Shokut Zuman v R

Reopening a final criminal appellate determination is an exceptional remedy. Under the Criminal Procedure Rules r 36.15, the applicant must show real injustice, exceptional circumstances making reopening appropriate, and no alternative effective remedy. Finality and delay remain important. An unrepresented prisoner has no entitlement to attend a renewed application for leave to appeal, although the court may permit attendance. Equality of arms is not infringed when prosecution counsel is present for a co-defendant’s appeal, responds only to represented applicants, and the unrepresented applicant suffers no substantial disadvantage. The application was refused because the earlier decision was neither a nullity nor procedurally unfair.

The applicant was convicted of conspiracy to defraud following a retrial in the Crown Court at Birmingham and sentenced to four and a half years’ imprisonment. His renewed application for leave to appeal conviction was refused by the Court of Appeal on 30 November 2016: [2016] EWCA Crim 1925.

He later applied under Part 36.15 of the Criminal Procedure Rules to reopen that determination. He alleged that he had been wrongly prevented from attending, had not been properly represented, and had been placed at an inequality of arms because prosecuting counsel was present and made submissions. The central issues were whether the earlier decision was a nullity or procedurally unfair, and whether the exceptional conditions for reopening were satisfied.

1. Reopening jurisdiction. The application was refused. The jurisdiction under Part 36.15 of the Criminal Procedure Rules is extremely limited. Reopening requires real injustice, exceptional circumstances making it appropriate despite finality and the interests of others, and no alternative effective remedy. Those conditions are ordinarily cumulative. The authorities, including R v Gohil [2018] 1 WLR 3697 and R v Field [2022] 1 WLR 3495, emphasise that the procedure cannot be used as a second attempt to argue the merits.
2. Nullity and procedural error. A procedural irregularity may justify treating a dismissal as a nullity only in exceptional circumstances involving injustice. A purely technical or administrative slip that does not require reconsideration of the justice of the case may be remedied on the papers: R v Pinfold [1988] 2 WLR 635; R v Shoker, Lennox and Kuchhadia [2015] EWCA Crim 1939.
3. Attendance. Sections 22 and 31 of the Criminal Appeal Act 1968, together with rule 39.11, do not confer an entitlement on a prisoner to attend a renewed application for leave to appeal. Attendance is discretionary. The applicant’s obligation was to place written material before the court demonstrating arguable grounds. The approach was consistent with Monell and Morris v UK (1988) 10 E.H.R.R. 205.
4. Equality of arms. The principle requires each party to have a reasonable opportunity to present its case without substantial disadvantage. The prosecution’s presence was required for a co-defendant’s sentence appeal. Its response to the represented applicants was brief, did not address the applicant’s separate materials, and did not stray into issues particular to him. Practice Direction 39A.6 therefore did not prevent the prosecution from responding in the mixed hearing, provided appropriate care was taken.
5. Application of the test. The applicant was not placed at a substantial disadvantage and there was no procedural inequality. His factual complaints were unsubstantiated, the application was considerably late without good reason, and no satisfactory explanation was given for not pursuing the Criminal Cases Review Commission. The circumstances were neither exceptional nor sufficient to establish real injustice. The decision of 30 November 2016 was not a nullity and was not procedurally unfair.

• Court of Appeal (Criminal Division): The present court refused the application to reopen the refusal of renewed leave to appeal conviction.
• Court of Appeal (Criminal Division): On 30 November 2016 the Full Court refused the renewed applications for leave to appeal conviction, including the applicant’s application: [2016] EWCA Crim 1925.
• Crown Court at Birmingham: Following a retrial, the applicant was convicted of conspiracy to defraud on 25 August 2015 and sentenced to four and a half years’ imprisonment on 22 October 2015.