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This article deals with Defendant’s appeals against conviction and/or sentence in the Crown Court.
The law relating to appeals from the Crown Court against conviction or sentence is largely contained in the Criminal Appeal Act 1968, the Criminal Appeal Act 1995, Criminal Procedure Rules Parts 65 and 68 and the Consolidated Criminal Practice Direction.
The Crown Court has the power to alter a sentence or other order made by the Crown Court within 56 days of the date on which it was made, (Section 155 Powers of Criminal Courts (Sentencing)
Leave to appeal to the Court of Appeal is required in all cases in relation to conviction or sentence (except in relation to contempt) save where a certificate has been issued by the trial judge that the case is fit for appeal.
There is a time limit of 28 days within which a judge may grant a certificate of fitness for appeal.
Similar provisions exist in relation to findings of not guilty by reason of insanity, findings of disability and findings of unfitness to be tried.
Section 2 of the 1968 Act, as amended, provides that the Court of Appeal shall allow an appeal against conviction if they think the conviction is unsafe, and shall dismiss an appeal in any other case.
When it quashes a conviction, the Court of Appeal may re-sentence the appellant for any other offence for which he was sentenced at the same time by the court below. This is so, whether the counts were on the same or different indictments, (Section 4 Criminal Appeal Act 1968, as amended by section 47 and schedule 8 paragraph 6 Criminal Justice and Immigration Act 2008).
Commencement of appeals
An appellant must serve an appeal notice (Form NG Notice and Grounds of appeal) on the Crown Court office not more than 28 days after the conviction, sentence or order in accordance with Criminal Procedure Rules 68.2. There is no requirement for the appellant or his solicitor to serve notice on the respondent of an intention to appeal.
When the Form NG is lodged at the Crown Court, a notification slip is sent to the prosecuting authority by the Crown Court officer.
The purpose of this provision is to assist the single judge in making the decision in determining the merit of the appellants application.
The prosecutors response will not be invited in every case; it will be limited to those cases where it is believed the single judge would benefit from a response, or where the prosecution themselves identified they would wish to respond.
The need for a prosecution response to the Appellant’s grounds of appeal could be initiated by:
•the CPS indicating they would wish to provide a prosecution response to inform the single judges decision on whether leave should be granted; or
•where in the judgment of the Registrar or his staff, a response from the prosecutor would be of assistance to the single judge.
The appellant must lodge a skeleton argument with the Registrar within 14 days of the grant of leave.
Rule 68.6(2) Criminal Procedure Rules requires any party who wants to make representations to the Court to serve a respondents notice.
The respondent must lodge a skeleton within 14 days of receipt of the appellants skeleton argument, (Consolidated Practice Direction II.17.) In practice, it is accepted that the skeleton argument and respondents notice will be conjoined.
Hearing new evidence
The Court of Appeal may hear new evidence that was not adduced in the original proceedings (section 23(1)(c) Criminal Appeal Act 1968), if:
•it appears capable of belief;
•it may afford any ground for allowing the appeal;
•it would have been admissible;
•it is an issue which is the subject of the appeal;
•there is a reasonable explanation for the failure to adduce it.
The court can call persons who were not called at trial but may be able to give relevant evidence to the Court of Appeal such as jurors or lawyers.
The court has power to compel the production of documents and the attendance of witnesses. These powers extend to hearings of applications for leave to appeal as well as the appeal itself, (section 23 Criminal Appeal Act 1968, as amended by section 47 and schedule 8 paragraph 10 Criminal Justice and Immigration Act 2008
The jurisdiction of the Court of Appeal is statutory. In relation to an appeal against sentence, its powers are to be found in section 9(1) and 11 of the Criminal Appeal Act 1968. Section 9 provides:
"(1) A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings."
In the case of James Hughes v R  EWCA Crim 841, the Court of Appeal held that the fact of a previous referral by the Attorney General pursuant to section 36 Criminal Justice Act 1988, on the grounds that the sentence passed in the Crown Court was unduly lenient, did not effectively extinguish the right of an appellant to the statutory right of appeal pursuant to section 9 Criminal Appeal Act 1968, where that right had not yet been exercised.
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