R v Sonny Milton

An extension of time to seek leave to appeal against conviction is not a formality. The applicant must show good reason for delay and ordinarily that refusal would cause injustice, or in appropriate circumstances significant injustice. Where delay is not attributable to the applicant, the court may assess injustice by examining the merits of the proposed appeal. A defendant charged with conspiracy cannot conspire alone. Where the prosecution presents a closed conspiracy, the acquittal or successful appeal of other alleged conspirators may undermine the integrity of the remaining conviction, particularly where the case is inextricably linked to theirs. In such circumstances, an extension may be granted, permission given and the conviction quashed, with a retrial ordered where appropriate.

The applicant was convicted at the Crown Court at Snaresbrook of conspiracy to commit fraud by false representation and conspiracy to conceal criminal property. He received concurrent four-year sentences and was disqualified from acting as a company director.

He applied 785 days out of time for an extension and permission to appeal. His co-defendants pursued appeals, and the convictions of two co-defendants were quashed in R v Al Rawe and Ellis [2023] EWCA Crim 812. The prosecution case treated the defendants as participants in a closed conspiracy with differing but knowing roles. The central issue was whether refusal of an extension would cause injustice where the applicant’s conviction was closely linked to convictions that had been quashed.

1. Extension of time. An extension is not a formality. It ordinarily requires good reason for delay and a risk of injustice, or in certain circumstances significant injustice. The reasons for the delay after the co-defendants’ successful appeal did not, of themselves, amount to good reason. However, the delay was not attributable to the applicant. The Court therefore considered whether refusal would cause injustice by examining the merits of the proposed appeal.
2. Integrity of the conviction. The indictment charged the applicant as a co-conspirator, and the prosecution case was expressly that he and the other defendants participated in a conspiracy. The applicant was not charged with the substantive fraud offences. The prosecution did not identify evidence that he had conspired with “others unknown” independently of the named defendants. In a closed conspiracy, the applicant could not conspire with himself.
3. The prosecution case portrayed the applicant’s role as dependent on the activities and knowledge of the principal alleged conspirators. Although the jury had been directed to consider each defendant separately, the applicant’s case was inextricably linked with that of Al Rawe, and the jury’s assessment of Al Rawe’s evidence was crucial to the applicant’s conviction.
4. Disposition. There was merit in the application and the appeal. Refusal of an extension would create injustice. Time was extended, permission to appeal was granted and the appeal was allowed. Both convictions were quashed. The applicant was to be retried with Al Rawe and Ellis; a fresh indictment had to be served within 28 days, re-arraignment was required within two months, bail was granted pending retrial, and reporting restrictions under Contempt of Court Act 1981 s 4(2) were continued until the retrial concluded.

• Crown Court at Snaresbrook: The applicant was convicted on two conspiracy counts and sentenced to concurrent terms of four years’ imprisonment, with a five-year disqualification from acting as a company director.
• Court of Appeal (Criminal Division): The Court extended time, granted permission to appeal, allowed the appeal and quashed both convictions. It ordered a retrial with the co-defendants and gave consequential directions concerning the indictment, arraignment, bail and reporting restrictions.