Powell, R. v

J U D G M E N T (Approved)

1. THE VICE PRESIDENT: This is an application for leave to reopen the appeal of David Powell against a confiscation order made against him at the Central Criminal Court on 18th December 2008. His benefit was assessed as £311,049.45 and his realisable assets as £254,245.76. It is now agreed that the realisable assets figure wrongly included the sum of £22,878.63 meaning the final order is also wrong. Unfortunately, when this matter was last before this court in November 2010 on another point, the parties were unaware of the error; the order was varied but not sufficiently.

2. The objective of reopening the appeal would be to deduct the £22,878.63 from the confiscation order. The application is not opposed by the Crown Prosecution Service, albeit they have suggested that another route would have been the more appropriate, namely an application for a Certificate of Inadequacy. This was a course advocated by the CCRC also.

3. Miss Collins, who now appears for the applicant and has extremely helpfully set out both in her written submissions and her oral submissions what has gone wrong in the past, informed us that is not an avenue open to the applicant. He has tried and failed. He made an application to the Criminal Cases Review Commission in February 2012 to refer the case to the Court of Appeal to amend the order. When, three years later, the CCRC issued its decision that in their view the appropriate remedy was to apply for a Certificate of Inadequacy he did so albeit Miss Collins believes the CCRC was in error. The CCRC did not understand that there was an error in confiscation order itself. In any event, the application to the High Court for a Certificate of Inadequacy was refused.

4. We are left in a position therefore that there was an error in the original order and it requires correcting if an injustice is not to be done. Mr Powell would face not only having to pay money that he does not owe the State, but also the interest on that money that has continued to accrue and he would also face the possibility of imprisonment in default of payment.

5. On one view this court should not have become the applicant's last resort. If the High Court Judge was wrong an attempt could have been made to appeal his decision. If the CCRC was wrong, the proper avenue would have been to attempt to have their decision reviewed. However, this all happened before Miss Collins' came on the scene and the time has now expired for such applications to be made. In our view, enough time, effort and precious resources have already been spent on getting this error corrected. The application is before us. The applicant has acted in a timely manner. Any delays have not been attributable to him. We must put an end to this unhappy saga.

6. We have an implicit power to reopen a concluded appeal in exceptional circumstances where it is necessary to avoid a real injustice: see Yasain [2015] EWCA Crim. 1277, [2016] QB 14. We give leave to reopen in the exceptional circumstances here. We allow the appeal and we correct the error in the confiscation order. The order will now be in the sum of £231,367.13.

7. Miss Collins added two further applications this morning. One was to reduce the time in default to reflect the lower figure of the confiscation order. She invited the court to reduce it by a period of three months and we accede to that application. The period in default will now be a period of 26 months. She also asked for further time to pay. We are informed that there are already enforcement proceedings in the Magistrates' Court, even for the lower sum of the confiscation order as it now is. In our judgment it is better to leave it to the Magistrates to consider what should be done about enforcement of the confiscation order as amended. That application therefore is refused.