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Question 1

1. Notice of appeal and notice of application for leave to appeal

Answer 1

• Notice of appeal (if trial judge has granted certificate) must be lodged within 28 days of conviction or sentence, depending on which is being appealed
• Appeal documents should not be uploaded to the digital case system
• When a case is on the Digital Case System in the Crown Court, the Crown Court officer must ensure, as soon as practicable, that all digitally stored material is available to the Registrar and provide the Registrar with any document, object or information for which the Registrar asks, within such period as the Registrar may require.

Question 2

2. Content of notice to appeal

Answer 2

• The notice
• Should include or attach an electronic link to each such document that has been made available to the Registrar under
• Must include or attach an electronic copy of any authority identified by the grounds of appeal and if two or more such authorities are identified, electronic copies of each must be provided together in a single electronic document.

Question 3

3. Immediate actions of legal representatives on prospects of appeal

Answer 3

• The Blue Guide states that, immediately following the conclusion of the case, the legal representatives should see the defendant and advocates should orally express their final view as to the prospects of an appeal against conviction and/or sentence
• If there are reasonable grounds of appeal, they should be drafted, signed and sent to instructing solicitors as soon as possible.
• The solicitors should then immediately send a copy to the accused

Question 4

4. Grounds of appeal + advice

Answer 4

• The CofA requires the grounds of appeal and relevant facts to be concise and set out in one document
• Counsel should not submit separate grounds and advice

Question 5

5. variation of grounds of appeal

Answer 5

• Grounds first lodged may be varied or amplified within such time as the CofA will allow

Question 6

6. Perfection of grounds of appeal

Answer 6

• When grounds of appeal are lodged, it is necessary to identify any transcripts which are needed to perfect the grounds of appeal.
• If the Registrar agrees, the transcripts are secured and sent to counsel.
• In conviction or confiscation appeals, the Registrar will almost certainly invite the advocate to perfect the grounds of appeal
• Generally, 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 in a sentence case, the Registrar will consider the request and will only invite perfection if it is considered necessary for the assistance of the single judge or full Court
• If perfection is appropriate, the advocate will be sent a link to 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 full Court without further notice
• If, having read the transcript, the advocate forms the view that the appeal is no longer arguable, the solicitors should be informed of that in an appropriate advice
• The Registrar should also be informed but not sent a copy of the advice.

Question 7

7. Duty of counsel in relation to grounds of appeal

Answer 7

• Advocates should not settle or sign grounds unless they consider that they are properly arguable

Question 8

8. Procedure for obtaining leave to appeal

Answer 8

• Ordinarily, once the grounds have been perfected, the case is referred to a single judge for the consideration of whether leave to appeal should be granted.

Question 9

9. Extension of time for leave to appeal

Answer 9

• Although the time period for lodging the notice of application for leave to appeal is 28 days, that period may be extended either before or after its expiry

Question 10

10. Hearing of appeal - practice in usual cases

Answer 10

• Registrar must give as much notice as reasonably practicable of the date on which the court will hear any appeal or application
• Notice must be served on
• All parties
• Any parties custodian
• Any other party the court requires to be notified
• In relation to the listing of appeals, the Court of Appeal takes precedence over all lower courts, including the Crown Court.
• 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.

Question 11

11. Representation Orders in CofA

Answer 11

• In most cases, a representation order will be granted only if the single judge grants leave.
• The representation order is usually limited to an advocate, but if necessary it will be extended to provide for the services of a solicitor.
• The Registrar will forward the necessary papers to counsel and will try to agree a date for the hearing with counsel’s clerk. It is usual for various dates to be offered to counsel’s clerk.

Question 12

12. Respondents presence at appeal against sentencing + representation

Answer 12

• it is increasingly common for the respondent to be present at an appeal against sentence
• Moreover, the respondent will frequently submit a ‘Respondent’s Notice’ setting out a reply to the applicant’s grounds of appeal.
• At an appeal against conviction, the respondent is invariably represented.

Question 13

13. Skeleton arguments in conviction/sentencing appeals

Answer 13

• Advocates must ensure that the Court and any other party has a single document containing all the points that are to be argued.
• On an appeal against conviction, a skeleton argument must be served if the appeal notice ‘does not sufficiently outline the grounds of the appeal, particularly where a complex or novel point of law has been raised’.
• On a sentencing appeal, a skeleton argument ‘may be helpful if a complex issue is raised’.
• Any skeleton argument should contain a numbered list of the points the advocate intends to argue and should be as succinct as possible

Question 14

14. Referring to a previous decision of the court

Answer 14

• If it is not necessary to refer to a previous decision of the Court, it is necessary not to refer to it

Question 15

15. Procedure for obtaining leave to appeal where there are multiple grounds

Answer 15

• If the single judge grants leave on a particular ground without deciding the issue of leave in respect of the other grounds, the appellant is free to argue the other grounds at the substantive hearing of the appeal.
• But if the single judge grants leave on one ground but refuses leave on others, the appellant must renew the application for leave in relation to those other grounds, having previously informed the respondents and the Registrar’s office of that intention, before the appellant is allowed to argue them at the substantive hearing

Question 16

16. Renewed application for leave to appeal

Answer 16

• A renewed application for leave to appeal is heard by the Court.
• The Court will be comprised of at least two judges and usually three.
• The applicant has no right to attend, so if in custody the applicant will not be present.
• Even though legal aid is not available for representation at such hearings, it is common for counsel to provide their services free of charge (and for applications to be fully argued).
• If counsel is to appear on behalf of an applicant at a renewed application for leave, whether on a privately paid or pro bono basis, the Court of Appeal Office should be informed of that in writing as soon as possible
• Where counsel does not appear, renewed applications for leave to appeal are often placed in a ‘non-counsel list’.
• Such hearings then simply involve the calling on of the case followed by one member of the Court giving judgment in the case.

Question 17

17. Direction concerning loss of time and frivolous/vexatious appeals

Answer 17

• The CofA can direct that all or part of the time an applicant has spent in custody since the commencement of appeal proceedings shall not count in relation to the sentence the applicant is required to serve
• the fact that counsel or solicitors have associated themselves with such a renewal will be relevant, but it will not necessarily avoid such an order if there was no justification for continuing the case.
• A single judge refusing permission is asked to identify cases without merit where the court should consider using this power (for time in custody to not count) should the application be renewed to the full court
• There is also a box for the applicant to indicate why such an order should not be made, whether or not an indication has been given by the single judge.
• where the single judge had indicated on Form SJ that the application was without merit, the would-be applicant must expect that the Court will order that the time served should not count

Question 18

18. Evidence in appeal against conviction

Answer 18

• In an appeal against conviction the CofA may admit evidence which is relevant to that appeal
• They can also call witnesses and they do not have to have been compellable in the previous proceedings
• This means they can call jurors and legal representatives
• Court will only admit evidence if it necessary in the interests of justice

Question 19

19. Evidence of respondent (prosecution) in appeal against sentence

Answer 19

• Evidence (including rebuttal of fresh appellant evidence) can be introduced by the respondent in the interests of justice
• However it cannot be evidence for the purpose of advancing a new basis for conviction, not previously argued and put before the jury

Question 20

20. Expert evidence in appeal against conviction

Answer 20

• Although there are some circumstances where it is justified - It is for the defence to call their expert evidence at trial and it is not the function of the Court of Appeal to permit expert evidence to be re-litigated on appeal.

Question 21

21. Statutory test for determination of appeal in CofA

Answer 21

• CofA
• Shall allow an appeal against conviction if they think that the conviction is unsafe
• Shall dismiss an appeal in any other case

Question 22

22. Effect of successful appeal against conviction

Answer 22

• If they allow the appeal the court shall quash the conviction
• Unless they quash and order retrial, then the impact should operate as a direction to the original court to enter a judgement and verdict of acquittal rather than a record of conviction
• Where they allow an appeal and it appears in the interests of justice to do so, they may order a retrial of the appellant
• Appellant cannot be retried for any offence other than
• Offence they were convicted of
• Offence which they could have been convicted of at the original trial OR
• an offence charged in an alternative count of the indictment in respect of which no verdict was given in consequence of his being convicted of the first-mentioned offence.

Question 23

23. Factors court will take into account when deciding to order retrial

Answer 23

• Factors court will take into account include
• Length of time which has passed
• Extent to which any fresh evidence undermines the strength of the case against the appellant
• Occasionally, a retrial will not be ordered because of considerable publicity surrounding the alleged offences which is adverse to D
• However an application for the above is very unlikely to succeed
• The Court of Appeal will allow such an application only if it is satisfied on the balance of probabilities that, as a result of the publicity, one or all of the verdicts returned by a jury would be unsafe.

Question 24

24. Partially successful appeal - substituting verdict

Answer 24

• Applies to two broad categories
• 1 - where the appellant was tried and convicted on a single count but the evidence was such that the jury could have convicted of the substituted offence
• For example, following a conviction for murder, fresh evidence as to diminished responsibility allowed the substitution of a conviction for manslaughter.
• 2 - where there are counts charged in the alternative and the jury have convicted on a count which is not supported by the evidence. The Court may substitute the alternative count provided the jury have not already entered a not guilty count in relation to that count
• The Court may then proceed to sentence for that offence but may not pass a more grave sentence than that originally passed.

Question 25

25. Reference of the A-G on a point of law following acquittal

Answer 25

• Section 36 provides for the reference of a point of law to the Court of Appeal by the A-G.
• The use of the power is confined to circumstances following the acquittal of an accused where the A-G requires the opinion of the Court of Appeal on a point of law.
• There is no provision for the referral of points of law that do not arise from proceedings resulting in an acquittal.
• The procedure should not be used simply for very heavy questions of law but should be used for short but important points requiring a quick ruling.

Question 26

26. Reference for review of sentence

Answer 26

• Applies to all indictable only offences and some other specified offences
• It is for the A-G to consider whether leave should be sought for a reference to the Court of Appeal on the basis that the sentence was unduly lenient and if appropriate to apply for leave.
• If leave is granted, the reference proceeds according to the facts before the sentencing judge, and the Court of Appeal will not alter the sentence on the grounds of new material that was not before the sentencing judge, but will decide whether the sentence was unduly lenient on the basis of what was before the sentencing judge
• However, if the Court concludes that the sentence was unduly lenient, it may receive fresh material, either favourable or adverse to the offender, in reaching its conclusions as to the correct new sentence

Question 27

27. Appeals by the prosecution against adverse rulings

Answer 27

• Two broad categories of appeals available to prosecution against rulings in CC trial on indictment
• Appeals against terminating rulings
• Appeals against evidentiary rulings which significantly weaken the prosecution case
• Such an appeal requires leave either from the trial judge or the Court of Appeal

Question 28

28. Consideration of appeal against adverse ruling - first steps

Answer 28

• Following the adjournment (if any) or immediately after the ruling, the prosecutor must inform the judge whether there is an intention to appeal.
• This notification may be made by email, but the formalities would still have to be met. Any such email would have to go to the parties and the court.
• If the prosecutor does intend to appeal, the prosecutor must either serve a notice of appeal on the court, the Registrar and the accused (which must take place either by the next day if the appeal is expedited or within five days if it is not) or apply orally (or by email, see PY) to the judge for leave to appeal.
• The prosecution, in advancing a terminating ruling appeal, are limited to matters and counts on the indictment that they had indicated at the time that they informed the Court that they were going to appeal
• The judge must hear representations from the defence before deciding whether to grant leave, but must make the decision on the same day as the oral application for leave is made unless it is in the interests of justice to take longer

Question 29

29. Consideration of appeal against adverse ruling - prosecutors undertaking

Answer 29

• When appealing against a terminating ruling, the prosecution must undertake to offer no evidence against the accused in the event that the appeal is either abandoned or refused
• A ruling that is to be subject to appeal ceases to have effect once notice has been given

Question 30

30. Reference by the criminal cases review commission

Answer 30

• The CCRC may at any time refer a conviction on indictment or any sentence imposed in relation to that conviction (unless it is a sentence fixed by law) to the Court of Appeal
• The CCRC may also refer any summary conviction or associated sentence to the Crown Court.

Question 31

31. What is needed for the CCRC to refer a case to CofA

Answer 31

• For the CCRC to refer a case, there must be a real possibility that the Court of Appeal or Crown Court will quash the original conviction or sentence.
• The reference will ordinarily only be made in respect of an argument or information not available in the court of first instance or on appeal (s. 13).
• However, in exceptional circumstances, the CCRC may refer a case without any such development in the proceedings (s. 14).

Question 32

32. Process once reference is made by CCRC

Answer 32

• When a reference is made, the Registrar must serve the reference on the appellant and must treat it as the notice of appeal unless a notice of appeal is given
• The reference or notice must then be served on the respondent.
• The respondent may then serve a respondent’s notice and must do so if it wishes to make representations or is directed to serve a respondent’s notice by the court or Registrar
• the CCRC may require any public body to produce any document or information
• Section 18A provides for the Crown Court, on an application by the CCRC, to order any person to give the CCRC access to a document or other material that is in the person’s possession or control if it thinks that the document or other material may assist the CCRC in the exercise of any of its functions.

Question 33

33. Appeal to Supreme Court from CofA

Answer 33

• Sections 33 and 34 of the Criminal Appeal Act 1968 allow either the prosecution or defence to appeal a decision of the Court of Appeal to the Supreme Court, but only if the Court of Appeal or the Supreme Court itself considers that the appeal involves a point of law of general public importance which should be considered by the Supreme Court.
• In addition, the Court of Appeal must certify that the appeal involves a question concerning a point of law of general public importance.

Question 34

34. Application to CofA for leave to appeal to Supreme Court

Answer 34

• An application to the Court of Appeal for leave to appeal to the Supreme Court must be made by the party seeking to appeal no more than 28 days after the decision, or the date on which the court gives the reasons for its decision, whichever is later. Time begins to run on the day of the decision and not the day following the decision.

Question 35

35. Representation orders in SC

Answer 35

• The Supreme Court has no power to grant representation orders and an application for appropriate representation before the Supreme Court should be made to the Court of Appeal.

Question 36

36. Where CofA is of the view that the prospective appeal raises no point of law of public importance,

Answer 36

• it may decide so on the papers
• A refusal by the Court of Appeal to certify a question cannot be appealed.

Question 37

37. Appealing to Supreme Court if refused leave to appeal to the CofA

Answer 37

• If someone is just an “applicant” — meaning they applied for permission to appeal but were refused — they never become an “appellant.”
• Since they never reach the status of “appellant,” the Court of Appeal said it cannot certify a question for the Supreme Court in those cases.
• If you try to appeal your conviction or sentence but are refused permission, you’re stuck — you can’t go to the Supreme Court by asking for a certified legal question. Your case stops there unless you:
• Renew your application for permission to appeal, and
• The Court grants permission but ultimately dismisses your appeal — only then would you count as an “appellant” and have a shot at going to the Supreme Court.