(1) Where the prosecutor or a receiver makes an application under section 13, 14, 15, 16 or 17 of the Drug Trafficking Act 1994 or section 74A, 74B, 74C or 83 of the Criminal Justice Act 1988, the application must be in writing and a copy must be served on the defendant.
(2) The application must include the following particulars—
(a) the name of the defendant;
(b) the date on which and the place where any relevant conviction occurred;
(c) the date on which and the place where any relevant confiscation order was made or, as the case may be, varied;
(d) the grounds on which the application is made;
(e) an indication of the evidence available to support the application; and
(f) a copy of any certificate issued by the High Court.
33.61 Application to the Crown Court to discharge or vary order to make material available
(1) Where an order under section 93H of the Criminal Justice Act 1988 (order to make material available) or section 55 of the Drug Trafficking Act 1994 (order to make material available) has been made by the Crown Court, any person affected by it may apply in writing to the court officer for the order to be discharged or varied, and on hearing such an application the court may discharge the order or make such variations to it as the court thinks fit.
(2) Subject to paragraph (3), where a person proposes to make an application under paragraph (1) for the discharge or variation of an order, that person must give a copy of the application, not later than 48 hours before the making of the application—
(a) to a constable at the police station specified in the order; or
(b) to the office of the appropriate officer who made the application, as specified in the order,
in either case together with a notice indicating the time and place at which the application for discharge or variation is to be made.
(3) The court may direct that paragraph (2) need not be complied with if satisfied that the person making the application has good reason to seek a discharge or variation of the order as soon as possible and it is not practicable to comply with that paragraph.
(4) In this rule:
‘constable’ includes a person commissioned by the Commissioners for Her Majesty’s Revenue and Customs;
‘police station’ includes a place for the time being occupied by Her Majesty’s Revenue and Customs.
33.62 Application to the Crown Court for increase in term of imprisonment in default of payment
(1) This rule applies to applications made, or that have effect as made, to the Crown Court under section 10 of the Drug Trafficking Act 1994 and section 75A of the Criminal Justice Act 1988 (interest on sums unpaid under confiscation orders).
(2) Notice of an application to which this rule applies to increase the term of imprisonment or detention fixed in default of payment of a confiscation order by a person (‘the defendant’) must be made by the prosecutor in writing to the court officer.
(3) A notice under paragraph (2) shall—
(a) state the name and address of the defendant;
(b) specify the grounds for the application;
(c) give details of the enforcement measures taken, if any; and
(d) include a copy of the confiscation order.
(4) On receiving a notice under paragraph (2), the court officer must—
(a) forthwith send to the defendant and the magistrates’ court required to enforce payment of the confiscation order under section 140(1) of the Powers of Criminal Courts (Sentencing) Act 2000, a copy of the said notice; and
(b) notify in writing the applicant and the defendant of the date, time and place appointed for the hearing of the application.
(5) Where the Crown Court makes an order pursuant to an application mentioned in paragraph (1) above, the court officer must send forthwith a copy of the order—
(a) to the applicant;
(b) to the defendant;
(c) where the defendant is at the time of the making of the order in custody, to the person having custody of him or her; and
(d) to the magistrates’ court mentioned in paragraph (4)(a).
33.63 Drug trafficking – compensation on acquittal in the Crown Court
Where the Crown Court cancels a confiscation order under section 22(2) of the Drug Trafficking Act 1994, the Crown Court officer must serve notice to that effect on the High Court officer and on the court officer of the magistrates’ court which has responsibility for enforcing the order.
(1) This rule applies where a person is accused of disobeying—
(a) a compliance order made for the purpose of ensuring that a confiscation order is effective;
(b) a restraint order; or
(c) an ancillary order made for the purpose of ensuring that a restraint order is effective.
(2) An applicant who wants the Crown Court to exercise its power to punish that person for contempt of court must comply with the rules in Part 48 (Contempt of court).
[Note. The Crown Court has inherent power to punish for contempt of court a person who disobeys its order: see section 45 of the Senior Courts Act 1981.]
(1) This Part applies where—
(a) a defendant wants to appeal under—
(i) section 108 of the Magistrates’ Courts Act 1980,
(ii) section 45 of the Mental Health Act 1983,
(iii) section 42 of the Counter Terrorism Act 2008, or
(iv) paragraph 10 of Schedule 5, paragraph 6(11) or 21(6) of Schedule 7, or paragraph 10(11), 14(8) or 23(6) of Schedule 10 to the Sentencing Act 2020;
(b) the Criminal Cases Review Commission refers a defendant’s case to the Crown Court under section 11 of the Criminal Appeal Act 1995;
(c) a prosecutor wants to appeal under—
(i) section 14A(5A) of the Football Spectators Act 1989, or
(ii) section 147(3) of the Customs and Excise Management Act 1979; or
(d) a person wants to appeal under—
(i) section 1 of the Magistrates’ Courts (Appeals from Binding Over Orders) Act 1956,
(ii) section 12(5) of the Contempt of Court Act 1981,
(iii) regulation 3C or 3H of the Costs in Criminal Cases (General) Regulations 1986,
(iv) section 22 of the Football Spectators Act 1989,
(v) section 10 of the Crime and Disorder Act 1998,
(vi) section 28(5)(b) of the Offensive Weapons Act 2019,
(vii) section 366(9) of the Sentencing Act 2020,
(viii) section 342I(2) of the 2020 Act, or
(ix) section 46(5) of the Domestic Abuse Act 2021.
(2) A reference to an ‘appellant’ in this Part is a reference to such a party or person.
[Note. An appeal to the Crown Court is by way of re-hearing: see section 79(3) of the Senior Courts Act 1981. For the powers of the Crown Court on an appeal, see section 48 of that Act.
A defendant may appeal from a magistrates’ court to the Crown Court—
(a) under section 108 of the Magistrates’ Courts Act 1980, against sentence after a guilty plea and after a not guilty plea against conviction, against a finding of guilt or against sentence;
(b) under section 45 of the Mental Health Act 1983, where the magistrates’ court makes a hospital order or guardianship order without convicting the defendant;
(c) under paragraph 10 of Schedule 5, paragraph 6(11) or 21(6) of Schedule 7, or paragraph 10(11), 14(8) or 23(6) of Schedule 10 to the Sentencing Act 2020, where the magistrates’ court—
(i) deals with the defendant for breach of a reparation order, a youth rehabilitation order or a community order,
(ii) except in some circumstances, amends a reparation order, or
(iii) except in some circumstances, deals with an application to revoke a reparation order or a community order; or
(d) under section 42 of the Counter Terrorism Act 2008, where the magistrates’ court decides that an offence has a terrorist connection.
See section 13 of the Criminal Appeal Act 1995 for the circumstances in which the Criminal Cases Review Commission may refer a conviction or sentence to the Crown Court.
Under section 14A(5A) of the Football Spectators Act 1989, a prosecutor may appeal to the Crown Court against a failure by a magistrates’ court to make a football banning order.
Under section 147(3) of the Customs and Excise Management Act 1979, a prosecutor may appeal to the Crown Court against any decision of a magistrates’ court in proceedings for an offence under any Act relating to customs or excise.
Under section 1 of the Magistrates’ Courts (Appeals from Binding Over Orders) Act 1956, a person bound over to keep the peace or be of good behaviour by a magistrates’ court may appeal to the Crown Court.
Under section 12(5) of the Contempt of Court Act 1981, a person detained, committed to custody or fined by a magistrates’ court for insulting a member of the court or another participant in the case, or for interrupting the proceedings, may appeal to the Crown Court.
Under regulation 3C of the Costs in Criminal Cases (General) Regulations 1986, a legal representative against whom a magistrates’ court makes a wasted costs order under section 19A of the Prosecution of Offences Act 1985 and regulation 3B may appeal against that order to the Crown Court.
Under regulation 3H of the Costs in Criminal Cases (General) Regulations 1986, a third party against whom a magistrates’ court makes a costs order under section 19B of the Prosecution of Offences Act 1985 and regulation 3F may appeal against that order to the Crown Court.
Under section 22 of the Football Spectators Act 1989, any person aggrieved by the decision of a magistrates’ court making a football banning order may appeal to the Crown Court.
Under section 10 of the Crime and Disorder Act 1998 or under section 366(9) of the Sentencing Act 2020, a person in respect of whom a magistrates’ court makes a parenting order may appeal against that order to the Crown Court.
Under section 28(5)(b) of the Offensive Weapons Act 2019 an applicant to a magistrates’ court for the variation, renewal or discharge of a knife crime prevention order made by that court, or a respondent to such an application, may appeal to the Crown Court against the decision of the magistrates’ court.
Under section 342I(2) of the Sentencing Act 2020 an applicant to a magistrates’ court for the variation, renewal or discharge of a serious violence reduction order made by that court, or a respondent to such an application, may appeal to the Crown Court against the decision of the magistrates’ court.
Under section 46(5), (7) of the Domestic Abuse Act 2021 an applicant to a magistrates’ court for the variation or discharge of a domestic abuse prevention order made by that court, or a respondent to such an application, may appeal to the Crown Court against the decision of the magistrates’ court.]
(1) An appellant must serve an appeal notice—
(a) in every case, on the magistrates’ court officer;
(b) on the prosecutor, where the defendant is the appellant; and
(c) on the defendant, where the prosecutor is the appellant.
(2) The appellant must serve the appeal notice—
(a) as soon after the decision appealed against as the appellant wants; but
(b) not more than 15 business days after—
(i) sentence, the date sentence is deferred or the date of committal for sentence, whichever is earlier, if the appeal is against conviction or against a finding of guilt,
(ii) sentence, if the appeal is against sentence, or
(iii) the order or failure to make an order about which the appellant wants to appeal, in any other case.
(3) The appellant must serve with the appeal notice any application for the following, with reasons—
(a) an extension of the time limit under this rule, if the appeal notice is late;
(b) bail pending appeal, if the appellant is in custody; or
(c) the suspension of any disqualification imposed or order made in the case, where the magistrates’ court or the Crown Court can order such a suspension pending appeal.
(4) Where both the magistrates’ court and the Crown Court can grant bail or suspend a disqualification or order pending appeal, an application must indicate by which court the appellant wants the application determined.
(5) Where the appeal is against conviction or against a finding of guilt, unless the respondent agrees that the court should allow the appeal—
(a) the respondent must serve a respondent’s notice on—
(i) the Crown Court officer; and
(ii) the appellant; and
(b) the respondent must serve that notice not more than 15 business days after service of the appeal notice.
(6) Where the appeal is about the variation or discharge of a domestic abuse protection order, the magistrates’ court officer must serve the appeal notice on—
(a) the defendant, unless the defendant is the appellant;
(b) each relevant Chief Officer of Police who is not the appellant; and
(c) any other person if the court so directs.
[Note. Under sections 4 and 5 of the Sentencing Act 2020, a magistrates’ court may defer passing sentence for up to 6 months.
Under section 113 of the Magistrates’ Courts Act 1980, the magistrates’ court may grant an appellant bail pending appeal. Under section 81(1)(b) of the Senior Courts Act 1981, the Crown Court also may do so. See also rule 14.7.
Under section 39 of the Road Traffic Offenders Act 1988, a court which has made an order disqualifying a person from driving may suspend the disqualification pending appeal. Under section 40 of the 1988 Act, the appeal court may do so. See also rule 29.2.
Under section 129 of the Licensing Act 2003, a court which has made an order to forfeit or suspend a personal licence issued under that Act may suspend the order pending appeal. Under section 130 of the 2003 Act, the appeal court may do so.
Section 47 of the Domestic Abuse Act 2021 lists those who are relevant Chief Officers of Police for the purposes of an appeal under section 46 of that Act.]
(1) The appeal notice must—
(a) specify—
(i) the conviction or finding of guilt,
(ii) the sentence, or
(iii) the order, or the failure to make an order
about which the appellant wants to appeal;
(b) summarise the issues;
(c) in an appeal against conviction or against a finding of guilt, to the best of the appellant’s ability and to assist the court in fulfilling its duty under rule 3.2 (the court’s duty of case management)—
(i) identify the witnesses who gave oral evidence in the magistrates’ court,
(ii) identify the witnesses who gave written evidence in the magistrates’ court,
(iii) identify the prosecution witnesses whom the appellant will want to question if they are called to give oral evidence in the Crown Court,
(iv) identify the likely defence witnesses,
(v) give notice of any special arrangements or other measures that the appellant thinks are needed for witnesses,
(vi) explain whether the issues in the Crown Court differ from the issues in the magistrates’ court, and if so how, and
(vii) say how long the trial lasted in the magistrates’ court and how long the appeal is likely to last in the Crown Court;
(d) in an appeal against a sentence, order or failure to make an order—
(i) identify any circumstances, report or other information of which the appellant wants the court to take account, and
(ii) explain the significance of those circumstances or that information to what is in issue;
(e) in an appeal against a finding that the appellant insulted someone or interrupted proceedings in the magistrates’ court, attach—
(i) the magistrates’ court’s written findings of fact, and
(ii) the appellant’s response to those findings;
(f) say whether the appellant has asked the magistrates’ court to reconsider the case; and
(g) include a list of those on whom the appellant has served the appeal notice.
(2) A respondent’s notice must—
(a) give the date on which the respondent was served with the appeal notice; and
(b) to assist the court in fulfilling its duty under rule 3.2—
(i) identify the witnesses who gave oral evidence in the magistrates’ court,
(ii) identify the witnesses who gave written evidence in the magistrates’ court,
(iii) identify the prosecution witnesses whom the respondent intends to call to give oral evidence in the Crown Court,
(iv) give notice of any special arrangements or other measures that the respondent thinks are needed for witnesses,
(v) explain whether the issues in the Crown Court differ from the issues in the magistrates’ court, and if so how, and
(vi) say how long the trial lasted in the magistrates’ court and how long the appeal is likely to last in the Crown Court.
(3) Paragraph (4) applies in an appeal against conviction or against a finding of guilt where in the magistrates’ court a party to the appeal—
(a) introduced in evidence material to which applies—
(i) Part 16 (Written witness statements),
(ii) Part 19 (Expert evidence),
(iii) Part 20 (Hearsay evidence),
(iv) Part 21 (Evidence of bad character), or
(v) Part 22 (Evidence of a complainant’s previous sexual behaviour); or
(b) made an application to which applies—
(i) Part 17 (Witness summonses, warrants and orders),
(ii) Part 18 (Measures to assist a witness or defendant to give evidence), or
(iii) Part 23 (Restriction on cross-examination by a defendant).
(4) If such a party wants to reintroduce that material or to renew that application in the Crown Court that party must include a notice to that effect in the appeal or respondent’s notice, as the case may be.
[Note. In some cases, a magistrates’ court can reconsider a conviction, sentence or other order and make a fresh decision. See section 142 of the Magistrates’ Courts Act 1980.
See also rule 3.13 (Conduct of a trial or an appeal).]
(1) The magistrates’ court officer must—
(a) arrange for the magistrates’ court to hear as soon as practicable any application to that court under rule 34.2(3)(c) (suspension of disqualification or order pending appeal); and
(b) as soon as practicable notify the Crown Court officer of the service of the appeal notice and make available to that officer—
(i) the appeal notice and any accompanying application served by the appellant,
(ii) details of the parties including their addresses, and
(iii) a copy of each magistrates’ court register entry relating to the decision under appeal and to any application for bail or for the suspension of a disqualification or order pending appeal.
(2) Where the appeal is against conviction or against a finding of guilt, the magistrates’ court officer must make available to the Crown Court officer as soon as practicable—
(a) all material served on the magistrate’s court officer to which applies—
(i) Part 8 (Initial details of the prosecution case),
(ii) Part 16 (Written witness statements),
(iii) Part 17 (Witness summonses, warrants and orders),
(iv) Part 18 (Measures to assist a witness or defendant to give evidence),
(v) Part 19 (Expert evidence),
(vi) Part 20 (Hearsay evidence),
(vii) Part 21 (Evidence of bad character),
(viii) Part 22 (Evidence of a complainant’s previous sexual behaviour), or
(ix) Part 23 (Restriction on cross-examination by a defendant);
(b) any case management questionnaire prepared for the purposes of the trial;
(c) all case management directions given by the magistrates’ court for the purposes of the trial; and
(d) any other document, object or information for which the Crown Court officer asks.
(3) Where the appeal is against sentence, the magistrates’ court officer must make available to the Crown Court officer as soon as practicable any report received for the purposes of sentencing.
(4) Unless the magistrates’ court otherwise directs, the magistrates’ court officer—
(a) must keep any document or object exhibited in the proceedings in the magistrates’ court, or arrange for it to be kept by some other appropriate person, until at least—
(i) 6 weeks after the conclusion of those proceedings, or
(ii) the conclusion of any proceedings in the Crown Court that begin within that 6 week period; but
(b) need not keep such a document if—
(i) the document that was exhibited is a copy of a document retained by the party who produced it, and
(ii) what was in evidence in the magistrates’ court was the content of that document.
[Note. See also section 133 of the Criminal Justice Act 2003 (Proof of statements in documents).]
A person who, under arrangements made by the magistrates’ court officer, keeps a document or object exhibited in the proceedings in the magistrates’ court must—
(a) keep that exhibit until—
(i) 6 weeks after the conclusion of those proceedings, or
(ii) the conclusion of any proceedings in the Crown Court that begin within that 6weeks,
unless the magistrates’ court or the Crown Court otherwise directs; and
(b) provide the Crown Court with any such document or object for which the Crown Court officer asks, within such period as the Crown Court officer may require.
34.6 Reference by the Criminal Cases Review Commission
(1) The Crown Court officer must, as soon as practicable, serve a reference by the Criminal Cases Review Commission on—
(a) the appellant;
(b) every other party; and
(c) the magistrates’ court officer.
(2) The appellant may serve an appeal notice on—
(a) the Crown Court officer; and
(b) every other party,
not more than 15 business days later.
(3) The Crown Court must treat the reference as the appeal notice if the appellant does not serve an appeal notice.
(1) The Crown Court may conduct a preparation for appeal hearing (and if necessary more than one such hearing) where―
(a) it is necessary to conduct such a hearing in order to give directions for the effective determination of the appeal; or
(b) such a hearing is required to set ground rules for the conduct of the questioning of a witness or appellant.
(2) Where under rule 34.3(4) a party gives notice to reintroduce material or to renew an application first introduced or made in the magistrates’ court—
(a) no other notice or application to the same effect otherwise required by these Rules need be served; and
(b) any objection served by the other party in the magistrates’ court is treated as renewed unless within 15 business days that party serves notice withdrawing it.
(3) Paragraphs (4) and (5) apply where—
(a) the appeal is against conviction or against a finding of guilt;
(b) a party wants to introduce material or make an application under a Part of these Rules listed in rule 34.3(3); and
(c) that party gives no notice of reintroduction or renewal under rule 34.3(4) (whether because the conditions for giving such a notice are not met or for any other reason).
(4) Such a party must serve the material, notice or application required by that Part not more than 15 business days after service of the appeal notice.
(5) Subject to paragraph (4), the requirements of that Part apply (for example, as to the form in which a notice must be given or an application made and as to the time and form in which such a notice or application may be opposed).
(1) The Crown Court as a general rule must hear in public an appeal or reference to which this Part applies, but—
(a) may order any hearing to be in private; and
(b) where a hearing is about a public interest ruling, must hold that hearing in private.
(2) The Crown Court officer must give as much notice as reasonably practicable of every hearing to—
(a) the parties;
(b) any party’s custodian; and
(c) any other person whom the Crown Court requires to be notified.
(3) The Crown Court officer must serve every decision on—
(a) the parties;
(b) any other person whom the Crown Court requires to be served; and
(c) the magistrates’ court officer and any party’s custodian, where the decision determines an appeal.
(4) But where a hearing or decision is about a public interest ruling, the Crown Court officer must not—
(a) give notice of that hearing to; or
(b) serve that decision on,
anyone other than the prosecutor who applied for that ruling, unless the court otherwise directs.
[Note. See also Part 15 (Disclosure).]
(1) The appellant—
(a) may abandon an appeal without the Crown Court’s permission, by serving a notice of abandonment on—
(i) the magistrates’ court officer,
(ii) the Crown Court officer, and
(iii) every other party
before the hearing of the appeal begins; but
(b) after the hearing of the appeal begins, may only abandon the appeal with the Crown Court’s permission.
(2) A notice of abandonment must be signed by or on behalf of the appellant.
(3) Where an appellant who is on bail pending appeal abandons an appeal—
(a) the appellant must surrender to custody as directed by the magistrates’ court officer; and
(b) any conditions of bail apply until then.
[Note. Where an appellant abandons an appeal to the Crown Court, both the Crown Court and the magistrates’ court have power to make a costs order against that appellant in favour of the respondent: see section 52 of the Senior Courts Act 1981 and section 109 of the Magistrates’ Courts Act 1980. Part 45 contains rules about costs on abandoning an appeal.]
34.10 Court’s power to vary requirements under this Part
The Crown Court may—
(a) shorten or extend (even after it has expired) a time limit under this Part;
(b) allow an appellant to vary an appeal notice that that appellant has served;
(c) direct that an appeal notice be served on any person; and
(d) allow an appeal notice or a notice of abandonment to be in a different form to one issued under the Practice Direction, or to be presented orally.
(1) On the hearing of an appeal the general rule is that—
(a) the Crown Court must comprise—
(i) a judge of the High Court, a Circuit judge, a Recorder or a qualifying judge advocate, and
(ii) no less than two and no more than four justices of the peace, none of whom took part in the decision under appeal; and
(b) if the appeal is from a youth court, each justice of the peace must be qualified to sit as a member of a youth court.
(2) Despite the general rule—
(a) the Crown Court may include only one justice of the peace if—
(i) the presiding judge decides that otherwise the start of the appeal hearing will be delayed unreasonably, or
(ii) one or more of the justices of the peace who started hearing the appeal is absent; and
(b) the Crown Court may comprise only a judge of the High Court, a Circuit judge, a Recorder or a qualifying judge advocate if—
(i) the appeal is against conviction, under section 108 of the Magistrates’ Courts Act 1980, and
(ii) the respondent agrees that the court should allow the appeal, under section 48(2) of the Senior Courts Act 1981.
(3) Before the hearing of an appeal begins and after that hearing ends—
(a) the Crown Court may comprise only a judge of the High Court, a Circuit judge, a Recorder or a qualifying judge advocate; and
(b) so constituted, the court may, among other things, exercise the powers to which apply—
(i) the rules in this Part and in Part 3 (Case management), and
(ii) rule 35.2 (stating a case for the opinion of the High Court, or refusing to do so).
[Note. See sections 73 and 74 of the Senior Courts Act 1981(which allow rules of court to provide for the constitution of the Crown Court in proceedings on appeal), section 45 of the Children and Young Persons Act 1933 and section 9 of the Courts Act 2003. Under section 8(1A) of the Senior Courts Act 1981, a qualifying judge advocate may not exercise the jurisdiction of the Crown Court on an appeal from a youth court.]
This Part applies where a person wants to appeal to the High Court by case stated—
(a) under section 111 of the Magistrates’ Courts Act 1980, against a decision of a magistrates’ court; or
(b) under section 28 of the Senior Courts Act 1981, against a decision of the Crown Court.
[Note. Under section 111 of the Magistrates’ Courts Act 1980, ‘any person who was a party to any proceeding before a magistrates’ court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved’.
Under section 28 of the Senior Courts Act 1981, ‘any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court.’
Under section 28A of the 1981 Act, the High Court may ‘reverse, affirm or amend the determination in respect of which the case has been stated; or remit the matter to the magistrates’ court, or the Crown Court, with the opinion of the High Court, and may make such other order … as it thinks fit.’ Under that section, the High Court also may send the case back for amendment, if it thinks fit.]
(1) A party who wants the court to state a case for the opinion of the High Court must—
(a) apply in writing, not more than 21 days after the decision against which the applicant wants to appeal; and
(b) serve the application on—
(i) the court officer, and
(ii) each other party.
(2) The application must—
(a) specify the decision in issue;
(b) specify the proposed question or questions of law or jurisdiction on which the opinion of the High Court will be asked;
(c) indicate the proposed grounds of appeal; and
(d) include or attach any application for the following, with reasons—
(i) if the application is to the Crown Court, an extension of time within which to apply to state a case,
(ii) bail pending appeal, or
(iii) the suspension of any disqualification imposed in the case, where the court can order such a suspension pending appeal.
(3) A party who wants to make representations about the application must—
(a) serve the representations on—
(i) the court officer, and
(ii) each other party; and
(b) do so not more than 10 business days after service of the application.
(4) The court—
(a) may determine the application without a hearing; and
(b) must determine the application not more than 15 business days after the time for service of representations under paragraph (3) has expired.
(5) If the court decides not to state a case, the court officer must serve on each party—
(a) notice of that decision; and
(b) the court’s written reasons for that decision.
[Note. The time limit for applying to a magistrates’ court to state a case is prescribed by section 111(2) of the Magistrates’ Courts Act 1980. It may be neither extended nor shortened.
Under section 113 of the Magistrates’ Courts Act 1980, the magistrates’ court may grant an appellant bail pending appeal. Under section 81(1)(d) of the Senior Courts Act 1981, the Crown Court may do so. See also rule 14.7.
Where Part 34 (Appeal to the Crown Court) applies, an application to which this rule applies may be determined by a judge of the High Court, a Circuit judge, a Recorder or a qualifying judge advocate without justices of the peace: see rule 34.11 (Constitution of the Crown Court).
Under section 39 of the Road Traffic Offenders Act 1988, a court which has made an order disqualifying a person from driving may suspend the disqualification pending appeal. See also rule 29.2.]
(1) This rule applies where the court decides to state a case for the opinion of the High Court.
(2) The court officer must serve on each party notice of—
(a) the decision to state a case, and
(b) any recognizance ordered by the court.
(3) Unless the court otherwise directs, not more than 15 business days after the court’s decision to state a case—
(a) in a magistrates’ court, the court officer must serve a draft case on each party; or
(b) in the Crown Court, the applicant must serve a draft case on the court officer and each other party.
(4) The draft case must—
(a) specify the decision in issue;
(b) specify the question(s) of law or jurisdiction on which the opinion of the High Court will be asked;
(c) include a succinct summary of—
(i) the nature and history of the proceedings,
(ii) the court’s relevant findings of fact, and
(iii) the relevant contentions of the parties; and
(d) if a question is whether there was sufficient evidence on which the court reasonably could reach a finding of fact—
(i) specify that finding, and
(ii) include a summary of the evidence on which the court reached that finding.
(5) Except to the extent that paragraph (4)(d) requires, the draft case must not include an account of the evidence received by the court.
(6) A party who wants to make representations about the content of the draft case, or to propose a revised draft, must—
(a) serve the representations, or revised draft, on—
(i) the court officer, and
(ii) each other party; and
(b) do so not more than 15 business days after service of the draft case.
(7) The court must state the case not more than 15 business days after the time for service of representations under paragraph (6) has expired.
(8) A case stated for the opinion of the High Court must—
(a) comply with paragraphs (4) and (5); and
(b) identify—
(i) the court that stated it, and
(ii) the court office for that court.
(9) The court officer must serve the case stated on each party.
[Note. Under section 114 of the Magistrates’ Courts Act 1980, a magistrates’ court need not state a case until the person who applied for it has entered into a recognizance to appeal promptly to the High Court. The Crown Court has a corresponding inherent power.
Under section 121(6) of the 1980 Act, the magistrates’ court which states a case need not include all the members of the court which took the decision questioned.
For the procedure on appeal to the High Court, see Part 52 of the Civil Procedure Rules 1998 and the associated Practice Direction.]
(1) This rule applies—
(a) only in a magistrates’ court; and
(b) unless the court—
(i) includes a District Judge (Magistrates’ Courts), and
(ii) otherwise directs.
(2) A justices’ legal adviser must assist the court by—
(a) preparing and amending the draft case; and
(b) completing the case stated.
[Note. For the functions of a justices’ legal adviser, see sections 28 and 29 of the Courts Act 2003. See also rule 2.12 (Duties of justices’ legal adviser).]
35.5 Court’s power to vary requirements under this Part
(1) The court may shorten or extend (even after it has expired) a time limit under this Part.
(2) A person who wants an extension of time must—
(a) apply when serving the application, representations or draft case for which it is needed; and
(b) explain the delay.
[Note. See also rule 35.2(2)(d)(i) and the note to rule 35.2.]
(1) This Part applies to all the applications, appeals and references to the Court of Appeal to which Parts 37, 38, 39, 40, 41 and 43 apply.
(2) In this Part and in those, unless the context makes it clear that something different is meant ‘court’ means the Court of Appeal or any judge of that court.
[Note. See rule 2.2 for the usual meaning of ‘court’.
Under section 53 of the Senior Courts Act 1981, the criminal division of the Court of Appeal exercises jurisdiction in the appeals and references to which Parts 37, 38, 39, 40 and 41 apply.
Under section 55 of that Act, the Court of Appeal must include at least two judges, and for some purposes at least three.
For the powers of the Court of Appeal that may be exercised by one judge of that court or by the Registrar, see sections 31, 31A, 31B, 31C and 44 of the Criminal Appeal Act 1968; section 49 of the Criminal Justice Act 2003; the Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional Cases) Order 2005; the Serious Organised Crime and Police Act 2005 (Appeals under section 74) Order 2006; the Serious Crime Act 2007 (Appeals under Section 24) Order 2008; and the power conferred by section 53(4) of the 1981 Act.]
(1) The court and the parties have the same duties and powers as under Part 3 (Case management).
(2) The Registrar—
(a) must fulfil the duty of active case management under rule 3.2; and
(b) in fulfilling that duty may exercise any of the powers of case management under—
(i) rule 3.5 (the court’s general powers of case management),
(ii) rule 3.12(3) (requiring a certificate of readiness), and
(iii) rule 3.13 (requiring a party to identify intentions and anticipated requirements)
subject to the directions of the court.
(3) The Registrar must nominate a case progression officer under rule 3.4.
The court or the Registrar may—
(a) shorten a time limit or extend it (even after it has expired) unless that is inconsistent with other legislation;
(b) allow a party to vary any notice that that party has served;
(c) direct that a notice or application be served on any person; and
(d) allow a notice or application to be in a different form, or presented orally.
[Note. The time limit for serving an appeal notice—
(a) under section 18 of the Criminal Appeal Act 1968 on an appeal against conviction or sentence, and
(b) under section 18A of that Act on an appeal against a finding of contempt of court
may be extended but not shortened: see rule 39.2.
The time limit for serving an application for permission to refer a sentencing case under section 36 of the Criminal Justice Act 1988 may be neither extended nor shortened: see rule 41.2(4).
The time limits in rule 43.2 for applying to the Court of Appeal for permission to appeal or refer a case to the Supreme Court may be extended or shortened only as explained in the note to that rule.]
A person who wants an extension of time within which to serve a notice or make an application must—
(a) apply for that extension of time when serving that notice or making that application; and
(b) give the reasons for the application for an extension of time.
36.5 Renewing an application refused by a judge or the Registrar
(1) This rule applies where a party with the right to do so wants to renew—
(a) to a judge of the Court of Appeal an application refused by the Registrar; or
(b) to the Court of Appeal an application refused by a judge of that court.
(2) That party must—
(a) renew the application in the form issued under the Practice Direction, signed by or on behalf of the applicant; and
(b) serve the renewed application on the Registrar not more than 10 business days after—
(i) the refusal of the application that the applicant wants to renew; or
(ii) the Registrar serves that refusal on the applicant, if the applicant was not present in person or by live link when the original application was refused.
[Note. The time limit of 10 business days under this rule is reduced to 5 business days where Parts 37, 38 or 40 apply: see rules 37.7, 38.10 and 40.7.
For the right to renew an application to a judge or to the Court of Appeal, see sections 31(3), 31C and 44 of the Criminal Appeal Act 1968, the Criminal Justice Act 2003 (Mandatory Life Sentences: Appeals in Transitional Cases) Order 2005, the Serious Organised Crime and Police Act 2005 (Appeals under section 74) Order 2006 and the Serious Crime Act 2007 (Appeals under Section 24) Order 2008.
A party has no right under section 31C of the 1968 Act to renew to the Court of Appeal an application for procedural directions refused by a judge, but in some circumstances a case management direction might be varied: see rule 3.6.
If an applicant does not renew an application that a judge has refused, including an application for permission to appeal, the Registrar will treat it as if it had been refused by the Court of Appeal.
Under section 22 of the Criminal Appeal Act 1968, the Court of Appeal may direct that an appellant who is in custody is to attend a hearing by live link.]
(1) The general rule is that the Court of Appeal must hear in public—
(a) an application, including an application for permission to appeal; and
(b) an appeal or reference,
but it may order any hearing to be in private.
(2) Where a hearing is about a public interest ruling, that hearing must be in private unless the court otherwise directs.
(3) Where the appellant wants to appeal against an order restricting public access to a trial, the court—
(a) may decide without a hearing—
(i) an application, including an application for permission to appeal, and
(ii) an appeal; but
(b) must announce its decision on such an appeal at a hearing in public.
(4) Where the appellant wants to appeal or to refer a case to the Supreme Court, the court—
(a) may decide without a hearing an application—
(i) for permission to appeal or to refer a sentencing case, or
(ii) to refer a point of law; but
(b) must announce its decision on such an application at a hearing in public.
(5) Where a party wants the court to reopen the determination of an appeal—
(a) the court—
(i) must decide the application without a hearing, as a general rule, but
(ii) may decide the application at a hearing; and
(b) need not announce its decision on such an application at a hearing in public.
(6) A judge of the Court of Appeal and the Registrar may exercise any of their powers—
(a) at a hearing in public or in private; or
(b) without a hearing.
[Note. For the procedure on an appeal against an order restricting public access to a trial, see Part 40.
For the procedure on an application to reopen the determination of an appeal, see rule 36.15.]
(1) The Registrar must give as much notice as reasonably practicable of every hearing to—
(a) the parties;
(b) any party’s custodian;
(c) any other person whom the court requires to be notified; and
(d) the Crown Court officer, where Parts 37, 38 or 40 apply.
(2) The Registrar must serve every decision on—
(a) the parties;
(b) any other person whom the court requires to be served; and
(c) the Crown Court officer and any party’s custodian, where the decision determines an appeal or application for permission to appeal.
(3) But where a hearing or decision is about a public interest ruling, the Registrar must not—
(a) give notice of that hearing to; or
(b) serve that decision on,
anyone other than the prosecutor who applied for that ruling, unless the court otherwise directs.
(1) The Crown Court officer must—
(a) where electronic arrangements have been made to receive and store information and documents for the Crown Court, as soon as practicable ensure that all such material is available to the Registrar in accordance with those arrangements; and
(b) provide the Registrar with any document, object or information for which the Registrar asks, within such period as the Registrar may require.
(2) Where someone may appeal to the Court of Appeal, the Crown Court officer must keep any document or object exhibited in the proceedings in the Crown Court, or arrange for it to be kept by some other appropriate person, until—
(a) 6 weeks after the conclusion of those proceedings; or
(b) the conclusion of any appeal proceedings that begin within that 6 week period,
unless the court, the Registrar or the Crown Court otherwise directs.
(3) Where Part 37 applies (Appeal to the Court of Appeal against ruling at preparatory hearing or in response to jury tampering), the Crown Court officer must as soon as practicable serve on the appellant a transcript or note of—
(a) each order or ruling against which the appellant wants to appeal; and
(b) the decision by the Crown Court judge on any application for permission to appeal.
(4) Where Part 38 applies (Appeal to the Court of Appeal against ruling adverse to prosecution), the Crown Court officer must as soon as practicable serve on the appellant a transcript or note of—
(a) each ruling against which the appellant wants to appeal;
(b) the decision by the Crown Court judge on any application for permission to appeal; and
(c) the decision by the Crown Court judge on any request to expedite the appeal.
(5) Where Part 39 applies (Appeal to the Court of Appeal about conviction or sentence), the Crown Court officer must as soon as practicable serve on or make available to the Registrar—
(a) any Crown Court judge’s certificate that the case is fit for appeal;
(b) the decision on any application at the Crown Court centre for bail pending appeal;
(c) such of the Crown Court case papers as the Registrar requires; and
(d) such transcript of the Crown Court proceedings as the Registrar requires.
(6) Where Part 40 applies (Appeal to the Court of Appeal about reporting or public access) and an order is made restricting public access to a trial, the Crown Court officer must—
(a) immediately notify the Registrar of that order, if the appellant has given advance notice of intention to appeal; and
(b) as soon as practicable provide the applicant for that order with a transcript or note of the application.
[Note. See also section 87(4) of the Senior Courts Act 1981 and rules 5.5 (Recording and transcription of proceedings in the Crown Court), 36.9 (duty of person transcribing record of proceedings in the Crown Court) and 36.10 (Duty of person keeping exhibit).]
36.9 Duty of person transcribing proceedings in the Crown Court
A person who transcribes a recording of proceedings in the Crown Court under arrangements made by the Crown Court officer must provide the Registrar with any transcript for which the Registrar asks, within such period as the Registrar may require.
[Note. See also section 32 of the Criminal Appeal Act 1968 and rule 5.5 (Recording and transcription of proceedings in the Crown Court).]
A person who under arrangements made by the Crown Court officer keeps a document or object exhibited in the proceedings in the Crown Court must—
(a) keep that exhibit until—
(i) 6 weeks after the conclusion of the Crown Court proceedings, or
(ii) the conclusion of any appeal proceedings that begin within that 6 weeks,
unless the court, the Registrar or the Crown Court otherwise directs; and
(b) provide the Registrar with any such document or object for which the Registrar asks, within such period as the Registrar may require.
[Note. See also rule 36.8(2) (Duty of Crown Court officer).]
36.11 Registrar’s duty to provide copy documents for appeal or reference
Unless the court otherwise directs, for the purposes of an appeal or reference—
(a) the Registrar must—
(i) provide a party with a copy of any document or transcript held by the Registrar for such purposes, or
(ii) allow a party to inspect such a document or transcript,
on payment by that party of any charge fixed by the Treasury; but
(b) the Registrar must not provide a copy or allow the inspection of—
(i) a document provided only for the court and the Registrar, or
(ii) a transcript of a public interest ruling or of an application for such a ruling.
[Note. Section 21 of the Criminal Appeal Act 1968 requires the Registrar to collect, prepare and provide documents needed by the court.]
36.12 Declaration of incompatibility with a Convention right
(1) This rule applies where a party—
(a) wants the court to make a declaration of incompatibility with a Convention right under section 4 of the Human Rights Act 1998; or
(b) raises an issue that the Registrar thinks may lead the court to make such a declaration.
(2) The Registrar must serve notice on—
(a) the relevant person named in the list published under section 17(1) of the Crown Proceedings Act 1947; or
(b) the Treasury Solicitor, if it is not clear who is the relevant person.
(3) That notice must include or attach details of—
(a) the legislation affected and the Convention right concerned;
(b) the parties to the appeal; and
(c) any other information or document that the Registrar thinks relevant.
(4) A person who has a right under the 1998 Act to become a party to the appeal must—
(a) serve notice on—
(i) the Registrar, and
(ii) the other parties,
if that person wants to exercise that right; and
(b) in that notice—
(i) indicate the conclusion that that person invites the court to reach on the question of incompatibility, and
(ii) identify each ground for that invitation, concisely outlining the arguments in support.
(5) The court must not make a declaration of incompatibility—
(a) less than 15 business days after the Registrar serves notice under paragraph (2); and
(b) without giving any person who serves a notice under paragraph (4) an opportunity to make representations at a hearing.
(1) This rule applies where an appellant wants to—
(a) abandon—
(i) an application to the court for permission to appeal, or
(ii) an appeal; or
(b) reinstate such an application or appeal after abandoning it.
(2) The appellant—
(a) may abandon such an application or appeal without the court’s permission by serving a notice of abandonment on—
(i) the Registrar, and
(ii) any respondent
before any hearing of the application or appeal; but
(b) at any such hearing, may only abandon that application or appeal with the court’s permission.
(3) A notice of abandonment must be in the form issued under the Practice Direction, signed by or on behalf of the appellant.
(4) On receiving a notice of abandonment the Registrar must—
(a) date it;
(b) serve a dated copy on—
(i) the appellant,
(ii) the appellant’s custodian, if any,
(iii) the Crown Court officer, and
(iv) any other person on whom the appellant or the Registrar served the appeal notice; and
(c) treat the application or appeal as if it had been refused or dismissed by the Court of Appeal.
(5) An appellant who wants to reinstate an application or appeal after abandoning it must—
(a) apply in writing, with reasons; and
(b) serve the application on the Registrar.
[Note. The Court of Appeal has power only in exceptional circumstances to allow an appellant to reinstate an application or appeal that has been abandoned.]
(1) If the court gives permission to appeal then unless the court otherwise directs the decision indicates that—
(a) the appellant has permission to appeal on every ground identified by the appeal notice; and
(b) the court finds reasonably arguable each ground on which the appellant has permission to appeal.
(2) If the court gives permission to appeal but not on every ground identified by the appeal notice the decision indicates that—
(a) at the hearing of the appeal the court will not consider representations that address any ground thus excluded from argument; and
(b) an appellant who wants to rely on such an excluded ground needs the court’s permission to do so.
(3) An appellant who wants to rely at the hearing of an appeal on a ground of appeal excluded from argument by a judge of the Court of Appeal when giving permission to appeal must—
(a) apply for permission to do so, with reasons, and identify each such ground;
(b) serve the application on—
(i) the Registrar, and
(ii) any respondent; and
(c) serve the application not more than 10 business days after—
(i) the giving of permission to appeal, or
(ii) the Registrar serves notice of that decision on the applicant, if the applicant was not present in person or by live link when permission to appeal was given.
(4) Paragraph (5) applies where one of the following Parts applies—
(a) Part 37 (Appeal to the Court of Appeal against ruling at preparatory hearing or in response to jury tampering);
(b) Part 38 (Appeal to the Court of Appeal against ruling adverse to prosecution);
(c) Part 39 (Appeal to the Court of Appeal about conviction or sentence); or
(d) Part 40 (Appeal to the Court of Appeal about reporting or public access restriction).
(5) An appellant who wants to rely on a ground of appeal not identified by the appeal notice must—
(a) apply for permission to do so and identify each such ground;
(b) in respect of each such ground—
(i) explain why it was not included in the appeal notice, and
(ii) where Part 39 applies, comply with rule 39.3(2);
(c) serve the application on—
(i) the Registrar, and
(ii) any respondent; and
(d) serve the application—
(i) as soon as reasonably practicable, and in any event
(ii) at the same time as serving any renewed application for permission to appeal which relies on that ground.
(6) Paragraph (7) applies where a party wants to abandon—
(a) a ground of appeal on which that party has permission to appeal; or
(b) a ground of opposition identified in a respondent’s notice.
(7) Such a party must serve notice on—
(a) the Registrar; and
(b) each other party,
before any hearing at which that ground will be considered by the court.
[Note. In some legislation, including the Criminal Appeal Act 1968, permission to appeal is described as ‘leave to appeal’.
Under rule 36.5 (Renewing an application refused by a judge or the Registrar), if permission to appeal is refused the application for such permission may be renewed within the time limit (10business days) set by that rule.]
(1) This rule applies where—
(a) a party wants the court to reopen a decision which determines an appeal or reference to which this Part applies (including a decision on an application for permission to appeal or refer); or
(b) the Registrar refers such a decision to the court for the court to consider reopening it.
(2) Such a party must—
(a) apply in writing for permission to reopen that decision, as soon as practicable after becoming aware of the grounds for doing so; and
(b) serve the application on the Registrar.
(3) The application must—
(a) specify the decision which the applicant wants the court to reopen; and
(b) explain—
(i) why it is necessary for the court to reopen that decision in order to avoid real injustice,
(ii) how the circumstances are exceptional and make it appropriate to reopen the decision notwithstanding the rights and interests of other participants and the importance of finality,
(iii) why there is no alternative effective remedy among any potentially available, and
(iv) any delay in making the application.
(4) The Registrar—
(a) may invite a party’s representations on—
(i) an application to reopen a decision, or
(ii) a decision that the Registrar has referred, or intends to refer, to the court; and
(b) must do so if the court so directs.
(5) A party invited to make representations must serve them on the Registrar within such period as the Registrar directs.
(6) The court must not reopen a decision to which this rule applies unless each other party has had an opportunity to make representations.
[Note. The Court of Appeal has power only in exceptional circumstances to reopen a decision to which this rule applies.]
(1) This Part applies where a party wants to appeal under—
(a) section 9(11) of the Criminal Justice Act 1987 or section 35(1) of the Criminal Procedure and Investigations Act 1996; or
(b) section 47(1) of the Criminal Justice Act 2003.
(2) A reference to an ‘appellant’ in this Part is a reference to such a party.
[Note. Under section 9(11) of the Criminal Justice Act 1987 (which applies to serious or complex fraud cases) and under section 35(1) of the Criminal Procedure and Investigations Act 1996 (which applies to other complex, serious or long cases) a party may appeal to the Court of Appeal against an order made at a preparatory hearing in the Crown Court.
Under section 47(1) of the Criminal Justice Act 2003 a party may appeal to the Court of Appeal against an order in the Crown Court that because of jury tampering a trial will continue without a jury or that there will be a new trial without a jury.
Part 3 contains rules about preparatory hearings.
The rules in Part 36 (Appeal to the Court of Appeal: general rules) also apply where this Part applies.]
(1) An appellant must serve an appeal notice on—
(a) the Crown Court officer;
(b) the Registrar; and
(c) every party directly affected by the order or ruling against which the appellant wants to appeal.
(2) The appellant must serve the appeal notice not more than 5 business days after—
(a) the order or ruling against which the appellant wants to appeal; or
(b) the Crown Court judge gives or refuses permission to appeal.
(1) An appeal notice must be in the form issued under the Practice Direction.
(2) The appeal notice must—
(a) specify each order or ruling against 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) summarise the relevant facts;
(d) identify any relevant authorities;
(e) 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, or
(iii) a direction to attend in person a hearing that the appellant could attend by live link, if the appellant is in custody;
(f) include a list of those on whom the appellant has served the appeal notice;
(g) attach—
(i) a transcript or note of each order or ruling against which the appellant wants to appeal,
(ii) all relevant skeleton arguments considered by the Crown Court judge,
(iii) any written application for permission to appeal that the appellant made to the Crown Court judge,
(iv) a transcript or note of the decision by the Crown Court judge on any application for permission to appeal, and
(v) any other document or thing that the appellant thinks the court will need to decide the appeal and include or attach an electronic link to each such document that has been made available to the Registrar under rule 36.8(1)(a) (Duty of Crown Court officer); and
(h) unless an authority identified by the grounds of appeal (see paragraph (2)(d)) is published by the Registrar as one frequently cited, include or attach—
(i) an electronic copy of each authority so identified, or
(ii) if two or more such authorities not so published are identified, electronic copies of each together in a single electronic document.
[Note. An appellant needs the court’s permission to appeal in every case to which this Part applies unless the Crown Court judge gives permission.]
(1) An appellant who wants the Crown Court judge to give permission to appeal must—
(a) apply orally, with reasons, immediately after the order or ruling against which the appellant wants to appeal; or
(b) apply in writing and serve the application on—
(i) the Crown Court officer, and
(ii) every party directly affected by the order or ruling
not more than 2 business days after that order or ruling.
(2) A written application must include the same information (with the necessary adaptations) as an appeal notice.
[Note. For the Crown Court judge’s power to give permission to appeal, see section 9(11) of the Criminal Justice Act 1987, section 35(1) of the Criminal Procedure and Investigations Act 1996 and section 47(2) of the Criminal Justice Act 2003.]