Newell, R v

On an appeal by reference, the admission of fresh evidence under section 23 of the Criminal Appeal Act 1968 depends ultimately on what is expedient in the interests of justice. Serious delay and failures to present available material earlier are relevant, but need not be visited on an appellant where the evidence shows that a confiscation order materially overstated the benefit obtained.

A later decision of a social-security tribunal does not itself displace an earlier Crown Court finding in confiscation proceedings. It may nevertheless be admitted, with the underlying evidence, where justice requires reconsideration. The court may quash the existing order and substitute one reflecting the benefit properly established.

The appellant pleaded guilty to benefit-fraud offences. A Crown Court made a confiscation order for £17,637.93 on 28 May 2013. Her appeal against that order was dismissed on 8 April 2014.

Separate tribunal proceedings subsequently found that she had no beneficial interest in joint bank accounts and identified errors in the local authority’s benefit calculation. The tribunal accepted a revised overpayment figure of £3,225. The appellant later sought to reopen the Crown Court order but the application was rejected on jurisdictional grounds.

Following a reference by the Criminal Cases Review Commission, the Court of Appeal considered whether the tribunal material and related evidence should be admitted as fresh evidence, and whether the confiscation order should be varied.

1. Appeal allowed. The court admitted the proposed fresh evidence and quashed the confiscation order of £17,637.93. It substituted an order recording benefit of £3,225, arising from particular criminal conduct. The default term was fixed at one month.

2. Section 23 of the Criminal Appeal Act 1968 required the court ultimately to decide what was expedient in the interests of justice. The court criticised both the lengthy delay in the reference and the failure adequately to explain why some evidence had not been adduced earlier. However, the delay should not, in the circumstances, be visited on the appellant.

3. The later tribunal decision did not of itself supersede the Recorder’s earlier findings. The proceedings were separate, and the Recorder’s conclusion on the evidence then before him had been open to him. Nor could the tribunal’s finding automatically trump the Crown Court’s confiscation decision.

4. Nevertheless, the local authority’s later-identified calculation errors showed that the original benefit figure was wrong and should at least have been reduced to £13,458. The fuller material concerning the joint accounts also indicated that the benefit, rather than merely the available amount, had been materially overstated. It was unjust for the order to remain at its original amount.

5. The court declined to reduce the figure below £3,225 or to quash confiscation without substitution. The appellant had pleaded guilty, acted dishonestly and obtained benefit from her fraud. It left any future enforcement of the substituted amount to the Confiscation Unit.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, the court allowed the appeal, quashed the £17,637.93 confiscation order and substituted an order for £3,225.

• Court of Appeal (Criminal Division): On 8 April 2014, it dismissed the appellant’s earlier appeal against the confiscation order.

• Crown Court: On 28 May 2013, the Recorder made a confiscation order of £17,637.93.