Rights of appeal for both parties

Variation of sentence or order

1. A sentence imposed, or other order made, by a magistrates' court may be varied or rescinded where it appears to that court to be in the interests of justice to do so 1. This power may not be exercised after the Divisional Court has determined a case stated or the Crown Court has heard an appeal 2. A sentence or other order made by the Crown Court 3 may be varied or rescinded within 28 days of the order being made. The court must be the same as on the original hearing 4. This power will usually be used to correct minor errors made by the court when passing sentence.

Appeal to the Supreme Court

2. Either party may appeal to the Supreme Court from a decision of the Court of Appeal or a decision of the Divisional Court 5 on a point of law. However, an appeal can only be brought with the leave of the court below or of the Supreme Court . Leave will not be granted unless it is certified by the court that a point of law of general public importance is involved in the decision and it appears that the point is one which should be considered by the Supreme Court 6.

3. The application must be made to the lower court within 28 days of its decision (or, if later, the date on which the court gives reasons for its decision) and, if refused, to the Supreme Court within 28 days of the refusal, although an extension of time in which to make the application may be given in limited circumstances 7. All action will be initiated by Legal Adviser's Office.

Judicial review

4. Judicial review is concerned with the control of the decision-making process of the magistrates' court, and the Crown Court in matters not relating to trial on indictment 8. It can apply where the court needs to be compelled to exercise its jurisdiction or to exercise it correctly.

5. For example, where magistrates have refused without good reason to hear any evidence put forward by the prosecution and have dismissed the prosecution case, the dismissal can be quashed and the defendant can then be properly tried 9. The decision of a magistrates' clerk to refuse to issue a summons on the grounds of delay may be judicially reviewable 10.

6. Either party may apply by way of judicial review to the Divisional Court 11. Leave of the Divisional Court must be obtained before an application for judicial review can be made. The application should be made within three months of the date when the grounds for application first arose.

7. All judicial review cases must be notified to Legal Adviser's Office. In particular, Legal Adviser's Office must be informed of all cases which may have an impact upon HSE national policy. Examples of such cases are:

  • A challenge to HSE decision making on grounds that the HSE decision was "Wednesbury unreasonable" 12, ultra vires (beyond their powers) or in bad faith;
  • A challenge to HSE acts or omissions which, if lost, will involve the alteration of current HSE guidelines;
  • A challenge which may involve the HSE being ordered to disclose the contents of national guidance, other than HSE's Enforcement Policy Statement, the Code for Crown Prosecutors or any other public document;
  • Any case likely to result in a change in statutory interpretation or case law which has national implications; and
  • Any case, the result of which may have serious national implications for the HSE, for example, in terms of costs, time limits, disclosure, HSE's relationship with other agencies or enforcement authorities, or HSE's responsibility for the acts or omissions of other agencies.

8. An example of an area where HSE may be open to particular challenge is where it has a policy not to institute prosecutions 13. A decision by HSE or another public prosecuting authority not to institute a prosecution, or to discontinue a prosecution that they have instituted, is susceptible to judicial review. Judicial review applications have been successful in a number of reported cases 14.

9. What is clear from the case law is that the power to review a decision not to prosecute is one that is to be sparingly exercised. However, the standard of review will not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute.

10. A decision to institute a prosecution is also potentially subject to judicial review, but only in rare and exceptional situations (such as demonstrable fraud, corruption, mala fides, or failure to follow agreed policy on the part of the decision maker). Judicial review may be particularly inappropriate where an alternative remedy exists15.

11. As a general, rule the courts will refuse to entertain a judicial review application where the complaint could be raised within the criminal trial and appeal process. The House of Lords in R v DPP ex parte Kebilene and others 16 made it clear that judicial review is, however, available in an appropriate case in respect of a decision not to prosecute, because in such a situation there is no other remedy.

12. In order to avoid or, at least, reduce the risk of a successful challenge by way of judicial review (or generally), HSE inspectors must ensure that the provisions of HSE's Enforcement Policy Statement and the Code for Crown Prosecutors are both understood and followed. Compliance with obligations imposed by law, such as the provisions of the Police and Criminal Evidence Act 1984, their associated Codes of Practice and the disclosure provisions found in the Criminal Procedure and Investigation Act 1996 ('CPIA') , will also greatly reduce the risk of a successful challenge.

Agreed orders

13. Where an application by way of case stated has been made to the Divisional Court, in some situations the parties may be able to agree the terms on which the proceedings could be disposed of. This may occur, for example, where HSE are unable to support a conviction which has been appealed by the defendant.

14. The defence and HSE should hand into the Crown Office a document signed by both parties, setting out the terms of the proposed agreed order and a short statement of the matters relied on as justifying the making of the order.

15 If the Court is satisfied that an order can be made, the order will be announced in open court without the parties (or representatives) having to attend 17.

16. Agreed orders will be dealt with by Legal Adviser's Office.


  1. Magistrates' Courts Act 1980, s.142, as amended by Criminal Appeal Act ('CAA') 1995, s.26. Back to reference of footnote 1
  2. Magistrates' Courts Act 1980, s.142 (1A), as substituted by CAA 1995, s.26. Back to reference of footnote 2
  3. Powers of Criminal Courts (Sentencing) Act (PCCSA) 2000, s.155(1). Back to reference of footnote 3
  4. PCCSA 2000, s.155(4). Back to reference of footnote 4
  5. Administration of Justice Act ('AJA') 1960, s.1. Back to reference of footnote 5
  6. CAA 1968, s.33(2); AJA 1960, s.1(2). Back to reference of footnote 6
  7. CAA 1968, s.34(1)(2); AJA 1960, s.2. Back to reference of footnote 7
  8. The Divisional Court has no general supervisory jurisdiction over the Crown Court except as expressly provided by Senior Courts Act ('SCA') 1981, ss.28 and 29(3). Where a matter does relate to a trial on indictment, therefore, there is no right of appeal to the Divisional Court and judicial review is not available; see R v Chelmsford Crown Court, ex parte Chief Constable of Essex [1994] 1 WLR 359. SCA 1981, s.29(3). The meaning of `a matter relating to trial on indictment' has been considered in Re Smalley [1985] AC 622, and Re Ashton and Others, R -v- Manchester Crown Court, ex parte DPP [1994] 1 AC 9. See Archbold `Criminal Pleading, Evidence and Practice', 2010 edition, paragraphs 7-11 and 7-12 for a list of matters which have been held to relate to trial on indictment and see para 7-9 for matters held not to relate to trial on indictment. Back to reference of footnote 8
  9. R -v- Dorking Justices, ex parte Harrington [1984] AC 743. Back to reference of footnote 9
  10. R -v- Clerk to the Medway Justices, ex parte DHSS [1986] Crim LR 686: the decision of the clerk was held to be reasonable; he was entitled to enquire why there had been a delay in laying the information although the time limit had not been breached. Back to reference of footnote 10
  11. SCA 1981, ss.29-31, and Rules of Supreme Court 1965, ord. 53. Back to reference of footnote 11
  12. Associated Picture House Ltd v Wednesbury [1948] 1 KB 223 held that "the local authority must act reasonably...the test of reasonableness is what the court thinks reasonable rather than what the local authority think reasonable." However R v Secretary of State for Home Dept ex parte Daly [2001] 2 AC 532 HL held that "Proportionality review under the Human Rights Act is different from Wednesbury, although there is not a shift to merits review." Courts can therefore review the proportionality of the decision but cannot question the merits of the decision reached. Back to reference of footnote 12
  13. See R -v- Commissioner of Police for the Metropolis, ex parte Blackburn [1968] 2 QB 118, CA (Civ. Div.) and R (on the application of S) v Health and Safety Executive - [2010] All ER (D) 78 (Apr). The Administrative Court held, that the decision taken by HSE not to order an inspection-led investigation into an accident at school suffered by the claimant was not unlawful. Back to reference of footnote 13
  14. R -v- DPP, ex parte C [1995] 1 Cr. App.R.136 DC; R -v- DPP, ex parte Jones [2000] Crim LR 858, DC; R -v- DPP ex parte Treadaway, "The Times", October 31, 1997, DC; and R -v- DPP ex parte Manning and Another [2001] QB 330 (DC) cited in Archbold, 2011 edition at paragraph 1-337. See also R -v- DPP, ex parte Panayiotu [1997] C.O.D. 83, DC, and R -v- DPP ex parte Camelot Group Ltd [1998]COD 54, DC for two reported cases, in which such applications have failed. Back to reference of footnote 14
  15. For this and previous paragraph – see Archbold, 2011 edition at paragraph 1-338. Back to reference of footnote 15
  16. [2000] 2 AC 326, HL cited in Archbold, 2011 edition at paragraph 1-338. Back to reference of footnote 16
  17. Practice Direction (CPR PD 54) (Judicial Review) (2000) and Practice Note (Crown Office List: Criminal Proceedings) [1983] 2 All ER 1020. See Guyll -v- Bright (1987) 84 Cr. App. R.260 which indicates that, in the Divisional Court, an order for costs against a party would not be appropriate where that party was not responsible for the appeal, except in relation to those costs which have been incurred unnecessarily through an unreasonable failure to proceed by way of an agreed order. Back to reference of footnote 17

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Updated 2021-08-27