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.
Discover how appellate courts in England and Wales review evidence in criminal appeals, including statutory tests for “unsafe” convictions, criteria for admitting new evidence, how courts assess impact on verdicts, limited doctrines like lurking doubt, and the role of the Criminal Cases Review Commission.
When a criminal appeal is made in England and Wales, the role of the appellate court is fundamentally different to that of the trial court. Appellate courts do not normally re‑try the case or hear a full re‑presentation of evidence. Instead, they focus on whether the original conviction or sentence was sound and whether the evidence before the lower court supported that decision within legal and procedural bounds. This article explains how appellate courts review evidence, the legal principles underlying that review, what types of evidence can be considered, and how decisions about evidence influence outcomes. It aims to be clear and accessible for members of the public, students, and solicitors.
The Appellate Role in Criminal Cases
In criminal appeals, courts such as the Court of Appeal (Criminal Division) review cases from lower courts to determine whether there were legal errors, procedural irregularities, miscarriages of justice or insufficient evidence to support the conviction or sentence. Unlike trial courts, appellate courts do not usually hear new oral evidence or re‑examine witnesses afresh; they work principally with the trial record and written submissions to assess whether the original decision was justified. This principle underscores the appellate court's role as a review body rather than a trial court.
The “Unsafe” Conviction Test
When reviewing evidence in a conviction appeal, the central statutory test is whether the conviction is unsafe. Under the Criminal Appeal Act 1968, the Court of Appeal must allow an appeal if it thinks the conviction is unsafe; otherwise it must dismiss the appeal. The test of safety applies irrespective of whether the appeal is based on error of law, improper procedure, or problematic evidence.
An appeal is not a mechanism to replace the jury's role with the court's own assessment of guilt. The appellate court respects that the trial jury saw and heard the witnesses and direct evidence in context and is reluctant to re‑weigh evidence simply because it may have reached a different conclusion. Only where the appellate judges are left with doubt about the safety of the verdict will they consider overturning it.
Reviewing Evidence: Principles and Limitations
1. No General Re‑trial
Appellate courts do not usually re‑conduct a full re‑hearing of the case with live witness testimony. Instead, judges base their review on the written trial record, including transcripts, exhibits, and legal submissions. This reflects the idea that the original fact‑finder (jury or judge) was best placed to assess credibility and decide contested factual issues given the opportunity to observe evidence in person.
Because of this, appellate courts will not overturn a verdict just because they might have reached a different conclusion; they intervene only if there is no reasonable basis for the original decision given the evidence and legal standards. This respects the jury's fact‑finding role and prevents appeals from becoming de facto retrials.
New Evidence: Section 23 of the Criminal Appeal Act 1968
Although appellate courts do not normally hear new evidence, the Criminal Appeal Act 1968 expressly permits them to receive evidence that was not presented at trial, but only if certain criteria are met. This is governed by section 23 of the Act. The court will consider whether:
- The evidence is capable of belief;
- It may afford a ground for allowing the appeal;
- It would have been admissible at the original trial on an issue under appeal;
- There is a reasonable explanation for why it wasn't adduced at trial.
The rationale is that new evidence should only be admitted if it genuinely affects the safety of the conviction and could not reasonably have been presented earlier. The appellate court retains discretion to admit such evidence if it is necessary in the interests of justice.
Assessing the Impact of Evidence
When new evidence is admitted, the court considers its impact on the safety of the conviction. Rather than deciding for itself whether the appellant is innocent, the appellate court asks whether, had the fresh evidence been available at trial, a reasonable jury properly directed might have reached a different verdict. This approach avoids appellate judges substituting their own factual conclusions for those of the original jury without proper basis.
In practice, this means:
- Credibility and relevance are critical when considering fresh evidence.
- Evidence that merely reiterates or strengthens the existing record without affecting the verdict's safety is unlikely to be admitted.
- A detailed explanation is required for why the evidence was not introduced at trial.
Limited Doctrines: “Lurking Doubt”
In rare cases, appeal courts may overturn convictions on the basis of lurking doubt - a doctrine that reflects a subjective uneasiness about whether justice was done, even if no specific error of law is identified. It is applied sparingly and only where judges genuinely feel uneasy about the safety of the conviction despite compliance with procedural and legal standards.
It is important to underline that lurking doubt appeals are exceptional and often controversial, because they risk encroaching on the jury's fact‑finding domain. They are generally reserved for cases that present particularly troubling issues about the reliability of the verdict.
Appellate Standards for Sentence Appeals
When appeals challenge sentences rather than convictions, appellate courts review whether the sentencing judge erred in law, applied the wrong legal principles or reached a sentence that is manifestly excessive or otherwise unjust. This involves a review of whether the original judge properly applied statutory guidelines and relevant sentencing principles. Unlike evidential review, this process focuses on compliance with legal and procedural standards in sentencing rather than safety of verdict.
The Role of the Criminal Cases Review Commission
If ordinary appeal routes are exhausted and a person believes there remains a real possibility that their conviction is unsafe due to evidence or argument not raised in previous hearings, the Criminal Cases Review Commission (CCRC) can investigate. The CCRC can gather evidence, obtain material from public and private bodies, and interview witnesses to determine whether there is a real possibility that the appellate court would overturn the conviction or change the sentence. If so, it can refer the case back to the Court of Appeal.
Practical Implications for Appellants
- Appellants need to frame their submissions around legal grounds and the statutory safety test.
- Without meeting the strict criteria for new evidence under section 23, fresh factual material may not be admitted.
- Appellate courts give substantial deference to the original fact‑finder, especially regarding credibility and factual findings.
- Appellants should ensure all relevant evidence and legal points are properly documented and justified within their appeal submission.
Key Takeaways
Appellate courts in England and Wales do not typically re‑hear criminal cases from scratch. Instead, they assess whether evidence and legal processes at trial were sufficient and lawful, using the statutory test of whether a conviction is unsafe. Key points for evidence review include:
- Appellate review is primarily based on the trial record and written submissions.
- New evidence may be admitted under strict statutory criteria if it impacts the safety of the conviction.
- The appellate court will examine the possible effect of new evidence on a properly directed jury's verdict.
- Rare doctrines such as lurking doubt may apply in exceptional circumstances.
- Sentence appeals focus on legal and procedural correctness rather than evidence per se.
- The Criminal Cases Review Commission can investigate and refer cases with new compelling evidence back to court.
Understanding how appellate courts review evidence clarifies the limited but important role they play in correcting miscarriages of justice and ensuring fair outcomes within the criminal justice system.
