REGINA v FIELD

Under Crim PR 36.15, reopening a final criminal appeal is an exceptional remedy. It requires real injustice, exceptional circumstances that justify reopening despite the interests in finality, and no alternative effective remedy. The procedure is not a second appeal. A party cannot obtain reconsideration merely by recasting disagreement with an earlier court’s legal or factual reasoning as procedural unfairness or bias. A draft judgment is not open to substantive negotiation. Amendments before hand-down, or refusal of a rehearing, do not of themselves establish unfairness or bias. Unfounded allegations made to secure a further merits hearing may amount to an abuse of process.

The applicant had been convicted at Oxford Crown Court of the murder of Peter Farquhar and sentenced to life imprisonment with a minimum term of 36 years. His appeal against conviction, which challenged the trial judge’s directions on causation, was dismissed by the Court of Appeal in [2021] EWCA Crim 380.

He then applied under Crim PR 36.15 to reopen that final determination. He alleged that the earlier court had misunderstood his arguments and the weak-swimmer analogy, wrongly altered its draft judgment, denied him a fair hearing, and acted with apparent or actual bias. The central issue was whether those matters disclosed exceptional circumstances, real injustice, and no alternative effective remedy.

1. Application refused. The jurisdiction under Crim PR 36.15 is exceptional. The conditions of real injustice, exceptional circumstances making reopening appropriate despite finality, and no alternative effective remedy are ordinarily cumulative. The court applied the approach in Gohil [2018] EWCA Crim 140.
2. The application was, in substance, an attempt to reargue the merits of the earlier appeal. That is not a permissible use of the rule. The Full Court had addressed the causation arguments and had explained why Kennedy (No.2) [2007] UKHL 38 did not require the appeal to be allowed on the particular facts.
3. There was no procedural unfairness. The weak-swimmer example had been introduced by the applicant’s own case and was available for consideration and response at the original appeal. The Full Court was not required to cross-examine counsel about it or provide a further opportunity for submissions before hand-down. A draft judgment is not a negotiable document, and amendments made by the court before hand-down were commonplace and unobjectionable.
4. Neither apparent nor actual bias was established. An allegation of actual bias must be made expressly and with precise grounds. Disagreement with a court’s reasoning, its amendments to a draft judgment, or its refusal of a rehearing could not found either form of bias here.
5. In any event, a potential application to the CCRC under Criminal Appeal Act 1995 s. 13(2) was an alternative remedy. The court made no view on whether the CCRC would entertain or refer such an application.

The court warned that using allegations of unfairness or bias without a sustainable basis to obtain a further merits hearing under the rule is an abuse of process.

• Court of Appeal (Criminal Division): The application to reopen the final appeal determination under Crim PR 36.15 was refused: [2022] EWCA Crim 316.
• Court of Appeal (Criminal Division): The Full Court dismissed the appeal against the murder conviction: [2021] EWCA Crim 380; [2021] 1 WLR 3543. Subsequent applications for permission to appeal to the Supreme Court and for certification of a point of law of general public importance were refused.
• Oxford Crown Court: The applicant was convicted by a unanimous jury of murder and sentenced to life imprisonment with a minimum term of 36 years.