This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Learn how criminal appeals affect remand decisions in England and Wales. This guide explains how courts decide whether a defendant remains in custody or is released on bail while an appeal is pending, including prosecution bail appeals and key legal factors considered.
Remand decisions determine whether a person charged with an offence is held in custody or released on bail while their case progresses. When a criminal appeal comes into play - for example, an appeal against conviction or sentence - this can influence whether someone remains on remand, is granted bail, or gets remanded to custody pending the appeal or a retrial. This guide explains how remand decisions are affected by appeals, the relevant legal framework, the process that courts follow, and what it means for defendants and solicitors.
Remand and Appeals
Remand refers to detention in custody pending the next stage of criminal proceedings - such as a trial, sentencing or an appeal. When a defendant or the prosecution seeks to appeal a decision, the court must decide whether the appellant should remain in custody or be released on bail while the appeal is considered. The interplay between appeals and remand decisions is governed by legislation and procedural rules, including the Criminal Appeal Act 1968 and provisions affecting bail and custody during appeal hearings.
Legal Framework Governing Remand and Appeals
The Criminal Appeal Act 1968 allows individuals convicted or sentenced to appeal to the Court of Appeal (Criminal Division). While that Act itself focuses on the right to appeal conviction or sentence, the Criminal Justice Act 2003 and associated practice directions set out how bail and custody are treated during and after appeal hearings. Under these provisions, when an appeal is pending, the court - whether at first instance or on appeal - may remand a person in custody or grant bail pending the appeal's determination.
The Criminal Procedure Rules also govern how bail applications are made and determined, and provide procedural structure for remand decisions throughout the appeal process.
What Happens to Remand When an Appeal Is Lodged?
1. Bail or Remand Decisions by the Appeal Court
When an appeal against conviction or sentence is lodged, the Court of Appeal has statutory power to determine whether the appellant remains in custody or is released on bail while the appeal is pending. This may occur at:
- Adjournments of appeal hearings (for example, before an appeal is heard substantively);
- After the appeal is heard but before judgment; or
- After a successful appeal that results in a retrial or modification of the original decision.
At any such stage, the Court of Appeal may either grant bail on suitable conditions or remand the person in custody. This is a discretionary power exercised in light of the appeal's merits, flight risk, public safety concerns, and other relevant factors.
For example, explanatory notes to legislation on remand and bail during appeals envisage courts making fresh decisions about custody or bail once notice of an appeal has been given, including decisions pending trial after a successful appeal or pending determination of further appeals.
2. Impact of Appeal on Existing Remand Orders
If a defendant is already on remand - for trial, sentencing or bail application - the lodging of an appeal may trigger a review of the remand status. Courts will reassess whether custody remains justified in light of the appeal.
- In some cases, an appeal may lead to continued remand in custody if the court determines that custody remains necessary while the appeal is decided.
- Alternatively, where bail is appropriate, the court may release the appellant on bail pending appeal, subject to conditions.
The statutory scheme allows the court to vary or revoke bail at any time during a pending appeal and to remand the person in custody if circumstances change.
It's important to note that when a bail decision itself is under appeal - for example, if a magistrates' court grants bail and the prosecution appeals - the remand status may change during the appeal process. Under the Bail (Amendment) Act 1993, when the prosecution appeals against the grant of bail by magistrates, the defendant is remanded in custody pending determination of that appeal. The appeal must normally be heard within 48 hours.
3. Remand After Appeal Decisions
Where an appeal succeeds and, for instance, a conviction is quashed or a retrial is ordered, the court must decide on custody or bail pending retrial or any subsequent process. Under the Criminal Appeal Act 1968, the Court of Appeal may make orders necessary or expedient for custody or release on bail pending retrial. This ensures a legal framework for holding or releasing a person between appellate outcomes and further proceedings.
The key principle is that an appeal itself does not automatically cancel existing custody orders. The court must expressly make a remand or bail decision in the context of the appeal outcome.
Factors Courts Consider in Remand Decisions During Appeals
Decisions on custody or bail in appeal contexts are discretionary, but courts generally consider factors similar to those in initial remand hearings, including:
- Strength and prospects of success on appeal: Strong appeal grounds may support release, but this is not decisive on its own.
- Risk of absconding: Higher risk may justify continued remand.
- Risk to public safety: Serious concerns may favour custody pending appeal.
- Breach of previous bail conditions: History of bail breaches may weigh against bail.
- Nature of the original offence and sentence: Serious offences or long custodial terms may affect remand decisions.
These considerations are grounded in the bail regime under the Bail Act 1976, which generally favours bail except where specified exceptions apply. However, after conviction, the normal right to bail does not automatically apply, and courts must weigh the specific context of the appeal.
Practical Steps and Process
Applying for Bail Pending Appeal
An appellant wishing to be released pending appeal must apply to the appropriate court - whether the Court of Appeal or, in some circumstances, the original trial judge with certification - for bail pending appeal. The application process and timing are governed by the Criminal Procedure Rules, and the appellant must typically serve notice on the prosecution and support their application with reasons addressing risk and merits.
Responding to Prosecution Appeals Against Bail
If the prosecution appeals against a bail decision, courts will reconsider the original decision and may remand the defendant in custody pending that appeal. This process exists mainly in magistrates' court decisions under the 1993 Act, and must be initiated promptly after the initial grant of bail.
Variation and Revocation of Bail
Once bail is granted pending appeal, courts retain the power to vary conditions or revocate bail, remanding the appellant back into custody if necessary. This ensures ongoing assessment of risk and compliance throughout the appeal process.
Common Questions
Does an appeal automatically suspend remand custody?
No. An appeal does not automatically suspend a remand in custody. A court must decide whether bail is appropriate on application, or may continue remand if custody remains justified.
Can the prosecution appeal a bail decision?
Yes. In specified cases, particularly where magistrates grant bail, the prosecution may appeal the bail decision, and the defendant will be remanded in custody pending that appeal.
Who decides remand during an appeal?
The decision may be made by the Court of Appeal, by the trial court at stages before the appeal is heard, or in Crown Court proceedings where an appeal is lodged and custody or bail must be reviewed.
Key Takeaways
Appeals can significantly affect remand decisions in criminal cases in England and Wales. When an appeal is lodged, courts must assess whether custody remains necessary or whether bail should be granted pending determination of the appeal. The Court of Appeal and other courts have statutory powers to remand a person in custody or grant bail throughout the appeal process. Neither remand nor bail is automatic; each decision is made based on risk, public protection considerations, and the prospects of the appeal. Rules governing prosecution appeals against bail and the ability to vary or revoke bail further shape how remand operates during appeal proceedings.
