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 has been asked by the Government to review the law governing appeals in criminal cases, including appeals against conviction and sentence, with a view to ensuring that courts have powers that enable the effective, efficient and appropriate resolution of appeals.

Documents

View the press release announcing the project here.
View the full terms of reference here.

Background

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.

This is in part because the piecemeal way in which the law has developed means that there are inconsistencies, uncertainties and gaps in the law on criminal appeals.

Concerns have also 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.

Where an appeal against conviction is brought in the Court of Appeal, the test is whether the conviction is “unsafe”. For appeals against sentence, the test is whether the sentence is “wrong in law”, “manifestly excessive” or “wrong in principle”, and in some cases where the appeal is brought by the Attorney General, “unduly lenient”. The CCRC is entitled to refer cases to the Court of Appeal where it considers there is a “real possibility” that the conviction, verdict, finding or sentence would not be upheld.

Appeals from Magistrates’ Courts are largely governed by the Magistrates Court Act 1980. Appeals to the Court of Appeal Criminal Division are governed by the Criminal Appeals Acts 1968 and 1995. However, other legislation also affects the criminal appeals process, including the Magistrates Court (Appeals from Binding Over Orders) Act 1956; the Administration of Justice Act 1960; the Senior Courts Act 1980; and the Criminal Cases Review (Insanity) Act 1999.

The law allows those convicted in the Magistrates’ Court two routes of appeal: an appeal by way of rehearing in the Crown Court (heard by a judge sitting with two magistrates); and an appeal “by way of case stated” to the High Court on a point of law. Appeals from the High Court in criminal cases cannot be made to the Court of Appeal, but must be taken directly to the Supreme Court.

 

The project

In July 2022, the Government asked the Law Commission to review the law relating to criminal appeals.

The Commission review of the law governing appeals in criminal cases will consider the need for reform with a view to ensuring that the courts have powers that enable the effective, efficient and appropriate resolution of appeals. It will also consider whether a consolidation of the current legislation on appeals would make the law clearer and more consistent.

The review will include the powers of the Court of Appeal (Criminal Division); the powers of the Attorney General to refer matters to the CACD; the conditions for allowing a referral to the CACD by the CCRC; the various mechanisms of appeal from findings in the magistrates’ courts; and laws covering retention and access to evidence and records of proceedings.

The full terms of reference are available here.

Next steps

The Commission aims to publish a consultation paper by late 2023, inviting views on our provisional proposals for reform.

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