The only route for someone convicted in the Crown Court is to the Court of Appeal (Criminal Division).
If someone is convicted in the Crown Court by the jury, then they have the right to apply to appeal against their conviction to the Court of Appeal.
To launch a successful appeal, there must (generally) be an ‘error of law’ identified. This means that the defendant will have to identify something that went wrong. Common examples of this are a ‘misdirection’ by the Judge to the jury (where the Judge gave the jury the wrong instruction as to the law) or that evidence should not have been admitted (for example, hearsay evidence).
An appeal must be lodged within 28 days of the conviction (so a defendant is not allowed to wait until the sentence – if it is adjourned – to see what the sentence is).
Not everyone that wants to appeal can do so. Every application will be sent to a High Court Judge (called the ‘Single Judge’) who will consider the written application. This is done just by reading the papers and neither the person trying appeal or the Prosecution will appear in front of them.
Normally he or she will decide whether there is a reasonable prospect of an appeal succeeding. If there is, then they will grant permission and the case will go forward to a full hearing. If they think that there is no reasonable prospect of an appeal succeeding then they will refuse permission.
A full appeal hearing will be heard by three Judges, normally one Lord Justice of Appeal (who sits full time in the Court of Appeal) and two High Court Judges.
The appeal will not be a rehearing of the case and it is very rare for evidence to be heard. The Court will hear argument and decide whether the conviction is ‘unsafe’. This will normally be a two stage test – firstly, was there an error of law made and, secondly, if so then would it have made a difference to the trial?
The Court are supposed to ensure that they are not judging the case again, only deciding whether the verdict is safe. The case of Pendleton shows that they do not always do this, as well as giving a good overview of how the Court of Appeal should approach an appeal.
If permission is refused, then the individual can renew the application before the ‘Full Court’ – the panel of three Judges, who can dismiss the application or grant permission.
If the Court of Appeal allows the appeal then they can either quash the conviction and leave it at that, or order a re-trial. If they order a re-trial then the case will go back to the Crown Court for another trial. There a variety of factors that they will take into account in deciding whether there should be a re-trial, such as whether any sentence has been completed and how serious the offence is.
It is possible to appeal against the sentence imposed. The procedure is the same as for a conviction. An appeal against sentence however can be heard by two Judges only.
The test for whether an appeal should be allowed (and therefore whether permission should be granted) is whether the sentence is ‘manifestly excessive’. This is more than ‘a bit too high’ but sufficiently high so as to indicate that something went wrong in the Judge’s approach.
This is because the Court of Appeal will give a level of deference to the trial Judge who has heard the evidence. Also, the idea is that there is normally a range of sentences that a Judge could impose and the Court of Appeal will only intervene and allow an appeal when the sentence is outside that range.
If the appeal is allowed then the Court of Appeal will impose a new sentence – it won’t be sent back to the Judge for a new sentencing hearing.
Can the Court of Appeal increase the sentence?
There is no provision for the Court of Appeal to increase a sentence as a penalty for an appeal or anything of that nature.
However. A Court can make what is called a ‘loss of time direction’. This is an order that, because the appeal (or renewal of an appeal after refusal by the Single Judge) a certain period of time in custody prior to the hearing should not count towards the overall sentence.
This will only be ordered if the appeal is lacking in any real merit. This is very rare, but the Court have given an indication that they will be more willing to order it in future. It will normally be for a period of 28 days. Guidance can be found in the case of Hart. The Court could not do this in relation to a non-custodial sentence and it cannot be for longer than has actually been spent in custody prior to the appeal.
The Court of Appeal can also order an unsuccessful Appellant to pay some or all of the costs of the appeal. This is rarely invoked (not least because most of the people appealing are not in a financial position to pay).
Both of these are potential deterrents against an unmeritorious appeal. But it should be understood that there is no power for the Court to increase the sentence.
Prosection appeals against sentence
These are called Attorney-General’s References, where the prosection, in limited circumstances, can ask the Attorney-General to review a sentence imposed in the Crown Court. The Attorney-General then has the power to refer the sentence to the Court of Appeal, if he considers that the sentence imposed was ‘unduly lenient’. More information can be found here.