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Appeals - criminal - The Court of Appeal Criminal Division
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Home > Lecture notes >  English Legal System >  Criminal process - criminal courts >  Criminal_courts >  Appeals - criminal - The Court of Appeal Criminal Division 

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The Court of Appeal Criminal Division

  • Hears appeals from Crown Court, or

  • From convictions in magistrates' court but where defendant has been sentenced by the Crown Court.

  • Appeals against conviction on matters of law may be made as of right, but leave of the court is needed for other reasons.

  • Appeals against sentence may only be made with leave.

  • If leave refused, convicted person may appeal to the Home Secretary, who has the power to refer the case back to the Court of Appeal.


  • Dismiss ("quash") the decision

  • Vary the sentence making it longer or shorter

  • Order a new trial.


  • Head = The Lord Chief Justice

  • Judges = Lords Justices of Appeal,

  • High Court Judges (usually from the Queen's Bench Division) if asked by the Lord Chief Justice.

  • Circuit Judges approved by the 'Lord Chancellor and Secretary of State for Justice'and nominated by the Lord Chief Justice.

  • Must consist of at least three judges, but sometimes higher odd numbers e.g. five or seven).

Double Jeopardy

Retrial for serious offence subject to Court of Appeal approval

As a general rule once a person has been acquitted by a jury, judge or magistrates, provided their is not an issue of law he/ she cannot be retried.  This is known as the "Double Jeopardy Rule".


Following the acquittal of the men suspected of killing Stephen Lawrence there was a public enquiry (Stephen Lawrence Enquiry) which made recommendations.  One of those recommendations was a change in the law to try suspects for offences for which they had been acquitted.


The power of the courts to retry those accused of serious crimes was contained in the Criminal Justice Act 2003, and the Court of Appeal has to give permission.

The first case to use this provision was R v Dunlop (2006), Dunlop had been acquitted but confessed to the murder and pleaded guilty at his retrial.


Criminal Justice Act 2003 provides a limited exception to the common law "double jeopardy rule"

It allows for a retrial to take place where there is new and compelling evidence which is highly probative of the case against an acquitted person for certain serious offences.  It must also be in the public interest.


The Act is accompanied by the Criminal Justice Act 2003 (Retrial for Serious Offences) Rules 2005.


Qualifying offence

The exception to the double jeopardy rule applies only to certain serious offences "qualifying offences" they are:

Murder : Attempted murder : Soliciting murder : Manslaughter : Kidnapping : Rape : Attempted rape : Intercourse with a girl under thirteen : Incest by a man with a girl under thirteen : Assault by penetration : Causing a person to engage in sexual activity without consent : Rape of a child under thirteen : Attempted rape of a child under thirteen : Assault of a child under thirteen by penetration : Causing a child under thirteen to engage in sexual activity : Sexual activity with a person with a mental disorder impeding choice : Causing a person with a mental disorder impeding choice to engage in sexual activity : Unlawful importation of Class A drug : Unlawful exportation of Class A drug : Fraudulent evasion in respect of Class A drug : Producing or being concerned in production of Class A drug : Arson endangering life : Causing explosion likely to endanger life or property : Intent or conspiracy to cause explosion likely to endanger life or property : Genocide, crimes against humanity and war crimes : Grave breaches of the Geneva Conventions : Directing terrorist organisation : Hostage-taking : Conspiracy.


Investigation Stage

An investigating officer (usually a senior police officer) must obtain the personal consent of the Director of Public Prosecutions ("DPP") before he reinvestigates an acquitted suspect.


Arrest only on a warrant

In all circumstances, (whether urgent or not) a Justice of the Peace (magistrate) must issue a warrant to arrest an acquitted person for a qualifying offence.


This is an important safeguard. The Justice of the Peace must be satisfied that new evidence has been obtained which is relevant to an application.


A person may not be arrested for that offence except under such a warrant.


Application to the Court of Appeal - personally authorised by DPP

Should new and compelling evidence that casts doubt upon the acquittal come to light, the DPP will also have to give his personal written consent to an application to the Court of Appeal, for a retrial.


New and compelling evidence


Examples of evidence which might be regarded as 'new' would include a witness who did not appear at the original trial; a weapon or other object which has now been found; or the results of DNA tests which were not available at the time of the original trial.

Evidence is compelling if it is reliable, substantial and, in the context of the outstanding issues, it appears highly probative of the case against the acquitted person.

The new evidence must in itself be substantial.
In deciding whether to quash a suspect's acquittal and order a retrial, the Court of Appeal must consider whether:

  • there is new and compelling evidence against the acquitted person in relation to the crime; and

  • it would be in the interests of justice for a retrial to take place


Either the acquitted person or the prosecutor may make an appeal to the House of Lords against the decision of the Court of Appeal.



The Court of Appeal is situated in the Royal Courts of Justice in The Strand in London, it occupies the same building as the High Court.  Sometimes the Court of Appeal will sit in regions for example Birmingham, to hear local matters.


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