Criminal Appeal Act 1968

Part I — Appeal to Court of Appeal in Criminal Cases

Appeal against conviction on indictment

Right of appeal

1

• (1) Subject to subsection (3) below a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.

• (2) An appeal under this section lies only—

• (a) with the leave of the Court of Appeal; or

• (b) if, within 28 days from the date of the conviction, the judge of the court of trial grants a certificate that the case is fit for appeal.

• (3) Where a person is convicted before the Crown Court of a scheduled offence it shall not be open to him to appeal to the Court of Appeal against the conviction on the ground that the decision of the court which sent him to the Crown Court for trial as to the value involved was mistaken.

• (4) In subsection (3) above “scheduled offence” and “the value involved” have the same meanings as they have in section 22 of the Magistrates’ Courts Act 1980 (certain offences against property to be tried summarily if value of property or damage is small).

Grounds for allowing appeal under s. 1

2

• (1) Subject to the provisions of this Act, the Court of Appeal—

• (a) shall allow an appeal against conviction if they think that the conviction is unsafe; and

• (b) shall dismiss such an appeal in any other case.

• (2) In the case of an appeal against conviction the Court shall, if they allow the appeal, quash the conviction.

• (3) An order of the Court of Appeal quashing a conviction shall, except when under section 7 below the appellant is ordered to be retried, operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal.

Power to substitute conviction of alternative offence

3

• (1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence to which he did not plead guilty and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.

• (2) The Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity.

Sentence when appeal allowed on part of an indictment

4

• (1) This section applies where—

• (a) two or more related sentences are passed,

• (b) the Court of Appeal allow an appeal against conviction in respect of one or more of the offences for which the sentences were passed (“the related offences”), but

• (c) the appellant remains convicted of one or more of those offences.

• (2) Except as provided by subsection (3) below, the Court may in respect of any related offence of which the appellant remains convicted pass such sentence, in substitution for any sentence passed thereon at the trial, as they think proper and is authorised by law ... .

• (3) The Court shall not under this section pass any sentence such that the appellant’s sentence (taken as a whole) for all the related offences of which he remains convicted will, in consequence of the appeal, be of greater severity than the sentence (taken as a whole) which was passed at the trial for all the related offences.

• (4) For the purposes of subsection (1)(a), two or more sentences are related if—

• (a) they are passed on the same day,

• (b) they are passed on different days but the court in passing any one of them states that it is treating that one together with the other or others as substantially one sentence, or

• (c) they are passed on different days but in respect of counts on the same indictment.

• (5) Where—

• (a) two or more sentences are related to each other by virtue of subsection (4)(a) or (b), and

• (b) any one or more of those sentences is related to one or more other sentences by virtue of subsection (4)(c),

all the sentences are to be treated as related for the purposes of subsection (1)(a).

Disposal of appeal against conviction on special verdict

5

• (1) This section applies on an appeal against conviction in a case where the jury have found a special verdict.

• (2) If the Court of Appeal consider that a wrong conclusion has been arrived at by the court of trial on the effect of the jury’s verdict they may, instead of allowing the appeal, order such conclusion to be recorded as appears to them to be in law required by the verdict, and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law.

Substitution of finding of insanity or unfitness to plead

6

• (1) This section applies where, on an appeal against conviction, the Court of Appeal, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion—

• (a) that the proper verdict would have been one of not guilty by reason of insanity; or

• (b) that the case is not one where there should have been a verdict of acquittal, but there should have been findings that the accused was under a disability and that he did the act or made the omission charged against him.

• (2) The Court of Appeal shall make in respect of the accused—

• (a) a hospital order (with or without a restriction order);

• (b) a supervision order; or

• (c) an order for his absolute discharge.

• (3) Where—

• (a) the offence to which the appeal relates is an offence the sentence for which is fixed by law, and

• (b) the court have power to make a hospital order,

the court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

• (4) Section 5A of the Criminal Procedure (Insanity) Act 1964 (“the 1964 Act”) applies in relation to this section as it applies in relation to section 5 of that Act.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) Where the Court of Appeal make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable as if the order had been made by the court below.

• (7) In this section—

“hospital order” has the meaning given in section 37 of the Mental Health Act 1983;

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“restriction order” has the meaning given to it by section 41 of that Act;

“supervision order” has the meaning given in Part 1 of Schedule 1A to the 1964 Act.

Retrial

Power to order retrial

7

• (1) Where the Court of Appeal allow an appeal against conviction . . . and it appears to the Court that the interests of justice so require, they may order the appellant to be retried.

• (2) A person shall not under this section be ordered to be retried for any offence other than—

• (a) the offence of which he was convicted at the original trial and in respect of which his appeal is allowed as mentioned in subsection (1) above;

• (b) an offence of which he could have been convicted at the original trial on an indictment for the first-mentioned offence; or

• (c) an offence charged in an alternative count of the indictment in respect of which no verdict was given in consequence of his being convicted of the first-mentioned offence.

Supplementary provisions as to retrial

8

• (1) A person who is to be retried for an offence in pursuance of an order under section 7 of this Act shall be tried on a fresh indictment preferred by direction of the Court of Appeal, . . . but after the end of two months from the date of the order for his retrial he may not be arraigned on an indictment preferred in pursuance of such a direction unless the Court of Appeal give leave.

• (1A) Where a person has been ordered to be retried but may not be arraigned without leave, he may apply to the Court of Appeal to set aside the order for retrial and to direct the court of trial to enter a judgment and verdict of acquittal of the offence for which he was ordered to be retried.

• (1B) On an application under subsection (1) or (1A) above the Court of Appeal shall have power—

• (a) to grant leave to arraign; or

• (b) to set aside the order for retrial anddirect the entry of a judgment and verdict of acquittal, but shall not give leave to arraign unless they are satisfied—

• (i) that the prosecution has acted with all due expedition; and

• (ii) that there is a good and sufficient cause for a retrial in spite of the lapse of time since the order under section 7 of this Act was made.

• (2) The Court of Appeal may, on ordering a retrial, make such orders as appear to them to be necessary or expedient—

• (a) for the custody or , subject to section 25 of the Criminal Justice and Public Order Act 1994,release on bail of the person ordered to be retried pending his retrial; or

• (b) for the retention pending the retrial of any property or money forfeited, restored or paid by virtue of the original conviction or any order made on that conviction.

• (3) If the person ordered to be retried was, immediately before the determination of his appeal, liable to be detained in pursuance of an order or direction under Part V of the Mental Health Act 1959 or under Part III of the Mental Health Act 1983 (other than under section 35, 36 or 38 of that Act),—

• (a) that order or direction shall continue in force pending the retrial as if the appeal had not been allowed; and

• (b) any order made by the Court of Appeal under this section for his custody or release on bail shall have effect subject to the said order or direction.

• (3A) If the person ordered to be retried was, immediately before the determination of his appeal, liable to be detained in pursuance of a remand under section 36 of the Mental Health Act 1983 or an interim hospital order under section 38 of that Act, the Court of Appeal may, if they think fit, order that he shall continue to be detained in a hospital or mental nursing home, and in that event Part III of that Act shall apply as if he had been ordered under this section to be kept in custody pending his retrial and were detained in pursuance of a transfer direction together with a restriction direction.

• (3B) If the person ordered to be retried—

• (a) was liable to be detained in pursuance of an order or direction under Part 3 of the Mental Health Act 1983;

• (b) was then made subject to a community treatment order (within the meaning of that Act); and

• (c) was subject to that community treatment order immediately before the determination of his appeal,

the order or direction under Part 3 of that Act and the community treatment order shall continue in force pending the retrial as if the appeal had not been allowed, and any order made by the Court of Appeal under this section for his release on bail shall have effect subject to the community treatment order.

• (4) Schedule 2 to this Act has effect with respect to the procedure in the case of a person ordered to be retried, the sentence which may be passed if the retrial results in his conviction and the order for costs which may be made if he is acquitted.

Appeal against sentence

Appeal against sentence following conviction on indictment

9

• (1) A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings.

• (1A) In subsection (1) of this section, the reference to a sentence fixed by law does not include a reference to an order made under section 321 of the Sentencing Code in relation to a life sentence (as defined in section 324 of that Code) that is fixed by law.

• (2) A person who on conviction on indictment has also been convicted of a summary offence under ... or paragraph 6 of Schedule 3 to the Crime and Disorder Act 1998 (power of Crown Court to deal with summary offence where person sent for trial for indictable-only offence) may appeal to the Court of Appeal against any sentence passed on him for the summary offence (whether on his conviction or in subsequent proceedings) under subsection (7) of that section or sub-paragraph (4) of that paragraph.

Appeal against sentence in other cases dealt with at assizes or quarter sessions

10

• (1) This section has effect for providing rights of appeal against sentence when a person is dealt with by the Crown Court (otherwise than on appeal from a magistrates’ court) for an offence of which he was not convicted on indictment.

• (2) The proceedings from which an appeal against sentence lies under this section are those where an offender convicted of an offence by a magistrates’ court—

• (a) is committed by the court to be dealt with for his offence before the Crown Court; or

• (b) having been given a suspended sentence or made the subject of—

• (i) an order for conditional discharge,

• (ii) a youth rehabilitation order within the meaning given by section 173 of the Sentencing Code, or

• (iii) a community order within the meaning given by section 200 of that Code,

appears or is brought before the Crown Court to be further dealt with for the offence.

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) An offender dealt with for an offence before the Crown Court in a proceeding to which subsection (2) of this section applies may appeal to the Court of Appeal against any sentence passed on him for the offence by the Crown Court.

• (4) For purposes of subsection (3)(a) of this section and section 11 of this Act, any two or more sentences are to be treated as passed in the same proceeding if—

• (a) they are passed on the same day; or

• (b) they are passed on different days but the court in passing any one of them states that it is treating that one together with the other or others as substantially one sentence;

and consecutive terms of imprisonment or detention and terms which are wholly or partly concurrent are to be treated as a single term

• (5) If by virtue of an order made under section 14 of the Criminal Justice Act 1982, the term of 4 months specified in section 4 of that Act is increased to a term of 6 months or more, subsection (3)(a) above shall have effect, for so long as the term so specified is 6 months or more, as if after the word “more” there were inserted the words “or an order for his detention in a detention centre for a term of 6 months or more has been made under section 4 of the Criminal Justice Act 1982”.

Supplementary provisions as to appeal against sentence

11

• (1) Subject to subsection (1A) below, an appeal against sentence, whether under section 9 or under section 10 of this Act, lies only with the leave of the Court of Appeal.

• (1A) If, within 28 days from the date on which the sentence was passed, the judge who passed it grants a certificate that the case is fit for appeal under section 9 or 10 of this Act, an appeal lies under this section without the leave of the Court of Appeal.

• (2) Where the Crown Court, in dealing with an offender either on his conviction on indictment or in a proceeding to which section 10(2) of this Act applies, has passed on him two or more sentences in the same proceeding (which expression has the same meaning in this subsection as it has for the purposes of section 10), being sentences against which an appeal lies under section 9 (1) or section 10, an appeal or application for leave to appeal against any one of those sentences shall be treated as an appeal or application in respect of both or all of them.

• (2A) Where following conviction on indictment a person has been convicted under section 41 of the Criminal Justice Act 1988 of a summary offence an appeal or application for leave to appeal against any sentence for the offence triable either way shall be treated also as an appeal or application in respect of any sentence for the summary offence and an appeal or application for leave to appeal against any sentence for the summary offence shall be treated also as an appeal or application in respect of the offence triable either way.

• (2B) If the appellant or applicant was convicted on indictment of two or more offences triable either way, the references to the offence triable either way in subsection (2A) above are to be construed, in relation to any summary offence of which he was convicted under section 41 of the Criminal Justice Act 1988 following the conviction on indictment, as references to the offence triable either way specified in the notice relating to that summary offence which was given under subsection (2) of that section.

• (3) On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may—

• (a) quash any sentence or order which is the subject of the appeal; and

• (b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence;

but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below.

• (3A) Where the Court of Appeal exercise their power under paragraph (a) of subsection (3) to quash a confiscation order, the Court may, instead of proceeding under paragraph (b) of that subsection, direct the Crown Court to proceed afresh under the relevant enactment.

• (3B) When proceeding afresh pursuant to subsection (3A), the Crown Court shall comply with any directions the Court of Appeal may make.

• (3C) The Court of Appeal shall exercise the power to give such directions so as to ensure that any confiscation order made in respect of the appellant by the Crown Court does not deal more severely with the appellant than the order quashed under subsection (3)(a).

• (3D) For the purposes of this section—