Court, R. v (Rev 1)

The Court of Appeal may exceptionally reopen a concluded criminal appeal where reopening is necessary to avoid real injustice, the circumstances are exceptional, and no alternative effective remedy exists. The jurisdiction is generally confined to clear procedural errors, but remains subject to residual discretion.

In a confiscation appeal, fairness ordinarily requires the Prosecution to receive notice and an opportunity to make oral submissions at the final hearing. Where their absence causes the court to decide upon an incomplete and materially misleading picture, finality must yield to a just determination. A respondent’s notice must identify the grounds of opposition and supporting arguments; a general reservation of further submissions does not excuse non-compliance.

The appellant had pleaded guilty to producing cannabis and abstracting electricity. As production of cannabis was a criminal lifestyle offence, confiscation proceedings followed. HHJ Easteal made a confiscation order for £166,232.93, including £62,000 representing the value of land at Silt Pit Lane.

In an earlier Court of Appeal determination, the appellant was granted leave on a limited ground and the order was reduced by £62,000: [2020] EWCA Crim 18. The Prosecution had not received notice of that hearing and had no opportunity to respond. It applied under the reopening procedure for the original order to be restored.

The central issues were whether the earlier appeal should be reopened, and whether the statutory property-held assumption concerning the Silt Pit Lane land had been rebutted.

1. The appeal was reopened and dismissed. The court upheld HHJ Easteal’s original confiscation order of £166,232.93.

2. The exceptional jurisdiction to reopen a concluded criminal appeal requires necessity to avoid real injustice, exceptional circumstances, and no alternative effective remedy. It is ordinarily directed to clear procedural errors. Even where those conditions are met, the court retains a residual discretion. The same test applies whether the applicant is the Prosecution or the defence.

3. There had been clear procedural errors. Contrary to the Criminal Procedure Rules 2015, the Registrar did not notify the Prosecution of the renewed application hearing. The court then determined the appeal without adjourning to permit the Prosecution to attend. In confiscation appeals, the established practice is that the Prosecution are invited to, and ordinarily do, make submissions at the final hearing. The errors prevented the court from receiving the full case and caused an unjust reduction of the order.

4. The Prosecution’s respondent’s notice had itself failed to identify all grounds of opposition and supporting arguments as required. Its introductory reservation did not cure that defect. Nonetheless, the procedural failures, the public interest in ensuring that crime does not pay, and the absence of any alternative remedy made reopening appropriate.

5. On the merits, the property-held assumption under section 10(3) of the Proceeds of Crime Act 2002 applied to the Silt Pit Lane land. The judge had erred concerning spent convictions and the appellant’s mother’s alleged beneficial interest in the mortgaged property. However, the undisputed use of a buy-to-let mortgage to acquire unlet land, the false assertion of permanent employment, and the undisclosed constraints on ownership could only lead to the conclusion that the mortgage funds had been fraudulently obtained. The assumption was not rebutted and the land’s £62,000 value formed part of the appellant’s benefit.

• Court of Appeal (Criminal Division): The court reopened the earlier appellate determination, dismissed the appeal, and restored the confiscation order of £166,232.93.
• Court of Appeal (Criminal Division): An earlier court granted leave on a limited ground, allowed the appeal and reduced the order by £62,000: [2020] EWCA Crim 18.
• Crown Court at Lincoln: HHJ Easteal made a confiscation order of £166,232.93 on 10 May 2019.