Criminal appeals

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

The Law Commission is seeking views on the law about appeals in criminal cases, including the tests applied by the Court of Appeal and the Criminal Cases Review Commission; and laws governing post-trial retention and disclosure of evidence.

Documents

Download the issues paper here.

Download the summary paper of the issues here.

Download the Easy Read version of the summary here.

Responses to the full issues paper can be submitted here. Responses to the summary of the issues paper can be submitted here. The consultation is open until 31 October 2023.

Background

A person who has been convicted of a criminal offence can seek to challenge either their conviction or sentence by way of an appeal.

Appeals serve an important corrective function for individuals, whether this is to correct a miscarriage of justice, such as the conviction of someone who is factually innocent, or to correct a legal error such as imposing a harsher sentence than is legally permissible.

They also serve important public functions, in ensuring that the criminal law is interpreted and applied consistently and predictably, and in the development of the common law.

In recent years several leading bodies and organisations – including the Justice Select Committee and Westminster Commission on Miscarriages of Justice – have argued that the law in relation to criminal appeals is in need of reform.

Concerns have been expressed around requirements for new evidence and the tests used by the Court of Appeal and the Criminal Cases Review Commission (CCRC) – the body responsible for investigating potential miscarriages of justice. Some groups have claimed that the current system can make it difficult for wrongly convicted people to appeal where exculpatory evidence was available but not used at trial, and/or to obtain and analyse evidence which might suggest a person’s innocence.

Our review

In July 2022, the Government asked the Law Commission to review the law relating to criminal appeals in criminal cases, with a view to ensuring that courts have powers that enable the effective, efficient and appropriate resolution of appeals.

We have published an issues paper which explains the law concerning appeals in criminal cases, and are now seeking views from those with experience of the appeals system, including lawyers; academics; groups with an interest in miscarriages of justice; and those who have personally sought to appeal their conviction or sentence – whether successfully or unsuccessfully – and their families (although we are unable to become involved in individual cases).

In the issues paper, we consider: the routes of appeal for challenging findings in magistrates’ courts; the tests applied by the Court of Appeal when considering appeals against conviction or sentence; the test used by the Criminal Cases Review Commission when deciding whether to refer a conviction or sentence for an appeal; the “substantial injustice” test applied to appeals brought on the basis of a change in the law; and laws regarding the retention and disclosure of evidence and records of proceedings.

We are seeking identify any areas of the law where reform is required to enable the correction of miscarriages of justice and to ensure that appeals can be dealt with efficiently, effectively, appropriately and fairly. We are also undertaking pre-consultation engagement with stakeholders to identify a number of technical reforms to improve the way in which appeals are dealt with.

We plan to publish a consultation paper in 2024, which will lay out the areas where we have identified a need for reform, and will include provisional proposals for change.

How to respond to the consultation

We kindly request responses to the consultation by 23:59 hours on Tuesday 31 October 2023.

Responses to the full issues paper can be submitted using this link. Responses to the summary of the issues paper can be submitted here.

Alternatively, comments may be sent by email to criminal.appeals@lawcommission.gov.uk.

We are planning a series of consultation events. Details of these events will be made available in due course.

Next steps

The consultation on our issues paper is open until 31 October 2023 and we welcome responses. We will then analyse the responses. We expect to publish the consultation paper with provisional proposals in 2024, and a final report with recommendations in 2025.

Contact

To contact us, or to be added to our mailing list and receive updates about this project, please email criminal.appeals@lawcommission.gov.uk.