Bavi v Snaresbrook Crown Court

A final appellate determination may be reopened only where reopening is necessary to avoid real injustice, exceptional circumstances make it appropriate, and no effective alternative remedy exists under CPR 52.17. The jurisdiction is engaged where the earlier process was critically undermined or corrupted, or the injustice of leaving the result undisturbed would outweigh finality, together with a powerful probability of error. Fresh medical evidence capable of explaining conduct previously treated as irrational may meet that threshold. Here, the evidence potentially undermined the factual basis of the forfeiture decisions and justified reopening the permission decision, granting permission to appeal and granting permission to seek judicial review.

Police seized £18,500 found in the applicant’s rucksack under section 294 of the Proceeds of Crime Act 2002. The magistrates’ court ordered forfeiture under section 298, and the applicant’s appeal to Snaresbrook Crown Court was dismissed. The Administrative Court refused permission to apply for judicial review on 1 December 2008. Sedley LJ later refused permission to appeal on the papers and certified the application as totally without merit.

Following expert evidence indicating that the applicant had Asperger’s syndrome, the Court of Appeal had to decide whether the earlier permission determination should be reopened under CPR 52.17, or whether an out-of-time oral renewal should be permitted.

Applications granted. The Court of Appeal unanimously granted permission to reopen the earlier permission determination under CPR 52.17 if that course was necessary, granted permission to appeal against HHJ Denyer’s order, and granted permission to apply for judicial review.

1. The court did not need to decide the precise procedural status of Sedley LJ’s earlier refusal of permission. The more demanding reopening route could be satisfied, so that issue was left open.
2. CPR 52.17 requires reopening to be necessary to avoid real injustice, supported by exceptional circumstances making it appropriate, and to have no alternative effective remedy. The application had been served on the relevant parties, satisfying the procedural requirement in rule 52.17(6).
3. Following the guidance in Re Uddin (A Child) [2005] EWCA Civ 52, the applicant had to show that the earlier process was critically undermined or corrupted, or that the injustice of refusing reopening would be so grave as to outweigh finality, together with a powerful probability that the earlier result was erroneous.
4. The fresh report from Dr Campbell provided a potentially complete explanation for conduct previously regarded as implausible. If accepted, it showed a real possibility of injustice and that the integrity of the proceedings before the magistrates’ court and Crown Court had been critically undermined by the absence of relevant medical evidence. The court considered these overwhelming grounds for reopening.
5. The matter was remitted to the Administrative Court for directions. The Court of Appeal did not itself give further directions, recognising that Thames Valley Police might require time to consider its position.

• Court of Appeal (Civil Division): Granted the applications, including permission to reopen if necessary, permission to appeal and permission to apply for judicial review.
• Court of Appeal, single Lord Justice: Sedley LJ refused permission to appeal on the papers on 30 April 2009 and certified the application as totally without merit. Sir Stephen Sedley later revoked that certification and referred the reopening application to a full court.
• High Court of Justice, Administrative Court: HHJ Denyer refused permission to apply for judicial review on 1 December 2008.
• Snaresbrook Crown Court: Dismissed the applicant’s appeal against the forfeiture decision in January 2007.
• Reading Magistrates’ Court: Ordered forfeiture of the cash on 15 March 2006.