This article is taken from the October 2025 issue of The Critic. To get the full magazine why not subscribe? Get five issues for just £25.
England’s criminal appeals system has not covered itself in glory of late. In July, the Supreme Court overturned former City trader Tom Hayes’s conviction for rigging Libor, after the Court of Appeal Criminal Division (CACD) summarily rejected the arguments which ended up prevailing.
Lord Leggatt, writing for a unanimous court, said that the case “raises concerns about the effectiveness of the criminal appeal system in England and Wales in confronting legal error”.
Having spent five and half years in prison, he is unlikely to receive any compensation because relevant guidelines require the person’s innocence to be shown “beyond reasonable doubt” by newly discovered facts. This was nonetheless a rare positive headline for the Criminal Cases Review Commission, the statutory body which has the power to refer cases it considers to be potential miscarriages to justice to appellate courts, which it did for Mr Hayes’s case.
In 2023, the CCRC was blamed for keeping Andrew Malkinson, who was wrongfully convicted of rape, in prison for an additional six-and-a-half years after it had failed to test DNA evidence when advised to do so because it would be too expensive (he may receive £1m in compensation, which is the maximum provided in law, for spending 17 years in prison, though the MOJ kindly decided not to charge him for the cost of the housing).
The chair and CEO of the CCRC had to resign in disgrace, the former shortly before the King was to be advised to remove her.
The failings of the criminal appeals regime may be more intelligible if one considers that, until its abolition in 1819, the old common law criminal appeal was a means to initiate criminal prosecution (occasionally followed by trial by combat), not to overturn a criminal verdict.
A Court of Criminal Appeal was only established in 1907, after at least 30 failed attempts. The straw that broke the camel’s back was the exoneration of Adolf Beck, who tried 16 times to have the Home Office investigate his case before he was shown to be innocent of fraud (the real criminal looked like him, but unlike Beck was circumcised).
Even today, the CACD, which succeeded the Court of Criminal Appeal in 1966, is filled with peculiarities which speak to its ambivalent view of criminal appeals. Leave to appeal to the CACD from the Crown Court is usually granted or denied by a single High Court judge who is expected to do all this work in “their spare time”.
If leave has been granted, the CACD works at a frantic pace: one lord justice said he and his colleagues would share their views about the day’s list, which could have eight appeals or more (against both conviction and sentence) in a 20-minute meeting. After hearing an appeal, it usually gives its judgment ex tempore.
Uniquely amongst its international peers, the CACD does not allow dissents, though appeals against conviction are heard by three judges. It can block appeals to the Supreme Court by refusing to certify a point of law of general public importance, and the Supreme Court would have no recourse against the refusal even if it wanted to hear that appeal.
The CCRC is chronically underfunded, short-staffed and as cautious as the Court of Appeal itself
In the last reporting year, only one of the 51 judgments the Supreme Court handed down can be described as a criminal judgment, and that was an extradition case.
In considering appeals against verdict, the CACD is notorious for deferring to juries, preferring to overturn on points of law or of procedure. This is customarily justified on the ground that juries have had the advantage of hearing all the evidence and the witnesses.
In theory, it can still overturn verdicts if it entertains a “lurking doubt” justice has not been done, but this is effectively a dead letter. The relevant statute provides that the CACD has to overturn a conviction “if they think that the conviction is unsafe”, but what unsafe means remains a point of great obscurity.
The establishment of the CCRC in 1997 was meant to ameliorate the system: before that, a case that had been heard by the CACD could only be heard again if the Secretary of State made a referral, which almost never happened.
But the CCRC is chronically underfunded, short-staffed, and as cautious as the CACD, whose peculiar practices shape the referrals made to it by the CCRC. It only makes referrals to the Court of Appeal if there is a “real possibility” of the Court overturning the conviction, which in practice means trying to guess how the CACD would react.
The Law Commission is currently investigating reforms to the system. Its report, commissioned by the government in 2022, is due to be delivered next year. Its provisional recommendations, such as the abolition of the real possibility test and the requirement for certification on a point of law of general public importance, will lead to more appeals against conviction and therefore cost money.
Victims of miscarriages of justice, who generally do not arrive by small boat or sue the United Kingdom in international courts, may be out of luck.
