Rostami v R.

A final determination of an appeal, including an application for leave to appeal, will be reopened only where reopening is necessary to avoid real injustice, the circumstances are exceptional and appropriate notwithstanding finality, and no alternative effective remedy exists. The conditions are almost invariably cumulative and the court retains a residual discretion. A claimed procedural error will not justify reopening unless it creates a material risk of injustice. Where reopening could not affect the safety of the conviction, the necessary conditions will overwhelmingly be unlikely to be met.

The applicant pleaded guilty to conspiracy to supply a Class B drug and was later convicted, after trial, of sexual and drug-supply offences involving a child. He received a total sentence of 21 years’ imprisonment.

His out-of-time application for leave to appeal conviction was refused by a single judge. He renewed it, but the full court dismissed the renewed application on 21 March 2018 without counsel appearing. He then applied under Part 36.15 of the CrimPR to reopen that determination.

He contended that neither he nor his advisers had received adequate notice of the hearing and that the resulting procedural irregularity had prejudiced his case. The issue was whether the exceptional jurisdiction to reopen a final criminal appeal should be exercised.

1. The application to reopen was refused. The court applied the reopening jurisdiction identified in Yasain [2016] QB 146, as refined by Gohill & Preko [2018] EWCA Crim 140. Reopening requires, almost invariably cumulatively, necessity to avoid real injustice, exceptional circumstances making reopening appropriate despite the importance of finality, and no alternative effective remedy.

2. The court retained a residual discretion even if those conditions were met. The jurisdiction is ordinarily directed to clear and undisputed procedural errors where correcting a manifest injustice by reopening is simpler and more expedient than further litigation. If a successful reopening could not affect the safety of the conviction, the conditions will overwhelmingly be unlikely to be satisfied.

3. The present case differed from Daniel [1977] QB 364. In that case an administrative failure to record notified representation caused a breach of established notification practice and a real risk of injustice. Here, after refusal of leave, the applicant had no public funding for representation on renewal. It was reasonable for the Registrar to proceed on the basis that he would be unrepresented unless he or his advisers notified the court otherwise.

4. The applicant received the material enabling him to renew his application, and numerous communications to him and his advisers should have alerted them to the need to notify intended representation. Any procedural error was strongly indicated to have arisen from the applicant or his advisers rather than the court office. They also made no enquiry about the progress of the renewed application and did not explain why oral representation was necessary to avoid real injustice when the court had considered counsel’s written advice and grounds.

5. In accordance with the practice in Hockey [2018] 1 WLR 343, the application was considered on the papers by the court as originally constituted.

• Court of Appeal (Criminal Division): The full court dismissed the renewed application for leave to appeal conviction on 21 March 2018. On the present application, it refused to reopen that final determination.
• Crown Court at Chelmsford: The applicant pleaded guilty to conspiracy to supply a Class B drug on 26 January 2016. He was convicted by a jury of six further offences on 16 December 2016 and received a total sentence of 21 years’ imprisonment on 12 January 2017.