How Are Grounds for Criminal Appeals Determined?

When someone is convicted of a criminal offence or sentenced in England and Wales, the question of whether there are valid grounds for appeal is central to whether an appeal will succeed. The appellate courts do not simply re‑hear cases because someone disagrees with a verdict or sentence. Instead, they assess whether there is a legitimate legal basis for the appeal. This article explains how grounds for criminal appeals are determined, the legal tests used by courts, common types of grounds, and how decisions are made in practice.

What Are Appeal Grounds?

“Grounds for appeal” are the reasons an appellant gives to the appellate court to justify reviewing and potentially overturning a conviction or sentence. In criminal appeals, these reasons must go beyond general dissatisfaction; they must show that the original trial or sentencing contained an error, irregularity, or other defect that renders the conviction or sentence unsafe or inappropriate. The core statutory test for convictions is whether the conviction is “unsafe”.

Determining valid grounds is the first critical step in all criminal appeals, whether from the Magistrates' Court up to higher courts like the Court of Appeal (Criminal Division) or, in very limited cases, the Supreme Court.

The Safety Test: Central Legal Standard

Under the Criminal Appeal Act 1968, the Court of Appeal must allow an appeal against conviction if it thinks the conviction is unsafe and dismiss it in any other case.

This single statutory standard - the unsafe conviction test - is broad. It does not require the appellant to prove innocence but focuses on whether the conviction can be trusted as reliable and fair. An unsafe conviction is one that the appellate court cannot be confident was correct, based on all the circumstances of the case.

For sentence appeals, different statutory language applies (e.g., exceeding powers, manifest excess, wrong in law or principle), but the principle is similar: the court looks for recognised defects in how the sentence was reached.

How Courts Assess Grounds for Appeal

1. Legal Error

One of the most common grounds is an error in law by the trial judge. This includes misinterpreting or misapplying legal principles, misdirecting the jury on points of law, or giving incorrect legal instructions. If such errors could have affected the verdict or sentence, they support an appeal.

Example: A jury is incorrectly instructed on the legal test for intent, leading to confusion over a key element of the offence. This could form the basis of a legal ground of appeal.

2. Procedural or Evidential Irregularity

The appellate court will consider whether there were significant procedural flaws or errors in how evidence was handled. This could include:

• Improper admission of evidence that should have been excluded
• Wrongful exclusion of evidence that should have been admitted
• Procedural unfairness that affects the fairness of the trial

If such irregularities make the conviction or sentence unreliable, they may constitute valid grounds.

3. Fresh Evidence

Appeals may include new evidence that was not available at the original trial but which could affect the safety of the verdict. The appellate court will consider whether the new evidence is credible, relevant, and capable of affecting the outcome. If it causes reasonable doubt about the conviction's safety, it may justify allowing the appeal.

Example: Newly discovered forensic results that were not available at trial and potentially undermine the prosecution's case.

4. Miscarriage of Justice

The appellate court may allow an appeal if there has been a miscarriage of justice, meaning a fundamental unfairness or defect in the trial process. This often overlaps with other grounds, such as procedural errors, but emphasises significant injustice rather than minor technical mistakes.

5. Jury Misconduct and “Lurking Doubt”

In rare cases, appeal courts use doctrines such as “lurking doubt” to question whether the jury's verdict can safely stand. This ground arises where something in the case leaves the appellate judges with an unresolved doubt about the correctness of the conviction, even if standard legal channels do not neatly capture the issue. While controversial and uncommon, it reflects the appellate court's willingness to ensure fairness where justice appears compromised.

Distinguishing Conviction and Sentence Grounds

Although many appeal principles overlap, it is important to understand the difference:

• Conviction appeals focus on whether the verdict is unsafe, using the safety test and examining errors affecting guilt.
• Sentence appeals focus on whether the sentence was wrong in law or principle or manifestly excessive relative to the circumstances and sentencing guidelines. Errors in applying sentencing guidelines, taking irrelevant factors into account, or imposing a disproportionately severe sentence can be valid grounds.

Grounds against sentence may involve demonstrating that the judge misapplied sentencing guidance or neglected material mitigating factors.

Preparing Grounds of Appeal

Grounds of appeal must be clearly set out in the appeal notice (often Form NG in Crown Court appeals). They require:

• A statement of the factual and legal basis for each ground
• Explanation of why each issue renders the conviction or sentence unsafe or flawed
• Supporting references to trial transcripts, evidence, or legal principles

Appellants often engage solicitors to draft grounds, as clarity and precision are essential to persuade an appellate court to grant permission and to succeed at hearing.

Role of Permission and Preliminary Assessment

In appeals from the Crown Court to the Court of Appeal, the appellant must obtain permission to appeal. A single judge first assesses whether there is an arguable basis - that the grounds raise a real prospect of success. If permission is refused, the appellant can renew the request before the full court. This stage filters out unmeritorious appeals before a full hearing.

Criminal Cases Review Commission (CCRC)

If ordinary appeal routes have been exhausted and new issues arise that could make a conviction unsafe, an application may be made to the Criminal Cases Review Commission (CCRC). The CCRC investigates alleged miscarriages of justice and can refer a case back to the Court of Appeal if it believes there is a real possibility that the conviction or sentence will not be upheld. The CCRC does not itself overturn convictions but functions as an independent review body.

Practical Examples of Common Grounds

To make these concepts more concrete:

• A trial judge fails to explain a key legal defence, leading to misunderstanding by the jury.
• Evidence crucial to the defence was wrongly excluded.
• A defendant becomes aware of reliable new evidence, such as witness recantation, after trial.
• The sentencing judge misapplies the statutory guidelines, resulting in a disproportionately harsh sentence.

Each of these may justify an appeal if properly framed within statutory tests and court practice.

Key Takeaways

In England and Wales, grounds for criminal appeals are carefully determined through legal tests focussed on safety of conviction and correctness of sentencing. Key points include:

• The unsafe test under the Criminal Appeal Act 1968 is the central statutory basis for conviction appeals.
• Grounds must demonstrate legal error, procedural unfairness, fresh evidence, or other factors undermining the reliability of the conviction.
• Sentence appeals must show that a sentence was wrong in law or principle or manifestly excessive.
• Appellants must obtain permission before a full hearing, and courts filter out weak grounds early.
• The CCRC can refer cases back to appeal courts where appropriate.

Understanding how grounds are determined helps potential appellants and solicitors assess whether an appeal has a substantive basis and how best to structure and argue it before the courts.