Gohil, R. v

The Court of Appeal (Criminal Division) has a strictly limited implicit jurisdiction to reopen a final criminal appeal. Apart from a true nullity, reopening requires a real injustice, exceptional circumstances and no alternative effective remedy. Those conditions will almost always be cumulative and may still be insufficient.

Post-conviction disclosure failures and fresh material will ordinarily be matters for the Criminal Cases Review Commission, which has investigatory powers. Disclosure must not be withheld merely because the prosecution believes that contextual material will ultimately rebut its significance. The question is whether the material may assist the accused, undermine the prosecution case, or cast doubt on conviction safety.

Sections 17 and 18 of the Regulation of Investigatory Powers Act 2000 do not require a court application where information can be disclosed without revealing an intercept origin.

Gohil and Preko applied to reopen final determinations of the Court of Appeal. Gohil had been refused leave to appeal convictions for money laundering and related offences in the July 2014 judgment, [2014] EWCA Crim 1393. Preko’s appeal against money-laundering convictions had been dismissed in the February 2015 judgment, [2015] EWCA Crim 42.

Following the Crown’s decision to offer no evidence in later proceedings against Gohil and another, a substantial disclosure review revealed that information supplied to Gohil and the Court in 2014 had been inaccurate, incomplete and misleading. Gohil alleged disclosure failures, bad faith and abuse of process. Preko relied both on alleged systemic misconduct and on undisclosed material concerning a Goldman Sachs witness.

The central issue was whether either applicant satisfied the exceptional conditions for reopening a concluded criminal appeal.

1. Both applications were dismissed. The Court held that it had no general power to rehear a recorded final appeal. It could reopen a concluded criminal appeal only for a true nullity or under the exceptional implicit jurisdiction recognised in R v Yasain, applying the principles in Taylor v Lawrence. Reopening requires real injustice, exceptional circumstances and no alternative effective remedy. The conditions are ordinarily cumulative and the Court retains a residual discretion.

2. Gohil’s application met none of those conditions. He had material before trial which enabled him to raise the alleged corrupt relationship between the private investigators and the investigating officer, but made a tactical choice not to deploy it. His guilty plea on the Augen indictment was voluntary and informed. The later disclosure failures therefore had no arguable bearing on the safety of his convictions and caused no real injustice requiring reopening.

3. The Court accepted that the April 2014 information provided by the Crown was inaccurate, incomplete and misleading. It also held that the prosecution’s disclosure approach was wrong: material must not be assessed solely from the Crown’s standpoint or withheld because the prosecution expects ultimately to rebut it. Serious failures of communication within the prosecution team had occurred. Nevertheless, the failures neither rendered the trials unfair nor established abuse of process requiring the convictions to be set aside.

4. The Court rejected the allegation that counsel or the CPS knowingly misled it. It made a provisional adverse assumption against the police officer concerning his failure to correct the position, but held that even such reprehensible conduct would not justify reopening. The proper route for any further investigation was the Criminal Cases Review Commission.

5. On the Regulation of Investigatory Powers Act 2000, sections 17 and 18 did not require the Crown to seek a judicial direction before disclosing information in a form from which an intercept origin could not be inferred. Nor would a failure to use section 18 automatically make the earlier proceedings a nullity.

6. Preko’s separate disclosure point failed because the earlier Court had examined the material and ruled it non-disclosable. Reopening would impermissibly amount to an appeal against that decision. In any event, disclosure could not have affected the trial or appeal. His wider allegations were speculative and parasitic upon Gohil’s failed case.

• Court of Appeal (Criminal Division): The applications to reopen the final determinations in the applicants’ cases were dismissed.
• Court of Appeal (Criminal Division): Gohil’s renewed applications for leave to appeal conviction were refused in the July 2014 judgment, [2014] EWCA Crim 1393.
• Court of Appeal (Criminal Division): Preko’s appeal against conviction was dismissed in the February 2015 judgment, [2015] EWCA Crim 42.
• Crown Court at Southwark: Gohil and Preko had been convicted of money-laundering and related offences in separate proceedings.