Criminal Appeal Act 1968

The hearing E+W

22 Right of appellant to be present. E+W

(1) Except as provided by this section, an appellant shall be entitled to be present, if he wishes it, on the hearing of his appeal, although he may be in custody.

(2) A person in custody shall not be entitled to be present—

(a) where his appeal is on some ground involving a question of law alone; or

(b) on an application by him for leave to appeal; or

(c) on any proceedings preliminary or incidental to an appeal; or

(d) where he is in custody in consequence of a verdict of not guilty by reason of insanity or of a finding of disability,

unless the Court of Appeal give him leave to be present.

(3) The power of the Court of Appeal to pass sentence on a person may be exercised although he is for any reason not present.

[F1 [F2 (4) The Court of Appeal may give a live link direction in relation to a hearing at which the appellant is expected to be in custody but is entitled to be present (by virtue of subsection (1) or leave given under subsection (2)) at any time before the beginning of that hearing.

(5) For this purpose—

(a) a “live link direction” is a direction that the appellant (if he is being held in custody at the time of the hearing) is to attend the hearing through a live link from the place at which he is held; and

(b) “live link” means an arrangement by which the appellant is able to see and hear, and to be seen and heard by, the Court of Appeal (and for this purpose any impairment of eyesight or hearing is to be disregarded).

(6) The Court of Appeal—

(a) must not give a live link direction unless the parties to the appeal have had the opportunity to make representations about the giving of such a direction; and

(b) may rescind a live link direction at any time before or during any hearing to which it applies (whether of its own motion or on the application of a party).]]

Textual Amendments

F1 S. 22(4)-(6) inserted (15.1.2007) by Police and Justice Act 2006 (c. 48), ss. 48(1), 53(1); S.I. 2006/3364, art. 2(i)

F2 S. 22(4)-(6) omitted (temp.) (25.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 23 para. 9(2) (with ss. 88-90) (which affecting provision is continued (24.3.2022) until 25.9.2022 by The Coronavirus Act 2020 (Delay in Expiry: Inquests, Courts and Tribunals, and Statutory Sick Pay) (England and Wales and Northern Ireland) Regulations 2022 (S.I. 2022/362), regs. 1(2), 2)

23 Evidence. E+W

(1) For [F3 the purposes of an appeal [F4 , or an application for leave to appeal,] under] this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice—

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case;

[F5 (b) order any witness to attend for examination and be examined before the Court (whether or not he was called in the proceedings from which the appeal lies); and]

[F6 (c) receive any evidence which was not adduced in the proceedings from which the appeal lies.]

[F7 (1A) The power conferred by subsection (1)(a) may be exercised so as to require the production of any document, exhibit or other thing mentioned in that subsection to—

(a) the Court;

(b) the appellant;

(c) the respondent.]

[F8 (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to—

(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.]

(3) Subsection (1)(c) above applies to any [F9 evidence of a] witness (including the appellant) who is competent but not compellable F10 ....

(4) For [F3 the purposes of an appeal [F11 , or an application for leave to appeal,] under] this Part of this Act, the Court of Appeal may, if they think it necessary or expedient in the interests of justice, order the examination of any witness whose attendance might be required under subsection (1)(b) above to be conducted, in manner provided by rules of court, before any judge or officer of the Court or other person appointed by the Court for the purpose, and allow the admission of any depositions so taken as evidence before the Court.

[F12 [F13 (5) A live link direction under section 22(4) does not apply to the giving of oral evidence by the appellant at any hearing unless that direction, or any subsequent direction of the court, provides expressly for the giving of such evidence through a live link.]]

[F14 (6) In this section, “respondent” includes a person who will be a respondent if leave to appeal is granted.]

Textual Amendments

F3 Words in s. 23(1)(4) substituted (1.1.1996) by 1995 c. 35, s. 29(1), Sch. 2 para. 4(3); S.I. 1995/3061, art. 3(d)(h) (with art. 4)

F4 Words in s. 23(1) inserted (14.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 8 para. 10(2); S.I. 2008/1586, art. 2(1), Sch. 1 para. 26

F5 S. 23(1)(b) substituted (14.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 8 para. 10(3); S.I. 2008/1586, art. 2(1), Sch. 1 para. 26

F6 S. 23(1)(c) substituted (1.1.1996) by 1995 c. 35, s. 4(1)(a); S.I. 1995/3061, art. 3(a) (with art. 4)

F7 S. 23(1A) inserted (14.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 8 para. 10(4); S.I. 2008/1586, art. 2(1), Sch. 1 para. 26

F8 S. 23(2) substituted (1.1.1996) by 1995 c. 35, s. 4(1)(b); S.I. 1995/3061, art. 3(a) (with art. 4)

F9 Words in s. 23(3) inserted (1.1.1996) by 1995 c. 35, s. 4(1)(c); S.I. 1995/3061, art. 3(a) (with art. 4)

F10 Words in s. 23(3) repealed (1.1.1996) by 1995 c. 35, s. 29(2), Sch. 3; S.I. 1995/3061, art. 3(d)(i)(i) (with art. 4)

F11 Words in s. 23(4) inserted (14.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 8 para. 10(5); S.I. 2008/1586, art. 2(1), Sch. 1 para. 26

F12 S. 23(5) inserted (15.1.2007) by Police and Justice Act 2006 (c. 48), ss. 48(2), 53(1); S.I. 2006/3364, art. 2(i)

F13 S. 23(5) omitted (temp.) (25.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 23 para. 9(3) (with ss. 88-90) (which affecting provision is continued (24.3.2022) until 25.9.2022 by The Coronavirus Act 2020 (Delay in Expiry: Inquests, Courts and Tribunals, and Statutory Sick Pay) (England and Wales and Northern Ireland) Regulations 2022 (S.I. 2022/362), regs. 1(2), 2)

F14 S. 23(6) inserted (14.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 8 para. 10(6); S.I. 2008/1586, art. 2(1), Sch. 1 para. 26

[F15 23A Power to order investigations. E+W

(1) On an appeal against conviction [F16 or an application for leave to appeal against conviction,] the Court of Appeal may direct the Criminal Cases Review Commission to investigate and report to the Court on any matter if it appears to the Court that—

(a) [F17 in the case of an appeal,] the matter is relevant to the determination of the [F18 appeal] and ought, if possible, to be resolved before the [F18 appeal] is determined;

[F19 (aa) in the case of an application for leave to appeal, the matter is relevant to the determination of the application and ought, if possible, to be resolved before the application is determined;]

(b) an investigation of the matter by the Commission is likely to result in the Court being able to resolve it; and

(c) the matter cannot be resolved by the Court without an investigation by the Commission.

[F20 (1A) A direction under subsection (1) above may not be given by a single judge, notwithstanding that, in the case of an application for leave to appeal, the application may be determined by a single judge as provided for by section 31 of this Act.]

(2) A direction by the Court of Appeal under subsection (1) above shall be given in writing and shall specify the matter to be investigated.

(3) Copies of such a direction shall be made available to the appellant and the respondent.

(4) Where the Commission have reported to the Court of Appeal on any matter which they have been directed under subsection (1) above to investigate, the Court—

(a) shall notify the appellant and the respondent that the Commission have reported; and

(b) may make available to the appellant and the respondent the report of the Commission and any statements, opinions and reports which accompanied it.

[F21 (5) In this section “respondent” includes a person who will be a respondent if leave to appeal is granted.]]

Textual Amendments

F15 S. 23A inserted (31.3.1997) by 1995 c. 35, s. 5(1); S.I. 1997/402, art. 3(a) (with art. 4)

F16 Words in s. 23A(1) inserted (1.9.2004) by Criminal Justice Act 2003 (c. 44), ss. 313(2), 336(3)(4); S.I. 2004/1629, art. 3(1)(2)(a) (with art. 3(3))

F17 Words in s. 23A(1)(a) inserted (1.9.2004) by Criminal Justice Act 2003 (c. 44), ss. 313(3)(a), 336(3)(4); S.I. 2004/1629, art. 3(1)(2)(a) (with art. 3(3))

F18 Words in s. 23A(1)(a) substituted (1.9.2004) by Criminal Justice Act 2003 (c. 44), ss. 313(3)(b), 336(3)(4); S.I. 2004/1629, art. 3(1)(2)(a) (with art. 3(3))

F19 S. 23A(1)(aa) inserted (1.9.2004) by Criminal Justice Act 2003 (c. 44), ss. 313(4), 336(3)(4); S.I. 2004/1629, art. 3(1)(2)(a) (with art. 3(3))

F20 S. 23A(1A) inserted (1.9.2004) by Criminal Justice Act 2003 (c. 44), ss. 313(5), 336(3)(4); S.I. 2004/1629, art. 3(1)(2)(a) (with art. 3(3))

F21 S. 23A(5) inserted (1.9.2004) by Criminal Justice Act 2003 (c. 44), ss. 313(6), 336(3)(4); S.I. 2004/1629, art. 3(1)(2)(a) (with art. 3(3))

24—28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F22 E+W

Textual Amendments

F22 Ss. 24–28, 39–41 repealed by Costs in Criminal Cases Act 1973 (c. 14), Sch. 2