Appeals Against Conviction and Sentence: The Court of Appeal and Criminal Cases Review Commission

Appeals Against Conviction and Sentence: The Court of Appeal and Criminal Cases Review Commission

Introduction

The criminal justice system in England and Wales does not treat a conviction or sentence as immune from challenge once a trial court has delivered its decision. A person who believes that a criminal conviction is unsafe, that the court applied the law incorrectly, that a material procedural error affected the proceedings, or that the sentence imposed was unlawful or excessive may be able to challenge the decision through the appellate system. In exceptional cases, a conviction or sentence may also be reconsidered years after the ordinary appeal process has ended.

The right to challenge a criminal decision is an essential safeguard against miscarriages of justice. Trials may be affected by errors in the interpretation of legislation, incorrect evidential rulings, unreliable identification evidence, failures to disclose material evidence, mistakes in jury directions, procedural irregularities, or newly discovered evidence that was not available at the time of trial. Sentencing decisions can also be challenged where the court has acted unlawfully, applied an incorrect legal principle, or imposed a sentence that falls outside the proper exercise of its discretion.

However, the appellate system is not simply a mechanism for asking a different judge to reconsider a case because the defendant disagrees with the outcome. Criminal appeals are governed by statutory tests, procedural rules, time limits, and restrictions on the issues that an appellate court may determine. A person who has been convicted must identify an appropriate legal basis for the challenge and follow the procedure applicable to the court that made the original decision.

The structure of criminal appeals depends significantly on where the conviction occurred. A person convicted in a magistrates’ court may, in appropriate circumstances, appeal to the Crown Court or challenge a point of law through the High Court. A person convicted on indictment in the Crown Court may seek permission to appeal to the Court of Appeal (Criminal Division). The Court of Appeal has statutory powers to quash unsafe convictions, substitute certain alternative verdicts, order retrials in defined circumstances, and alter sentences.

A further safeguard exists through the Criminal Cases Review Commission (CCRC). Established under the Criminal Appeal Act 1995, the CCRC is an independent public body that investigates suspected miscarriages of justice. It does not itself overturn convictions or sentences. Instead, where the statutory referral test is satisfied, it can refer a case to the appropriate appeal court, allowing the court to reconsider the matter through the formal appellate process.

The relationship between the ordinary appeal system and the CCRC is particularly important in cases involving fresh evidence, new scientific developments, previously undiscovered material, or significant legal arguments that were not properly considered during the original proceedings. The CCRC is not intended to replace the ordinary appeal process, and applications will ordinarily be expected to follow an unsuccessful direct appeal unless exceptional circumstances justify an earlier review.

This article examines the legal framework governing criminal appeals in England and Wales, the distinction between appeals against conviction and sentence, the jurisdiction and powers of the Court of Appeal, the role of the CCRC, the treatment of fresh evidence, and the safeguards intended to correct errors while preserving the finality and integrity of criminal proceedings.

Facts: The Essential Legal Framework

The principal legal sources include:

• The Criminal Appeal Act 1968, which governs appeals to the Court of Appeal (Criminal Division), including appeals against conviction and sentence following proceedings on indictment.
• The Criminal Appeal Act 1995, which established the Criminal Cases Review Commission and defines its principal investigative and referral powers.
• The Criminal Procedure Rules 2025, Part 34, which governs appeals to the Crown Court from the magistrates’ court.
• The Criminal Procedure Rules 2025, Part 39, which governs appeals to the Court of Appeal concerning conviction or sentence.
• The Magistrates’ Courts Act 1980, which provides the statutory framework for magistrates’ court proceedings and relevant appellate routes.
• The Senior Courts Act 1981, which provides the framework for the High Court’s jurisdiction, including relevant criminal case stated proceedings and judicial review.
• The official Court of Appeal (Criminal Division) guidance, which explains the court’s role and provides procedural information.
• The Criminal Cases Review Commission’s official guidance, which explains the Commission’s independent investigative role and its power to refer cases back to an appeal court.

The precise appeal route depends on the court that made the decision, the nature of the decision being challenged, the statutory jurisdiction involved, and the grounds relied upon. The ordinary appeal process should therefore be distinguished from a CCRC investigation, a case stated appeal on a point of law, and judicial review.

1. The Purpose of Criminal Appeals

1.1 Correcting legal and procedural errors

A criminal appeal provides a mechanism for examining whether a conviction or sentence should stand under the applicable law.

The trial court may have made an error in interpreting an offence, applying a statutory defence, admitting or excluding evidence, directing a jury, or determining the appropriate sentence. A procedural irregularity may also have affected the fairness of the proceedings. An appeal enables the relevant appellate court to assess whether the identified error justifies intervention under the governing statutory test.

Not every error will lead to a conviction being quashed. The appellate court must apply the legal standard governing the particular appeal and examine the significance of the alleged error in the context of the proceedings as a whole.

For example, a complaint that the judge used an imperfect expression during the summing-up is not automatically sufficient to invalidate a conviction. The court will consider whether the directions, read as a whole, properly explained the law and whether the conviction is unsafe. Conversely, a serious error concerning the elements of the offence or the burden of proof may undermine the reliability of the verdict.

1.2 Protecting against miscarriages of justice

A miscarriage of justice may occur when a person is convicted despite a fundamental problem with the reliability or legality of the proceedings.

Possible examples include evidence subsequently shown to be unreliable, a significant failure to disclose material that could have assisted the defence, a witness whose evidence is later undermined by credible new information, or scientific evidence that is discovered to be unsound. A conviction may also be challenged where a legal error meant that the jury was not properly directed on an essential issue.

The appellate system recognises that criminal proceedings cannot be made entirely immune from error. Its purpose is to provide structured mechanisms for identifying and correcting errors that satisfy the relevant legal threshold.

Nevertheless, the existence of a possible mistake does not itself establish that a miscarriage of justice occurred. The nature of the error, the evidence available, the procedural history, and the applicable statutory test must all be considered.

1.3 Consistency in the administration of criminal law

Appeals also serve a wider public function. Decisions of appellate courts clarify the interpretation of legislation, explain the application of legal principles, and promote consistency in the treatment of similar cases.

An appellate judgment may establish how a statutory provision should be interpreted, clarify the legal test for a defence, or explain the approach to sentencing in a particular category of offence. Such decisions may guide trial courts and legal practitioners in later cases.

The appellate process therefore benefits both individual defendants and the wider administration of justice. It provides a means of correcting individual errors while contributing to the development and consistent application of criminal law.

1.4 Finality and fairness

The right to challenge a conviction must be balanced against the public interest in finality. Criminal proceedings cannot ordinarily remain open indefinitely simply because a defendant continues to disagree with the outcome.

Evidence may deteriorate, witnesses may become unavailable, and the passage of time may make a retrial more difficult. The prosecution, victims, witnesses, and the public also have legitimate interests in the effective resolution of criminal cases.

The appellate framework balances these interests through time limits, permission requirements, statutory tests, and restrictions on repeated litigation. Exceptional mechanisms such as the CCRC remain available to investigate credible indications of a miscarriage of justice even after the ordinary appeal process has concluded.

2. Understanding the Different Routes of Appeal

The first question in any criminal appeal is which court made the decision and which legal route applies.

2.1 Decisions of the magistrates’ court

A person convicted by a magistrates’ court may generally appeal to the Crown Court against conviction, sentence, or both, subject to the rules governing the circumstances of the case.

The Crown Court appeal is ordinarily conducted as a rehearing rather than a conventional review of the magistrates’ reasoning alone. The court considers the relevant evidence and arguments under the applicable procedure and may reach its own decision.

A different route may be available where the challenge concerns a point of law. A party may seek to have a question of law, or an alleged excess of jurisdiction, considered by the High Court through the case stated procedure. Judicial review may also be relevant in appropriate circumstances, particularly where the complaint concerns the legality of a decision or the exercise of public power.

These routes are not interchangeable. An appeal to the Crown Court, a case stated appeal, and judicial review have different purposes and procedural requirements.

2.2 Decisions of the Crown Court

A person convicted on indictment in the Crown Court may apply for permission to appeal to the Court of Appeal (Criminal Division).

The appeal may concern the conviction, the sentence, or both. The governing framework is principally contained in the Criminal Appeal Act 1968 and Part 39 of the Criminal Procedure Rules.

The Court of Appeal does not ordinarily conduct a complete retrial simply because the defendant requests one. It examines the grounds of appeal, the record of the proceedings, the applicable law, and any admissible fresh evidence. It then determines whether the statutory conditions for allowing the appeal have been met.

2.3 Why the distinction matters

The route determines the court’s powers, the procedure, the applicable time limits, and the nature of the review.

A defendant who appeals a magistrates’ court conviction to the Crown Court is using a different procedure from a defendant challenging a Crown Court conviction before the Court of Appeal. A person seeking to establish that a Crown Court sentence is excessive must also distinguish that challenge from an allegation that the conviction itself is unsafe.

Selecting the correct route is therefore an essential part of the appellate process.

3. Appeals from the Magistrates’ Court

3.1 Appeal to the Crown Court

A person convicted by a magistrates’ court may generally appeal to the Crown Court if the statutory conditions are satisfied.

Where the defendant pleaded not guilty, the appeal may challenge the conviction, the sentence, or both. A defendant who pleaded guilty may ordinarily appeal against sentence, but cannot usually challenge the conviction simply by asserting that the court should have acquitted them. A challenge to a guilty plea may raise separate and more restricted issues, such as whether the plea was legally valid or whether the circumstances provide a proper basis for setting aside the conviction.

An appeal to the Crown Court is ordinarily heard by a Crown Court judge, sitting with magistrates or, where applicable, a District Judge. The appeal is generally conducted as a rehearing, meaning that the court considers the evidence and issues under the relevant appellate procedure rather than merely asking whether the magistrates’ written reasons were persuasive.

The Crown Court may confirm, reverse, or vary the decision in accordance with its statutory powers.

3.2 Time limits

An appeal from the magistrates’ court must be commenced within the applicable time limit. Current official guidance generally states that an appeal against conviction or sentence should be lodged within 15 business days of sentence. A late appeal may require permission from the Crown Court.

The relevant time limit and procedure should be checked against the current rules and the circumstances of the particular case. The date of conviction, the date of sentence, the nature of the decision, and the applicable procedural requirements can affect the calculation and route.

The official government guidance is available through GOV.UK’s information on appealing a magistrates’ court decision.

3.3 Case stated appeals to the High Court

A case stated appeal is a mechanism for challenging a decision of the magistrates’ court on a point of law or on the ground that the court acted beyond its jurisdiction.

The procedure requires the lower court to state the relevant facts and legal question for determination by the High Court. The High Court considers the legal issue arising from the stated case rather than conducting a general rehearing of the factual dispute.

For example, if a magistrates’ court has interpreted a statutory provision incorrectly, the case stated procedure may provide a route for the High Court to determine the proper legal interpretation.

It is not ordinarily a substitute for an appeal against factual findings merely because the defendant believes that the magistrates should have accepted a different witness or account.

3.4 Judicial review

Judicial review may be available in appropriate cases where the complaint concerns the legality of a decision, the exercise of a public power, or a procedural failure falling within the principles of public law.

However, judicial review is not intended to provide an unrestricted alternative to the statutory appeal process. The availability of another adequate remedy may be relevant, and the applicant must satisfy the legal requirements governing judicial review.

A challenge must therefore be analysed according to its substance. A complaint about the factual merits of a conviction may call for an ordinary appeal, while a complaint about jurisdiction or the legality of a decision may raise different issues.

4. The Court of Appeal (Criminal Division)

4.1 Institutional role

The Court of Appeal (Criminal Division) is the principal appellate court for challenges to Crown Court convictions and sentences within its criminal jurisdiction.

It is part of the Court of Appeal of England and Wales. Its work includes applications for permission to appeal, substantive appeals against conviction and sentence, and cases referred to it by the CCRC. It also deals with certain other statutory appeals and references.

The court’s function is not to replace every trial decision with its own preferred view of the evidence. Its task is to apply the relevant statutory provisions and determine whether the conviction or sentence should be disturbed.

The official Judiciary guidance on the Court of Appeal (Criminal Division) explains its role and provides guidance for applicants and legal representatives.

4.2 Statutory foundation

The Criminal Appeal Act 1968 establishes the principal framework for appeals against conviction and sentence following proceedings on indictment.

Section 1 provides the right to appeal against conviction on indictment, subject to the statutory framework. Section 2 sets out the test for allowing an appeal against conviction. Sections 9 and 11 address appeals against sentence and the court’s relevant powers.

The Act also regulates other matters, including the substitution of alternative verdicts, retrials, fresh evidence, and the powers available when an appeal is allowed.

The statutory structure is important because the Court of Appeal’s jurisdiction is not unlimited. It must act within the powers conferred by legislation and apply the applicable tests to the appeal before it.

4.3 Permission to appeal

Permission to appeal, commonly called leave to appeal, is ordinarily required for an appeal against a Crown Court conviction or sentence.

An applicant must identify the grounds relied upon and explain why the decision should be reconsidered. The application is considered under the relevant procedural rules and statutory framework.

Permission is not granted merely because the applicant is dissatisfied with the result or believes that another tribunal might have reached a different conclusion. The grounds must raise an arguable basis for appellate intervention.

If permission is refused by a single judge, the applicant may, where the rules permit, renew the application to the full court. The applicable procedure and any restrictions on renewal must be observed.

The requirement for permission helps the court distinguish appeals that raise a properly arguable legal or factual issue from applications that merely seek to repeat the original case without an adequate basis for intervention.

5. Appeals Against Conviction

5.1 The statutory test: an unsafe conviction

Under section 2 of the Criminal Appeal Act 1968, the Court of Appeal must allow an appeal against conviction if it thinks the conviction is unsafe. If it does not consider the conviction unsafe, it must dismiss the appeal, subject to the statutory framework.

The concept of an unsafe conviction is central to the modern law of criminal appeals. It directs the court to consider whether the conviction can properly stand in light of the issues raised and the circumstances of the case.

The question is not simply whether the trial judge made an error or whether the appeal court would have reached the same factual conclusion as the jury. The court must assess the conviction under the statutory safety test, taking account of relevant legal, evidential, and procedural matters.

An error may be serious enough to render the conviction unsafe even where the appellate court cannot conclude with certainty that the defendant was innocent. Conversely, not every imperfection in the trial process makes the conviction unsafe.

5.2 Errors of law

An appeal may raise an error in the interpretation or application of the criminal law.

Examples include a judge’s incorrect explanation of an essential element of the offence, an erroneous interpretation of a statutory defence, or the application of an incorrect legal test to a disputed issue.

Suppose a jury is required to decide whether the defendant acted dishonestly under the applicable legal framework. If the judge directs the jury using a materially incorrect test, the resulting verdict may be unsafe because the jury has not been instructed to apply the law correctly.

The Court of Appeal examines the legal issue and its significance for the conviction. The fact that an error occurred does not eliminate the need to consider whether the statutory test for allowing the appeal is satisfied.

5.3 Evidential errors

A conviction may also be challenged where evidence was wrongly admitted or excluded, or where the treatment of evidence materially affected the fairness or reliability of the trial.

Examples include the admission of a confession contrary to the applicable statutory rules, an incorrect ruling concerning hearsay, or a failure to address a legally significant issue relating to identification evidence.

An appellant must identify the relevant ruling or evidential problem and explain why it matters to the safety of the conviction.

The appeal court will consider the issue in the context of the evidence as a whole. It does not automatically quash a conviction whenever a party can identify a debatable evidential decision.

5.4 Procedural irregularities

A trial may be affected by a procedural irregularity that undermines its fairness or the reliability of the verdict.

Possible examples include a serious failure to disclose material evidence, an improper jury direction, a material misunderstanding of the burden of proof, or a significant failure to follow the required procedure.

The appellate court examines the nature of the irregularity and its relationship to the conviction. A technical breach with no meaningful bearing on the safety of the verdict may not justify allowing the appeal. A material irregularity may do so.

The legal question remains whether the conviction is unsafe under section 2 of the Criminal Appeal Act 1968.

5.5 Jury directions

Where a conviction followed a jury trial, the adequacy of the judge’s directions may be an important issue.

The judge must explain the legal elements of the offence, the burden and standard of proof, and any relevant legal issues arising from the evidence. If the directions materially misstate the law or fail to address an essential issue, the jury may have reached its verdict using an incorrect legal framework.

An appeal may therefore challenge the summing-up, the treatment of a defence, or directions concerning a particular category of evidence.

The Court of Appeal assesses the directions in their entirety and in the context of the trial. It considers whether the jury was properly equipped to determine the issues and whether the conviction is safe.

5.6 Failures of disclosure

Disclosure failures may form the basis of an appeal where material that should have been disclosed was withheld and the failure affects the safety of the conviction.

For example, previously undisclosed information might have undermined the credibility of a key prosecution witness, supported an alternative account, or provided a basis for challenging forensic evidence.

The significance of the material must be assessed carefully. The fact that a document was not disclosed does not automatically establish that the conviction is unsafe. The court must consider what the material reveals, how it relates to the issues at trial, and whether it changes the proper assessment of the conviction.

Disclosure-related appeals illustrate the relationship between trial fairness and the reliability of the verdict.

6. Appeals Against Sentence

6.1 The right to challenge a sentence

A person convicted on indictment may appeal against a sentence imposed by the Crown Court, subject to the statutory framework and the requirement for permission where applicable.

A sentence appeal is distinct from an appeal against conviction. The appellant may accept that the conviction is valid while arguing that the punishment was legally incorrect, disproportionate, or imposed on the basis of an error.

The appeal may concern the length or type of sentence, the application of the relevant sentencing provisions, or the way the sentencing court approached the circumstances of the offence and the offender.

6.2 Common grounds for sentence appeals

A sentence may be challenged where the sentencing court has applied an incorrect legal principle, misunderstood its statutory powers, failed to take account of a legally relevant factor, relied on an irrelevant consideration, or imposed a sentence that is manifestly excessive in the circumstances.

A sentence may also be challenged where it is unlawful, including where the court has imposed a type of sentence or a term that it had no legal power to impose.

However, an appeal is not simply a request for a more lenient outcome. Sentencing involves judicial discretion within a statutory framework, and the Court of Appeal recognises that more than one lawful sentence may be appropriate for a particular offence.

The appellant must identify a proper basis for concluding that the sentence warrants appellate intervention.

6.3 Sentencing principles

The sentencing court must apply the relevant legislation and sentencing guidelines, taking account of the seriousness of the offence, the offender’s culpability, the harm caused, relevant aggravating and mitigating factors, and other considerations required by law.

The court must also observe any statutory limits and the rules governing the type of sentence imposed.

A sentence appeal may succeed where the judge has misunderstood the relevant guideline, treated an aggravating factor incorrectly, failed to apply a mandatory statutory provision, or imposed a sentence outside the lawful range.

The appellate court considers the sentence in light of the relevant law and circumstances rather than simply substituting its personal preference.

6.4 The Court of Appeal’s powers on sentence

Under the Criminal Appeal Act 1968, the Court of Appeal has powers to quash a sentence and pass another sentence in accordance with the law.

The court may reduce a sentence where the statutory test for intervention is met. Depending on the circumstances and the relevant legal provisions, it may also impose a different sentence that it considers appropriate within its jurisdiction.

A sentence appeal must be analysed carefully because the court’s powers and the permissible outcome depend on the type of sentence and the statutory framework governing the offence.

The statutory provisions governing appeals against sentence are available in sections 9 and 11 of the Criminal Appeal Act 1968.

6.5 The prosecution’s role in sentence appeals

The prosecution may participate in the appeal process and respond to the appellant’s arguments. There is also a separate statutory mechanism under which the Attorney General may refer certain Crown Court sentences to the Court of Appeal where they appear unduly lenient and fall within the relevant statutory categories.

That procedure is not the same as a defendant’s appeal against sentence. It serves a different purpose and is subject to its own statutory requirements.

The existence of a prosecution or Attorney General reference does not eliminate the need to examine the applicable rules governing the defendant’s own appeal.

7. Time Limits and the Application Process

7.1 The ordinary 28-day period

For appeals from the Crown Court to the Court of Appeal, an application for permission to appeal against conviction must ordinarily be lodged within 28 days of conviction. For an appeal against sentence, the ordinary 28-day period runs from the date of sentence.

The relevant forms and procedure are governed by the Criminal Procedure Rules, particularly Part 39.

The application must identify the decision challenged and set out the grounds relied upon. The applicant should explain the alleged error, identify the relevant parts of the trial or sentencing record, and show why the issue provides a proper basis for appellate intervention.

The current GOV.UK guidance on appealing a Crown Court decision provides information about the process and relevant forms.

7.2 Late applications

A person who misses the ordinary deadline may seek an extension of time.

A late application is not automatically accepted. The applicant must follow the relevant procedure and provide an explanation for the delay. The court determines whether the extension should be granted under the applicable legal framework.

The fact that the deadline has passed does not necessarily mean that the person has lost every possible route of challenge. However, delay can create procedural difficulties and must be addressed properly.

The CCRC’s guidance makes clear that simply missing an appeal deadline does not, by itself, constitute an exceptional circumstance that ordinarily justifies bypassing the direct appeal process.

7.3 Grounds of appeal

The grounds should identify the specific basis for challenging the conviction or sentence.

A general statement that the trial was unfair or that the sentence was too severe may be insufficient without an explanation of the relevant legal or factual issue.

A well-formulated ground identifies the decision or event being challenged, the applicable legal principle, the nature of the alleged error, and its significance for the conviction or sentence.

The grounds may be supported by transcripts, trial documents, expert reports, witness statements, or other relevant material, depending on the nature of the issue.

7.4 Legal representation

A person may apply for permission to appeal without a legal representative. However, criminal appeals can involve complex questions of law, evidential analysis, and procedural requirements.

A legal representative may assist in identifying arguable grounds, obtaining relevant records, preparing written submissions, and determining whether an application should include a request to introduce fresh evidence.

The absence of legal representation does not automatically prevent an application, but the applicant remains responsible for complying with the applicable procedure.

8. Fresh Evidence Before the Court of Appeal

8.1 Why fresh evidence matters

Some appeals rely on material that was not presented at the original trial.

Fresh evidence may include a witness who was not previously identified, a forensic analysis using a new scientific method, information undermining the credibility of a key witness, or documents that were unavailable during the original proceedings.

The existence of new material does not automatically justify allowing an appeal. The court must determine whether it is appropriate to receive the evidence and whether it affects the safety of the conviction.

8.2 Section 23 of the Criminal Appeal Act 1968

Section 23 of the Criminal Appeal Act 1968 provides the statutory framework for receiving evidence in an appeal.

In deciding whether to receive evidence that was not given at trial, the court considers the circumstances specified by the legislation. Relevant questions include whether the evidence appears capable of belief, whether it may afford a ground for allowing the appeal, whether it would have been admissible at trial, whether it is relevant to the issue under appeal, and whether there is a reasonable explanation for the failure to adduce it earlier.

These considerations are designed to ensure that fresh evidence is evaluated carefully. The appeal process is not intended to permit a party to withhold available evidence strategically and introduce it later without justification.

The court has powers to obtain relevant evidence and documents in accordance with the statutory framework. The precise procedure depends on the nature of the material and the issue raised.

8.3 New forensic and scientific evidence

Scientific developments can be important in cases where the original conviction depended on forensic evidence.

For example, a new method of analysis may cast doubt on the reliability of an earlier conclusion, or a later review may reveal that the scientific method used at trial had limitations that were not properly understood.

The legal significance of such developments depends on the particular case. A new scientific technique does not automatically establish that earlier evidence was wrong. The court must consider the reliability of the method, the expert evidence, the relationship to the original findings, and the overall safety of the conviction.

Where the evidence emerges after the ordinary appeal process, it may be relevant to a CCRC application.

8.4 Newly discovered witness evidence

A person may come forward after the trial with information that was not previously available. Such evidence may be relevant if it provides a credible alternative account or materially undermines the prosecution case.

The court will need to consider the credibility and reliability of the new evidence, the circumstances in which it emerged, and why it was not presented earlier.

A bare assertion that a new witness exists is not necessarily sufficient. The substance of the evidence and its potential effect on the conviction must be examined.

8.5 Fresh evidence and the safety of the conviction

The central question remains whether the conviction is safe under the statutory test.

Fresh evidence may be powerful enough to undermine a key prosecution witness, demonstrate that an identification was mistaken, or reveal that a crucial forensic conclusion was unreliable. In other cases, the new material may be peripheral or incapable of changing the assessment of the evidence.

The court must examine the evidence in context rather than assuming that any new information necessarily requires the conviction to be quashed.

9. The Court of Appeal’s Powers After an Appeal

9.1 Quashing a conviction

Where the Court of Appeal allows an appeal against conviction, it may quash the conviction in accordance with the Criminal Appeal Act 1968.

Quashing a conviction means that the conviction is set aside. The legal consequences depend on the order made and whether the court also directs a retrial or takes another action authorised by statute.

The court must explain the legal basis for its decision and make the orders necessary to give effect to the outcome.

9.2 Substituting an alternative verdict

In defined circumstances, the court may substitute a conviction for an alternative offence rather than quashing the conviction entirely.

The statutory framework permits this where the legal conditions are satisfied, including circumstances in which the alternative offence is supported by the findings or evidence and is an offence for which the defendant could lawfully have been convicted.

This power does not permit the court to substitute any offence it considers appropriate. The alternative verdict must fall within the statutory provisions and the circumstances of the case.

9.3 Ordering a retrial

Section 7 of the Criminal Appeal Act 1968 provides for the Court of Appeal to order a retrial in specified circumstances after allowing an appeal against conviction.

A retrial may be appropriate where the original conviction is unsafe but the interests of justice support a fresh trial rather than an immediate final acquittal.

The decision depends on the statutory conditions and the circumstances of the case. The court must consider the nature of the error, the evidence available, the feasibility of a fair retrial, and the relevant interests of justice.

A retrial is not automatic whenever a conviction is quashed. The court must exercise its powers under the applicable statutory framework.

9.4 Re-sentencing

Where an appeal against sentence succeeds, the Court of Appeal may quash the sentence and impose another sentence within its statutory powers.

Where a conviction is quashed but another related conviction remains in place, the court may also have powers to re-sentence the appellant for the remaining offence or offences, as provided by the Act.

The precise consequences depend on which convictions and sentences remain valid after the appeal and the relevant statutory provisions.

9.5 Dismissing the appeal

If the Court of Appeal concludes that the statutory test for allowing the appeal has not been met, it dismisses the appeal.

A dismissal does not necessarily mean that every aspect of the trial was flawless. It means that the court has not found a sufficient legal basis to grant the relief sought under the applicable test.

The distinction is important: the appeal court is not asked to determine whether the trial could have been conducted differently in every respect, but whether the challenged conviction or sentence should be disturbed under the governing law.

10. The Criminal Cases Review Commission

10.1 Establishment and purpose

The Criminal Cases Review Commission was established under the Criminal Appeal Act 1995 as an independent body to investigate suspected miscarriages of justice.

Its principal function is to examine criminal cases in which there is reason to believe that a conviction, sentence, or other qualifying outcome may be unsafe or otherwise affected by a miscarriage of justice.

The Commission operates independently of the government, the courts, the police, and the prosecution. Its independence is important because it must be able to examine whether serious errors occurred even where the original proceedings have already concluded.

The CCRC’s official explanation of its work is available at What We Do.

10.2 The CCRC is not an appeal court

The CCRC does not itself quash convictions, substitute verdicts, or impose new sentences.

Instead, it investigates cases and decides whether the statutory referral test is met. If the Commission refers a case, the appropriate appeal court then considers the matter under the applicable appellate law.

This distinction is fundamental. A person may submit an application to the CCRC, but that application does not itself overturn the conviction or guarantee that an appeal will be reopened.

The Commission’s role is investigative and referential. The appeal court retains responsibility for deciding the legal consequences of the referral.

10.3 Jurisdiction

The CCRC investigates qualifying criminal cases connected with England and Wales and Northern Ireland under its statutory jurisdiction.

Although this article focuses on England and Wales, the Commission’s jurisdiction is not limited to those two countries. The legal and procedural context of the original conviction remains relevant when the Commission assesses an application.

Its jurisdiction is defined by legislation, and an application must concern a case that falls within the Commission’s statutory powers.

10.4 Independence and investigative powers

The Commission can obtain and examine relevant material, including records from the original trial and previous appeals. It may investigate matters raised by the applicant and pursue further inquiries where appropriate.

The nature of the investigation depends on the issues identified. A case involving new forensic evidence may require scientific review. A case involving alleged non-disclosure may require examination of prosecution files or other records. A case involving a new witness may require inquiries into the substance and reliability of the account.

The Commission does not simply accept the applicant’s description of events as established fact. It assesses the information objectively and may consider material that supports or undermines the application.

11. The CCRC’s Referral Test

11.1 The real possibility test

The principal referral test for cases within the ordinary criminal appeal framework is whether there is a real possibility that the conviction, verdict, finding, or sentence would not be upheld if the case were referred to the relevant appeal court.

This is a statutory test under the Criminal Appeal Act 1995.

The test requires more than a speculative possibility that an appeal might succeed. The Commission must assess whether there is a real possibility of the relevant appellate court reaching a different outcome, applying the law that would govern the referred case.

The Commission does not need to prove conclusively that the original decision was wrong. Its function is to determine whether the statutory threshold for referral has been met, leaving the appeal court to decide the appeal.

11.2 New evidence or a new legal argument

The CCRC explains that a strong application will normally identify something new and significant that could cause the appeal court to view the case differently.

This may involve fresh evidence, a new legal argument, a new scientific development, or material that was not considered at the trial or previous appeal.

The Commission generally cannot justify a referral simply by revisiting points that were fully known and considered by the jury, judge, magistrates, or previous appeal court without a meaningful new basis for reconsideration.

However, what qualifies as new and significant depends on the circumstances. An issue may acquire a new dimension where later evidence, a changed understanding of scientific reliability, or a newly identified legal argument materially alters the assessment of the case.

11.3 The significance of the material

An applicant should explain what is new, why it matters, and how it could affect the conviction or sentence.

For example, a new witness statement may be significant if it directly challenges a central prosecution allegation. A forensic review may be important if it undermines evidence that was essential to the original verdict.

By contrast, material that is unrelated to the elements of the offence or that merely repeats a rejected argument may have limited value.

The CCRC considers the substance of the application rather than requiring every applicant to present a fully developed legal case. Its official guidance emphasises the importance of explaining what went wrong and identifying the new information that may make a difference.

11.4 The relationship between the CCRC and the appeal court

The CCRC’s referral test and the Court of Appeal’s test perform different functions.

The CCRC decides whether there is a real possibility that the relevant appeal court would not uphold the conviction or sentence. The Court of Appeal then applies its own statutory jurisdiction and determines the appeal.

In a conviction appeal, the Court of Appeal’s central statutory test is whether the conviction is unsafe. In a sentence appeal, the court applies the legal principles governing intervention in the sentence.

A CCRC referral therefore opens the door to appellate consideration; it does not predetermine the result.

12. Applying to the CCRC

12.1 Who may apply?

A person who believes that they have been wrongly convicted or wrongly sentenced in a qualifying criminal case may apply to the CCRC, subject to the Commission’s statutory jurisdiction and eligibility requirements.

Another person may also submit an application on behalf of the person concerned, but the Commission will take steps to confirm the relevant person’s wishes and authority where required.

Applications may be made by people who are in prison or living in the community. The Commission provides information about its application process and the material applicants should supply.

12.2 The usual requirement to appeal first

The CCRC generally expects applicants to have tried the ordinary appeal process before seeking a review.

Where a person has a right to appeal directly to the courts, the Commission will ordinarily expect that route to be used first. The CCRC is designed to address cases in which the ordinary appeal process has been exhausted or has not resolved the concerns raised.

The Commission can consider an application without a previous direct appeal only in exceptional circumstances. Such cases are rare, and an applicant should not assume that missing an appeal deadline, lacking legal representation, or receiving advice that an appeal is unlikely to succeed automatically qualifies as exceptional.

The CCRC’s official eligibility guidance is available at Can I Apply?.

12.3 Preparing an application

An effective application should provide a clear account of the conviction or sentence being challenged and the reasons for believing that it may be unsafe or otherwise affected by a miscarriage of justice.

Relevant information may include:

• The court in which the person was convicted or sentenced.
• The offence or offences involved.
• The history of any previous appeal.
• The specific concerns about the original proceedings.
• Any new evidence or legal argument.
• The reasons the new material was not considered earlier.
• Documents or other information that may assist the Commission in investigating the issue.

An applicant does not necessarily need to identify every legal issue or obtain all supporting evidence before applying. However, the application should be as clear and informative as possible.

12.4 What the CCRC does with an application

The Commission first considers whether the case falls within its powers and whether the applicant has pursued the ordinary appeal route, subject to the relevant exceptions.

If the application proceeds, the Commission obtains the necessary case papers and examines the issues raised. It may conduct further inquiries, obtain records, consider expert material, or investigate new evidence.

The Commission’s investigation is not simply a second trial. It is directed towards determining whether the statutory conditions for referral are satisfied.

The official CCRC explanation of the case review process describes the initial checks and the investigation of relevant issues.

12.5 How long does a review take?

There is no single fixed period that applies to every CCRC investigation.

The time required depends on the complexity of the case, the availability of records, the nature of the inquiries, and whether expert evidence or further investigation is needed.

A case involving a clear documentary issue may require a different level of investigation from a case involving several defendants, extensive forensic evidence, or multiple potential witnesses.

Applicants should provide accurate information and respond to reasonable requests for material, because missing information may delay the Commission’s work.

12.6 Is an application free?

The CCRC’s application process is free. Applicants do not pay the Commission a fee to request a case review.

However, separate costs may arise if an applicant chooses to obtain legal representation, expert reports, or other professional assistance. Any question about funding for such assistance must be considered separately from the Commission’s own application process.

13. What Happens When the CCRC Refers a Case?

13.1 Referral to the appropriate appeal court

If the CCRC concludes that the statutory referral test is met, it may refer the case to the appropriate appeal court.

For a qualifying Crown Court conviction, the referral will ordinarily be considered through the Court of Appeal (Criminal Division). The applicable procedure depends on the nature of the original decision and the Commission’s statutory powers.

The referral is not a finding that the person is innocent. It indicates that the Commission considers there to be a real possibility that the relevant court would not uphold the decision.

The appeal court must then consider the case under the law governing the appeal.

13.2 The appeal court’s independent decision

Once a case is referred, the appeal court does not simply adopt the Commission’s conclusions.

The court considers the grounds and evidence in accordance with its statutory jurisdiction. It may allow the appeal, dismiss it, or make another order authorised by law.

The court’s decision is legally distinct from the CCRC’s decision to refer. The Commission identifies cases that warrant appellate reconsideration; the court determines the legal outcome.

13.3 Possible outcomes

Depending on the case, the appeal court may quash a conviction, alter a sentence, substitute an alternative verdict, order a retrial where authorised, or dismiss the appeal.

The appropriate outcome depends on the issue raised, the evidence, the relevant statutory test, and the court’s powers.

A referral does not guarantee that the conviction will be overturned. It creates a formal opportunity for the appeal court to reconsider the matter on the basis of the referred case.

13.4 Where the CCRC does not refer the case

The Commission may conclude that the referral test has not been met and decide not to refer the case.

A non-referral decision means that the Commission has not identified a sufficient basis for referral under its statutory test. It does not necessarily mean that the Commission has established that every aspect of the original proceedings was flawless.

The reasons for the decision and any further options must be considered in light of the relevant legal framework and the particular circumstances of the application.

14. The CCRC and Fresh Evidence

14.1 Evidence not available at trial

One of the most important functions of the CCRC is to investigate material that was not available, or was not properly considered, during the original proceedings.

Fresh evidence may be significant because the original jury and trial court could not assess it. For example, a new witness may provide information about the alleged offence, or a later scientific development may undermine the reliability of forensic evidence.

The Commission must investigate the material sufficiently to assess whether it could affect the appeal court’s decision.

14.2 New scientific understanding

A conviction may have relied on scientific evidence that was accepted at the time but later becomes controversial or is shown to have serious limitations.

The development of more reliable testing methods, a reassessment of expert assumptions, or evidence that a previous scientific technique was unreliable may raise legitimate questions about the original conviction.

The existence of a new scientific theory or technique does not automatically establish that an earlier conviction was unsafe. The Commission must examine the actual evidence, the way it was used at trial, and whether the new material could change the appellate court’s assessment.

14.3 Non-disclosure and previously unavailable material

A review may reveal that relevant material was not disclosed to the defence or was not available for use at trial.

The importance of such material depends on its content and relationship to the issues in the case. A document that undermines a key witness or provides support for an alternative explanation may be highly significant. Material that is peripheral or cumulative may have less effect.

The Commission may need to investigate the circumstances in which the material was withheld or overlooked, whether it was available at the time, and how it could affect the conviction or sentence.

14.4 Evidence of witness unreliability

A later discovery may undermine the reliability of a witness whose evidence was important to the prosecution case.

This could involve credible information about a witness’s account, evidence that the witness was mistaken, or material that was not previously available to challenge the testimony.

The Commission must distinguish between genuinely significant new information and unsupported allegations. It examines the material objectively and assesses whether it could affect the appellate court’s decision.

15. The Relationship Between the Court of Appeal and the CCRC

15.1 Different institutions, complementary functions

The Court of Appeal and the CCRC perform different but complementary functions.

The Court of Appeal is a judicial body that determines appeals under the Criminal Appeal Act 1968 and other relevant legislation. It applies the statutory tests and makes binding legal orders concerning convictions and sentences.

The CCRC is an independent investigative body established by the Criminal Appeal Act 1995. It investigates suspected miscarriages of justice and decides whether a case should be referred to an appeal court.

The Commission does not substitute its judgment for that of the court. Its purpose is to identify cases in which the statutory referral test is satisfied and where appellate reconsideration is warranted.

15.2 The ordinary appeal comes first

The ordinary appeal process is generally the first route for challenging a conviction or sentence.

The Court of Appeal can consider errors in the original proceedings and, where the statutory conditions are met, receive fresh evidence. A person should not assume that the CCRC is an alternative route that can be used immediately whenever an appeal is inconvenient or has become time-barred.

The Commission normally expects applicants to pursue the ordinary appeal process first. Its exceptional ability to consider a case before a direct appeal has been attempted is reserved for rare circumstances.

15.3 The CCRC’s wider investigative role

The CCRC’s role is especially important where the concern cannot be adequately addressed by simply repeating the arguments made at trial or in a previous appeal.

Its investigative powers may enable it to examine material, obtain records, and pursue inquiries that are necessary to assess a potential miscarriage of justice.

The Commission can therefore serve as an important safeguard when a credible new issue emerges after the ordinary appeal process has concluded.

15.4 The principle of institutional independence

The independence of the CCRC helps preserve public confidence in the criminal justice system.

The Commission must be able to investigate a case objectively, without treating the original conviction as necessarily correct or assuming that an applicant’s allegations are necessarily true.

Its work requires careful assessment of the available material and the statutory referral test. The final decision on whether a conviction or sentence should be set aside remains with the appropriate appeal court.

16. Common Misunderstandings About Criminal Appeals

Misunderstanding One: Every appeal results in a new trial

An appeal is not automatically a retrial. The appellate court examines the decision under the applicable legal test and may dismiss the appeal, quash the conviction, alter the sentence, or order a retrial where authorised.

Misunderstanding Two: The Court of Appeal can overturn a conviction whenever it disagrees with the jury

The Court of Appeal must apply the statutory test for allowing a conviction appeal. Its task is not simply to substitute its own view of the facts for that of the jury.

Misunderstanding Three: Any mistake by the trial judge makes the conviction invalid

An error must be assessed in context and under the applicable statutory test. Not every procedural or legal imperfection renders a conviction unsafe.

Misunderstanding Four: A sentence appeal is the same as a conviction appeal

A conviction appeal challenges the validity or safety of the finding of guilt. A sentence appeal challenges the sentence imposed. The legal tests and possible remedies differ.

Misunderstanding Five: A person can appeal to the CCRC instead of appealing to the courts

The CCRC is not an appeal court. It generally expects applicants to have pursued the ordinary appeal process before requesting a review, subject to rare exceptional circumstances.

Misunderstanding Six: The CCRC can itself quash a conviction

The CCRC investigates cases and may refer them to an appeal court. It does not itself overturn convictions or sentences.

Misunderstanding Seven: A CCRC referral guarantees that the conviction will be overturned

A referral means that the Commission considers the statutory referral test to be met. The appeal court must still determine the case independently, applying its own legal test.

Misunderstanding Eight: Missing the appeal deadline means no further challenge is possible

A late application may be possible if the court grants an extension of time. The CCRC may also be relevant after the ordinary appeal process has been pursued, but missing a deadline alone is not normally an exceptional reason to bypass a direct appeal.

Misunderstanding Nine: New evidence automatically proves innocence

Fresh evidence must be assessed for credibility, relevance, admissibility, and potential effect on the conviction or sentence. It may be important without being conclusive.

Misunderstanding Ten: The CCRC only considers cases involving factual innocence

The Commission investigates suspected miscarriages of justice. The issue may concern factual innocence, but it may also involve legal errors, unreliable evidence, procedural failures, or other matters affecting the safety of a conviction or the legality of a sentence.

Key Takeaways

Criminal appeals in England and Wales are governed by different procedures depending on the court that made the original decision.

A person convicted by a magistrates’ court may generally appeal to the Crown Court, while a person convicted on indictment in the Crown Court may seek permission to appeal to the Court of Appeal (Criminal Division). Case stated appeals and judicial review are distinct routes that may be relevant to particular legal or jurisdictional issues.

The Court of Appeal applies the statutory test governing the appeal. In a conviction appeal, the central question under section 2 of the Criminal Appeal Act 1968 is whether the conviction is unsafe. In a sentence appeal, the court considers whether intervention is justified under the applicable sentencing law and statutory powers.

Applications to appeal from the Crown Court ordinarily must be lodged within 28 days of conviction or sentence, as applicable. A late application may be possible, but requires the appropriate procedure and, where necessary, an extension of time.

The Court of Appeal may quash an unsafe conviction, substitute an alternative verdict in defined circumstances, order a retrial where authorised, or alter a sentence. It may also dismiss an appeal where the statutory test for intervention has not been met.

The Criminal Cases Review Commission is an independent investigative body established under the Criminal Appeal Act 1995. It does not itself quash convictions or sentences. Its principal role is to investigate suspected miscarriages of justice and refer qualifying cases to an appeal court where there is a real possibility that the decision would not be upheld.

The CCRC generally expects applicants to have pursued the ordinary appeal process first. Applications are free, and the Commission may investigate fresh evidence, new legal arguments, scientific developments, disclosure problems, and other material that could affect the appellate court’s assessment.

A CCRC referral does not guarantee success. The appeal court retains responsibility for determining the legal outcome under the applicable statutory framework.

Frequently Asked Questions

1. Can a person appeal against both conviction and sentence?

Yes. A person may challenge the conviction, the sentence, or both, provided the relevant statutory requirements are met. The grounds and legal tests differ depending on whether the appeal concerns guilt or punishment.

2. What is the deadline for appealing a Crown Court conviction?

An application for permission to appeal against conviction must ordinarily be lodged within 28 days of conviction. For an appeal against sentence, the ordinary period runs from the date of sentence. The applicable rules should be checked for the particular circumstances, and an extension may be sought where necessary.

3. What does it mean for a conviction to be unsafe?

An unsafe conviction is one that the Court of Appeal considers cannot properly stand under the statutory test in section 2 of the Criminal Appeal Act 1968. The assessment may involve legal errors, evidential problems, procedural irregularities, or other circumstances affecting the reliability or fairness of the conviction.

4. Can the Court of Appeal consider evidence that was not presented at trial?

Yes. Section 23 of the Criminal Appeal Act 1968 provides a framework for receiving fresh evidence. The court considers matters such as credibility, relevance, admissibility, the potential effect on the appeal, and the explanation for why the evidence was not introduced earlier.

5. Does a successful appeal always result in acquittal?

No. The Court of Appeal may quash the conviction, but in defined circumstances it may order a retrial or substitute an alternative verdict authorised by statute. The appropriate outcome depends on the legal framework and the circumstances of the case.

6. Can a person appeal a sentence even if they pleaded guilty?

Yes. A guilty plea does not ordinarily prevent a person from appealing against sentence. A challenge to the conviction itself after a guilty plea raises different and more restricted issues and depends on the legal basis relied upon.

7. What is the Criminal Cases Review Commission?

The CCRC is an independent public body established under the Criminal Appeal Act 1995 to investigate suspected miscarriages of justice in qualifying criminal cases. It may refer a case to the relevant appeal court where the statutory referral test is met.

8. Can the CCRC overturn a conviction?

No. The CCRC cannot itself quash a conviction or change a sentence. It investigates cases and may refer them to an appeal court, which then decides the matter under the applicable law.

9. Must someone appeal before applying to the CCRC?

Ordinarily, yes. The Commission generally expects applicants to have pursued the direct appeal process first. It may consider an application before a direct appeal has been attempted only in exceptional circumstances, which are rare.

10. What is the CCRC’s real possibility test?

The real possibility test asks whether there is a real possibility that the relevant appeal court would not uphold the conviction, verdict, finding, or sentence if the case were referred. It is a threshold for referral, not the final test applied by the appeal court when deciding the case.

11. What kinds of new evidence may be relevant to the CCRC?

Potentially relevant material includes a new witness account, previously unavailable documents, fresh forensic analysis, new scientific developments, evidence undermining a key prosecution witness, or material suggesting that important evidence was not disclosed. The significance of the material depends on its credibility and its potential effect on the case.

12. Is an application to the CCRC free?

Yes. The CCRC does not charge an application fee. Applicants may nevertheless incur separate costs if they choose to obtain legal representation or independent expert evidence.

13. What happens if the CCRC refuses to refer a case?

A refusal means that the Commission has not identified a sufficient basis for referral under its statutory test. The implications and any further options depend on the reasons for the decision and the circumstances of the case.

14. Can a person apply to the CCRC years after conviction?

An application may be made years after conviction, subject to the Commission’s statutory jurisdiction and the circumstances of the case. The applicant should identify the new evidence or legal argument, or other relevant material, that could justify referral.

15. Is a CCRC referral proof that a miscarriage of justice occurred?

No. A referral indicates that the Commission considers there to be a real possibility that the relevant appeal court would not uphold the decision. The appeal court must independently determine whether the conviction or sentence should be disturbed.

Conclusion

The appellate system in England and Wales provides essential safeguards against wrongful convictions, unlawful sentences, and serious procedural errors. Its structure reflects the need to correct mistakes while preserving the rule of law, consistency, and finality in criminal proceedings.

The route available to a person challenging a criminal decision depends on the court that made the decision and the nature of the complaint. Appeals from the magistrates’ court, appeals to the Court of Appeal, case stated proceedings, and judicial review each have distinct legal functions. Understanding those distinctions is essential to identifying the proper procedure.

The Court of Appeal (Criminal Division) plays a central role in reviewing Crown Court convictions and sentences. It applies the statutory tests governing appeals, considers relevant legal and evidential issues, and exercises the powers conferred by the Criminal Appeal Act 1968. Its decisions can correct serious errors, clarify the law, and maintain confidence in the administration of criminal justice.

The Criminal Cases Review Commission provides an additional safeguard where credible concerns emerge after the ordinary appeal process. Through independent investigation and its statutory referral power, it can bring significant new evidence or arguments before an appeal court. Its role is particularly important where the original proceedings could not have addressed material that only became available later.

Neither the Court of Appeal nor the CCRC exists simply to reopen every case in which a defendant remains dissatisfied with the outcome. Each operates within a defined legal framework, and each must assess the significance of the issues raised. The appellate court determines whether the legal test for intervention is satisfied; the CCRC investigates whether a case warrants that further judicial scrutiny.

Together, these institutions form a layered system of accountability. They recognise that the integrity of criminal justice depends not on assuming that every decision is correct, but on maintaining lawful and effective procedures through which serious errors can be identified, investigated, and corrected.