Yasain, R v

The Court of Appeal (Criminal Division) has a residual implicit jurisdiction to re-open a final criminal appeal in exceptional circumstances where this is necessary to avoid real injustice. That jurisdiction has the same principled basis as the civil appellate jurisdiction recognised in Taylor v Lawrence [2002] EWCA Civ 90, although its exercise must reflect the particularly strong criminal-law interest in finality.

An order founded on a material transcription error is not necessarily a nullity. It may nevertheless be re-opened where the error caused the court to quash a lawfully imposed sentence and leaving the error uncorrected would undermine justice and public confidence.

The appellant was convicted at Harrow Crown Court of, among other offences, kidnap and rape. He received a consecutive 18-month sentence for kidnap. On a limited appeal, this court accepted an inaccurate transcript which appeared to show that no verdict had been taken on the kidnap count. It consequently directed deletion of the conviction and quashed that sentence in an earlier judgment, [2014] EWCA Crim 1416.

Afterwards, the trial judge obtained a corrected transcript. It showed that the jury had properly returned a guilty verdict. The court had to decide whether, despite the recording of its earlier order on CREST, it could re-open that decision and restore the conviction and sentence.

1. Appeal dismissed. The court set aside its order of 12 June 2014, dismissed the appellant's appeal against conviction and sentence, and affirmed the conviction for kidnap and the consecutive 18-month sentence.
2. An appellate order may ordinarily be revised before it is formally recorded. Once recorded in the relevant Crown Court records, the court is generally functus officio. That finality rule, derived from R v Cross (Patrick) [1973] QB 937 and applied in R v Blackwood (Romaine) [2012] EWCA Crim 390, is subject to a nullity and to a residual jurisdiction to avoid real injustice.
3. The earlier hearing was not a nullity. Both parties had been represented, the court had made an order open to it on the material then available, and the later discovery that the transcript was wrong did not mean that the appellate proceedings had never occurred in law.
4. The Criminal Division nevertheless has the same implicit residual jurisdiction as the Civil Division recognised in Taylor v Lawrence [2002] EWCA Civ 90. It may re-open a concluded appeal in exceptional circumstances where this is necessary to avoid real injustice. Its exercise in criminal matters must give substantial weight to finality and to the interests of the State, the defendant and the victim. The court considered that the jurisdiction will ordinarily concern procedural error, especially as fresh-evidence cases may have an alternative remedy.
5. This was an exceptional procedural error. The sentence had been quashed solely because a transcriber omitted a verdict that had in fact been properly taken and recorded. Allowing the appellant to avoid a lawfully imposed sentence would cause real injustice and undermine public confidence in the administration of justice. The court therefore restored the original position.

• Court of Appeal (Criminal Division): The court re-opened its earlier order, dismissed the original appeal against conviction and sentence, and affirmed the kidnap conviction and sentence.
• Court of Appeal (Criminal Division): In [2014] EWCA Crim 1416, acting on an inaccurate transcript, the court directed deletion of the recorded kidnap conviction and quashed the sentence on that count.
• Crown Court at Harrow: The appellant was convicted by a jury and sentenced to a total of seven and a half years' detention, including 18 months consecutively for kidnap.