Office of Public Sector Information

Rule 30

SCHEDULE 4

“Part 68 Appeal to the Court of Appeal about conviction or sentence

When this Part applies

68.1—(1) This Part applies where—

(a) a defendant wants to appeal under—

(i) Part 1 of the Criminal Appeal Act 1968(30), or

(ii) paragraph 14 of Schedule 22 to the Criminal Justice Act 2003(31);

(b) the Criminal Cases Review Commission refers a case to the Court of Appeal under section 9 of the Criminal Appeal Act 1995(32);

(c) a prosecutor wants to appeal to the Court of Appeal under section 14A(5A) of the Football Spectators Act 1989(33);

(d) a party wants to appeal under section 74(8) of the Serious Organised Crime and Police Act 2005(34); or

(e) a person found to be in contempt of court wants to appeal under section 13 of the Administration of Justice Act 1960(35) and section 18A of the Criminal Appeal Act 1968(36).

(2) A reference to an ‘appellant’ in this Part is a reference to such a party or person.

[Note. Under Part 1 (sections 1 to 32) of the Criminal Appeal Act 1968 a defendant may appeal against

• a conviction (section 1(37))

• a sentence (sections 9(38) and 10(39): see section 50(40) for the meaning of ‘sentence’)

• a verdict of not guilty by reason of insanity (section 12)

• a finding of disability (section 15(41))

• a hospital order, interim hospital order or supervision order under section 5(42) or 5A(43) of the Criminal Procedure (Insanity) Act 1964 (section 16A of the 1968 Act(44)).

Under paragraph 14 of Schedule 22 to the Criminal Justice Act 2003 a defendant sentenced to life imprisonment may appeal against the minimum term fixed on review by a High Court judge in certain cases.

See section 13 of the Criminal Appeal Act 1995(45) for the circumstances in which the Criminal Cases Review Commission may refer a conviction, sentence, verdict or finding to the Court of Appeal.

Under section 14A(5A) of the Football Spectators Act 1989 a prosecutor may appeal against a failure by the Crown Court to make a football banning order.

Under section 74(8) of the Serious Organised Crime and Police Act 2005 a prosecutor or defendant may appeal against a review by a Crown Court judge of a sentence that was reduced because the defendant assisted the investigator or prosecutor.

Under section 13 of the Administration of Justice Act 1960 a person punished by the Crown Court for contempt of court may appeal to the Court of Appeal.

The rules in Part 65 also apply where this Part applies.]

Service of appeal notice

68.2—(1) The general rule is that an appellant must serve an appeal notice—

(a) on the Crown Court officer at the Crown Court centre where there occurred—

(i) the conviction, verdict, or finding,

(ii) the sentence, or

(iii) the order, or the failure to make an order

about which the appellant wants to appeal; and

(b) not more than 28 days after that occurred.

(2) But an appellant must serve an appeal notice—

(a) on the Registrar instead where—

(i) the appeal is against a minimum term review decision under paragraph 14 of Schedule 22 to the Criminal Justice Act 2003, or

(ii) the Criminal Cases Review Commission refers the case to the court; and

(b) not more than—

(i) 28 days after such a decision, or after the Registrar serves notice that the Commission has referred a sentence, or

(ii) 56 days after the Registrar serves notice that the Commission has referred a conviction.

[Note. The time limit for serving an appeal notice (a) on an appeal under Part 1 of the Criminal Appeal Act 1968 and (b) on an appeal against a finding of contempt of court is prescribed by sections 18 and 18A of the Criminal Appeal Act 1968. It may be extended but not shortened.

For service of a reference by the Criminal Cases Review Commission, see rule 68.5.]

Form of appeal notice

68.3—(1) An appeal notice must be in the form set out in the Practice Direction.

(2) The appeal notice must—

(a) specify—

(i) the conviction, verdict, or finding,

(ii) the sentence, or

(iii) the order, or the failure to make an order

about which the appellant wants to appeal;

(b) identify each ground of appeal on which the appellant relies, numbering them consecutively (if there is more than one) and concisely outlining each argument in support;

(c) identify the transcript that the appellant thinks the court will need, if the appellant wants to appeal against a conviction;

(d) identify the relevant sentencing powers of the Crown Court, if sentence is in issue;

(e) where the Criminal Cases Review Commission refers a case to the court, explain how each ground of appeal relates (if it does) to the reasons for the reference;

(f) summarise the relevant facts;

(g) identify any relevant authorities;

(h) include or attach any application for the following, with reasons—

(i) permission to appeal, if the appellant needs the court’s permission,

(ii) an extension of time within which to serve the appeal notice,

(iii) bail pending appeal,

(iv) a direction to attend in person a hearing that the appellant could attend by live link, if the appellant is in custody,

(v) the introduction of evidence, including hearsay evidence and evidence of bad character,

(vi) an order requiring a witness to attend court,

(vii) a direction for special measures for a witness,

(viii) a direction for special measures for the giving of evidence by the appellant;

(i) identify any other document or thing that the appellant thinks the court will need to decide the appeal.

[Note. In some legislation, including the Criminal Appeal Act 1968, permission to appeal is described as [leave to appeal]

An appellant needs the court’s permission to appeal in every case to which this Part applies, except where—

• the Criminal Cases Review Commission refers the case

• the appellant appeals against a finding of contempt of court

• the Crown Court judge certifies under sections 1(2)(a), 11(1A), 12(b), 15(2)(b) or 16A(2)(b) of the Criminal Appeal Act 1968(46), under section 81(1B) of the Supreme Court Act 1981(47) or under section 14A(5B) of the Football Spectators Act 1989 that a case is fit for appeal.

A judge of the Court of Appeal may give permission to appeal under section 31 of the Criminal Appeal Act 1968(48).;]

Crown Court judge’s certificate that case is fit for appeal.

68.4—(1) An appellant who wants the Crown Court judge to certify that a case is fit for appeal must—

(a) apply orally, with reasons, immediately after there occurs—

(i) the conviction, verdict, or finding,

(ii) the sentence, or

(iii) the order, or the failure to make an order

about which the appellant wants to appeal; or

(b) apply in writing and serve the application on the Crown Court officer not more than 14 days after that occurred.

(2) A written application must include the same information (with the necessary adaptations) as an appeal notice.

[Note. The Crown Court judge may certify that a case is fit for appeal under sections 1(2)(b), 11(1A), 12(b), 15(2)(b) or 16A(2)(b) of the Criminal Appeal Act 1968, under section 81(1B) of the Supreme Court Act 1981 or under section 14A(5B) of the Football Spectators Act 1989.

See also rule 68.2 (service of appeal notice in all cases).]

Reference by Criminal Cases Review Commission

68.5—(1) The Registrar must serve on the appellant a reference by the Criminal Cases Review Commission.

(2) The court must treat that reference as the appeal notice if the appellant does not serve such a notice under rule 68.2.

Respondent’s notice

68.6—(1) The Registrar—

(a) may serve an appeal notice on any party directly affected by the appeal; and

(b) must do so if the Criminal Cases Review Commission refers a conviction, verdict, finding or sentence to the court.

(2) Such a party may serve a respondent’s notice, and must do so if—

(a) that party wants to make representations to the court; or

(b) the court or the Registrar so directs.

(3) Such a party must serve the respondent’s notice on—

(a) the appellant;

(b) the Registrar; and

(c) any other party on whom the Registrar served the appeal notice.

(4) Such a party must serve the respondent’s notice not more than 14 days after the Registrar serves—

(a) the appeal notice; or

(b) a direction to do so.

(5) The respondent’s notice must be in the form set out in the Practice Direction.

(6) The respondent’s notice must—

(a) give the date on which the respondent was served with the appeal notice;

(b) identify each ground of opposition on which the respondent relies, numbering them consecutively (if there is more than one), concisely outlining each argument in support and identifying the ground of appeal to which each relates;

(c) identify the relevant sentencing powers of the Crown Court, if sentence is in issue;

(d) summarise any relevant facts not already summarised in the appeal notice;

(e) identify any relevant authorities;

(f) include or attach any application for the following, with reasons—

(i) an extension of time within which to serve the respondent’s notice,

(ii) bail pending appeal,

(iii) a direction to attend in person a hearing that the respondent could attend by live link, if the respondent is in custody,

(iv) the introduction of evidence, including hearsay evidence and evidence of bad character,

(v) an order requiring a witness to attend court,

(vi) a direction for special measures for a witness; and

(g) identify any other document or thing that the respondent thinks the court will need to decide the appeal.

[Note. Part II of the Practice Direction sets out the circumstances in which the Registrar usually will serve a defendant’s appeal notice on the prosecutor.]

Adaptation of rules about introducing evidence

68.7—(1) The following Parts apply with such adaptations as the court or the Registrar may direct—

(a) Part 29 (special measures directions);

(b) Part 30 (use of live television link other than for vulnerable witnesses);

(c) Part 34 (hearsay evidence);

(d) Part 35 (evidence of bad character); and

(e) Part 36 (evidence of a complainant’s previous sexual behaviour).

(2) But the general rule is that—

(a) a respondent who opposes an appellant’s application to which one of those Parts applies must do so in the respondent’s notice, with reasons;

(b) an appellant who opposes a respondent’s application to which one of those Parts applies must serve notice, with reasons, on—

(i) the Registrar, and

(ii) the respondent

not more than 14 days after service of the respondent’s notice; and

(c) the court or the Registrar may give directions with or without a hearing.

[Note. An application to introduce evidence or for directions about evidence must be included in, or attached to, an appeal notice or a respondent’s notice: see rule 68.3 and 68.6(6).

Under section 23 of the Criminal Appeal Act 1968(49) the Court of Appeal may allow the introduction of evidence that was not introduced at trial.

See also Part 27 (witness statements) and Part 33 (expert evidence).]

Application for bail pending appeal or retrial

68.8—(1) This rule applies where a party wants to make an application to the court about bail pending appeal or retrial.

(2) That party must serve an application in the form set out in the Practice Direction on—

(a) the Registrar, unless the application is with the appeal notice; and

(b) the other party.

(3) The court must not decide such an application without giving the other party an opportunity to make representations, including representations about any condition or surety proposed by the applicant.

[Note. See section 19 of the Criminal Appeal Act 1968(50) and section 3(8) of the Bail Act 1976(51). An application about bail or about the conditions of bail may be made either by an appellant or respondent.

Under section 81(1) of the Supreme Court Act 1981(52) a Crown Court judge may grant bail pending appeal only (a) if that judge gives a certificate that the case is fit for appeal (see rule 68.4) and (b) not more than 28 days after the conviction or sentence against which the appellant wants to appeal.]

Conditions of bail pending appeal or retrial

68.9—(1) This rule applies where the court grants a party bail pending appeal or retrial subject to any condition that must be met before that party is released.

(2) The court may direct how such a condition must be met.

(3) The Registrar must serve a certificate in the form set out in the Practice Direction recording any such condition and direction on—

(a) that party;

(b) that party’s custodian; and

(c) any other person directly affected by any such direction.

(4) A person directly affected by any such direction need not comply with it until the Registrar serves that person with that certificate.

(5) Unless the court otherwise directs, if any such condition or direction requires someone to enter into a recognizance it must be—

(a) in the form set out in the Practice Direction and signed before—

(i) the Registrar,

(ii) the custodian, or

(iii) someone acting with the authority of the Registrar or custodian;

(b) copied immediately to the person who enters into it; and

(c) served immediately by the Registrar on the appellant’s custodian or vice versa, as appropriate.

(6) Unless the court otherwise directs, if any such condition or direction requires someone to make a payment, surrender a document or take some other step—

(a) that payment, document or step must be made, surrendered or taken to or before—

(i) the Registrar,

(ii) the custodian, or

(iii) someone acting with the authority of the Registrar or custodian;

(b) the Registrar or the custodian, as appropriate, must serve immediately on the other a statement that the payment, document or step has been made, surrendered or taken, as appropriate.

(7) The custodian must release the appellant where it appears that any condition ordered by the court has been met.

(8) For the purposes of section 5 of the Bail Act 1976(53) (record of decision about bail), the Registrar must keep a copy of—

(a) any certificate served under paragraph (3);

(b) a notice of hearing given under rule 65.7(1); and

(c) a notice of the court’s decision served under rule 65.7(2).

(9) Where the court grants bail pending retrial the Registrar must serve on the Crown Court officer copies of the documents kept under paragraph (8).

Forfeiture of a recognizance given as a condition of bail

68.10—(1) This rule applies where—

(a) the court grants a party bail pending appeal or retrial; and

(b) the bail is subject to a condition that that party provides a surety to guarantee that he will surrender to custody as required; but

(c) that party does not surrender to custody as required.

(2) The Registrar must serve notice on—

(a) the surety; and

(b) the prosecutor

of the hearing at which the court may order the forfeiture of the recognizance given by that surety.

(3) The court must not forfeit a surety’s recognizance—

(a) less than 7 days after the Registrar serves notice under paragraph (2); and

(b) without giving the surety an opportunity to make representations at a hearing.

[Note. If the purpose for which a recognizance is entered is not fulfilled, that recognizance may be forfeited by the court. If the court forfeits a surety’s recognizance, the sum promised by that person is then payable to the Crown.]

Right to attend hearing

68.11  A party who is in custody has a right to attend a hearing in public unless—

(a) it is a hearing preliminary or incidental to an appeal, including the hearing of an application for permission to appeal; or

(b) that party is in custody in consequence of—

(i) a verdict of not guilty by reason of insanity, or

(ii) a finding of disability.

[Note. See rule 65.6 (hearings) and section 22 of the Criminal Appeal Act 1968(54). There are corresponding provisions in the Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional Cases) Order 2005(55) and in the Serious Organised Crime and Police Act 2005 (Appeals under section 74) Order 2006(56). Under section 22 of the 1968 Act the court may direct that an appellant who is in custody is to attend a hearing by live link.]

Power to vary determination of appeal against sentence

68.12—(1) This rule applies where the court decides an appeal affecting sentence in a party’s absence.

(2) The court may vary such a decision if it did not take account of something relevant because that party was absent.

(3) A party who wants the court to vary such a decision must—

(a) apply in writing, with reasons;

(b) serve the application on the Registrar not more than 7 days after—

(i) the decision, if that party was represented at the appeal hearing, or

(ii) the Registrar serves the decision, if that party was not represented at that hearing.

[Note. Section 22(3) of the Criminal Appeal Act 1968 allows the court to sentence in an appellant’s absence. There are corresponding provisions in the Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional Cases) Order 2005 and in the Serious Organised Crime and Police Act 2005 (Appeals under section 74) Order 2006.]

Directions about re-admission to hospital on dismissal of appeal

68.13—(1) This rule applies where—

(a) an appellant subject to—

(i) an order under section 37(1) of the Mental Health Act 1983(57) (detention in hospital on conviction), or

(ii) an order under section 5(2) of the Criminal Procedure (Insanity) Act 1964(58) (detention in hospital on finding of insanity or disability)

has been released on bail pending appeal; and

(b) the court—

(i) refuses permission to appeal,

(ii) dismisses the appeal, or

(iii) affirms the order under appeal.

(2) The court must give appropriate directions for the appellant's—

(a) re-admission to hospital; and

(b) if necessary, temporary detention pending re-admission.

Renewal or setting aside of order for retrial

68.14—(1) This rule applies where—

(a) a prosecutor wants a defendant to be arraigned more than 2 months after the court ordered a retrial under section 7 of the Criminal Appeal Act 1968(59); or

(b) a defendant wants such an order set aside after 2 months have passed since it was made.

(2) That party must apply in writing, with reasons, and serve the application on—

(a) the Registrar;

(b) the other party.

[Note. Section 8(1)(60) and (1A)(61) of the Criminal Appeal Act 1968 set out the criteria for making an order on an application to which this rule applies.]”