PART 34E+WAPPEAL TO THE CROWN COURT

When this Part appliesE+W

34.1.—(1) This Part applies where—

(a)a defendant wants to appeal under—

(i)section 108 of the Magistrates’ Courts Act 1980(1),

(ii)section 45 of the Mental Health Act 1983(2),

F1(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F2(iii)]section 42 of the Counter Terrorism Act 2008(3);

[F3(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(4);

(c)a prosecutor wants to appeal under—

(i)section 14A(5A) of the Football Spectators Act 1989(5), or

(ii)section 147(3) of the Customs and Excise Management Act 1979(6); or

(d)a person wants to appeal under—

(i)section 1 of the Magistrates’ Courts (Appeals from Binding Over Orders) Act 1956(7),

(ii)section 12(5) of the Contempt of Court Act 1981(8),

(iii)regulation 3C or 3H of the Costs in Criminal Cases (General) Regulations 1986(9),

(iv)section 22 of the Football Spectators Act 1989(10),

(v)section 10F4... of the Crime and Disorder Act 1998(11), F5...

(vi)section 28(5)(b) of the Offensive Weapons Act 2019(12).

[F6(vii)section 366(9) of the Sentencing Act 2020.]

[F7(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(13). 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;

[F8(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;]

(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(14) 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.

[F9Under 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.]

[F10Under 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.]

Service of appeal and respondent’s noticesE+W

34.2.—(1) An appellant must serve an appeal notice on—

(a)the magistrates’ court officer; and

(b)every other party.

(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 [F11the 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.

[Note. Under [F12sections 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(15), the magistrates’ court may grant an appellant bail pending appeal. Under section 81(1)(b) of the Senior Courts Act 1981(16), the Crown Court also may do so. See also rule 14.7.

Under section 39 of the Road Traffic Offenders Act 1988(17), 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(18), the appeal court may do so. See also rule 29.2.

Under section 129 of the Licensing Act 2003(19), 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(20), the appeal court may do so.]

Form of appeal and respondent’s noticesE+W

34.3.—(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. F13...

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(21).

See also rule 3.13 (Conduct of a trial or an appeal).]

Duty of magistrates’ court officerE+W

34.4.—(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 weeks; 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(22) (Proof of statements in documents).]

Duty of person keeping exhibitE+W

34.5.  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 6 weeks,

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.

Reference by the Criminal Cases Review CommissionE+W

34.6.—(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.

Preparation for appealE+W

34.7.—(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).

Hearings and decisionsE+W

34.8.—(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).]

Abandoning an appealE+W

34.9.—(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. F14...

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(23) and section 109 of the Magistrates’ Courts Act 1980(24). Part 45 contains rules about costs on abandoning an appeal.]

Court’s power to vary requirements under this PartE+W

34.10.  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 [F15issued under] the Practice Direction, or to be presented orally.

Constitution of the Crown CourtE+W

34.11.—(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(25), and

(ii)the respondent agrees that the court should allow the appeal, under section 48(2) of the Senior Courts Act 1981(26).

(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(27)(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(28) and section 9 of the Courts Act 2003(29). Under section 8(1A) of the Senior Courts Act 1981(30), a qualifying judge advocate may not exercise the jurisdiction of the Crown Court on an appeal from a youth court.]