, in any
event, if the Judge were of that belief he was still obliged to warn the
Applicant of that view.
12. This was not merely a technical failing. The unused and defence
material, as set out above, would have allowed submissions to be
made that:
(1) There was an obvious better candidate for the person with the
senior position in the drugs supply from that house, Martin Jones.
(2) Another person who was a perfectly sensible candidate for playing
a role in the supply of drugs, also linked to the house was Ken
Owen. His history of violence provided a perfectly credible
explanation for why the Applicant might not have been keen to set
out the history of her limited involvement with the drugs either on
arrest or in interview.
(3) The evidence from the Applicant’s family would have gone
beyond merely providing other possible candidates for the main
drug dealing, and would have been positive evidence that she was
not engaged in what is obviously a highly lucrative trade.
13. It is therefore submitted that the Judge was wrong not to warn of his
view of the facts. Had he done he may well have been persuaded that
he should accept the Applicant’s basis of plea was the proper basis for
sentence.
14. As such, it is submitted, the proper starting point in the Applicant’s case,
from the sentencing guidelines, for a defendant with a lesser role in
category 3, one of three years’ custody.
15. This Court will be very familiar with the case of Caley [2013] Cr App
R (S) 47 and the Sentencing Guidelines Council guidelines on credit for
guilty pleas. To summarise the relevant parts for the purposes of this
appeal [with paragraph numbers from Caley]:
(1) Whilst the sentencing judge does have flexibility as to the first
reasonable time for a guilty plea to be indicated or entered, the
criminal justice system should aim to be consistent between
defendants, thus allowing those who act for them to advise
properly [9].
(2) The Court specifically rejected using the police interview as the
first opportunity [12]
(3) The reduction for a plea at the PCMH will be about a quarter [19]

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(4) The Courts need to be very slow and cautious before concluding
a case is overwhelming and withholding the normal reduction.
Even in a truly overwhelming case where the sentencing court was
entitled to reduce the credit, it would still not go below 20 per cent
for a plea at the first opportunity [23 and 24].
16. Applying the above to the facts of the instant application, it is submitted:
(1) The Judge was quite entitled to reject the defence application for
full, 33 per cent, credit as there had been no plea at the preliminary
hearing.
(2) The Judge was wrong to attach significance to the Applicant
remaining silent in interview and at the scene, given the views of
this Court in Caley.
(3) This was not an overwhelming case. Although it was obvious that the
house was being used as a centre for drug dealing, the existence of
other candidates who were identified as users of the house, including
a man who had been convicted of serious offences of violence and
the Applicant’s very limited criminal history may have lead some
defendants in her position to seek to advance the defence of duress.
As such the Applicant should have received the usual 25 per cent
reduction. If this Court accepts that argument, the final sentence
should have been in the region of 23 months [in other words three
years as above, reduced by 25 per cent] plus any allowance such as
the Judge made for the lack of any relevant convictions.
(4) Even if the case were overwhelming, it is submitted the reduction
the Judge allowed, of 12.5 per cent, was simply insufficient for a
plea at the PCMH.
17. For all these reason it is submitted this Applicant should be granted leave
and her sentence should be very significantly reduced.
Anthony Advocate
Criminal Solicitors
Date

3 DRAFT STATEMENT OF FACTS AND STATEMENT

OF ALLEGED VIOLATION AND LEGAL ARGUMENTS
FOR AN APPLICATION TO THE EUROPEAN COURT
OF HUMAN RIGHTS
An application to the European Court of Human Rights must be made using
the Court’s own application form. However, the substance of the application
will be contained in the statement of facts and the statement of alleged

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 Draft statement of facts

violation(s) and relevant legal arguments that will accompany the form itself.
This is a sample that is intended to indicate a possible approach to both
drafting exercises. It is not intended to be a blueprint.

Statement of the facts

1. On 10 September 2010, Alfred Jones was the victim of various offences.
He gave police an account of being parked outside his home waiting for
his friend Ralph to join him when he was kidnapped and placed into a van.
Thereafter he was driven around, assaulted, robbed and demands were
made to his friends via his own mobile phone to bring large amounts of
cash to a meeting place. His car was also stolen. He was able to escape
some hours later. He supposedly identified the Applicant Davies as the man
who first approached him as part of the kidnap and identified a blue Suzuki
van as the vehicle used in the kidnap, false imprisonment and blackmail.
There were a series of links between the Applicant Dawes and that van.
2. The purported identification of Davies was, at its highest, qualified. In
essence, Mr Jones stated at the identification procedure that he could not
be sure [‘Out of all of them number 3 gave me an inkling … Can’t be
100 per cent sure but I’d say number 3’, number 3 being the position in
the video line up at which the Applicant Davies was shown] but by stages
ended up claiming in a later witness statement that he was sure of his
identification of Davies as the man who had first approached him.
3. There were various alleged links between the Applicant Dawes and a blue
Suzuki van. After describing the van used by his abductors in terms no more
than, at best, consistent with the blue Suzuki van [‘a Rascal … a little Nissan
van … a little blue thing … that royal kind of blue … a transit’], six months
later he was shown photographs of that van and said, ‘This is the type of van
I was kidnapped in … I can say that this is exactly the van that it was’.
4. In the course of the kidnap Mr Jones was asked to tell the kidnappers where
his cocaine was to be found and the abductors clearly assumed that his
friends would have ready access to large amounts of cash. Peter Huseyin,
a friend of Jones who became a prosecution witness, first became aware
of these events when the friend Ralph drove up and said that ‘someone’s
tried to rob me and Alf outside his flat. I saw some guys near Alf’s car but
I don’t know where he is’. Huseyin then drove for a few minutes to the
area of Jones’ flat. Ralph did not assist the police and was not a witness.
Neither Ralph nor Huseyin called the police. Jones’ girlfriend eventually
called the police and the call was logged as being received at 00:20.
5. In addition to the identifying evidence from Jones, the prosecution relied
on phone calls between the three defendants’ mobile phones, and all
three phones being cell sited in the same general area where the offences
were taking place. It is noted in passing that the Applicant Davies was
acquitted of counts 2 and 3 [false imprisonment and blackmail] and the

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co-defendant Phipps acquitted of all counts. Thus the jury did not regard
the cell site alone evidence as sufficient proof of guilt on any count.
6. Counts 4 and 5 on the trial indictment alleged that the Applicant Dawes
and the co-defendant Phipps had committed an aggravated burglary on
24 September. That allegation was based on phone evidence, the use of the
car stolen from Jones in the course of counts 1 to 3, and the possession of
a blackberry mobile phone, stolen in the aggravated burglary, by Phipps
shortly afterwards. Both men were acquitted.
7. Count 6 alleged a robbery of a lorry delivering cigarettes on 24 November
2010. A camera in that lorry showed that the Suzuki van to which Dawes
had the links was used by the robbers and a photograph from the same
source was said to be him; he was found guilty of that count.
8. The trial was fixed for 7 June 2012. In the days before trial Mr Jones
notified the police that he would not attend Court to give evidence. He
alleged that on Monday 30 May his mother received a call on her landline
number asking to speak to him. He then received a phone call on his
mobile phone. According to Mr. Jones’ statement ‘It was from a private
number on my mobile phone number ending 138. A male voice said,
“I would advise you not to go to trial. There are a lot of people upset,
they are on standby waiting for the word”. I did not recognise this voice.
It sounded black. I hung up the phone. Straightaway the phone rang
back with private number. I answered the call but did not say anything.
I did not listen to the phone and hung up. The phone rang again and my
girlfriend Simone answered the call. They told her the same things and
said they were in ********. She told them not to ring again and hung up
the phone. During the first phone call the person told me details about
the case such as what I said in my statement and details about the identity
parade. I do not know if I want to go to court now. I am scared for my
family. I am worried that they know details about the case.’
9. Mr Jones was visited by Detective Constable Stewart who offered him
various forms of witness protection and told him he might be witness
summonsed; he replied that in that case he would not say anything in
Court and would not give his evidence.
10. The prosecution did not seek a summons or warrant but applied to read
Mr Jones’ evidence under section 116 of the Criminal Justice Act 2003.
11. The application was opposed and the arguments advanced encompassed
the conditional or mixed nature of the identifying claims made by the
witness. Further, as regards the potential for the defendants to have
been responsible for the threats, it was known that at the time that the
Appellant Davies was in custody and in solitary confinement and the
Appellant Dawes, being under 21, was in a Young Offenders Institution,
separate from both his co-defendants.
12. In addition, there was submitted to be another candidate for having made
the threats; Darren Davies was a cousin of both Applicants. He was, at

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 Draft statement of facts

the time leading up to the trial, wanted as a suspect with regard to all the
counts on the indictment and was indeed named as another offender on
count 6 of the trial indictment. He was arrested a few days prior to trial
and found to have the trial committal bundle stored on his laptop, with
the statements by Alfred Jones highlighted. He was charged, but at a later
stage the Prosecution dropped all charges against him.
13. The trial Judge ruled that the evidence could be adduced. His decision
was based on his finding that the Appellants had played some part in the
threats being made. The terms of that finding were:
‘(1) On basis of material available to me at the moment, I conclude
as a matter of fact, so that I am sure about it, that Mr. Jones
was put in a state of extreme fear by these defendants or by
somebody associated with them and with their knowledge and/
or approval. In other words, these defendants are associated
with those threats. I find that as a fact to the criminal standard.
(2) I have found as a fact it is through deliberate actions attributable to
these defendants or with their approval that Mr. Jones is absent.’
14. The Judge also accepted that Mr Jones’ evidence was ‘sole or decisive’ in
one sense, though there was supporting evidence in the phone evidence.
This ruling also, in effect, admitted the partial identifications, as it
considered that aspect and made reference to section 78 of the Police and
Criminal Evidence Act 1984. The Judge also referred to both Horncastle
and Al-Khawaja.
15. In terms of whether the evidence was reliable, the Judge did not deal with
the later recognition of the van, but dealt with the identification of the
Appellant Davies; he held that the stages of the move from the uncertain
terms of the identification procedure to the later witness statements were
all documented and provided a ‘clear line of reasoning’ for his doing so,
concluding that in his judgment, ‘the evidence of Mr Jones is reliable in
the senses that I have described. It is documented, it is reasoned, it can
be tested and it can be fully commented upon’.
16. The trial proceeded. The defendants all gave evidence and proffered
various reasons for their phone contact and the presence of their phones
in or around the general area of the kidnap. In summary, Dawes spoke
of being in the area driving around selling cannabis. Davies testified that
he had left his phone at the home of his cousin Darren Davies and it was
being returned to him. The co-defendant Phipps spoke of being in the
area and calling Dawes to try to buy some cannabis from him.
17. The Judge summed up and gave warnings as to the difficulties faced by
the defence through the absence of the witness. He also gave a traditional
Turnbull direction, to warn the jury of the dangers of identification
evidence, namely that an honest witness can nonetheless be mistaken. In
dealing with Mr Jones’ ‘identification’ of the blue Suzuki van, the Judge

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again warned the jury of the disadvantage the defence said they faced,
but went on to suggest that the other links between the Appellant Dawes
and the van could support the identification [whereas, it is submitted they
were the distinct next link in the evidential chain, which only became
relevant once the jury accepted that first identification]:
‘The question for you, I would suggest, is that the van, that particular
blue van, linked to the crimes? I have reminded you, I think though,
on Mr Jones’ evidence he gives a general description of the van for
you to consider. He is then shown photographs and I have reminded
you about those and what he has said about it, and how the defence
say they have been disadvantaged by him not having him here to
question him. But you also have, have you not, other evidence, if
you accept it, which links Mr. Dawes to that particular van, where
police observations of him in the street going to it are on two
occasions at least.’
18. After their retirement the jury posed a question about the identification
of the van by Alfred Jones, namely:
‘In reference to admission 5, do the defence say that Alfred Stevens
positively identified the Suzuki van with the registration X493LBJ?
We feel there is a contradiction between paragraph 5 of the admissions
and Mr Dunn’s [defence Counsel at trial for Dawes] closing statement
regarding the positive identification of the particular van.’
19. The Judge answered the question, pointing out that the admissions
merely gave the date, 18 March 2011, when Alfred Jones ‘wrote a
statement concerning the Suzuki Supercarry panel van X493LBJ’. He
added a reminder of the disadvantage that the defendant faced given the
inability to question Mr Jones about that identification.
20. Amongst the varied verdicts, the jury acquitted of a number of counts
that were founded on phone use and cell site evidence placing phones
connected to the three defendants in the area of the false imprisonment,
namely counts 2 and 3 against the Appellant Davies, and counts 1 to 3
against the defendant Phipps.
21. All the convictions that are the subject of these appeals were by way of
majority verdicts.
22. The Applicant’s appealed against their convictions. Both were given
leave to appeal against their convictions on the basis of the trial Judge’s
admission of Alfred Stephen’s evidence. In summary, their grounds of
appeal submitted:
(1) There was no evidential basis such as allowed for the conclusion
reached by the trial Judge that the Defendants were behind threats
made to the complainant Alfred Jones such as prevented him from
attending to give evidence at trial.

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 Draft statement of facts

(2) Further, it is submitted that the combined effect of Horncastle

in the Supreme Court and Al-Khawaja and Tahery in the Grand
Chamber of the European Court of Human Rights was such that in
the absence of an individual defendant threatening a witness away
from trial, ‘sole or decisive’ evidence should not be admitted as
hearsay unless there is exceptional and compelling support such as
to suggest it is truthful and accurate.
23. The Applicants were granted leave to appeal. The Court of Appeal heard
their case on 7 September 2012. The Court dismissed their appeal, finding:
(1) The trial Judge should have required the prosecution to make
attempts to get Mr Jones to come to court, but that failing was not
fatal to the conviction.
(2) The trial Judge’s finding that the Applicants could be blamed for
the fear of Mr Jones was impeccable. The Court did not identify
what, if any, evidence could possibly be the basis for such a finding.
(3) The Court held that the evidence was admissible under the test
expounded in R v Riat [see below].
24. On the same day, the Applicants applied to the Court of Appeal for the
following question to be certified as a point of law of general public
importance [thus allowing the Applicants to apply for permission to
appeal to the UK Supreme Court]:
‘Should the sole or decisive evidence of an absent witness be admitted
as hearsay if it is not demonstrably reliable?’
25. Later that day the Court of Appeal indicated, by way of phone calls
between Lady Justice Thorne’s clerk and defence Counsel’s clerks that
the Court would not certify the question.
26. In the light of the refusal to certify, there was no further avenue of appeal
open to the Applicant’s in the domestic Courts.

Statement of alleged violation(s) of the convention and relevant

arguments
The law
RELEVANT STATUTORY PROVISIONS

1. Section 116 of the Criminal Justice Act 2003 states as follows:

‘116. Cases where a witness is unavailable
(1) In criminal proceedings a statement not made in oral evidence in the
proceedings is admissible as evidence of any matter stated if–

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(a) oral evidence given in the proceedings by the person who made
the statement would be admissible as evidence of that matter,
(b) the person who made the statement (the relevant person) is
identified to the court’s satisfaction, and
(c) any of the five conditions mentioned in subsection (2) is satisfied.
(2) The conditions are–
(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of his
bodily or mental condition;
(c) that the relevant person is outside the United Kingdom and it is
not reasonably practicable to secure his attendance;
(d) that the relevant person cannot be found although such steps as
it is reasonably practicable to take to find him have been taken;
(e) that through fear the relevant person does not give (or does not
continue to give) oral evidence in the proceedings, either at all
or in connection with the subject matter of the statement, and
the court gives leave for the statement to be given in evidence.
(3) For the purposes of subsection (2)(e) “fear” is to be widely construed
and (for example) includes fear of the death or injury of another
person or of financial loss.
(4) Leave may be given under subsection (2)(e) only if the court considers
that the statement ought to be admitted in the interests of justice,
having regard–
(a) to the statement’s contents,
(b) to any risk that its admission or exclusion will result in
unfairness to any party to the proceedings (and in particular to
how difficult it will be to challenge the statement if the relevant
person does not give oral evidence),
(c) in appropriate cases, to the fact that a direction under section 19
of the Youth Justice and Criminal Evidence Act 1999 (special
measures for the giving of evidence by fearful witnesses etc)
could be made in relation to the relevant person, and
(d) to any other relevant circumstances.
(5) A condition set out in any paragraph of subsection (2) which is in
fact satisfied is to be treated as not satisfied if it is shown that the
circumstances described in that paragraph are caused–
(a) by the person in support of whose case it is sought to give the
statement in evidence, or

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 Draft statement of facts

(b) by a person acting on his behalf,

in order to prevent the relevant person giving oral evidence in the
proceedings (whether at all or in connection with the subject matter
of the statement).’

RELEVANT ARTICLE OF THE CONVENTION

1. Article 6 states:
‘(1) In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law. Judgment shall be pronounced publicly
but the press and public may be excluded from all or part of the trial in
the interest of morals, public order or national security in a democratic
society, where the interests of juveniles or the protection of the private
lives of the parties so require, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would
prejudice the interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent
until proved guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum
rights:
(a) to be informed promptly, in a language which he understands and
in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his
defence;
(c) to defend himself in person or through legal assistance of his
own choosing or, if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice so
require;
(d) to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot
understand or speak the language used in court.’

Case law

1. A series of cases in the European Court of Human Rights considered

the meaning of the Article 6(3)(d) right to ‘examine or have examined
witnesses against him’. In Luca v Italy (2003) 36 EHRR 46 at
paragraph 40, the Court stated as follows:

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Appendix D Sample pleadings

‘If the defendant has been given an adequate and proper opportunity
to challenge the depositions, either when made or at a later stage,
their admission in evidence will not in itself contravene Article 6.1
and 3(d). The corollary of that, however, is that where the conviction
is both solely or to a decisive degree based on depositions that had
been made by a person whom the accused has had no opportunity
to examine or to have examined, whether during the investigation or
at the trial, the rights of the defence are restricted to an extent that is
incompatible with the guarantees provided by Article 6.’
2. This line of authority was ultimately considered by the Supreme Court
in R v Horncastle [2010] 1 Cr App R 17. The Court rejected the ‘sole or
decisive’ test, Lord Phillips holding at paragraph 108:
‘In these circumstances I have decided that it would not be right for
this court to hold that the sole or decisive test should have been applied
rather than the provisions of the 2003 Act, interpreted in accordance
with their natural meaning.’
3. The Court declined to follow the earlier ECHR section judgment in Al-
Khawaja and Tahery, in the following terms [paragraph 11]:
‘There will, however, be rare occasions where this court has
concerns as to whether a decision of the Strasbourg Court sufficiently
appreciates or accommodates particular aspects of our domestic
process. In such circumstances it is open to this court to decline
to follow the Strasbourg decision, giving reasons for adopting this
course. This is likely to give the Strasbourg Court the opportunity to
reconsider the particular aspect of the decision that is in issue, so that
there takes place what may prove to be a valuable dialogue between
this court and the Strasbourg Court. This is such a case.’
4. That reconsideration duly occurred when the Grand Chamber gave
judgment in the UK government’s appeal, Al-Khawaja and Tahery
[2012] 54 EHRR 53. In essence, the Grand Chamber reaffirmed the
‘sole or decisive’ rule but modified the rigidity with which it should be
applied. Thus at paragraph 147:
‘The Court therefore concludes that, where a hearsay statement is
the sole or decisive evidence against a defendant, its admission as
evidence will not automatically result in a breach of Article 6 § 1. At
the same time where a conviction is based solely or decisively on the
evidence of absent witnesses, the Court must subject the proceedings
to the most searching scrutiny’
5. Neither of the absent witnesses in Al-Khwaja and Tahery had been kept
from court by the acts of the accused, but in discussing that situation the
Grand Chamber stated [at paragraph 123]:
‘When a witness’s fear is attributable to the defendant or those acting
on his behalf, it is appropriate to allow the evidence of that witness

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 Draft statement of facts

to be introduced at trial without the need for the witness to give live
evidence or be examined by the defendant or his representatives –
even if such evidence was the sole or decisive evidence against the
defendant. To allow the defendant to benefit from the fear he has
engendered in witnesses would be incompatible with the rights
of victims and witnesses. No court could be expected to allow the
integrity of its proceedings to be subverted in this way. Consequently,
a defendant who has acted in this manner must be taken to have
waived his rights to question such witnesses under art. 6(3)(d). The
same conclusion must apply when the threats or actions which lead to
the witness being afraid to testify come from those who act on behalf
of the defendant or with his knowledge and approval.’
6. In applying the modified test as to when ‘sole or decisive’ hearsay might
be admitted, the Grand Chamber discussed the facts of the two cases. In
Al-Khawaja the Court allowed the UK’s appeal, finding that it ‘would be
difficult to conceive of stronger corroborative evidence’ [paragraph 156]
for the accuracy and truthfulness of the absent witness. In contrast, in
Tahery the finding of a violation was upheld; in that case the victim had
been stabbed but was unable to say which of the various men in the
vicinity had stabbed him. The only witness who claimed that Tahery was
the stabber made a statement to police within two days, then refused
to attend court through a fear of being seen as an informer, which fear
could not be shown to be brought about by Tahery. The Grand Chamber
spoke of his evidence in these terms: ‘Even though the testimony may
have been coherent and convincing on its face it cannot be said to belong
to the category of evidence that can be described as “demonstrably
reliable”’ [paragraph 160].
7. In R v Ibrahim [2012] EWCA Crim 837, the Court of Appeal considered
the differing conclusions of Horncastle and the Grand Chamber judgment
and suggested [at paragraph 89]:
‘This difference may be more one of form than substance, however.
Thus, the Court of Appeal talked of a conviction being based “solely
or to a decisive degree on hearsay evidence admitted under the CJA”
and the Supreme Court talked of the hearsay evidence being “critical
evidence”. That may not be very different from the Grand Chamber’s
concept of “sole or decisive”. Next, the Court of Appeal and the
Supreme Court both emphasise that when the untested hearsay
evidence is “critical”, the question of whether the trial is fair will
depend on three principal factors. First, the English courts accept that
there has to be good reason to admit the untested hearsay evidence.
To decide this under English law there must be compliance with the
statutory code. The Grand Chamber necessarily puts this requirement
on a more general basis, but it emphasised the need for “justification”.
Secondly, and we think most importantly, all three courts stipulate that

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Appendix D Sample pleadings

there must be an enquiry as to whether that evidence can be shown to

be reliable. Thirdly, all three courts are concerned with the extent to
which there are “counterbalancing measures” and if so whether they
have been properly applied in deciding whether to admit the “critical”
untested hearsay evidence or to allow the case to proceed. In the
case of England and Wales those “counterbalancing measures” must
include all the statutory safeguards in the “code”, as well as a proper
application of common law safeguards, such as proper directions in
the summing up. The Grand Chamber emphasised the same thing at
paragraph 144 and particularly in its “general conclusion on the sole
or decisive rule” at paragraph 147’
8. In the subsequent case of R v Riat [2012] EWCA Crim 1509, the Court
of Appeal considered a number of appeals in the light of the Supreme
Court judgment in Horncastle, the Grand Chamber decision in Al-
Khawaja and Tahery, and the Court of Appeal’s judgment in Ibrahim.
At paragraphs 4–6 and 17, the Court explained that if Horncastle, Al-
Khawaja and Ibrahim had been understood to suggest that evidence
that was central or sole and decisive should only be admitted if it was
clearly or manifestly reliable, that is to say accurate, then that was a
misunderstanding. In fact, the position is that evidence can be admitted
either if it is manifestly reliable or if any possible unreliability is such as
can be tested by the jury.

Submissions: alleged violations of Article 6 of the Convention

1. The Grand Chamber in Al Khawaja and Tahery constructed a delicate
accommodation so as to guard the rights of those within signatory states
and yet to concede a degree of sovereignty to national courts as to the
manner in which such rights are protected. It is submitted, with regret,
that the decision in this case show that the English Court of Appeal has
disregarded that delicate balance and that the current state of law now
propounded by the UK Court of Appeal permits flagrant breaches of
the right to a fair trial. It is further submitted that the response of the
UK perhaps, with respect, confirms the fears of honourable dissenting
Judges in the Grand Chamber decision, that:
‘The sole or decisive rule that has been followed so far was intended to
protect human rights against the “fruit of the poisonous tree” … The
adoption of the counterbalancing approach means that a rule that was
intended to safeguard human rights is replaced with the uncertainties
of counterbalancing.’
2. It is submitted that the Applicants rights under Article 6(3)(d) to
‘examine witnesses against him’ were violated at their trial. The witness
Jones was central to the cases against both men. Without his account the
prosecution could not have even begun their case. The evidence adduced
was such as to identify the Applicant Davies and to identify the vehicle

332
 Draft statement of facts

closely associated with the Applicant Dawes. It is submitted to be telling

that the other counts that were not supported by such identifications, both
against these Applicants and against their co-defendant at trial, led to
acquittals.
3. In the Grand Chamber of Al-Khawaja and Tahery this honourable Court
adopted the modified test of not absolutely barring ‘sole or decisive’
hearsay evidence, but subjecting such evidence to ‘the most searching
scrutiny’. That level of scrutiny was illustrated in the outcome of those
cases, whereby the ‘demonstrably reliable’ evidence against the Applicant
Al-Khawaja led to the UK’s appeal being allowed, whereas the lack of
such evidence led to the decision in Tahery being unchanged. To apply
a similar test, the evidence of the absent witness in the Applicants’ case,
his identification of the Applicant Davies was a flawed example of a form
of evidence, identification evidence, that is considered dangerous even
when given by a ‘live’ witness. In the Applicant Dawes’s case, a bland
statement describing a very common type of van in the most general
terms was then followed much later by an assertion that the vehicle
linked to the Applicant was the very same van.
4. In addition to the obvious weaknesses and potential for error in the
nature of the evidence the missing witness gave, there was what could
be seen as a ‘drugs’ background, in that his friends declined to call the
police and the demands made of Mr Jones were, according to him, for
cash and cocaine. Without expecting this honourable Court to make
any finding adverse to that absent witness, that background of possible
criminal activity by the complainant and his associates is such as to make
his account even more in need of the most careful testing under cross
examination.
5. If there were any evidential basis for the trial Judge’s finding that the
Applicants were both responsible for the absent witness being placed in
fear, then it is accepted that this case would be outside the judgment in Al-
Kahwaja and Tahery. It is submitted that there was simply no evidence of
the Applicants being those responsible. It is submitted to be telling that
neither the trial Judge nor the Court of Appeal even purported to identify
any evidence such as could justify such a finding. Whilst this Court will
very often defer to the facts found by the trial tribunal, if the Court is to
guarantee rights that are practical and effective, it must be prepared not
to allow a national court to shield its breaches of Convention rights by
completely indefensible findings of fact.
6. The decision of the Court of Appeal in Ibrahim had the potential to
resolve the dispute between this Court and the UK domestic courts by
an accommodation that seemed to allow for the use of sole or decisive
hearsay only it was manifestly reliable. The later judgment in Riat
specifically ‘explained away’ that approach such that no such limit is
now in place in the English law.

333
Appendix D Sample pleadings

7. This Court will notice that the ‘valuable dialogue’ that Lord Phillips
spoke of in the Supreme Court judgment in Horncastle has not taken
place. This is because the English Court of Appeal has refused to certify
a point of law of public important, thus cutting off the possibility of a
further appeal within the English system, as section 33(2) of the Criminal
Appeal Act 1968 states, inter alia, that an ‘appeal lies only with the leave
of the Court of Appeal or the Supreme Court; and leave shall not be
granted unless it is certified by the Court of Appeal that a point of law of
general public importance is involved in the decision’.
8. The Applicants therefore submit that they have suffered a violation of
their right to a fair trial in that the trial judge’s admitted sole or decisive
evidence that they had no chance to challenge.

334
Appendix E

Court of Appeal Bill of Costs

335
Court of Appeal Bill of Costs

COURT OF APPEAL (CRIMINAL DIVISION)

BILL OF COSTS
FOR TAXATION BY REGISTRAR
If you require a version of this form to use with a screen reader (such as JAWS), or if
you have a question about the form, please contact the Cost Office.

CRIMINAL APPEAL REFERENCE NO: ……………

Regina v Representation Order granted by

lower Court

Messrs …………………… Representation Order granted by

Court of
Appeal dated

of ……………………
Prosecution costs against
Appellant
Ref ……………………
V.A.T. No …………………… Appellant/Prosecution costs from
central funds

PLEASE READ NOTES ON PAGE 4 IMMEDIATELY

Solicitors should send with the Bill of Costs:- (a) The Brief and any instructions to and advice
from Counsel: (b) The file of correspondence and record of attendances: (c) Details of all
Disbursements and Accounts where appropriate.

DO NOT ENCLOSE COPY STATEMENTS OR EXHIBITS

In Representation Order cases no item in this Bill should relate to work undertaken prior
to the date of conviction or sentence in the Crown Court, or prior to the date from which a
Representation Order was granted in the Court of Appeal.

THIS BILL MUST BE COMPLETED IN BLACK INK OR BE TYPEWRITTEN

FOR PHOTOGRAPHIC PURPOSES
1. PREPARATION OF APPLICATION FOR LEAVE TO APPEAL AND/OR APPEAL – PREPARATION
AND CONSIDERATION OF DOCUMENTS.

Documents/Prepared Status of Fee Date Time Claimed Allowed

considered Earner ie Sen Work Taken £p £p
(state nature and Sol, Sol Sen Undertaken Hrs Mins
specify) L Ex, Sen Clk,
L Ex, or Art Clk

C.F. £

The Criminal Defence Services (Funding) Order 2001.

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 Court of Appeal Bill of Costs

2. PREPARATION OF APPLICATION FOR LEAVE TO APPEAL AND/OR APPEAL –

ATTENDANCES

PERSON Status of Fee Date Time Claimed Allowed

INTERVIEWED Earner ie Sen Work Taken £p £p
[State name and Sol, Sol Sen Undertaken Hrs Mins
whether client (c) or L Ex, Sen Clk,
witness (w) and if alibi, L Ex, or
factual, expert etc] and Art Clk
reasons for interview

Brought forward from £

page 1

The necessity for an

interview with the client,
in the prison or other
place must depend upon
the difficulty of the case.

Travelling time to be
shown separately.

Show location of
interviews.

CONFERENCES
[State purpose,
Conferences held at
Court should not be
included here].

LETTERS/EMAILS
(Routine)

TELEPHONE CALLS
(Routine)

NOTE Petty
disbursements such
as telephone charges,
postage, etc form part
of the overheads and
should NOT be claimed.

Totals carried forward to Summary on page 3 £

State below any unusual features of the case or any particular problems that were experienced in
preparation which contributed materially to weight or difficulty.

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Court of Appeal Bill of Costs

3. CONDUCT OF APPLICATION FOR LEAVE TO APPEAL AND/OR APPEAL AT COURT –

ATTENDANCES

PURPOSE [Specify as Status of Fee Date Time Claimed Allowed

appn for bail, hearing Earner ie Sen Work Taken £p £p
etc. conferences at Sol, Sol Sen Undertaken Hrs Mins
Court are normally L Ex, Sen Clk,
included in the daily L Ex, or
fee unless they Art Clk
represent material
progress: please
specify]

Totals carried down to Summary below: £ 0.00

CLAIMED ALLOWED
£   p £   p
SUMMARY

B/f from page 2 – PREPARATION OF APPLICATION £

FOR LEAVE TO APPEAL AND/OR APPEAL

B/d from above CONDUCT OF APPLICATION FOR LEAVE TO £0.00

APPEAL AND/OR APPEAL AT COURT

DISBURSEMENTS LIABLE TO V.A.T. [please specify]

(a) Travelling expenses [identified by reference to parts 1 and 3]

Miles @

TOTAL for V.A.T. purposes £

V.A.T. £

DISBURSEMENTS NOT LIABLE TO V.A.T. [eg agency work]

Please specify and include vouchers

TOTAL CLAIMED AND ALLOWED £

Determining Officer: DATE:

338
 Court of Appeal Bill of Costs

COURT OF APPEAL – CRIMINAL DIVISION

IMPORTANT – PLEASE READ IMMEDIATELY

1. Where work of an exceptional nature is contemplated, or where the expenses

will be heavy eg in travelling a long distance for a conference, it will be wise to
consult the Registrar beforehand as to whether the work or the expense is likely
to be regarded as reasonable.
IF IN ANY DOUBT, DO PLEASE CHECK FIRST.
2. Appeals against Sentence: It is very rare that the Court grants Representation
Order to solicitors – it is normally confined to Counsel only.
3. Appeals against Conviction: Although Representation Order to Solicitors is
granted more frequently than in appeals against Sentence, it is still only granted
in a small minority of cases: see note 2 above.
4. If Representation Order is granted to solicitors to cover attendance at the appeal
hearing, consideration should be given to the instruction of solicitor agents if the
cost of travel will be heavy.
5. Typing and Photocopying: these items are not normally allowed on taxation – if
copies of Committal documents, transcripts etc are considered necessary, you
should consult the Registrar before undertaking any expense.
6. A claim must be submitted within 3 months of the conclusion of the proceedings
to which the Representation Order relates (Para 11, Schedule 1). No claim can be
considered after this unless an extension of time is granted (Para 23, Schedule 1).
7. Reminders: Where
(a) there are special circumstances, which should be drawn to the attention of
the appropriate authority, the solicitor must specify them;
(b) the solicitor claims that paragraph 4 of schedule 2, part 1 (ie enhanced
rates) should be applied in relation to an item of work, he must give full
particulars in support of the claim (Para 11, Schedule 1).

339
Appendix F

New Client Appeal Enquiry Form

341
New Client Appeal Enquiry Form

GT STEWART SOLICITORS
APPEAL ENQUIRY FORM

Contact Details

Full Name: Date of Birth:

Address/Prison: Gender:
Mobile:

Prison No: Landline:

National Insurance no: Email:

Family member or friend who can we discuss your case with:

Name: Contact number/email:

How did you hear about us? Inside Time
Internet
Recommended by: ___________________
Other (specify): ___________________

Conviction Details

Charge Plea Sentence Type

1. Guilty / Consecutive /
Not guilty Concurrent
2. Guilty / Consecutive /
Not guilty Concurrent
3. Guilty / Consecutive /
Not guilty Concurrent

Court and Legal Team Details

Trial Court: Type: Youth / Magistrates / Crown Court

Your Solicitors: Date of Trial:
Contact name: Date of Sentence:
Tel number: Advocate / Barrister:
Address: Advocate / Barrister’s Chambers:

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 New Client Appeal Enquiry Form

About Your Case:

Names of other parties to the case

Name of complainant(s): ……………………………………………………………………………

Name of co-defendant(s): ……………………………………………………………………………

The facts of the case

Please answer the questions below, explaining who, what, why, when, where and how

Please briefly explain what the prosecution said happened:

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

Please briefly explain what you say happened:

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

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…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

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New Client Appeal Enquiry Form

Previous Advice on Appeal

Please answer the questions below. Once you have answered these, if there is anything
else you would like to add about these questions, please use the space at the bottom
of the page.

1. Did you receive advice on appeal from your trial solicitor or barrister? Yes / No

2. Was this positive or negative advice?  Positive / Negative

3. Have you received advice on appeal from any other solicitor or barrister? Yes / No

4. Was this within the last six months? Yes / No

4. Was this advice positive or negative? Positive / Negative

5. Did you apply to the Court of Appeal? Yes / No

6. Did you have legal representation for this application? Yes / No

7. Did the single judge at the Court of Appeal grant or refuse your application?

 Grant / Refuse / Waiting

8. If your application was refused, did you renew to the full Court of Appeal? Yes / No

9. Have the full Court of Appeal rejected your application? Yes / No / Waiting

10. Have you submitted an application to the CCRC? Yes / No

11. If yes, when? ……………………………………………………………………

12. Has a lawyer helped you with the application to the CCRC? Yes / No

13. If yes, who: ……………………………………………………………………

14. Have you received a decision from the CCRC? Yes / No

15. Was the decision of the CCRC positive or negative? Positive / Negative

Additional information: ……………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

If you have any paperwork relating to any of the questions stated above (for example,
a copy of the advice on appeal from your trial legal representatives), please provide
copies of these to us.

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 New Client Appeal Enquiry Form

Reasons For Appeal

What do you want to appeal against? Conviction / Sentence / Both

Appeals Against Conviction:

Tell us why you want to appeal – tick all that apply and describe why in the spaces
provided

1. New evidence □
…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

Please note that new evidence must be something that was not available at your trial.
For example, if a witness was available at trial but your trial team decided not to call the
person for tactical reasons, this does not count as new evidence.

2. Mistake by the Judge at trial □

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

3. Perverse verdict □
…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

4. Unfair trial □
…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

5. Incompetence by your legal representative □

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

6. Any other reason your conviction is unsafe □

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

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New Client Appeal Enquiry Form

Appeals Against Sentence:

In order to appeal against a sentence, you must be able to show that your sentence is
‘manifestly excessive’.
When sentencing, a judge will consider ‘aggravating’ factors which can make a
sentence longer and ‘mitigating’ factors which can make a sentence shorter.
An example of an aggravating factor may be if the victim was vulnerable.
An example of a mitigating factor may be if you suffer from mental health issues.
The judge will use these factors and the circumstances of the offence to decide on
which category of sentence should be given.

Please answer the following questions:

1. Do you know what category of offence the judge used to sentence you?

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

2. What did the prosecution say were aggravating factors?

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

3. What did your defence advocate / barrister say were mitigating factors?

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

4. What did the judge say were aggravating factors?

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

5. What did the judge say were mitigating factors?

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

346
 New Client Appeal Enquiry Form

6. Are there any other mitigating factors which were not considered, or which the judge
did not give enough weight to?

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

7. Were any mental health assessments carried out?

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

…………………………………………………………………………………………………………

Legal Aid Eligibility

If you are in prison, what is your prison income? £_______ per week

If you are not in prison, do you receive benefits? Yes / No

If yes, what benefits do you receive?

If you have a partner, what are their contact details?

Do you have any savings or valuable property? Yes / No

If yes, approximately how much are they worth? £_______

Have you signed another CRM1 and CRM2 with Yes / No

another solicitor in the past six months?
If yes, please explain why they are no longer
providing you with advice and assistance

Please return to us in the stamped addressed envelope provided:

1. This form

2. Completed CRM 1+ 2

3. Signed client authority

Please note that we will be unable to assess your case unless you have completed
every section of the CRM1 and CRM2 form and the client authority.

347
Index

All references are to paragraph numbers

A Appeals
Absolute discharge 14.16 against conviction 3.1
Abuse of process 2.14 adverse publicity 3.46
unfair conviction 3.16 appeal following guilty plea 3.29
Acquittal agreement categories not closed 3.60
prosecution appeals against rulings changes in law 3.59
under s 58 CJA 13.5, 13.7–13.8 citation of authorities 6.25
Acquittals court’s powers see Court’s powers
prosecution’s rights of appeal defective summing up see Defective
13.2 summing up
Acts of Parliament 2.1 errors of defence lawyers 3.52–3.58
Address fresh evidence 3.47–3.51
correspondence 6 grounds
Court of Appeal judges 1.17 allegations of jury misconduct
Admissibility 5.5 3.40–3.43
applications to ECtHR 11.19 jury selection 3.39
Adverse publicity possible jury bias 3.44–3.45
appeals founded on 3.46 meaning of ‘unsafe’ see Unsafe
Advice and assistance convictions
application for CCRC referral 9.17 trial rulings 3.30–3.31
funding see Funding against sentence 1.13, 1.19, 4.1–4.5,
unfair convictions 3.28 5.5
Advocacy 7.1–7.3, 7.38–7.39 citation of authorities 6.26
Advocate (formerly Bar Pro Bono Unit) confiscation orders see Confiscation
8.56 orders
Advocates disparity in sentence 4.35
advice from 8.40 failure to credit time spent on
claims for work done in Court of qualifying curfew 4.39
Appeal 8.17 grounds for 4.4, 4.19–4.20, 6.22
expectations of 7.39 assistance provided to police
fees 8.40 6.23
Advocates Graduated Fee Scheme court to consider whether total
(AGFS) 8.7 sentence is wrong 4.25
Aggravated trespass 10.5 failure to follow guidelines
Alibi evidence 3.58 4.26–4.31
‘Alleged violations’ manifestly excessive 4.21–4.24
section of form for applications to indictment/cases sent from
ECtHR 11.14 Magistrates’ Court 4.6–4.7
Allowing appeal 3.61 ‘sentence’ 4.8–4.9
Alternative verdicts anti-social behaviour orders
leaving to jury 3.35 4.11
Anti-social behaviour orders 4.11 costs 4.10

349
Index

Appeals – contd costs 7.48–7.50

against sentence – contd Appellant/applicant – contd
indictment/cases sent from death of 7.22–7.23
Magistrates’ Court – contd insanity or disability of 7.17
‘sentence’ – contd personal representative of 7.22
financial reporting orders 4.14 presence at hearing 7.17, 7.19–7.23
fixed by law, appeals 4.15 widow/widower of 7.22
making/varying of sexual Appellate Committee of the House of
offences prevention orders Lords 10.1
4.12 Arrest records 5.13
more than one 4.17–4.18 Asset recovery
parents/guardians, appeals 4.16 confiscation orders/other orders
restraining orders 4.13 4.40–4.43
post-sentence developments 4.33– Assisted suicide 10.5
4.34 Assize Courts
principles 4.4, 4.19–4.39 Attorney-General’s References 13.20
procedural unfairness 4.32 court’s approach to 13.28–13.30
prosecution’s rights of appeal 13.2 discount for double jeopardy 13.32–
unlawful sentences and slip rule 13.35
4.36–4.38 full hearings 13.26–13.27
defendants suffering from mental funding for respondent’s
disorder 14.1–14.5 representation 13.25
findings of unfitness to plead/ grounds for appeal 13.21
accused made act or omission notification of appeal and reply 13.23–
charged 14.6–14.11 13.24
insanity permission for 13.26
order made under s.5 of Criminal procedure 13.22
Procedure (Insanity) Act types of sentence subject to 13.20
1964 14.16–14.19 Authorities 7.14–7.15
verdict of not guilty by reason of Automatic right of appeal
14.12–14.15 removal of 1.10
dismissal 7.40–7.44
interlocutory rulings 12.1–12.3 B
exceptions to 12.2 Bad character
procedure 12.3 evidence of 6.31
leave to appeal see Leave to appeal Bad legal advice
pre-1995 regime 1.11 abandonment of application for leave
removal of automatic right of 1.10 to appeal a nullity 6.73
Supreme Court 10.1–10.22, 13.40 Bail 0, 10.19
test for 1.10 applications for 6.36–6.40
under s.35 of Criminal Procedures re-trial 3.75
and Investigations Act 1996 Bar Pro Bono Unit 8.56
12.12–12.17 Bias
procedure 12.16 jury 3.44–3.45
reporting restrictions 12.17 Bristol University
scope 12.14–12.15 innocence project 8.52
terrorism cases 12.13
Appellant/applicant C
absconding 7.21 Capacity
attendance at Supreme Court 10.20 applicant for appeal 6.17

350
 Index

Case file 5.12 4.49–4.50

Case law 1.14 fresh evidence 4.46
Case management 1 grounds of appeal 4.44
Case preparation 2, 7.1–7.3 Confiscation orders – contd
Case summary 7.7–7.9 appeals against – contd
consideration of 7.8 powers of court 4.51
Casework 3, 8 principles relating to 4.44–4.50
CCTV 5.13 rights of appeal 4.40–4.43
Centre for Criminal Appeals 8.55 prosecution 4.52–4.53
Certification of fitness to appeal 14.5 slip rule 4.45
Changes in law 3.59, 6.32–6.35 ‘sentence’ in relation to offence 4.8
Character witness 5.5 Consent
Children appeals against confiscation orders
evidence from 7.26 4.47–4.48
financial eligibility 8.31 Contemporaneous notes 5.13
Chronology 5.14 Contempt of court 10.5
Circuit judges 1.16 Convention rights
Citation of authorities 6.24–6.27 violations of 11.14
justification for 6.26 Conviction
Civil partner appeals against 3.1–3.83, 6.20
financial eligibility 8.28 citation of authorities 6.25
Claims circumstances in which re-trial may be
work done in Court of Appeal 8.13– ordered 3.67
8.19 date of 6.8
Comments fresh evidence received after 3.47–
judge 3.32–3.33 3.51
Common law obligations of prosecution after 10.5
interpreting in accordance with quashing 3.51
ECHR 2.7 safeness of 1.10
Communication substitution 3.62, 3.64–3.66
applications to ECtHR 11 ‘unsafe’ 3.2–3.28
with Court 6–8 Correspondence 6–28
with parties 2 Costs 7.46
Compensation appealing 4.10
applications to ECtHR 11.31 applications to ECtHR 11.32
Competence from central funds 7.48
trial lawyers 3.56 law relating to 7.47
Complex fraud trials renewal of application for leave to
appeals against rulings made at appeal 6.67
preparatory hearing in 12.4–12.11 Supreme Court 10.21
circumstances in which ruling may third parties 7.55
be appealed 12.6–12.9 unnecessary or improper expenses
procedure 12.10 7.50
reporting restrictions 12.11 wasted costs orders 7.51–7.54
Composition 1.18–1.19 unsuccessful appellant/applicant 7.49
Computer hard drives 5.13 Costs Judge
Confiscation orders appeal to 8.18
appeals against 4.5 Court bundle 7.5
appeals made by consent 4.47–4.48 Court of Appeal
extension of time to appeal against applications at conclusion of case

351
Index

7.40–7.56 legislation establishing 1.3–1.4

cases referred by Criminal Cases location 4
Review Commission (CCRC) permanent judges 1.16
9.1–9.33 reconstitution of 1.7
Court of Appeal – contd reforms of 1.7, 1.10
claiming fees for work done Court of Appeal – contd
advocate’s claims 8.17 representation order see Court of
all claims 8.13 Appeal representation order
appealing the assessment 8.18 sittings 5
disbursements 8.16 type of law interpreted and applied
other costs orders 8.19 by 2.1
solicitor’s claims 8.14 Court of Appeal representation order
enhanced hourly rates 8.15 representation under 8.4
communicating with 6–28 actual representation replaces advice
composition 1.18–1.19 and assistance 8.5
consolidation of powers 1.8 pro bono assistance 8.6
costs 7.46–7.47 work under
current statutory regime 1.12–1.13 advice covered 8.8–8.10
development of funding rules 8.7
framework for 1.9 single judge
function of 1.1 effect of refusal by 8.11
governance of 1.9 post-refusal advice 8.12
hearings Court’s powers 3.61–3.63
appeals with leave 7.32–7.35 re-sentencing 3.80
appellant re-trial order 3.62
absconded 7.21 bail 3.75
death of 7.22–7.23 circumstances 3.67–3.68
representation of prosecution 7.24 court listing of legal argument 3.74
listing 7.16 court’s power to amend indictment
preparation 7.1–7.4 3.76
authorities 7.14–7.15 defendant arraigned on new
considering Court bundle 7.5– indictment 3.72
7.10 time scale 3.72–3.73
new grounds of appeal 7.13 legal aid 3.79
skeleton arguments 7.11–7.12 limitations on court 3.77
presence of appellant/applicant procedure for making 3.69–3.71
hearings with leave 7.17 procedure once order made
renewed applications for leave 3.72–3.79
7.19–7.20 taking effect of sentence following
public immunity applications 7.30 3.78
public right to attend 7.25–7.26 venire do novo 3.82–3.83, 14.10
renewed applications for leave substituting a conviction 3.64–3.66
7.36–7.37 Courts Martial
reporting restrictions 7.27–7.29 appeals from 1.1
suggestions for advocacy 7.38–7.39 CPS Appeals Unit 6.57
televised 7.31 Crime scene
history of on private property 5.29
investigations by CCRC at direction of visiting and recording 5.29
9.30–9.32 Criminal Appeals Office 2, 6.62, 7.5, 7.7,
jurisdiction 1.12 7.14

352
 Index

Criminal Appeals Review Commission procedure following 9.27

1.10 test 9.7–9.8
Criminal Bills Assessment Manual role 9.3
(CBAM) 8.3 Criminal Justice Act 2003
disbursements 8.39 prosecution appeals against rulings
Criminal Cases Review Commission under s.58 13.3–13.6
(CCRC) 3.1, 3.42, 4.17, 5.3, 5.33, Criminal Justice Act 2003 – contd
7.23, 9.1–9.2 prosecution appeals against rulings
application for referral 9.10–9.25 under s.58 – contd
definition of ‘new argument’ 9.12 acquittal agreement 13.7–13.8
‘exceptional circumstances’ 9.14– valid 13.5
9.15 appeal to Supreme Court 13.40
making application 9.16–9.18 notice of intention to appeal 13.5
assistance 9.17 procedure 13.9–13.12
guidance 9.16 Attorney-General’s References
time limits 9.13 see Attorney-General’s
when to apply 9.11–9.13 References
who may apply 9.10 hearing 13.16–13.19
applications 5.32, 8.40 respondent’s notice 13.13–13.15
previous 5.13 responding to appellant’s case
special considerations 8.41–8.45 13.36–13.39
cases when appeal may be brought
referral by Court of Appeal 9.1–9.33 13.5–13.6
transcripts 8.40 Criminal law 2.12
criticisms 9.33 Criminal legal aid contracts 6.44
disclosure by 9.28 Criminal liability 2.15
establishment of 9.3 Criminal offences
investigations by 5.31–5.33 creation of 2.15
appointment of investigating officer Criminal Practice Direction 1.14
9.28 provisions on skeleton arguments
decision-making process 9.21–9.22 7.11
direction of Court of Appeal Criminal procedure 2.12
9.30–9.32 Criminal Procedure (Insanity) Act 1964
final decision 9.24 appeals against order made under s.5
likely timeframe for decision 9.25 of 14.16–14.19
overview of investigatory powers Criminal Procedure Rules (CPR) 1.14
9.28–9.29 Criminal Procedures and Investigations
provisional statement of reasons Act 1996
9.23 appeals under s.35 12.12–12.17
requesting 9.19–9.20 procedure 12.16
observations 9.33 reporting restrictions 12.17
powers scope 12.14–12.15
deployment 5.31 terrorism cases 12.13
investigations 9.28–9.29 Criticism
referral to Court of Appeal 9.4–9.6 previous lawyers 6.30
referral to Court of Appeal 8.52 cautious approach 3.57
application 9.10–9.25 Crown Court
challenging refusal 9.26 appeals from 1.1, 4.6
discretion 9.9 Crown Court Bench Book 3.37
powers 9.4–9.6 Crown Court representation order

353
Index

advice and assistance under 8.2 Directions

work under investigations by CCRC 9.31–9.32
advice covered 8.8–8.10 Directives 2.12, 2.14
funding rules 8.7 Director of Public Prosecutions (DPP)
single judge 10.5
effect of refusal by 8.11 Disability
post-refusal advice 8.12 appellant/applicant 7.17
Crown Prosecution Service (CPS) 5.13, Disbursements
5.19, 6.38 claiming for work done in Court of
Appeal 8.16
D funding extension 8.22, 8.39
Data Protection Act 2018 LAA recouping 8.26
Subject Access Requests (SARs) payment before case concluding 8.22
5.21–5.25 receipts or vouchers 8.13
Death of party Disclosure 5.18, 5.27
Supreme Court 10.22 common law duty for 5.17
Decision-making Criminal Cases Review Commission
CCRC investigation 9.21–9.25 (CCRC) 9.28
Declaration of incompatibility failure of 3.8
with ECHR 10.17 non-voluntary 5.20
Defective summing up serious failures by prosecution in duty
getting law wrong 3.36 of 9.31
judge commenting on evidence statutory duty of 5.17
3.32–3.33 third party material 6.46–6.48
leaving alternative verdicts to jury 3.36 Discretion
significance of ‘specimen directions’ following previous decisions 2.6
3.37–3.38 Dismissal 3.61, 7.40–7.44
summing up on difference basis to that Disparity in sentence 4.35
advanced at trial 3.34 Disposable capital
Defence investigations 5.1–5.5 financial eligibility 8.30
conduct of 5.11 Disposable income
ethics of 5.7–5.9 financial eligibility 8.29
funding 5.10 Documents
material already in hands of defence, application to ECtHR 11.11
establishing 5.12–5.16 defence investigations 5.13
planning 5.11 inclusion in court bundle 7.6
seeking additional material from significance to Supreme Court 10.16
prosecution 5.17–5.20 Double jeopardy
seeking new material 5.21–5.30 discount 13.32–13.35
techniques of 5.10–5.29 Doubt
who may carry out 5.6 as to guilt 3.5–3.8
Defence lawyers Driving offences 10.5
errors of 3.52–3.58 Due diligence
police station attendance notes 5.13 contacting trial lawyers (McCook) 6.13
Defendant
assistance to 6.31 E
right to seek second opinion 6.7 Easter sittings 5
Delay eForm
leave to appeal 6.11 CRM5 8.39
Deportation 4.8 Electronic files 5.14

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Enhancement power of 11.4

hourly rates for solicitors 8.15 reference to 11.3
Error renewing application for leave to
defence lawyers 3.52–3.58 appeal when taking case to 6.68
giving rise to doubt as to guilt 3.5–3.8 role of 11.1
Ethics scope 1
defence investigations 5.7–5.9 European Union
European Convention on Human Rights Directives 2.12, 2.14
(ECHR) 2.1 growing impact of 2.2
declaration of incompatibility with 10.17 law 2.1, 2.12–2.15
interpreting legislation to give effect Evidence see also Fresh evidence
to 2.7 appeals against conviction 6.21
European Court of Human Rights children 7.26
(ECtHR) 2.11, 7.42 hearings 7.33
applications to 7.45, 11.1–11.32 minors 7.26
acknowledgement of 11.15 non-accordance with 1.5
admissibility 11.19 obtained by non-lawyers 5.6
allocation to judge or judges 11.17 obtaining 5.2–5.3, 5.7
communication 11 vulnerable adults 7.26
composition of Chamber 10 ‘Exceptional circumstances’
consequences of successful outcome CCRC referral to Court of Appeal
compensation 11.31 9.14–9.15
costs 11.32 Expedited hearing 6.41
judgment 11.30 Expenses
criteria for 11.5 unnecessary or improper 7.50–7.54
drafting 11.10–11.16 Expert evidence 8.44
exhaustion of domestic remedies Expert opinion 8.40
11.6–11.7 Expert reports 5.13
final determination 14 Extradition 10.5
form for 11.12
‘alleged violations’ section of F
11.14 Failure of disclosure 3.8
‘friendly settlement’ 16–27 Fair trial
hearings before determining case 13 denial of regarded as unsafe conviction
inadmissibility 11.18 3.17
information required for 11.10 right to 3.17
legal aid 19 Fees
progress of 11.17–11.24 advocates 8.40
delay 11.16 claiming for work done in Court of
referral to Grand Chamber 15 Appeal 8.13–8.19
representation 18 Filming
right of reply 12 crime scene 5.29
standing 11.9 Final determination
statement of facts for 11.13 applications to ECtHR 14
supply of documents for 11.11 Final Statement of Reasons
time limits for lodging 11.8 CCRC investigation 9.24
decisions of 2.1 Financial reporting orders 4.14
judgments of 2.7–2.11 Form A 14.5
taking account of 2.8–2.9 Form B 6.38
language of 11.14 Form CRM1/CRM2

355
Index

completing 8.35 justification 8.38

further advice 8.48 sufficient benefits test (merits)
Form EX107 8.40 8.32–8.34
Form NG 6.19, 6.33, 6.35, 6.44, 9.27, types provided 8.20
14.5 applications
Form RN 6.57 appeals against refusals 8.40
Form SJ 6.60, 6.63, 6.67 Funding under SCC – contd
Form W 6.31, 6.47 applications – contd
Fraud trials completing CRM1/CRM2 8.35
appeals against rulings made at further advice 8.48
preparatory hearing in complex or postal 8.37
lengthy trials 12.4–12.11 specific 8.40
circumstances in which ruling may CCRC applications, special
be appealed 12.6–12.9 considerations 8.41–8.45
procedure 12.10 extension applications 8.33, 8.39
reporting restrictions 12.11 filtering requests 8.36
Freedom of Information Act 2000 financial eligibility
requests for material under 5.26–5.27 children 8.31
Fresh evidence deemed eligibility 8.27
confiscation orders 4.46 disposal capital 8.30
giving rise to doubt as to guilt disposal income 8.29
3.9–3.12 Means Regulations 8.26
leave to appeal, grounds 6.31 partner 8.28
appeals against conviction 6.21 sufficient benefits test (merits)
received after conviction 3.47–3.51 8.32–8.34
‘Friendly settlement’ outward travel 8.37
applications to ECtHR 16–27 using the SCC
Funding advantages 8.21
alternative sources of 8.49–8.50 disadvantages 8.22
Advocate (formerly Bar Pro Bono
Unit) 8.56 G
Centre for Criminal Appeals 8.55 Gogana statements 6.31
innocence projects 8.51–8.54 Good faith
applications for 6.44–6.45 decisions made by trial lawyers in 3.55
Court of Appeal representation Grand Chamber
order see Court of Appeal ECtHR, referral to 15
representation order Grounds
Crown Court representation order in relation to jury 3.39–3.45
see Crown Court representation Grounds of appeal
order leave to appeal
Standard Criminal Contract see appeal against sentence 6.22
Funding under SCC assistance provided to police
types 8.1–8.4 6.23
Funding under SCC appeals against conviction
advice and assistance (evidence) 6.21
authorised providers 8.23 change in law
bars 8.24–8.25 application for extension of time
claiming for work done under 6.33–6.34
scheme 8.46–8.47 other documents lodged in
further advice 8.48 support of application 6.35

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 Index

citation of authorities 6.24–6.27 listing 7.16

direct lodgement 6.50–6.52 preparation 7.1–7.4
form and content of grounds authorities 7.14–7.15
6.18–6.20 considering Court bundle 7.5–
fresh and amended grounds 7.10
procedure 6.14 new grounds of appeal 7.13
Grounds of appeal – contd skeleton arguments 7.11–7.12
leave to appeal – contd Hearings – contd
fresh evidence 6.31 preparation – contd
appeals against conviction 6.21 presence of appellant/applicant
new arguments 6.28 hearings with leave 7.17
criticism of previous lawyers renewed applications for leave
6.30 7.19–7.20
failure to object to things said in public immunity applications
summing up 6.29 7.30
perfecting grounds 6.53–6.55 public right to attend 7.25–7.26
purpose of grounds 6.18 renewed applications for leave
who may draft grounds 6.17 7.36–7.37
new, leave to advance 7.13 reporting restrictions 7.27–7.29
sentence, against 4.4, 4.19–4.20, 6.22 suggestions for advocacy 7.38–7.39
assistance provided to police 6.23 televised hearings 7.31
confiscation orders 4.44 evidence 7.33
court to consider whether total expedited 6.41
sentence is wrong 4.25 interventionist approach 7.32
failure to follow guidelines leave to appeal 6.3, 6.76
4.26–4.31 expedited hearing, request for 6.41
manifestly excessive 4.21–4.24 oral leaving hearing, request for
Guardians 6.49
appeals by 4.16 procedure 7.32–7.35
Guidance notes 1.14 renewal of application 6.64,
Guide to Commencing Proceedings 7.36–7.37
in the Court of Appeal (Criminal listing 7.16
Division) 1.14 preparing for 8, 7.1–7.57
Guilt presence of appellant/applicant
doubt as to 3.5–3.8 7.17–7.18
evidence of 3.15 private 7.25–7.26
Guilty plea procedure 7.32–7.37
appeal following 3.29 prosecution appeals against rulings
under s.58 CJA 13.16–13.19
H Attorney-General’s References
Hearings 13.26–13.27
before determining case for application prosecution representation at 7.24
to ECtHR 13 public right to attend 7.25–7.26
Court of Appeal renewed applications for leave 7.19–
appeals with leave 7.32–7.35 7.24, 7.36–7.39
appellant reporting restrictions 7.27–7.29
absconded 7.21 Supreme Court 10.13, 10.18
death of 7.22–7.23 televised 7.31
representation of prosecution witnesses 7.34
7.24 Hearsay evidence 6.31

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Index

High court judges 1.16 Defence investigations; Journalistic

Hilary sittings 5 investigations
Hospital direction 4.8 Investigatory bodies
Hospital orders 4.3, 4.8, 4.34, 14.16 cooperating with 5.31–5.36
Hourly rates
solicitors, enhancement 8.15 J
Human trafficking 2.14 Job applications
disclosure of spent convictions in 10.5
I Journalistic investigations 5.34–5.35
Improper expenses 7.50–7.54 caution required over 5.35
Inadmissibility risks and benefits of 5.36
applications to ECtHR 11.18 Judges 1.15–1.20
Independent Costs Assessor (ICA) 8.39 comments by 3.32–3.33
Index conduct 3.33
appeal issues 5.14 Crown Court 1.16
Indictment form of address 1.17
appeal against sentence see Appeals High Court judges 1.16
court’s power to amend for re-trial 3.76 permanent judges 1.16
Information single judge 0
application to ECtHR 11.10 decision of 6.59–6.62
Information Commissioner 5.26 work under Crown Court/Court
Innocence projects 8.51–8.54 of Appeal representation
Insanity orders
appeals against verdict of not guilty by effect of refusal 8.11
reason of 14.12–14.15 post-refusal advice 8.12
appellant/applicant 7.17 trying certain counts alone 12.26–
‘Interests of justice’ considerations 4.29 28
Interim hospital orders 4.8, 14.19 Judge’s clerk 8
Interlocutory rulings Judgment 7.35
appeals against 12.1–12.3, 13.5 applications to ECtHR 11.30
exceptions 12.2 Judicial Committee of the House of
International conventions 2.14 Lords 2.3
International law 2.1, 12–15 Judicial Committee of the Privy Council
composition of 2.13 2.3
growing impact of 2.2 Juries
Interventionist approach allegations of misconduct 3.40–3.43
hearings 7.32 bias 3.44–3.45
Interviews deliberations, irregularity in 9.31
conduct of 5.30 discharge of 13.5
demeanour of investigator 5.30 dispensing with where tampering has
location of 5.30 taken place 12.20–12.25
note-taking 5.30 failure to properly direct 3.36–3.37
pauses in 5.30 grounds in relation to 3.39–3.45
potential witnesses 5.30 leaving alternative verdicts to 3.35
preparation for 5.30 role of
use of open-ended questions 5.30 selection giving rise to appeal 3.39
Investigating officer tampering see Jury tampering
appointment by CCRC 9.28 Jurisdiction 1.12
Investigations see Criminal Cases Jury impact test
Review Commission (CCRC); new evidence 3.9–3.12

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 Index

Jury tampering 6.33–6.34

appeals where tampering taken place other documents lodged in
12.20–12.25 support of application 6.35
risk of 1.18–1.19 citation of authorities 6.24–6.27
appeals 12.18–12.19 direct lodgement 6.50–6.52
procedure 12.19 form and content 6.18–6.20
termination of trial 12.21 fresh and amended, procedure 6.14
test for 12.20, 12.22 fresh evidence 6.31
appeals against conviction 6.21
L Leave to appeal – contd
Language grounds of appeal – contd
ECtHR 11.14 new arguments 6.28
Leave to appeal 1.4, 6.1–6.4 criticism of previous lawyers 6.30
abandoning application 6.70–6.71 failure to object to things said in
hearing 6.76 summing up 6.29
judgment 6.77 perfecting 6.53–6.55
making application for purpose of 6.18
reinstatement 6.74 who may draft 6.17
miscellaneous appeals 6.78 hearings 6.3, 6.76
nullity 6.72 expedited hearing, request for 6.41
bad legal advice 6.73 oral leaving hearing, request for
skeleton arguments 6.75 6.49
advice on appeal procedure 7.32–7.35
defendant’s right to seek second renewal of application 6.64, 7.36–
opinion 6.7 7.39
due diligence (McCook) 6.13 oral leaving hearing, request for 6.49
fresh and amended grounds procedural rules 6.4
procedure 6.14 renewal of application 1.19, 6.63–6.65,
obtaining transcripts for purpose of 7.19–7.24
6.12 hearings 6.64, 7.36–7.39
time limits, extensions and need for renewal of other applications 6.69
expedition 6.8–6.11 risk of loss of time and costs
trial lawyers 6.66–6.67
contacting (McCook) 6.13 taking case to ECtHR 6.68
duty 6.5–6.6 responses from trial lawyers and
bail applications 6.36–6.40 respondent 6.56–6.58
consideration for 6.10 successful, applications for
decision of single judge 6.59–6.62 representation order following
delay 6.11 7.56
disclosure of third party material Supreme Court 10.9–10.13
6.46–6.48 applications to 7.40–7.44
expedited hearing, request for 6.41 consideration of 10.13
funding applications 6.44–6.45 funding for 10.11
grounds of appeal lodging of additional papers 10.12
appeal against sentence 6.22 test for 10.4
assistance provided to police 6.23 time limit 10.10
appeals against conviction timetable following grant of 10.17
(evidence) 6.21 types of cases 10.4–10.8
change in law terminology 6.4
application for extension of time time extension for 6.9

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Index

time limit for 6.8 accused made act or omission

transcripts, requests for 6.42–6.43 charged 14.6–14.11
trial judge’s certificate, applying for funding 14.4
6.15–6.16 insanity
Legal aid see also Funding order made under s.5 of Criminal
applications to ECtHR 19 Procedure (Insanity) Act
re-trial 3.79 1964 14.16–14.19
Legal Aid Agency (LAA) 8.20, 8.35 verdict of not guilty by reason of
funding extension 8.39 14.12–14.15
further advice justification 8.38 procedures 14.1
Legal Aid Agency (LAA) – contd Mental disorders – contd
Means Regulations enforcement 8.26 appeals in relation to defendants
ongoing checks 8.22 suffering from – contd
sufficient benefits test 8.34 who may appeal 14.3
Legal interpretation 8.43 Michaelmas sittings 5
Lengthy fraud trials Minors
appeals against rulings made at evidence from 7.26
preparatory hearing in 12.4–12.11 Miscarriages of justice 1.6, 5.1
circumstances in which ruling may be journalistic investigations into 5.34
appealed 12.6–12.9 role of Criminal Cases Review
procedure 12.10 Commission (CCRC) in 9.3
reporting restrictions 12.11 Misconduct
Life sentence 4.3, 4.15 allegations of jury 3.40–3.43
Limitation direction 4.8 Misjoinder 3.22
Listing Multiple counts 12.26
hearings 7.16
Litigation Graduated Fee Scheme N
(LGFS) 8.7 ‘New argument’ 6.28–6.30
Location definition for application to CCRC for
interviews 5.30 referral 9.12
Lord Chancellor 1.15 New evidence see Fresh evidence
Lord Chief Justice 1.14, 2.10 New indictment
appointment 1.15 arraignment 3.72
Lord/Lady Justices of Appeal 1.16 time scale 3.72–3.73
Loss of time order 6.66–6.67 New material
Lurking doubt 3.23–3.24 attempts to obtain 5.19
conducting interviews with potential
M witnesses 5.30
Magistrates’ Court entitlement to 5.23
appeal against sentence see Appeals information required for 5.24
Manifestly excessive purposes of 5.22
sentence 4.21–4.24 records collection generally 5.28
Measurements requests under Freedom of
crime scene 5.29 Information Act 2000 5.26–5.27
Medical evidence 5.5 Subject Access Requests (SARs)
Mental disorders 5.19
appeals in relation to defendants Data Protection Act 2018 5.21–5.25
suffering from 14.1–14.2 visiting and recording crime scene and
appeal process 14.5 other significant locations 5.29
findings of unfitness to plead/ News media reports 5.13

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‘No case to answer’ 13.3 Point of law of public importance

Northern Ireland 10.9
right to legal aid in criminal cases Police
10.5 assistance provided to, ground of
Note-taking appeal 6.23
interviews 5.30 files 5.18
Nullity 3.83 officers 5.3
abandoning application for leave to investigations on behalf of
appeal 6.72 CCRC 9.28
bad legal advice 6.73 statements 5.13
Post-sentence developments 4.33–4.34
O Postal applications
Offences funding for advice and assistance 8.37
appeals against sentence under s.10 of Pre-trial detention records 5.13
CAA 1968 4.8 Preliminary view 7.2
Offender Assessment System (OASys) Preparatory hearings 12.28
reports 5.13 appeals against rulings made in
Older cases 5.15 complex or lengthy fraud cases
Open-ended questions 12.4–12.11
interviews 5.30 Prerogative of mercy 9.3
Opinion Previous decisions
expert 8.40 departure from 2.2
Oral hearings 0 discretion in following 2.6
Oral leave hearing effects of not following 2.6
request for 6.49 exceptions to following 2.4–2.5
Orders per incuriam 2.5–2.6
types appealed see Appeals Prison/prisoner records 5.13
Outward travel Private
funding application 8.37 hearings in 7.25–7.26
Private property
P crime scene 5.29
Parents Privilege
appeals by 4.16 waiver 3.53, 6.30
Parole Board 10.5 Pro bono assistance 8.1–8.56
Parties Probation files 5.13
communication with 2 Procedural irregularities 3.19–3.22
Partner approach of courts towards 3.21
financial eligibility 8.28 misjoinder 3.22
Pauses Procedural rules and guidance 1.14
interviews 5.30 Procedural unfairness 4.32
Per incuriam 2.5–2.6 Prosecuting counsel 6.57
Perfecting Prosecution 5.3
grounds for appeal 6.53–6.55 appeals against rulings under
Personal information 5.21–5.22 s.58 CJA 13.3–13.6
Personal representative acquittal agreement 13.7–13.8
appellant/applicant 7.22 valid 13.5
Photography appeal to Supreme Court 13.40
crime scene 5.29 notice of intention to appeal 13.5
Point of law procedure 13.9–13.12
certifying 7.40–7.44 Attorney-General’s References

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Index

see Attorney-General’s defendant arraigned on new indictment

References 3.72
hearing 13.16–13.19 time scale 3.72–3.73
respondent’s notice 13.13–13.15 legal aid 3.79
responding to appellant’s case limitations on court 3.77
13.36–13.39 procedure for making order for
when appeal may be brought 3.69–3.71
13.5–13.6 procedure once order made 3.72–3.79
appeals, responding to 13.1–13.40 taking effect of sentence following
obligations after conviction 10.5 3.78
representation at hearing 7.24 venire do novo 3.82–3.83, 14.10
Prosecution – contd Receivership orders
rights of appeal 13.2 appeals against 4.43
confiscation cases 4.52–4.53 Recording
seeking additional material from crime scene 5.29
5.17–5.20 Recordings
serious failures in duty of disclosure transcribed statements 5.13
by 9.31 Records collection 5.27
Prosecution opening facts Registrar of Criminal Appeals 1–23
transcripts 6.42 Registrar of the Supreme Court 10.2
Provisional statement of reasons Reporting restrictions 7.27–7.29, 12.11,
CCRC investigation 9.23 12.17
Public statutory provisions on 7.27–7.28
right to attend hearings 7.25–7.26 Representation
Public bodies applications to ECtHR 18
definition by CCRC 9.28 Representation orders
Public interest applications for 6.44–6.45, 7.56
disclosure 5.27 Attorney General’s References 13.25
Public Interest Immunity 7.25 Court of Appeal see Court of Appeal
hearings regarding 7.30 representation order
Publicly funded appeals advice see Crown Court see Crown Court
Funding representation order
Puisne judges 1.16 Representatives
wasted costs orders against 7.51–7.54
Q Respondent
Qualifying curfew responses from 6.56–6.58
failure to credit time spent on 4.39 Respondent’s notice
Quashing conviction 3.62 prosecution appeals against rulings
Question of law 1.5 under s.59 CJA 13.13–13.15
Questioning Restraining orders 4.13
witnesses 5.9 Restraint orders
appeals against 4.43
R Right of reply
Re-sentencing 3.62, 3.80–3.81 applications to ECtHR 12
Re-trial order 3.62 Right to fair trial 3.17
bail 3.75 Royal Court of Justice, Strand 4
circumstances 3.67–3.68 Rulings
court listing of legal argument 3.74 appeals against 13.2
court’s power to amend indictment
3.76

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S funding see Funding under SCC

Sample counts 12.26–12.27 Standing
Second opinion ECtHR 11.9
defendant’s right to seek 6.7 Stare decisis doctrine 2.3–2.6
Sentence Statement of fact
appeals against see Appeals application to ECtHR 11.13
Sentencing Statements
following re-trial 3.78 defence witness 5.13
Sentencing guidelines police 5.13
application in flexible manner 4.28 witness 5.13, 5.30
departure from 13.28–13.29 Statutes
failure to follow 4.26–4.31 requirement to apply 2.2
Sentencing guidelines – contd Statutory Instruments 2.1
‘interests of justice’ considerations 4.29 interpreting in accordance with
interpretation, Court of Appeal’s role ECHR 2.7
4.30 Subject Access Requests (SARs) 5.19
Sentencing remarks Data Protection Act 2018 5.21–5.25
transcripts 6.42 Substitution
Sessions Courts conviction 3.62, 3.64–3.66
Setting aside Success
reasons for 1.5 chance of 6.6
Sexual behaviour Successful applicant/appellant
evidence of complainant’s previous 6.31 costs 7.48
Sexual offences prevention orders Successful outcome
4.12 applications to ECtHR 11.30–11.32
Single judges 0 Sufficient benefits test (merits)
decision of 6.59–6.62 advice and assistance under
work under Crown Court/Court of SCC 8.32–8.34
Appeal representation orders Summing up
effect of refusal 8.11 appeal against ruling under
post-refusal advice 8.12 s.58 CJA 13.5
Skeleton arguments 6.75, 7.11–7.12 defective 3.32–3.38
Slip rule different basis to that advanced at trial
confiscation orders and 4.45 3.34
unlawful sentences and 4.36–4.38 failure to object to things said in 6.29
use 6.1 transcripts 6.42
Solicitors Superior Courts
claims for work done in Court of decisions of 2.1
Appeal 8.14 Supervision orders 14.16, 14.19
enhanced hourly rates 8.15 Supreme Court 2.3, 7.42
working files 5.13 appeals to 10.1–10.22, 13.40
Solicitor’s Code of Conduct 5.8 funding 10.11
Specimen directions attendance of appellant 10.20
significance of 3.37–3.38 bail 10.19
Spent convictions costs 10.21
disclosure of in job applications 10.5 death of party 10.22
Spouse drafting case for 10.15
financial eligibility 8.28 establishment of 10.1
Standard Crime Contract (SCC) form and content of documents 10.16
advice and assistance under 8.3 hearings 10.18

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types 10.13 Time served

justification for consideration by 10.8 risk of loss of 6.66–6.67
leave to appeal 10.9–10.13 Transcribed statements
applications 7.40–7.44 recordings 5.13
consideration of 10.13 Transcripts 8.40
funding for 10.11 requests for 6.42–6.43
lodging of additional papers 10.12 Travel time 8.40
test for 10.4 Trial
time limit 10.10 exhibits/material 5.13
timetable following grant of 10.17 termination of 12.21
types of cases 10.4–10.8 transcript see Trial transcript
limitations on 10.6 Trial judge’s certificate 6.15–6.16
Supreme Court – contd Trial lawyers
lodging of additional papers 10.12 cautious approach to criticism of 3.57
point of law of public importance competence 3.56
10.9 contacting (McCook) 6.13
preparing case for 10.14–10.17 decisions made in good faith 3.55
procedure 10.2 duty to advise on appeal 6.5–6.6
reasons for appeals from Court of responses from 6.56–6.58
Appeal 10.7 Trial notes 3.54
role of 10.2 Trial rulings
scope of 10.5 challenging 3.30–3.31
terminology 10.3 Trial transcript 5.13, 5.16
Suspects 5.2 obtaining 6.12
Trinity sittings 5
T
Telephone advice U
funding 8.37 Undue leniency 13.29
Televised hearings 7.31 ‘Unfair’
‘Terminating’ ruling ‘unsafe’ compared 3.13–3.18
right to appeal 13.3 Unfair conviction
Terminology abuse of process may be 3.16
Supreme Court 10.3 Unfair trial 3.5
Terrorist offences 10.5 Unfairness
Third parties courts approaching issue of 3.27
costs against 7.55 Unfitness to plead
Third party material appeals against findings of 14.6–14.11
disclosure 6.46–6.48 court has no power to order retrial
Time estimate for case 7.10 14.10
Time extension Unfitness to stand trial
leave to appeal 6.9 defendant in custody 14.5
application for extension 6.33–6.34 Unlawful sentences
Time limits slip rule and 4.36–4.38
appeal against confiscation orders Unnecessary expenses 7.50–7.54
4.49–4.50 Unreasonableness 1.5
application to CCRC for referral to Unsafe convictions
Court of Appeal 9.13 concluding comments on ‘unsafe’ as
leave to appeal 6.8 flexible test 3.25–3.28
Supreme Court 10.10 error/new evidence giving rise to doubt
lodging application to ECtHR 11.8 as to guilt 3.5–3.8

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 Index

jury impact test 3.9–3.12 crime scene 5.29

lurking doubt 3.23–3.24 Vulnerable adults
meaning of ‘unsafe’ 3.2–3.3 evidence from 7.26
procedural irregularities 3.19–3.22
‘unfair’ trial 3.13–3.18 W
breaches of Art.6 ECHR 3.18 Waiver
wrongful conviction 3.4, 3.28 privilege 3.53, 6.30
Unsuccessful appellant/applicant Wasted costs orders 7.51–7.54
costs 7.49 Witness statements 6.31, 6.35
Unused material 5.13 Witnesses
Urgency assistance to 6.31
granting of bail 6.39 hearings 7.34
interviewing potential 5.30
V power to order attendance of 6.31
Venire do novo order 3.82–3.83, 14.10 questioning 5.9
Verdict statements 5.13, 5.30
proper and reasonable 3.6 Writ of venire de novo 14.10
Vice President of the Criminal Division Written directions 6.35
1.14, 2.10 Wrongful conviction
appointment 1.15 unsafe conviction may be considered
Visits 3.4

365
DOUGHTY STREET
CHAMBERS

Criminal Appeals
Since its foundation in 1990, Doughty Street Chambers and its barristers have
taken as their guiding principle the use of the law for the advancement of
the protection of human rights and civil liberties. It is now amongst the very
largest and most wide-ranging civil liberties practices in the world, providing
specialist advice, advocacy and training in the UK and around the world. Their
practice areas include crime and criminal appeals, international crime (such
as war crimes), fraud and financial services regulation, extradition, prisoners’
rights, actions against the police, immigration, media law, professional
regulation, children’s rights, social welfare and housing, clinical negligence
and more.
The Criminal Team is the largest practice group at Doughty Street Chambers.
Its members have long-standing experience of defending in many of the most
serious and complex criminal trials, appeals and extradition cases to come
before the UK Supreme Court, Privy Council, Court of Appeal and High
Court, as well as their daily work in the Crown and Magistrates’ Courts.
Abroad they appear in the courts of Northern Ireland, Hong Kong, Singapore,
the Caribbean, South America, the International Criminal Court and the
European Court of Human Rights.
The Appeals Unit at Doughty Street Chambers spans all this criminal work,
and is widely regarded as home to several of the best appellate lawyers in the
UK. A wrongful conviction or sentence at any level can have a devastating
impact on an appellant and his family, and the appeal specialists at Doughty
Street Chambers advise across the full range of cases, from the relatively
minor, challenging decisions of Magistrates, right up to drafting submissions
to the Criminal Cases Review Commission, appeals in cases of homicide
and terrorism, and appearing at all levels up to the Supreme Court and the
European Court of Human Rights. Their work includes appeals on sentencing
(including whole life tariffs and indeterminate sentences), jury irregularities,
psychiatric issues (e.g. automatism, loss of control and provocation), sexual
offences prevention orders, deficient trial representation, fraud and confiscation
appeals, appeals by way of Case Stated and Judicial Review.
Doughty Street Chambers also offers its solicitor clients use of a Criminal
Appeals Advice Line, which provides free preliminary advice and guidance
for those considering potential appeals and CCRC matters. More information
on this, and the criminal appeals and other barristers at Doughty Street
Chambers, can be found at www.doughtystreet.co.uk or by e-mailing crime@
doughtystreet.co.uk.