England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BRISTOL
His Honour Judge Lambert
S2006/0204

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 June 2017

Sir Brian Leveson P :

1. On 17 November 2006, in the Crown Court at Bristol, His Honour Judge Lambert sentenced Terence John Hockey to concurrent terms of 9 months' imprisonment for six offences to which he had previously pleaded guilty in the Magistrates Court. For those which arose after the implementation of the Criminal Justice Act 2003, he also ordered that he undertake 240 hours' unpaid work.
2. The underlying offences arose out of three mortgage applications which were each based on false representations as to income. As a result, very substantial sums were loaned, secured on the properties. However, moving from sentence to confiscation proceedings which were conducted pursuant to s. 6 of the Proceeds of Crime Act 2002 ("the 2002 Act"), Judge Lambert declined to make an order, not least because the mortgagors were prepared to rely on the security which the properties provided and collect the interest payments. On the basis that to proceed would do nothing for the victims of the crime, he adjourned the application on the basis that he reserved the matter to himself and would not restore it.
3. By s. 31(2) of the 2002 Act, the prosecutor is entitled to appeal to the Court of Appeal (Criminal Division) against a decision in confiscation proceedings and such an appeal was mounted. On 12 June 2007, it came before the court (Pill LJ, Dobbs and Lloyd Jones JJ); the question which arose was as to the justification for refusing to make the order, having regard to the terms of the legislation. Moreover, it was common ground between the parties that the sum of £298,457 constituted the benefit which he had obtained within the meaning of the 2002 Act and that he had realisable assets substantially in excess of that sum. Having dismissed the reasons advanced by the judge for adjourning the application (and, in effect, refusing to make a confiscation order), the court did so in the sum of £298,457 and imposed a term of three years' imprisonment imposed in default of payment within 6 months: see [2007] EWCA Crim 1577, [2008] 1 Cr App R (S) 50. By selling his home, Mr Hockey paid the compensation. The properties were later repossessed and sold when the mortgage repayments were not made.
4. Nearly ten years have since elapsed and an application has now been made to re-open the decision of the Court of Appeal under the implicit jurisdiction identified in R v Yasain [2015] EWCA Crim 1277, [2016] QB 146. The application has been referred to the full court by the Registrar for determination on the papers.
5. In support of the application, Philip Bown (who did not appear in the original proceedings) argues that a proper consideration of s. 76(4), 84(1)(b) and 79(2)-(3) of the 2002 Act identifies that the true benefit obtained by Mr Hockey was not the mortgage monies but the properties such that the benefit would have been the difference between the purchase price and the then current market value of the properties after deduction of the mortgage. He asserts that this was not new law as is clear from R v Pattinson [2007] EWCA Crim 1536, [2008] 1 Cr App R (S) 51: in fact, as he recognises, that case was decided on 13 June 2007, that is to say, the day after the appeal. In any event, he goes on to say that this method of calculation has been approved in R v Waya [2012] UKSC 51 (see [114].
6. Mr Bown suggests that the only route for appeal would be provided by s. 33 of the 2002 Act to the Supreme Court which, he says, was "clearly, not available in this case". It in those circumstances that he considers that Yasain "provides the answer", citing the implicit jurisdiction to re-open an appeal where there has been a defect in the procedure leading to real injustice.

The Jurisdiction to re-open Decisions

7. In Yasain, supra, the Court considered the circumstances in which a final determination of the Court of Appeal (Criminal Division) could be re-opened. There were two established categories. The first arose where the decision had not been entered into the record: it was common ground that there was a wide power to revise any order that had been pronounced (see [19]-[22] of Yasain). The second arose where the decision had been entered into the record but, on proper analysis, the order was a nullity (as in R v Majewski (1976) 62 Cr App R 5 and confirmed in Yasain [24]-[25]).
8. A further exception could be identified where there had been some defect in procedure which may have led to a real injustice. An example was identified in R v Daniel (1977) 64 Cr App R 50, [1977] QB 364 where a renewed application was determined when, as a result of administrative error on the part of the court, notice had not been given to those acting for the applicant. Even then (as Lawton LJ observed at 370A) relisting depended on the likelihood of injustice having been done: this would not obtain if "it is clear beyond argument that the application cannot succeed". There was no such exception based on fresh evidence (R v Pinfold (1988) 87 Cr App R 15, [1988] QB 462), or where a further challenge was to be mounted on a finding of dangerousness (R v Pedley [2009] 1 WLR 2517).
9. Yasain was particularly concerned with the existence and extent of this last category and examined the question as a matter of general principle. Having analysed the power identified by the Court of Appeal (Civil Division) in Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528, Lord Thomas CJ found there was no basis for any distinction between the two Divisions although having noted the observations of Lord Woolf in that case (at [54] to the effect that the jurisdiction was "to avoid real injustice in exceptional circumstances", "linked to a discretion which enables the court to confine the use of jurisdiction to the cases in which it is appropriate for it to be exercised"), Lord Thomas CJ went on (at 40)

"The fact that both have the same implicit jurisdiction does not mean that the jurisdiction has necessarily to be exercised in the same way by the Criminal Division as it would be by the Civil Division. For example, in a criminal case there will often be three interests that have to be considered – that of the State, that of the defendant and that of the victim or alleged victim of the crime, even though the victim is not a party to the proceedings under the common law approach: see R v B [2003] 2 Cr App R 197 at paragraph 27; R v Killick [2012] 1 Cr App R 10, [2011] EWCA Crim 1608 at paragraph 48. There is the strongest public interest in finality. The jurisdiction is probably confined to procedural errors, particularly as there are alternative remedies for fresh evidence cases through the Criminal Cases Review Commission".

10. A good example of the type of procedural error leading to injustice can be found in Yasain itself. When the case first came to the Court of Appeal, although the trial record sheet printed from CREST recorded convictions for rape, robbery, assault and kidnapping, the transcript then obtained disclosed, on its face, that no verdict had, in fact, been taken on a count of kidnapping. As a result, that conviction was deleted (without it being recorded that he had been acquitted). It later transpired that a serious error had been made in transcribing the proceedings and the process had been carried out "impeccably": the conviction for kidnapping had been returned by the jury. In those circumstances, the record of the conviction (and the consecutive term of imprisonment) was restored on the basis that a real injustice would result if the order could not be re-opened and corrected. It is not difficult to see the exceptional circumstances which justified this course.
11. The availability of a remedy through the Criminal Cases Review Commission ("CCRC") was emphasised in R v Bush [2015] EWCA Crim 2002 where an attempt was made to re-open a previously dismissed appeal against conviction for murder. Rafferty LJ explained (at [26], [27]) that the court was functus and that the CCRC provided a tried and tested route to achieve the objectives of an appellate court as required by Yasain. The same course of action was emphasised in R v Melius [2016] EWCA Crim 1538.
12. A purely technical or administrative slip whose rectification does not involve reconsideration of the justice of the case and requires no re-hearing may (in appropriate circumstances) be remedied on the papers, it being underlined that the court was otherwise functus (see R v Shoker, Lennox & Kuchhadia [2015] EWCA 1939). It is important, however, that the correction of technical or administrative error and the extremely limited power identified in Yasain should not be extended or become blurred.
13. In that regard, the decision in R v Powell [2016] EWCA Crim 1539 should not be misunderstood. It concerned another confiscation case (following an appeal) where it was subsequently conceded by the Crown that the figure for realisable assets wrongly included a sum in excess of £22,000. The CCRC had declined to refer the case on the grounds of its belief that the remedy was to apply for a Certificate of Inadequacy (which was refused). The court exercised the Yasain jurisdiction on the grounds that although either the refusal to grant a Certificate of Inadequacy could be appealed or the decision of the CCRC challenged by way of judicial review, "enough time, effort and previous resources have already been spent on getting this error corrected". The court did so on the grounds that the circumstances were exceptional and that there was an implicit power to re-open a concluded appeal where it was necessary to avoid a real injustice. In reality, however, it was because the error was conceded by the Crown and expedient to prevent further litigation. This case should be considered as confined to its own facts and should not be cited as a precedent for any attempt to sidestep the appropriate procedures to challenge decisions said to be wrong whether for legal or factual reasons.
14. We emphasise the very limited jurisdiction identified by Yasain. It is absolutely not available in circumstances such as obtain in this case where it is alleged that the proper construction of the legislation was misunderstood and has been recognised as having been misunderstood in subsequent litigation. For that reason alone, this application is misconceived and is refused.

Procedure

15. Although it is without merit, this application has raised questions of procedure about which it is important to give guidance until such time as the Criminal Procedure Rules Committee address the matter by formulating a rule similar to that set out in CPR 52.17 in relation to the Court of Appeal (Civil Division) but delineating the different factors and circumstances applicable to this court: Lord Thomas CJ mentioned the need for such rules in Yasain at [42]. The guiding principles must be the interests of the public (including in the finality of proceedings), the interests of the defendant and the interests of any victim.
16. Thus, a foundation for practical procedural requirements (and the procedure which must be followed until Criminal Procedure Rules which provide for a different framework) is as follows:

i) If a party (whether prosecutor or defendant) wishes the Court of Appeal (Criminal Division) to re-open a final determination of the court based on the implicit jurisdiction identified in Yasain it must:

a) Apply in writing for permission to re-open the decision, as soon as practicable after becoming aware of the grounds for doing so; and

b) Serve the application on the Registrar and all other parties to the proceedings.

ii) The application must specify the decision which the applicant wishes to re-open and provide reasons identifying:

a) The circumstances which make it necessary for the court to re-open that decision in order to avoid real injustice;

b) What makes those circumstances exceptional and thus appropriate for the decision to be re-opened notwithstanding the interests of other parties to the proceedings and the importance of finality;

c) An explanation and reasons for the absence of any alternative effective remedy and for any lapse of time in making the application having discovered the facts which form the grounds for so doing.

iii) On receipt of an effective application, the Registrar will refer the application to the full Court for determination on paper. There is no right to an oral hearing unless the full Court so directs.

iv) The Court must not give permission to re-open a final determination unless each other party to the proceedings has had an opportunity to make representations. In making any such representations, the prosecution has a duty to obtain the views of any victim or the family of such a victim.

Alternative Remedies

17. For the sake of completeness, although it is no part of the function of this court to identify mechanisms which could be open to Mr Hockey, by way of underlining the critical requirement that no other remedy must be available before the Yasain jurisdiction is triggered, it is worth identifying avenues open to him and others minded to make similar applications. The possibility that redress could be sought by an approach through one of these procedures itself undermines the exercise of seeking to re-open an appeal.
18. The first is a statutory right of appeal to the Supreme Court under s. 33 of the 2002 Act in respect of which leave was required (see article 11 of the Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003 (2003 No 82). There is a time limit then (by virtue of article 12) to be exercised within 14 days subject to a power to extend, but now 28 days: see Proceeds of Crime Act 2002 (Appeals under Part 2) (Amendment) Order 2013 (SI 2013/24). There is no requirement for the Court of Appeal to certify that a point of law of general public importance is involved in the decision but it must be recognised that neither this court nor the Supreme Court is likely to give leave unless the ramifications of the decision are wide-ranging. The procedure is set out in CrimPR 42.10.
19. The second is the prospect of Mr Hockey (or others) being able to mount an appeal against sentence to the Court of Appeal (Criminal Division) under s. 10 of the Criminal Appeal Act 1968 ("the 1968 Act"), confiscation being an order made by a court when dealing with an offender (see s. 50(1) of the 1968 Act and R v Neal [1999] 2 Cr App R (S) 352. In that regard, it is critical to point out that the previous decision in this case was the consequence of an appeal by the prosecutor under s 31(2) of the 2002 Act and the position would appear to be analogous to the situation which arises following an Attorney General's Reference under s. 36 of the Criminal Justice Act 1988. Such a Reference does not extinguish the right of appeal under s. 9 of the 1968 Act: see R v Hughes [2009] EWCA Crim 841.
20. It should not be thought that such an approach does not carry with it all the limitations and risks which attend applications for leave to appeal against sentence, particularly when out of time. In Hughes, the position in relation to an appeal following the conclusion of an Attorney General's Reference (which is, of course, different although parallel issues arise) was made clear by Hughes LJ (as he then was) at [20] in these terms:

"It ought clearly to be understood that it by no means follows that the court will in fact entertain such an appeal. Any application for leave to appeal sentence requires leave and, in this case and no doubt any others like it, an extension of time. The right to appeal given by section 9 of the 1968 Act is subject to section 18 , which requires an application to be lodged within the time stipulated – which is, by section 18(2), 28 days. An extension of time is by no means a formality. It will be granted only where there is good reason to give it, and, ordinarily, where the defendant will otherwise suffer significant injustice. In the very small number of instances in which there has been an earlier reference by the Attorney General, it will be a highly significant factor that it was then open to the defendant to mount any argument that he wished to the effect that his sentence was too long or otherwise wrong in principle. Leave is likely to be refused in any case in which what he now seeks to argue could and should have been argued then. Wholly unmeritorious applications which are no more than an attempt to ventilate second thoughts or to re-litigate decided issues are likely to be met by an order for loss of time under section 29 of the 1968 Act. In all but the wholly exceptional case the decision of this court upon a reference by the Attorney General is, as this court held in Rowan, as much an end of the sentencing process as is its decision upon an application by the defendant under section 9."

21. It should be noted that Mr Hockey has not exercised his right of appeal (which, in his case, would be under s. 10 of the 1968 Act on the basis that sentence was imposed following conviction in the magistrates court for which he was committed for sentence to the Crown Court, rather than s. 9 which provides for an appeal following conviction on indictment). The current application was lodged on Form NG and logged as 20170228C5 although it has correctly proceeded as an application (albeit rejected as misconceived) in the original appeal. It would require an extension of time of 9 years and 10 months and would have to be re-drafted to address the issues identified in Hughes. If that were to happen, it should then proceed to be considered in the normal way by a single judge (who may require representations from the Crown). We are not prepared to allow this misconceived application to be used as a short-circuit for the proper procedure to be followed and, similarly, we leave any question of a representation order to the single judge.
22. Finally, although it does not arise in relation to Mr Hockey because there is an extant application for leave to appeal to the Court of Appeal, again for the sake of completeness, it is appropriate to mention to the CCRC. It may investigate the outcome of criminal cases and should it conclude that there is a real possibility that a conviction will be quashed or a sentence reduced, it may refer the case back to the Court of Appeal where a person has been convicted on indictment (s. 9 of the Criminal Appeal Act 1995) or to the Crown Court where the conviction has been in the magistrates' Court (s.11 of the Criminal Appeal Act 1995). Although a reference will ordinarily only be made in respect of an argument or information not available in the court of first instance or on appeal (see s. 13), in exceptional circumstances it may do so without such a development (s. 14 ibid). That avenue would also require exploration.

Conclusion

23. This application is misconceived both in substance and, in any event, because other potential avenues for redress remain available. There has been a real increase in the number of applications seeking to apply Yasain which are, almost invariably, without merit and are liable to be rejected summarily. Given the pressure on the Court of Appeal (Criminal Division) to deal with outstanding appeals and applications, it is therefore appropriate to underline the truly exceptional nature of this type of application and the strict need to justify attempts to bring cases within its remit. It is for that reason that we have felt it appropriate to provide a detailed analysis and explanation of the position. In the circumstances, we give leave for this judgment to be reported.