Study guide
10.5 Prosecution Appeals, Attorney General's References & the CCRC
UK Bar — Criminal Litigation, Evidence and Sentencing Exam
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1 Chapter 1: Introduction & BSB Assessment Overview
1.1 BSB Centralised Assessment Structure & Regulations 1.2 Overriding Objective & Court Structure 1.3 Classification of Offences, Court Jurisdiction & Funding
2 Chapter 2: Commencing Proceedings, Charges & Allocation
2.1 Commencing Proceedings & Police Station Procedure 2.2 First Hearing & Classification of Offences 2.3 Allocation and Mode of Trial 2.4 Sending for Trial & Committal for Sentence 2.5 Youth Court & Special Allocation Rules 2.6 Sentencing Powers of the Youth Court
3 Chapter 3: Bail, Remand & Case Management
3.1 Right to Bail & Statutory Exceptions 3.2 Bail Conditions, Breach & Appeals 3.3 Remands, Adjournments & Custody Time Limits 3.4 Case Management & Pre-Trial Hearings 3.5 Prosecution & Defence Disclosure
4 Chapter 4: Indictments & Preparation for Trial in the Crown Court
4.1 The Indictment: Form, Content, Time Limits & Specimen Counts 4.2 Joinder, Severance, Amendment & Voluntary Bills 4.3 Arraignment, Pleas & Change of Plea 4.4 PTPH, Applications to Dismiss & Offering No Evidence
5 Chapter 5: Criminal Evidence — General Principles & PACE Exclusions
5.1 Preliminary Evidential Matters: Relevance, Admissibility & Tribunals 5.2 Burden and Standard of Proof & Presumptions 5.3 Confession Evidence & Mandatory Exclusion 5.4 Discretionary Exclusion of Unfair Evidence 5.5 Inferences from Silence
6 Chapter 6: Special Evidentiary Rules — Hearsay, Character & Identification
6.1 Hearsay Evidence & The Four Gateways 6.2 Hearsay Safeguards, Multiple Hearsay & Procedure 6.3 Defendant Bad Character Evidence 6.4 Non-Defendant Bad Character & Co-Defendant Character 6.5 Good Character, Proof of Convictions & Bad Character Procedure 6.6 Visual Identification & Turnbull Guidelines
7 Chapter 7: Witnesses, Privilege & Opinion Evidence
7.1 Witness Competence, Compellability & Special Measures 7.2 Oaths, Affirmations & Compelling Witness Attendance 7.3 Examination in Chief: Leading Questions, Memory Refreshing & Hostile Witnesses 7.4 Cross-Examination, Previous Inconsistent Statements & Re-Examination 7.5 Opinion Evidence & Expert Witnesses 7.6 Privilege, Public Interest Immunity & Immunity
8 Chapter 8: Trial Procedure in the Magistrates' Court & Crown Court
8.1 Magistrates' Court Trial Procedure 8.2 Summary Trial: Pre-Trial Rulings, Absence & Abuse of Process 8.3 Crown Court Trial Procedure 8.4 Jury Trial: Absence, Unrepresented Defendants & Abuse of Process 8.5 Speeches, Summing Up & Verdicts
9 Chapter 9: Sentencing Framework & Guidelines
9.1 Sentencing Framework, Principles & Procedure 9.2 Seriousness, Guilty Plea Reduction, Aggravation & Mitigation 9.3 Sentencing Procedure: Newton Hearings, Reports & Goodyear Indications 9.4 Custodial Sentences, Suspension & Release 9.5 Mandatory & Minimum Custodial Sentences 9.6 Community Orders, Fines & Discharges 9.7 Ancillary Orders, Costs & Dangerous Offenders
10 Chapter 10: Appeals & Post-Trial Remedies
10.1 Appeals from the Magistrates' Court (Crown Court & High Court Case Stated) 10.2 Rectifying Mistakes, Case Stated & Judicial Review 10.3 Crown Court Appeals (Court of Appeal Criminal Division & Supreme Court) 10.4 CACD Procedure: Rectification, Leave, Renewal, Loss of Time & Fresh Evidence 10.5 Prosecution Appeals, Attorney General's References & the CCRC
10.5 Prosecution Appeals, Attorney General's References & the CCRC
Key Takeaways Explain This Topic AI
Section 58 of the Criminal Justice Act 2003 allows the prosecution to appeal a terminating ruling, but only on giving an undertaking that the defendant be acquitted if the appeal is abandoned or leave is refused.
A reference by the Attorney General on a point of law under section 36 of the Criminal Justice Act 1972 clarifies the law for the future and does not affect the acquittal in the case referred.
An unduly lenient sentence reference under section 36 of the Criminal Justice Act 1988 requires the leave of the Court of Appeal and must be made within 28 days of sentence, a limit that cannot be extended.
The Criminal Cases Review Commission may refer a conviction or sentence to the appellate court where it considers there is a real possibility that it would not be upheld.
A CCRC reference normally requires an argument or evidence not raised in the proceedings and that ordinary rights of appeal have been exhausted, though there is an exceptional-circumstances escape.
Last updated: August 2026
10.5 Prosecution Appeals, Attorney General's References & the CCRC
The general rule that the prosecution cannot appeal an acquittal has been eroded by a series of targeted statutory exceptions. Each has its own trigger, time limit and consequence, and confusing them is the most common error in this area.
1. Prosecution appeals against terminating rulings — s.58 CJA 2003
What it covers. A ruling by a Crown Court judge, at any time before the start of the judge's summing up, which effectively terminates the prosecution case — a ruling of no case to answer, a ruling excluding evidence without which the prosecution cannot proceed, or a stay for abuse of process.
The undertaking — the defining feature. The prosecution may appeal only if it agrees that, if leave to appeal is not obtained or the appeal is abandoned, the defendant shall be acquitted of the offence to which the ruling relates ( s.58(8) ). The prosecution cannot appeal and, having lost, simply carry on.
Procedure.
The prosecution must inform the court immediately that it intends to appeal, or ask for an adjournment to consider whether to do so; the adjournment must be until the next business day;
- It must give the required undertaking ;
- Leave is required, from the judge or from the Court of Appeal;
The appeal may be expedited (in which case the trial is adjourned) or non-expedited (in which case the jury may be discharged);
On the appeal the Court of Appeal may confirm, reverse or vary the ruling, and may order that proceedings resume , that a fresh trial take place, or that the defendant be acquitted .
Evidentiary rulings. Section 62 CJA 2003, which would have allowed prosecution appeals against certain non-terminating evidentiary rulings, has never been brought into force .
- 2. Attorney General's references
- On a point of law after acquittal — s.36 CJA 1972
Where a defendant is acquitted on indictment , the Attorney General may refer to the Court of Appeal any point of law which arose in the case, for its opinion.
- The purpose is purely to clarify the law for the future ;
- Section 36(7) is emphatic: the reference does not affect the acquittal in the case referred;
- The acquitted person is entitled to be represented (or to decline to take part) and is not named;
The Court of Appeal may refer the point onwards to the Supreme Court .
Against an unduly lenient sentence — s.36 CJA 1988
The Attorney General may refer a sentence to the Court of Appeal on the ground that it is unduly lenient , so that the sentence may be reviewed .
- Feature Rule
- Leave Required, from the Court of Appeal
- Time limit 28 days from the day the sentence was passed — this limit cannot be extended
Scope Only offences within the ULS scheme — all indictable-only offences, and a list of specified either-way offences
Test The sentence must fall outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate — not merely lenient, but unduly so
Outcome The court may quash the sentence and pass such sentence as it thinks appropriate. There is a conventional (though not obligatory) element of double jeopardy discount to reflect the anxiety of being sentenced twice
The contrast to remember. Under the 1972 Act the acquittal is untouched ; under the 1988 Act the sentence can be increased . Both are called "an Attorney General's Reference" and SBAs exploit that.
3. The Criminal Cases Review Commission
The CCRC is an independent statutory body created by the Criminal Appeal Act 1995 to investigate suspected miscarriages of justice.
The power to refer — s.9 (Crown Court convictions) and s.11 (magistrates' court convictions). The CCRC may refer a conviction, verdict, finding or sentence to the appropriate appellate court — the Court of Appeal in Crown Court cases, the Crown Court in magistrates' court cases. A reference is treated as an appeal by the convicted person .
The test — s.13. A reference may not be made unless:
The Commission considers that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made;
That real possibility arises because of an argument or evidence not raised in the proceedings (or, on a sentence reference, an argument on a point of law or information not raised); and
An appeal has been determined , or leave to appeal has been refused.
Section 13(2) provides an escape: the Commission may nevertheless refer where there are exceptional circumstances which justify making it.
Powers. The CCRC can require a public body to produce documents and other material (s.17), can appoint an investigating officer, and can ask the Court of Appeal to investigate and report on any matter (s.15).
4. Appeals to the Supreme Court
Either the prosecution or the defence may appeal from the Court of Appeal (Criminal Division) to the Supreme Court under ss.33–34 of the Criminal Appeal Act 1968 . Two cumulative requirements:
The Court of Appeal must certify that a point of law of general public importance is involved in its decision; and
Leave must be granted, either by the Court of Appeal or by the Supreme Court.
The certificate is the gateway and only the Court of Appeal can give it — a refusal to certify cannot itself be appealed. The application for a certificate must be made within 28 days of the Court of Appeal's decision. The same route runs from a Divisional Court decision in a criminal cause or matter, under s.1 of the Administration of Justice Act 1960.
Exam traps in this section
A s.58 CJA 2003 appeal requires the acquittal undertaking — this is what distinguishes it from every other appeal.
Section 62 CJA 2003 is not in force.
A 1972 Act reference does not affect the acquittal ; a 1988 Act ULS reference can increase the sentence .
28 days for a ULS reference, and it cannot be extended.
The CCRC test is a real possibility the conviction would not be upheld , normally requiring new argument or evidence and exhausted appeal rights .
The Supreme Court route needs a certificate from the Court of Appeal and leave .