Cunningham & Anor v R.

A procedurally compliant application to reopen a concluded criminal appeal must be referred by the Registrar to the full Court of Appeal. The Registrar has no power to decide its merits, and a single judge has no role in this process.

The Court of Appeal may reopen a final determination only for nullity or, exceptionally, where reopening is necessary to avoid real injustice, the circumstances are exceptional, and no alternative effective remedy exists. The jurisdiction will ordinarily correct only clear and undisputed procedural errors. The Criminal Cases Review Commission will almost always provide the appropriate alternative route.

Cunningham & Anor v R. concerned two applications under rule 36.15 of the Criminal Procedure Rules to reopen concluded criminal appeal proceedings.

Cunningham sought to reopen the refusal of an extension of time to appeal his conviction. He argued that the single judge should not have dealt with his application because of that judge’s connection with Preston Crown Court. The full court had previously refused the renewed application for an extension of time, while allowing the sentence appeal in part: [2018] EWCA Crim 2704.

Di Stefano sought to reopen the refusal of an extension of time to appeal conviction and sentence. He relied on alleged inaccuracies in a police record of convictions and on claimed curfew credit. The Registrar had refused both applications on their merits, and Sweeney J referred them for procedural guidance. The common issue was the respective role of the Registrar, a single judge and the full court in reopening applications.

1. The applications were refused. Neither applicant established the exceptional basis required to reopen a concluded criminal appeal.

2. The powers of the Court of Appeal (Criminal Division) are statutory. The Registrar’s powers under the Criminal Appeal Act 1968 do not include deciding the substantive merits of an application to reopen. An application is effective where it meets the procedural requirements of rule 36.15 of the Criminal Procedure Rules, not where the Registrar considers it arguable. The Registrar must then refer it to the full court.

3. In this context, “the court” means the full court of three judges. Reopening applications should go directly to that court and ordinarily be decided on paper. A single-judge stage would either create an unnecessary second stage or exclude the full court from deciding an application concerning conviction or liberty. The court may determine its own procedure, consistently with the distinction explained in Taylor v Lawrence between jurisdiction and the exercise of jurisdiction.

4. Save for a nullity, the limited jurisdiction to reopen is governed by the principles affirmed in R v Yasain and R v Gohil. Reopening ordinarily requires a clear and undisputed procedural error, necessity to avoid real injustice, exceptional circumstances, and no alternative effective remedy. The jurisdiction is generally not a means of rearguing disputed factual matters or merits; recourse to the Criminal Cases Review Commission will almost invariably be the proper route.

5. Di Stefano’s allegations involved disputed and non-procedural matters, with the Commission providing an alternative remedy. Cunningham’s complaint did not disclose a nullity. Section 56(2) of the Senior Courts Act 1981 concerns an appeal from a judge’s own decision or tribunal, not a judge’s regular sittings at the Crown Court building where the applicant was tried.

6. An application to reopen is part of the process of attempting an appeal for section 29 of the Criminal Appeal Act 1968. A totally unmeritorious reopening application may therefore attract a loss-of-time or costs order, even without an earlier warning from a single judge or despite advocacy support. Future applicants should receive a neutral warning of that possibility.

Cunningham

• Court of Appeal (Criminal Division): The present full court refused the application to reopen.
• Court of Appeal (Criminal Division): On 22 November 2018, the full court refused the renewed application for an extension of time to seek leave to appeal conviction, but reduced the custodial term on the sentence appeal: [2018] EWCA Crim 2704.
• Preston Crown Court: Cunningham was convicted on 13 January 2017 and sentenced on 3 March 2017.

Di Stefano

• Court of Appeal (Criminal Division): The present full court refused the application to reopen.
• Court of Appeal (Criminal Division): On 9 March 2017, the full court refused renewed applications for an extension of time to seek leave to appeal conviction and sentence.
• Court of Appeal (Criminal Division): On 19 April 2016, the court reduced the default term of imprisonment under the confiscation order from eight and a half years to six years.
• Southwark Crown Court: Di Stefano was convicted on 27 March 2013 and sentenced to 14 years’ imprisonment.