The Court of Appeal (Criminal Division) - Notes for Students

Numbers at the end of paragraphs refer to the Further material links at the end of this post.

The Court of Appeal (Criminal Division) is frequently in the news because of the various high profile cases that it deals with - e.g. Oliver Campbell, Andrew Malkinson, etc. The court is also often criticised as shown by this Justice Gap article on the Oliver Campbell case. Another criticised body is the Criminal Cases Review Commission (CCRC) - see, for example, Law and Lawyers 15 January 2025 (Chair of CCRC resigns). The CCRC is empowered to refer criminal cases to the Court of Appeal.

The system of appeals

(from either the Crown Court or Magistrates' Courts) is currently under examination by the Law Commission - Law Comm Criminal Appeals. The Commission has issued a Consultation Paper (pdf) and responses may be submitted up to 30 May 2025. The paper is a lengthy 725 pages but a summary is also available. (1)

Appeal routes

Appeals from Magistrates' Courts are generally to the Crown Court but sometimes there can be an appeal on a point of law to the High Court. The latter is referred to as "appeal by way of case stated."

Appeals from the Crown Court go to the Court of Appeal (Criminal Division). A further appeal to the Supreme Court may be possible but only on a point of law of general public importance. 

The following diagram is from the Law Commission's Summary. (2)

History

The history of appeals is set out in the Law Commission's Consultation Paper - Chapter 2. The Court of Appeal (Criminal Division) dates from 1 October 1966 and is the successor to the Court of Criminal Appeals (CCA) created by the Criminal Appeal Act 1907. The CCA was the legislative response to a number of miscarriage of justice cases - most notably Adolf Beck, Geoge Edalji, and Florence Maybrick (3)

Present day legislation

The powers of the Court of Appeal (Criminal Division) are set out in the Criminal Appeal Act 1968 (as amended - mainly by the Criminal Appeal Act 1995).

The legislation (1968 section 1) provides for a right of appeal against conviction on indictment (i.e. in the Crown Court) but this is subject to either the Court of Appeal giving leave or the trial judge certifying that the case is fit for appeal. The legislation (1968 section 9) also provides for appeals against sentence for which leave is not required.

The legislation states 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.

Hence, the key test for an appeal against conviction to succeed is that the court considers the conviction to be UNSAFE. (4)

Decisions on appeal

A hearing in the Court of Appeal is NOT a retrial. It is an review by the court into whether the conviction is unsafe. Generally, there is only one trial and the Court of Appeal is slow to allow the admission of evidence that could have been introduced for the first time at the trial in the Crown Court.

The London Criminal Barrister website notes - "Often, evidence will have become apparent after the trial has concluded before the Crown Court. The Court of Appeal will sometimes allow fresh evidence to be admitted as part of the appeals process. Their willingness to do so is limited and significant hurdles must be overcome before a defendant is permitted to breach the one trial principle. One of the most important is whether the evidence could reasonably have been called at the trial. 

The best explanation for a defendant wishing to rely on fresh evidence is that the material was not known about at the time of the trial and could not reasonably have been expected to be discovered. If this is not the case, then the evidence must be considered very carefully."

Legal error may also result in a conviction being considered unsafe but legal errors do not automatically make a conviction unsafe. Examples of legal error include wrongful exclusion of admissible evidence or wrongful inclusion of inadmissible evidence or legal errors in a trial judge's summing up to the jury.

In a criminal trial, the jury is the ultimate decision-maker on questions of FACT and decisions of the Court of Appeal show a respect for factual decisions that the trial jury must have reached when considering the verdict. 

When hearing appeals against SENTENCE, the court applies a "manifestly excessive" test. Hence, a sentence may be harsh but not necessarily manifestly excessive. (5)

The Criminal Cases Review Commission (CCRC) - website

The creation of the CCRC was a key recommendation of the Royal Commission on Criminal Justice which reported 32 years ago in 1993. The Commission was set up in the wake of the Birmingham Six case and certain other miscarriages of justice. The CCRC was created by the Criminal Appeal Act 1995 Act Part 2. 

By section 13, the CCRC is empowered to refer a case to the Court if there is a real possibility that the court will not uphold the conviction, verdict, finding or sentence. That test is predictive in nature requiring the CCRC to assess whether the court will find a conviction unsafe. That can be a difficult exercise even for highly experienced counsel. The test may have resulted in undue caution by the CCRC to make references and the Law Commission is consulting on possible changes.

The Commission favours a test focusing on the CCRC’s own view of the case rather than requiring it to predict the court’s response - Law Commission Makes wide-ranging proposals to reform law on criminal appeals

The Attorney-General

The Attorney-General is empowered to refer sentences to the Court of Appeal if the Attorney considers the sentence to be unduly lenient. This applies only to certain offences and there is a good argument for extending the power to cover cases such as causing death by careless driving.

The Attorney is also empowered to make references on points of law to the Court.  (7)

Annual Reviews

Annual reviews of the Court of Appeal are published - e.g. October 2023 - September 2024

Further material

1) Law Commission of England and Wales

Law Comm Criminal Appeals - consultation 2025

2) Crown Prosecution Service (CPS) - Legal Guidance - Court of Appeal  and
Appeals to the Administrative Court 

UK Government - Appeal a Magistrates' Court decision

3) Adolf Beck ..... George Edalji ..... Florence Maybrick

4) Criminal Appeal Act 1968 and Criminal Appeal Act 1995

5) Appealing to the Court of Appeal - London Criminal Barrister

6) Royal Commission on Criminal Justice 1993 Report - set up in the wake of the Birmingham Six case and certain other miscarriages of justice. Law and Lawyers blog November 2014 - The Birmingham Pub Bombings

Criminal Cases Review Commission (CCRC)

Andrew Malkinson case - see Law and Lawyers 15 January 2025

Law Commission Makes wide-ranging proposals to reform law on criminal appeals

7) CPS - Unduly lenient sentences

CPS - Attorney General references on a point of law