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660 provisions
37.5 Respondent’s notice
(1) A party on whom an appellant serves an appeal notice 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 so directs.
(2) Such a party must serve the respondent’s notice on—
(a) the appellant;
(b) the Crown Court officer;
(c) the Registrar; and
(d) any other party on whom the appellant served the appeal notice.
(3) Such a party must serve the respondent’s notice not more than 5 business days after—
(a) the appellant serves the appeal notice; or
(b) a direction to do so.
(4) The respondent’s notice must be in the form issued under the Practice Direction.
(5) 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) summarise any relevant facts not already summarised in the appeal notice;
(d) identify any relevant authorities;
(e) include or attach any application for the following, with reasons—
(i) an extension of time within which to serve the respondent’s notice, or
(ii) a direction to attend in person any hearing that the respondent could attend by live link, if the respondent is in custody;
(f) identify any other document or thing that the respondent 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
(g) unless an authority identified under paragraph (5)(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.
A judge of the Court of Appeal may give permission to appeal as well as exercising the powers given by other legislation (including these Rules).
[Note. See section 31 of the Criminal Appeal Act 1968 and section 49 of the Criminal Justice Act 2003.]
(1) A party who is in custody has a right to attend a hearing in public.
(2) The court or the Registrar may direct that such a party is to attend a hearing by live link.
[Note. See rule 36.6 (Hearings).]
(1) This Part applies where a prosecutor wants to appeal under section 58(2) of the Criminal Justice Act 2003.
(2) A reference to an ‘appellant’ in this Part is a reference to such a prosecutor.
[Note. Under section 58(2) of the Criminal Justice Act 2003 a prosecutor may appeal to the Court of Appeal against a ruling in the Crown Court. See also sections 57 and 59 to 61 of the 2003 Act.
The rules in Part 36 (Appeal to the Court of Appeal: general rules) also apply where this Part applies.]
(1) An appellant must tell the Crown Court judge of any decision to appeal—
(a) immediately after becoming aware of the ruling against which the appellant wants to appeal; or
(b) on the expiry of the time to decide whether to appeal allowed under paragraph (2).
(2) If an appellant wants time to decide whether to appeal—
(a) the appellant must ask the Crown Court judge immediately after becoming aware of the ruling; and
(b) the judge must not require the appellant to decide there and then but instead must allow until, as a general rule, the next business day.
[Note. If the ruling against which the appellant wants to appeal is a ruling that there is no case to answer, the appellant may appeal against earlier rulings as well: see section 58(7) of the Criminal Justice Act 2003.
Under section 58(8) of the 2003 Act the appellant must agree that a defendant directly affected by the ruling must be acquitted if the appellant (a) does not get permission to appeal or (b) abandons the appeal.
The Crown Court judge may give permission to appeal and may expedite the appeal: see rules 38.5 and 38.6.]
(1) An appellant must serve an appeal notice on—
(a) the Crown Court officer;
(b) the Registrar; and
(c) every defendant directly affected by the ruling against which the appellant wants to appeal.
(2) The appellant must serve the appeal notice not later than—
(a) the next business day after telling the Crown Court judge of the decision to appeal, if the judge expedites the appeal; or
(b) 5 business days after telling the Crown Court judge of that decision, if the judge does not expedite the appeal.
[Note. If the ruling against which the appellant wants to appeal is a public interest ruling, see rule 38.8.]
(1) An appeal notice must be in the form issued under the Practice Direction.
(2) The appeal notice must—
(a) specify each 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,
(iii) expedition of the appeal, or revocation of a direction expediting the appeal;
(f) include a list of those on whom the appellant has served the appeal notice;
(g) attach—
(i) a transcript or note of each 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,
(v) a transcript or note of the decision by the Crown Court judge on any request to expedite the appeal, and
(vi) 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);
(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; and
(i) attach a form of respondent’s notice for any defendant served with the appeal notice to complete if that defendant wants to do so.
[Note. An appellant needs the court’s permission to appeal unless the Crown Court judge gives permission: see section 57(4) of the Criminal Justice Act 2003. For ‘respondent’s notice’ see rule 38.7.]
(1) An appellant who wants the Crown Court judge to give permission to appeal must—
(a) apply orally, with reasons, immediately after becoming aware of the 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 defendant directly affected by the ruling
on the expiry of the time allowed under rule 38.2 to decide whether to appeal.
(2) A written application must include the same information (with the necessary adaptations) as an appeal notice.
(3) The Crown Court judge must allow every defendant directly affected by the ruling an opportunity to make representations.
(4) The general rule is that the Crown Court judge must decide whether or not to give permission to appeal on the day that the application for permission is made.
[Note. For the Crown Court judge’s power to give permission to appeal, see section 57(4) of the Criminal Justice Act 2003.
Rule 38.5(3) does not apply where the appellant wants to appeal against a public interest ruling: see rule 38.8(5).]
(1) An appellant who wants the Crown Court judge to expedite an appeal must ask, giving reasons, on telling the judge of the decision to appeal.
(2) The Crown Court judge must allow every defendant directly affected by the ruling an opportunity to make representations.
(3) The Crown Court judge may revoke a direction expediting the appeal unless the appellant has served the appeal notice.
[Note. For the Crown Court judge’s power to expedite the appeal, see section 59 of the Criminal Justice Act 2003.
Rule 38.6(2) does not apply where the appellant wants to appeal against a public interest ruling: see rule 38.8(5).]
(1) A defendant on whom an appellant serves an appeal notice may serve a respondent’s notice, and must do so if—
(a) the defendant wants to make representations to the court; or
(b) the court so directs.
(2) Such a defendant must serve the respondent’s notice on—
(a) the appellant;
(b) the Crown Court officer;
(c) the Registrar; and
(d) any other defendant on whom the appellant served the appeal notice.
(3) Such a defendant must serve the respondent’s notice—
(a) not later than the next business day after—
(i) the appellant serves the appeal notice, or
(ii) a direction to do so
if the Crown Court judge expedites the appeal; or
(b) not more than 5 business days after—
(i) the appellant serves the appeal notice, or
(ii) a direction to do so
if the Crown Court judge does not expedite the appeal.
(4) The respondent’s notice must be in the form issued under the Practice Direction.
(5) 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) summarise any relevant facts not already summarised in the appeal notice;
(d) identify any relevant authorities;
(e) include or attach any application for the following, with reasons—
(i) an extension of time within which to serve the respondent’s notice, or
(ii) a direction to attend in person any hearing that the respondent could attend by live link, if the respondent is in custody;
(f) identify any other document or thing that the respondent 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
(g) unless an authority identified under paragraph (5)(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.
(1) This rule applies where the appellant wants to appeal against a public interest ruling.
(2) The appellant must not serve on any defendant directly affected by the ruling—
(a) any written application to the Crown Court judge for permission to appeal; or
(b) an appeal notice,
if the appellant thinks that to do so in effect would reveal something that the appellant thinks ought not be disclosed.
(3) The appellant must not include in an appeal notice—
(a) the material that was the subject of the ruling; or
(b) any indication of what sort of material it is,
if the appellant thinks that to do so in effect would reveal something that the appellant thinks ought not be disclosed.
(4) The appellant must serve on the Registrar with the appeal notice an annex—
(a) marked to show that its contents are only for the court and the Registrar;
(b) containing whatever the appellant has omitted from the appeal notice, with reasons; and
(c) if relevant, explaining why the appellant has not served the appeal notice.
(5) Rules 38.5(3) and 38.6(2) do not apply.
[Note. Rules 38.5(3) and 38.6(2) require the Crown Court judge to allow a defendant to make representations about (i) giving permission to appeal and (ii) expediting an appeal.]
A judge of the Court of Appeal may—
(a) give permission to appeal;
(b) revoke a Crown Court judge’s direction expediting an appeal; and
(c) where an appellant abandons an appeal, order a defendant’s acquittal, his release from custody and the payment of his costs,
as well as exercising the powers given by other legislation (including these Rules).
[Note. See section 73 of the Criminal Justice Act 2003.]
(1) A respondent who is in custody has a right to attend a hearing in public.
(2) The court or the Registrar may direct that such a respondent is to attend a hearing by live link.
[Note. See rule 36.6 (Hearings).]
(1) This Part applies where—
(a) a defendant wants to appeal under—
(i) Part 1 of the Criminal Appeal Act 1968,
(ii) section 274(3) of the Criminal Justice Act 2003,
(iii) paragraph 14 of Schedule 22 to the Criminal Justice Act 2003, or
(iv) section 42 of the Counter Terrorism Act 2008;
(b) the Criminal Cases Review Commission refers a case to the Court of Appeal under section 9 of the Criminal Appeal Act 1995;
(c) a prosecutor wants to appeal to the Court of Appeal under section 14A(5A) of the Football Spectators Act 1989;
(d) a party wants to appeal under section 389 of the Sentencing Act 2020;
(e) a person found in contempt of court wants to appeal under section 13 of the Administration of Justice Act 1960 and section 18A of the Criminal Appeal Act 1968; or
(f) a person wants to appeal to the Court of Appeal under—
(i) section 24 of the Serious Crime Act 2007,
(ii) section 28(5)(a) of the Offensive Weapons Act 2019,
(iii) section 342I(2) of the 2020 Act,
(iv) section 46(5) of the Domestic Abuse Act 2021; or
(v) regulation 3C or 3H of the Costs in Criminal Cases (General) Regulations 1986.
(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) a conviction (section 1 of the 1968 Act);
(b) a sentence (sections 9 and 10 of the 1968 Act);
(c) a verdict of not guilty by reason of insanity (section 12 of the 1968 Act);
(d) a finding of disability or a finding that the defendant did the act or made the omission charged as an offence (section 15 of the 1968 Act);
(e) a hospital order, interim hospital order or supervision order under section 5 or 5A of the Criminal Procedure (Insanity) Act 1964 (section 16A of the 1968 Act).
See section 50 of the 1968 Act for the meaning of ‘sentence’.
Under section 274(3) of the Criminal Justice Act 2003, a defendant sentenced to life imprisonment outside the United Kingdom, and transferred to serve the sentence in England and Wales, may appeal against the minimum term fixed by a High Court judge under section 321 of the Sentencing Act 2020.
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.
Under section 42 of the Counter Terrorism Act 2008 a defendant may appeal against a decision of the Crown Court 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, 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 389 of the Sentencing Act 2020 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 in respect of whom an order or decision is made by the Crown Court in the exercise of its jurisdiction to punish for contempt of court may appeal to the Court of Appeal.
Under section 24 of the Serious Crime Act 2007 a person who is the subject of a serious crime prevention order, or the relevant applicant authority, may appeal to the Court of Appeal against a decision of the Crown Court in relation to that order. In addition, any person who was given an opportunity to make representations in the proceedings by virtue of section 9(4) of the Act may appeal to the Court of Appeal against a decision of the Crown Court to make, vary or not vary a serious crime prevention order.
Under section 28(5)(a) of the Offensive Weapons Act 2019 an applicant to the Crown 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 Court of Appeal against the decision of the Crown Court.
Under section 342I(2) of the Sentencing Act 2020 an applicant to the Crown 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 Court of Appeal against the decision of the Crown Court.
Under section 46(5), (7) of the Domestic Abuse Act 2021 an applicant to the Crown 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 Court of Appeal against the decision of the Crown Court.
Under regulation 3C of the Costs in Criminal Cases (General) Regulations 1986, a legal representative against whom the Crown 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 Court of Appeal.
Under regulation 3H of the Costs in Criminal Cases (General) Regulations 1986, a third party against whom the Crown 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 Court of Appeal.
The rules in Part 36 (Appeal to the Court of Appeal: general rules) also apply where this Part applies.]
(1) The appellant must serve an appeal notice on the Registrar—
(a) not more than 28 days after—
(i) the conviction, verdict, or finding,
(ii) the sentence,
(iii) the order (subject to paragraph (b)), or the failure to make an order, or
(iv) the minimum term review decision under section 274(3) of, or paragraph 14 of Schedule 22 to, the Criminal Justice Act 2003
about which the appellant wants to appeal;
(b) not more than 15 business days after the order in a case in which the appellant appeals against a wasted or third party costs order; and
(c) not more than 20 business days after the Registrar serves notice that the Criminal Cases Review Commission has referred a conviction to the court.
(2) Unless the appeal notice includes grounds of appeal prepared by the person who was appointed to put the case for the defence under rule 25.10 (Defendant unfit to plead), paragraphs (3), (4) and (5) of this rule apply where the appeal is about—
(a) a finding of disability under section 4 of the Criminal Procedure (Insanity) Act 1964;
(b) a finding under section 4A of the 1964 Act that the defendant did the act or made the omission charged as an offence; or
(c) a hospital order, interim hospital order or supervision order made under section 5 or 5A of the 1964 Act.
(3) The Registrar must refer the appeal notice to a judge of the Court of Appeal for the judge to give or refuse to give procedural directions under section 31B of the Criminal Appeal Act 1968.
(4) The judge may—
(a) give such procedural directions as the case requires where the appeal notice includes grounds of appeal that the judge considers reasonably arguable; or
(b) refuse to give such directions, in any other case.
(5) Such procedural directions may include—
(a) a direction for the appointment of a person to put the case for the appellant on appeal;
(b) a direction to commission medical evidence; and
(c) a direction for the reference of the case to the judge again to give, or to refuse to give, further directions.
[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 39.5.
Under section 31C of the 1968 Act a party has no right to renew to the Court of Appeal an application for procedural directions refused by a judge.]
(1) An appeal notice must be in the form issued under the Practice Direction and 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 (and see paragraph (2));
(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) 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, or
(ix) the suspension of any disqualification imposed, or order made, in the case, where the Court of Appeal can order such a suspension pending appeal;
(f) identify 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
(g) unless an authority identified by the grounds of appeal (see paragraph (2)(f)) 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.
(2) The grounds of appeal must—
(a) include in no more than the first two pages a summary of the grounds that makes what then follows easy to understand;
(b) in each ground of appeal identify the event or decision to which that ground relates;
(c) in each ground of appeal summarise the facts relevant to that ground, but only to the extent necessary to make clear what is in issue;
(d) concisely outline each argument in support of each ground;
(e) number each ground consecutively, if there is more than one;
(f) identify any relevant authority and—
(i) state the proposition of law that the authority demonstrates, and
(ii) identify the parts of the authority that support that proposition; and
(g) 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.
[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—
(a) the Criminal Cases Review Commission refers the case;
(b) the appellant appeals against—
(i) an order or decision made in the exercise of jurisdiction to punish for contempt of court, or
(ii) a wasted or third party costs order; or
(c) 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, under section 81(1B) of the Senior Courts Act 1981, under section 14A(5B) of the Football Spectators Act 1989, or under section 24(4) of the Serious Crime Act 2007, 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.
See also rules 39.7 (Introducing evidence) and 39.8 (Application for bail, or to suspend a disqualification or order, pending appeal or retrial).]
39.4 Crown Court judge’s certificate that case is fit for appeal
(1) An appellant who wants the Crown Court judge to certify that a case is fit for appeal must either—
(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 10business 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 Senior Courts Act 1981, under section 14A(5B) of the Football Spectators Act 1989 or under section 24(4) of the Serious Crime Act 2007.
See also rule 39.2 (service of appeal notice required in all cases).]
39.5 Reference by Criminal Cases Review Commission
(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 39.2.
(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—
(a) not more than 10 business days after the Registrar serves—
(i) the appeal notice, or
(ii) a direction to do so; or
(b) not more than 20 business days after the Registrar serves notice that the Commission has referred a conviction.
(5) The respondent’s notice must be in the form issued under 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, or
(vi) a direction for special measures for a witness;
(g) identify any other document or thing that the respondent 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 under paragraph (6)(e) 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. The Practice Direction sets out the circumstances in which the Registrar usually will serve a defendant’s appeal notice on the prosecutor.
See also rule 39.7 (Introducing evidence).]
(1) The following Parts apply with such adaptations as the court or the Registrar may direct—
(a) Part 16 (Written witness statements);
(b) Part 18 (Measures to assist a witness or defendant to give evidence);
(c) Part 19 (Expert evidence);
(d) Part 20 (Hearsay evidence);
(e) Part 21 (Evidence of bad character); and
(f) Part 22 (Evidence of a complainant’s previous sexual behaviour).
(2) But the general rule is that—
(a) a respondent who opposes an appellant’s application or notice 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 or notice to which one of those Parts applies must serve notice, with reasons, on—
(i) the Registrar, and
(ii) the respondent
not more than 10 business days after service of the respondent’s notice; and
(c) the court or the Registrar may give directions with or without a hearing.
(3) A party who wants the court to order the production of a document, exhibit or other thing connected with the proceedings must—
(a) identify that item; and
(b) explain—
(i) how it is connected with the proceedings,
(ii) why its production is necessary for the determination of the case, and
(iii) to whom it should be produced (the court, appellant or respondent, or any two or more of them).
(4) A party who wants the court to order a witness to attend to be questioned must—
(a) identify the proposed witness;
(b) explain—
(i) what evidence the proposed witness can give,
(ii) why that evidence is capable of belief,
(iii) if applicable, why that evidence may provide a ground for allowing the appeal,
(iv) on what basis that evidence would have been admissible in the case which is the subject of the application for permission to appeal or appeal, and
(v) why that evidence was not introduced in that case; and
(c) where the court can exercise a power to which Part 18 (Measures to assist a witness or defendant to give evidence) applies, provide any information that the court may need to assess—
(i) the measure or measures likely to maximise so far as practicable the quality of the witness’ evidence, and
(ii) the witness’ own views.
(5) Where the court orders a witness to attend to be questioned, the witness must attend the hearing of the application for permission to appeal or of the appeal, as applicable, unless the court otherwise directs.
(6) Where the court orders a witness to attend to be questioned before an examiner on the court’s behalf, the court must identify the examiner and may give directions about—
(a) the time and place, or times and places, at which that questioning must be carried out;
(b) the manner in which that questioning must be carried out, in particular as to—
(i) the service of any report, statement or questionnaire in preparation for the questioning,
(ii) the sequence in which the parties may ask questions, and
(iii) if more than one witness is to be questioned, the sequence in which those witnesses may be questioned; and
(c) the manner in which, and when, a record of the questioning must be submitted to the court.
(7) Where the court orders the questioning of a witness before an examiner, the court may delegate to that examiner the giving of directions under paragraph (6)(a), (b) and (c).
[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 rules 39.3(1)(e)(v), (vi) and 39.6(6)(f)(iv), (v).
Under section 23 of the Criminal Appeal Act 1968, the Court of Appeal may order the production of a document, exhibit or other thing, may order a witness to attend to be examined before the court and may allow the introduction of evidence that was not introduced at trial. Under section 23(4), if it thinks it necessary or expedient in the interests of justice the court may order the examination of a witness to be conducted before any judge, court officer or other person, and allow the admission of a record of that examination as evidence before the court.]
39.8 Application for bail, or to suspend a disqualification or order, pending appeal or retrial
(1) This rule applies where—
(a) a party wants to make an application to the court about bail pending appeal or retrial; or
(b) an appellant wants to apply to the court to suspend a disqualification or order pending appeal.
(2) That party must serve an application in the form issued under 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, in the case of a bail application, representations about any condition or surety proposed by the applicant.
[Note. See section 19 of the Criminal Appeal Act 1968, section 3(8) of the Bail Act 1976 and regulations 77 to 84 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014. 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 Senior Courts Act 1981, 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 39.4) and (b) not more than 28 days after the conviction or sentence against which the appellant wants to appeal.
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.]
(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 issued under 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 issued under 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; and
(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 (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 36.7(1); and
(c) a notice of the court’s decision served under rule 36.7(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).
39.10 Forfeiture of a recognizance given as a condition of bail
(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 5 business 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.]
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;
(b) it is the hearing of an appeal and the court directs that—
(i) the appeal involves a question of law alone, and
(ii) for that reason the appellant has no permission to attend; or
(c) 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 36.6 (Hearings) and section 22 of the Criminal Appeal Act 1968. There are corresponding provisions in 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 2006and the Serious Crime Act 2007 (Appeals under Section 24) Order 2008. Under section 22 of the 1968 Act and corresponding provisions in those Orders, the court may direct that an appellant who is in custody is to attend a hearing by live link.]
39.12 Power to vary determination of appeal against sentence
(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; and
(b) serve the application on the Registrar not more than 5 business 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.]
39.13 Directions about re-admission to hospital on dismissal of appeal
(1) This rule applies where—
(a) an appellant subject to—
(i) an order under section 37(1) of the Mental Health Act 1983 (detention in hospital on conviction), or
(ii) an order under section 5(2) of the Criminal Procedure (Insanity) Act 1964 (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.
39.14 Renewal or setting aside of order for retrial
(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; 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; and
(b) the other party.
[Note. Section 8(1) and (1A) of the Criminal Appeal Act 1968 set out the criteria for making an order on an application to which this rule applies.]
(1) This Part applies where a person directly affected by an order to which section 159(1) of the Criminal Justice Act 1988 applies wants to appeal against that order.
(2) A reference to an ‘appellant’ in this Part is a reference to such a party.
[Note. Section 159(1) of the Criminal Justice Act 1988 gives a ‘person aggrieved’ (in this Part described as a person directly affected) a right of appeal to the Court of Appeal against a Crown Court judge’s order—
(a) under section 4 or 11 of the Contempt of Court Act 1981;
(b) under section 58(7) of the Criminal Procedure and Investigations Act 1996;
(c) restricting public access to any part of a trial for reasons of national security or for the protection of a witness or other person; or
(d) restricting the reporting of any part of a trial.
See also Part 6 (Reporting, etc. restrictions) and Part 18 (Measures to assist a witness or defendant to give evidence).
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;
(c) the parties; and
(d) any other person directly affected by the order against which the appellant wants to appeal.
(2) The appellant must serve the appeal notice not later than—
(a) the next business day after an order restricting public access to the trial; or
(b) 10 business days after an order restricting reporting of the trial.
(1) An appeal notice must be in the form issued under the Practice Direction.
(2) The appeal notice must—
(a) specify the order 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, with reasons—
(i) an application for permission to appeal,
(ii) any application for an extension of time within which to serve the appeal notice,
(iii) any application for a direction to attend in person a hearing that the appellant could attend by live link, if the appellant is in custody,
(iv) any application for permission to introduce evidence, and
(v) a list of those on whom the appellant has served the appeal notice;
(f) attach any 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
(g) unless an authority cited 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.
A Court of Appeal judge may give permission to appeal under section 31(2B) of the Criminal Appeal Act 1968.]
40.4 Advance notice of appeal against order restricting public access
(1) This rule applies where the appellant wants to appeal against an order restricting public access to a trial.
(2) The appellant may serve advance written notice of intention to appeal against any such order that may be made.
(3) The appellant must serve any such advance notice—
(a) on—
(i) the Crown Court officer,
(ii) the Registrar,
(iii) the parties, and
(iv) any other person who will be directly affected by the order against which the appellant intends to appeal, if it is made; and
(b) not more than 5 business days after the Crown Court officer displays notice of the application for the order.
(4) The advance notice must include the same information (with the necessary adaptations) as an appeal notice.
(5) The court must treat that advance notice as the appeal notice if the order is made.
40.5 Duty of applicant for order restricting public access
(1) This rule applies where the appellant wants to appeal against an order restricting public access to a trial.
(2) The party who applied for the order must serve on the Registrar—
(a) a transcript or note of the application for the order; and
(b) any other document or thing that that party thinks the court will need to decide the appeal.
(3) That party must serve that transcript or note and any such other document or thing as soon as practicable after—
(a) the appellant serves the appeal notice; or
(b) the order, where the appellant served advance notice of intention to appeal.
40.6 Respondent’s notice on appeal against reporting restriction
(1) This rule applies where the appellant wants to appeal against an order restricting the reporting of a trial.
(2) A person on whom an appellant serves an appeal notice may serve a respondent’s notice, and must do so if—
(a) that person wants to make representations to the court; or
(b) the court so directs.
(3) Such a person must serve the respondent’s notice on—
(a) the appellant;
(b) the Crown Court officer;
(c) the Registrar;
(d) the parties; and
(e) any other person on whom the appellant served the appeal notice.
(4) Such a person must serve the respondent’s notice not more than 3 business days after—
(a) the appellant serves the appeal notice; or
(b) a direction to do so.
(5) The respondent’s notice must be in the form issued under 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) summarise any relevant facts not already summarised in the appeal notice;
(d) identify any relevant authorities;
(e) include or attach any application for the following, with reasons—
(i) an extension of time within which to serve the respondent’s notice,
(ii) a direction to attend in person any hearing that the respondent could attend by live link, if the respondent is in custody,
(iii) permission to introduce evidence;
(f) identify any other document or thing that the respondent 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
(g) unless an authority cited under paragraph (6)(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.
No person may introduce evidence without the court’s permission.
[Note. Section 159(4) of the Criminal Justice Act 1988 entitles the parties to give evidence, subject to procedure rules.]
(1) A party who is in custody has a right to attend a hearing in public of an appeal against an order restricting the reporting of a trial.
(2) The court or the Registrar may direct that such a party is to attend a hearing by live link.
[Note. See rule 36.6 (Hearings). The court may decide an application and an appeal without a hearing where the appellant wants to appeal against an order restricting public access to a trial: rule 36.6(3).]
This Part applies where the Attorney General wants to—
(a) refer a point of law to the Court of Appeal under section 36 of the Criminal Justice Act 1972; or
(b) refer a sentencing case to the Court of Appeal under section 36 of the Criminal Justice Act 1988.
[Note. Under section 36 of the Criminal Justice Act 1972, where a defendant is acquitted in the Crown Court the Attorney General may refer to the Court of Appeal a point of law in the case.
Under section 36 of the Criminal Justice Act 1988, if the Attorney General thinks the sentencing of a defendant in the Crown Court is unduly lenient he may refer the case to the Court of Appeal: but only if the sentence is one to which Part IV of the 1988 Act applies, and only if the Court of Appeal gives permission. See also section 35 of the 1988 Act and the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006.
The rules in Part 36 (Appeal to the Court of Appeal: general rules) also apply where this Part applies.]
41.2 Service of notice of reference and application for permission
(1) The Attorney General must serve any notice of reference and any application for permission to refer a sentencing case on—
(a) the Registrar; and
(b) the defendant.
(2) Where the Attorney General refers a point of law—
(a) the Attorney must give the Registrar details of—
(i) the defendant affected,
(ii) the date and place of the relevant Crown Court decision, and
(iii) the relevant verdict and sentencing; and
(b) the Attorney must give the defendant notice that—
(i) the outcome of the reference will not make any difference to the outcome of the trial, and
(ii) the defendant may serve a respondent’s notice.
(3) Where the Attorney General applies for permission to refer a sentencing case, the Attorney must give the defendant notice that—
(a) the outcome of the reference may make a difference to that sentencing, and in particular may result in a more severe sentence; and
(b) the defendant may serve a respondent’s notice.
(4) The Attorney General must serve an application for permission to refer a sentencing case on the Registrar not more than the later of—
(a) 28 days from the day on which the sentence, or the last of the sentences, in the case was passed; or
(b) 14 days from the day on which the Attorney General receives a request to review the sentencing of a defendant, where the request is received in the last 14 days of the 28-day period mentioned in sub-paragraph (a).
[Note. The time limit for serving an application for permission to refer a sentencing case is prescribed by paragraph 1 of Schedule 3 to the Criminal Justice Act 1988. It may be neither extended nor shortened by the court.]