Powell, R. v

The Court of Appeal may reopen a concluded criminal appeal only in exceptional circumstances, and only where reopening is necessary to avert a real injustice. A clear error in a confiscation order, which exposes a defendant to an unwarranted monetary liability, accrued interest and possible default imprisonment, can satisfy that threshold. Where the defendant acted promptly and alternative avenues have proved unavailable through no fault of his own, the court may reopen the appeal and amend the order. Enforcement consequences, including further time for payment, may appropriately be left to the magistrates’ court.

The applicant sought leave to reopen his concluded appeal against a confiscation order made at the Central Criminal Court on 18 December 2008. The original order treated £22,878.63 as a realisable asset in error. A previous appeal hearing in November 2010 varied the order on another point, but the parties had not then identified this error.

The applicant later pursued a reference from the Criminal Cases Review Commission and an application to the High Court for a Certificate of Inadequacy. The High Court application was refused. The central issue was whether the Court of Appeal should reopen the concluded appeal to correct the error in the confiscation order.

1. Appeal allowed. The court granted leave to reopen the concluded appeal and amended the confiscation order.
2. The Court of Appeal has an implicit power to reopen a concluded appeal in exceptional circumstances where that is necessary to avoid a real injustice. The court applied the principle stated in Yasain, [2015] EWCA Crim 1277; [2016] QB 14.
3. The circumstances were exceptional. The agreed error had inflated the realisable-assets figure by £22,878.63. Unless corrected, it would require the applicant to pay money he did not owe, expose him to continuing interest, and create a risk of imprisonment in default. Those consequences amounted to a real injustice.
4. Although alternative routes had in principle been available, the applicant had acted promptly and the delays were not attributable to him. The court considered that sufficient time and resources had already been spent attempting to correct the error.
5. The confiscation order was reduced from £254,245.76 to £231,367.13. The period of imprisonment in default was reduced to 26 months. The application for further time to pay was refused, as enforcement of the amended order was better left to the magistrates’ court.

• Court of Appeal (Criminal Division) In [2016] EWCA Crim 1539, the court reopened the concluded appeal, allowed it, and corrected the confiscation order.
• High Court The applicant’s application for a Certificate of Inadequacy was refused.
• Central Criminal Court On 18 December 2008, the court made the confiscation order. A Court of Appeal hearing in November 2010 varied that order on another point, but the present error remained undetected.