Hockey v R v

The Court of Appeal (Criminal Division) has a strictly exceptional implicit jurisdiction to re-open a final criminal appeal. It is confined in practice to a procedural defect capable of causing real injustice, in circumstances sufficiently exceptional to outweigh the strong public interest in finality. The applicant must also show that no other effective remedy is available.

The jurisdiction cannot be used to re-litigate an alleged error of law or statutory construction, even where later litigation is said to show that the earlier approach was wrong. A party seeking re-opening must instead use any ordinary appeal, statutory remedy or review route that remains available.

Terence John Hockey pleaded guilty to offences involving false income representations in mortgage applications. In 2006 he was sentenced in the Crown Court at Bristol. The judge declined to make a confiscation order under the Proceeds of Crime Act 2002.

On the prosecutor’s appeal, the Court of Appeal made a confiscation order for £298,457: [2007] EWCA Crim 1577. Nearly ten years later, Mr Hockey applied to re-open that final appellate decision. He contended that the benefit calculation had misunderstood the statutory provisions governing confiscation.

The central issue was whether an asserted legal error, said to have been exposed by later authority, could engage the exceptional implicit jurisdiction to re-open a concluded criminal appeal.

1. The application was refused. The Court held that the implicit jurisdiction described in R v Yasain [2015] EWCA Crim 1277 is exceptionally narrow. A final determination may be re-opened where a procedural defect may have caused real injustice, but the jurisdiction must respect the strong public interest in finality and the interests of the State, defendant and victim.

2. The established categories remained a decision not yet entered on the record, and an order which was a nullity. The further Yasain exception concerns a procedural error capable of causing real injustice. It is not a means of correcting an alleged error in the construction of legislation, even if later litigation is said to reveal that error.

3. Mr Hockey alleged that the earlier court had calculated confiscation benefit incorrectly. That was a challenge to the legal correctness of the concluded decision, not a procedural defect. It therefore fell outside the re-opening jurisdiction. The Court also confined R v Powell [2016] EWCA Crim 1539 to its exceptional facts, including the Crown’s concession of an assets-calculation error; it was not authority for bypassing proper procedures for legal or factual challenges.

4. Until bespoke Criminal Procedure Rules are made, an applicant must apply in writing and promptly, serve every party, identify the final decision, explain the real injustice and exceptional circumstances, address finality and other parties’ interests, and explain the absence of an effective alternative remedy and any delay. The full Court will ordinarily determine a proper application on the papers, and may not grant permission before other parties have had an opportunity to respond.

5. Alternative routes reinforced the refusal. These included an appeal to the Supreme Court under section 33 of the Proceeds of Crime Act 2002, an appeal against sentence under section 10 of the Criminal Appeal Act 1968, and, where applicable, a reference by the Criminal Cases Review Commission. The Court would not permit the misconceived application to short-circuit those procedures.

• Court of Appeal (Criminal Division): The Court refused the application to re-open its final confiscation decision: [2017] EWCA Crim 742.

• Court of Appeal (Criminal Division): On the prosecutor’s appeal, the Court set aside the practical effect of the Crown Court’s refusal to make a confiscation order and made an order for £298,457: [2007] EWCA Crim 1577; [2008] 1 Cr App R (S) 50.

• Crown Court at Bristol: In 2006, following committal for sentence after guilty pleas in the magistrates’ court, the judge imposed concurrent custodial sentences and declined to make a confiscation order.