Shokut Zuman v R

On 25 August 2015, at the conclusion of a retrial before HHJ Carr and a jury in the Crown Court at Birmingham, Shokut Zuman (who was then in his early 40s, and was without previous conviction) was convicted by a majority of 10:2 of conspiracy to defraud, which involved 21 mortgage or loan applications that had been made in the period from 2003 to 2010 (Count 1). There were four co-accused, namely Arshid Khan (who was convicted on Count 1); Shahalam Khan (who was convicted on Count 1 and of making false statements with intent to cheat the public revenue (Count 5)); Samiah Hanna (who was convicted on Count 1); and Mohammed Mughal (who was convicted on Count 1, and of three offences of fraud (Counts 2-4)). Zuman (Count 6) and Hanna (Count 7) were each acquitted of making a false statement with intent to defraud the public revenue.

On 22 October 2015, in the same Court, the judge imposed the following sentences: Arshid Khan - 5 years’ imprisonment; Shahalam Khan - a total of 5 years’ imprisonment; Zuman - 4 ½ years’ imprisonment; Hanna - 24 months’ imprisonment suspended for 24 months; Mughal - a total of 4 ½ years’ imprisonment.

Arshid Khan, Shahalam Khan, Zuman and Mughal all applied for leave to appeal conviction and sentence. Hanna applied for leave to appeal conviction. The various grounds of appeal against conviction included common themes in their criticism of a ruling made by the judge refusing an abuse of process application, of his alleged failure to review that ruling at the end of the prosecution case, and of the delay between closing speeches and the retirement of the jury, which was caused by a juror’s holiday commitment. The Single Judge granted permission for Shahalam Khan to appeal sentence, but refused all the other applications, which were renewed. Thereafter Zuman (who had by then parted company with his trial counsel, Mr Mark Graffius) made additional written submissions and sought to advance supplementary Grounds. Further, as he was then serving his sentence, he applied to attend the hearing of the renewed applications in person and to make oral submissions. Both of those applications were refused by Treacy LJ, who had been assigned to preside at the hearing of the renewed applications and Shahalam Khan’s appeal against sentence.

The hearing took place before the Full Court, comprising Treacy LJ, Singh J (as he then was) and Her Honour Judge Molyneux MBE, on 30 November 2016. Arshid Khan, Shahalam Khan and Hanna were each represented by their trial counsel. Against the background of the refusal of his application to attend and to address the Court, Zuman was neither present nor represented. Nor was Mughal. Leading counsel for the Respondent attended in order to deal with Shahalam Khan’s appeal against sentence, which involved psychiatric evidence on both sides. However, due to a diary mix-up, the Respondent’s psychiatrist failed to attend, and so the appeal against sentence was adjourned to another date, and the court thereafter proceeded to hear submissions in relation to the renewed applications. First, as to conviction, from Mr Michael Wolkind QC for Arshid Khan, then from Mr Roderick Johnson QC for Shahalam Khan, then from Mr Gilbert on behalf of Hanna. The Court then invited and received submissions in relation to conviction from Mr Andrew Smith QC on behalf of the Respondent. Mr Johnson replied briefly, after which the Court heard submissions in relation to sentence from Mr Wolkind and (again at the Court’s invitation) Mr Smith. In the result, for the reasons set out in detail in the judgment (see [2016] EWCA Crim 1925 and para 31 below) the Court refused all the renewed applications, rejecting Zuman’s additional submissions and supplementary Grounds in the process.

Zuman (hereafter “the applicant”) now applies, long after the event, to reopen the determination of his renewed application for leave to appeal conviction on Count 1, pursuant to Part 36.15 of the Criminal Procedure Rules which, following the decisions of this Court (differently constituted) in R v Yasain [2016] QB 146, and R v Gohil [2018] 1 WLR 3697, came into force on 2 April 2018, and provides (in so far as material) that:

“(1)

This Rule applies where –

(a)

a party wants the court to reopen a decision which determines an appeal or reference to which this Part applies (including a decision on an application for permission to appeal or refer);

(b)

the Registrar refers such a decision to the court for the court to consider reopening it.

(2)

Such a party must –

(a)

apply in writing for permission to reopen that decision as soon as practicable after becoming aware of the grounds for doing so; and

(b)

serve the application on the Registrar.

(3)

The application must –

(a)

specify the decision that the applicant wants the court to reopen; and

(b)

explain –

(i)

why it is necessary for the court to reopen the decision in order to avoid real injustice;

(ii)

how the circumstances are exceptional and make it appropriate to reopen the decision notwithstanding the rights and interests of other participants and the importance of finality.

(iii)

why there is no alternative effective remedy among any potentially available. And

(iv)

any delay in making the application.

…

(6)

The Court must not reopen a decision to which this rule applies unless each other party has had an opportunity to make representations.

[Note. The Court of Appeal has power only in exceptional circumstances to reopen a decision to which this rule applies]”

In the revised written application made on behalf of the applicant in March 2022, Mr Brendan Kelly KC submits, in summary, that neither the applicant nor anyone on his behalf was permitted to make oral submissions in support of his renewed application for leave to appeal, whereas the Respondent was represented. There was no rule that prohibited an applicant for leave from being represented or representing themselves before the Court, either in person or via video- link. The applicant’s original grounds were not made clear and were not advanced, or not properly argued, by counsel and, as a result, the Court reached conclusions that were improperly considered and wrong. By not being able to make representations, the applicant, who was effectively denied the opportunity to take part, was prejudiced by a procedural irregularity, whereas the Respondent’s counsel was able to put his case without contest, even though he was the subject, in part, of one of the applicant’s complaints. In addition, the ruling contained errors which the applicant would have cured in the course of argument. In the result, the applicant’s absence amounted to a procedural irregularity which gave rise to an unfairness. Circumstances where an individual had been prevented from making additional oral representations in support of a renewed application for leave were exceptional, and in its actual form there was no difference between the renewed application and the initial application by the applicant’s then counsel, which had failed. The matter was a procedural error which had rendered the dismissal a nullity, the remedy for which was for the Court to resolve.

The application is opposed by the Respondent, on whose behalf Mr Tom Little KC, in his skeleton argument, submits, in summary, that the decision of the Court on 30 November 2016 could not be characterised as a nullity, and that the facts fall well short of the case being such an exceptional one that it is necessary to reopen the application in order to avoid real injustice and where there is no alternative remedy. Both the Single Judge and the full Court considered the detailed written arguments on behalf of, and from, the applicant, and there were no procedural errors or defects that require the renewed application to be reopened. The applicant’s original grounds of appeal were the same as those of some of the other applicants who were represented by counsel before the full Court and it is difficult to understand what arguments it is now contended that the applicant could have made which were not set out in writing, and which the applicable statutory provisions prevented him from placing before the Court. The applicant had no right to attend the hearing, and there was no reason for the Court to grant him leave to attend as he had set out in writing all that could be said in support of his application. Thus, the decision of Treacy LJ to refuse the applicant’s attendance cannot be regarded as one that he was not entitled to make, given that it was a matter of judicial discretion and judgement. Counsel for the Respondent was only there because of Shahalam Khan’s appeal against sentence, and made only limited submissions in relation to the renewed applications. Thus, any argument as to equality of arms is untenable and any argument that the procedure was demonstrably unfair is fatally flawed. Further, given the limited role played by the Respondent’s counsel at the hearing, there was no breach of para 39A.6 of Criminal Practice Direction IX Appeal.

We propose to examine matters under the following headings:

As touched on above, the prosecution’s case at trial was that the conspiracy to defraud lasted from 2003 to 2010 and involved some 21 mortgage or loan applications made, between them, by Arshid Khan, Shahalam Khan, the applicant and Hanna. Each of the applications was said to contain false representations about the income of the applicant, and many were said to have been supported by false documents. Mughal was said to have acted as an intermediary in a number of the applications, to have supported two further applications, and to have made three false applications in relation to his own properties. The prosecution asserted that there were common features shared by many of the applications which reinforced the conclusion that they stemmed from a single conspiracy. It was a notable feature that the alleged conspiracy had not resulted in any actual loss to any of the lenders, but that was no bar in law to the charge of conspiracy to defraud, which was based on the risk of loss.

By October 2010 West Midlands Police were investigating the applicant and his family in relation to money laundering offences. On 4 July 2011, on foot of a witness statement dated 1 July 2011, DC Dyas obtained an ex-parte Restraint Order in relation to the applicant. It transpired that the witness statement contained a significant number of misstatements and, in the result, on 20 September 2011, the Order was discharged by agreement.

In the meanwhile, the investigation into the instant offences had begun, during the course of which the applicant was interviewed under caution on two occasions – in August 2011 (in relation to HMRC issues, when he produced a prepared statement in which he asserted that any mortgages that he had obtained had been entirely arranged by an independent financial broker, who he did not name at that stage, and that he had left matters entirely to that broker) and in December 2012 (in relation to the relevant false applications etc, when, in the combination of a further prepared statement and his answers to questions, he had named Mohammed Yasin, who had died on October 20011, Ansar Miah and Mughal as being the brokers who he had used).

The prosecution relied on the combination of a number of matters to prove the alleged conspiracy, including the following:

The applicant accepted that the income stated in the relevant mortgage applications was false, and that false documents had been used in support of the applications. His case was that he had sought to build a portfolio of buy to let properties and had engaged the services of Mohammed Yasin as a financial adviser and that Yasin had been assisted by others including by a man called Ansar Miah and by Mughal. The applicant’s case was that, at the material times, he had had difficulty in reading, and had relied on others to collate the material for the relevant applications. Acting on the advice of Yasin he had involved his brother, and some of the co-accused, to hold property in trust for him. Yasin had been responsible for obtaining the mortgages through his own contacts. The applicant relied on a handwriting expert in support of his case, and asserted that Yasin and others had been responsible for the false income statements and false documents used for each application, and had done so in order to obtain their fees.

In general terms, the defence of each of the other defendants was to deny that they had been party to any criminal agreement, or involved in the provision of false documents to mortgage lenders. They too suggested that the fraudulent acts had been committed by mortgage brokers – in particular by Mohammed Yasin.

The first trial began on 7 October 2014, but was aborted on 22 December 2014, when Shahalam Khan dispensed with the services of his counsel and the judge ultimately concluded that the trial could not go on with him being unrepresented.

In a Skeleton Argument dated 26 February 2015 Mr Graffius, on the applicant’s behalf, submitted that:

“1.

Following the first aborted trial in this matter and from the on-going disclosure that occurred throughout the Crown’s case, the Defence for Shokut Zuman contends that the officers responsible for the investigation of this case, namely DC Pye and DC Dyas:

•

Have not properly investigated Mohammed Yasin or Ansar Miah.

•

Have not properly investigated the brokers who arranged the mortgages in this case.

•

Have deliberately concealed relevant evidence that would assist the defence.

2.

It is axiomatic that officers investigating a case should do so independently and without malice.

3.

Where officers have deliberately not investigated reasonable lines of enquiry that point away from the suspect (in breach of CPIA 1996 Code of Practice para 3.5) and deliberately concealed evidence that would significantly support a defence set out in interview, the integrity of the Prosecution’s case is so undermined that the proceedings should be stayed.

4.

This is not a case where the trial process is equipped to deal with the matters complained of. The prejudice to the defendant, by a lack of proper investigation and the deliberate withholding of evidence that would assist the defence, cannot be regulated by the admissibility of evidence or by direction from the court.”

In the Skeleton Argument, Mr Graffius went on to particularise, amongst other things:

The Skeleton Argument concluded as follows:

“64.

The Defence contends that from the point of discharge of the Restraint Application against Mr Zuman, and his complaint against the officers in this case, the investigation has proceeded with bad faith against Mr Zuman.

65.

The bad faith is epitomised in the deliberate withholding of the evidence from the defence of Ansar Miah’s involvement with the eight forged documents used to obtain mortgages.

66.

That bad faith continues with a clear reluctance to pursue reasonable lines of enquiry that would support the defence case of innocent involvement.

67.

That bad faith must, we submit, wholly undermine the probity of the Crown’s case.

68.

Once the very integrity of the investigation is compromised the trial process cannot cure it. The court cannot regulate the unfairness to the defendant by refusing to admit evidence or with directions to the jury.

69.

It is for the above reason that the defence submit that these proceedings should be stayed.”

These arguments were pursued at a contested hearing, during which the judge heard evidence from the relevant officers. In the result, the judge ruled against the application, handing down his reasons after the conclusion of the prosecution case at the retrial, which commenced on 18 May 2015. In short, the judge concluded that there had been failings by the officers, in some part amounting to ineptitude but falling short of bad faith or a deliberate desire to mislead, and that the trial process could deal fairly with the matters that had emerged by reason of disclosure made, both in relation to Yasin and Miah. In addition, the defence could call Miah if they wished to, and prosecution witnesses could be asked questions about Yasin. The points in relation to the officers could be ventilated before the jury, and he could not identify any prejudice that would be caused to the defendants.

The applicant did not give evidence at the retrial.

A juror had notified a holiday date at the start of the trial. At that stage it was believed that by that date the trial would be over. However, for various reasons, the trial took longer than anticipated and it became clear that the holiday was going to commence just after the conclusion of speeches. The judge refused a defence application that the juror should be discharged, saying that there was no good reason for such a course. After a break of a little over a week, the judge gave a detailed summing up (the only Ground of Appeal in relation to which was pursued on behalf of Hanna, but was ultimately abandoned).

As we have indicated, the applicant and four others were convicted. In passing sentence the judge remarked that the applicant had played a leading role, in that he, Arshid Khan and Shahalam Khan had been at the heart of the fraudulent activity. The applicant’s previous good character and other mitigating factors were taken into account in relation to his sentence. POCA proceedings were commenced, also before HHJ Carr.

On the applicant’s behalf, it is underlined that in 2014 / 2015 there were a total of 9 emails from the applicant and other defendants to their respective counsel instructing them to make an application to the judge to recuse himself, but that no such application was made.

In September 2015 Mr Graffius settled Grounds of Appeal against conviction and sentence on the applicant’s behalf. As to conviction, it was asserted that:

In October 2015 a Restraint Order was obtained in relation to the applicant in connection with the ongoing POCA proceedings.

As indicated in para 3 above, Arshid Khan, Shahalam Khan, and Mughal also applied for leave to appeal conviction and sentence, and Hanna applied for leave to appeal conviction. In late February / early March 2016 the Single Judge gave leave in relation to Shahalam Khan’s sentence application, but refused all the other applications, which were renewed to the Full Court.

On 4 July 2016 the applicant wrote to the Registrar stating that his counsel had withdrawn, that he wished to represent himself and that he wished to rely on the existing and further Grounds of Appeal. Thereafter the applicant wrote to the Registrar on a number of occasions to confirm that he wished to represent himself, and requesting that he be able to attend the hearing of the renewed application. On 8 November 2016 he lodged Grounds of Appeal of his own composition, to the following effect:

The prosecution lodged a detailed Respondent’s Notice.

On about 22 November 2016 Treacy LJ refused the applicant’s request to attend the hearing, and thereafter the Registrar notified the applicant of that decision. There is no record of the reasons.

In paragraph 4 above we have recorded the fact that the hearing of the renewed applications took place on 30 November 2016, the constitution of the Court, details of counsel who appeared, and the order of the submissions that were made. The transcript of the proceedings shows, in summary, that:

As indicated above, the judgment of the Court, which was given by Treacy LJ, can be found at [2016] EWCA Crim 1925. In short, after introducing the case, Treacy LJ :

In the meanwhile, various procedural steps had taken place in the POCA proceedings. In January / February 2016 the applicant had produced a section 18 Statement of Information, and made a further statement in which he disputed his conviction and the existence of any basis for POCA proceedings. The Prosecution section 16 statement had been made in February 2016, and was responded to by the applicant in March 2016 – though largely by way of attempting to revisit matters relevant to the trial, and by making unsubstantiated allegations of incompetence and bad faith in relation to most, if not all, of those involved in the investigation and prosecution. In June 2016 the applicant, who had by then dispensed with his lawyers, had served a “Notice of Discharge”, in which he again made very serious unsubstantiated allegations against a number of people involved in the prosecution of the trial and the POCA proceedings.

In January 2017 the Prosecution served an Opening Note in the POCA proceedings, and in May 2017 the applicant served a document entitled “Opening note for Conspirators Hearing” – the “conspirators” being those who had brought the defendants to justice.

In the summer of 2017 there was a three day POCA hearing before HHJ Carr in relation to the applicant and Arshid Khan (who was also unrepresented). Thereafter, in September 2017, the Prosecution served its closing submissions in writing. The following month, the applicant responded in a document entitled “Notice of Request to Cease Harassment, Persecution and Abuse of Process with Malicious Intent in Order to Avoid a Serious Injustice”. The judge gave judgment on 4 January 2018. In the result, he made a Confiscation Order against Arshid Khan in the sum of £8,010, 811.05, with three months to pay, and a default term of 10 years; and a Confiscation Order against the applicant in the sum of £4,058, 852.02, with three months to pay, and a default term of 9 years. The following month, the applicant submitted grounds of appeal against the POCA findings.

By April 2018 the prosecution had commenced an application before HHJ Carr for a Serious Crime Prevention Order to be made against the applicant who, by then, was represented (as now) by Mr Kelly. On 30 April 2018 an application was served on behalf of the applicant inviting the judge to recuse himself – based on matters relating to the trial; the obtaining of the Restraining Order in October 2015; the POCA proceedings; and the terms of the conclusion of the POCA judgment. At that stage, the judge declined to recuse himself.

In June 2018 the Single Judge refused permission to appeal in relation to the Confiscation Orders made against the applicant and Arshid Khan.

In May 2019 HHJ Carr recused himself in relation to the application for a Serious Crime Prevention Order. However, he gave no reason(s) for doing so.

In February 2020 the applicant (again represented by Mr Kelly) and Arshid Khan (now represented by Mr Farrell QC) renewed their applications for leave to appeal against the Confiscation Orders to the Full Court (differently constituted), which adjourned the applications in order for perfected Grounds to be submitted, which was duly done. Zuman’s Ground 1 (which was similar to Arshid Khan’s Ground 1) was to the effect that the hearing was defective procedurally, and thus unfair. The applicant’s Grounds 2-4 asserted that the reasoning behind his Confiscation Order was flawed in various respects.

The renewed applications came before the Full Court (differently constituted) at the end of September 2020. Arshid Khan was given permission to appeal limited to two Grounds, namely an alleged failure to deduct costs of sale, and an alleged error in the treatment of the properties that had been re-mortgaged during the indictment period (Grounds 2 & 6). The applicant was refused permission on all his own Grounds, but was granted permission to amend his Grounds to include a Ground similar to Arshid Khan’s Ground 2.

At another hearing before the Full Court (differently constituted) in December 2020, directions were given for Arshid Khan and the applicant to finalise and lodge the submissions that they wished to make, and for the Prosecution to respond. In the result, on behalf of the applicant, Mr Kelly submitted that he wished to revisit the decision of the Full Court to refuse permission on Ground 1 – i.e. that the POCA hearing had been procedurally unfair and should be set aside.

The hearing took place (before Stuart-Smith LJ, McGowan J and Sir Alan Wilkie) in February 2021. Judgment was handed down on 19 March 2021 – see [2021] EWCA Crim 399. In short, the Court observed that Arshid Khan and the applicant both considered that confiscation of their property was unfair in circumstances where the lenders had raised no complaint and had suffered no loss, even after being informed of the unlawful obtaining of the tainted mortgage advances, and that that perception had coloured their attitude and approach markedly and greatly to their disadvantage. The Court then analysed the principles in relation to reopening appeals (which we address below) and the particular facts in relation to the POCA hearings at first instance, and stated (at para 79) that:

“…. What is exceptional about this case, in our judgment, is that the judge ultimately recused himself. As he did not give reasons for his decisions we do not know what they were. What we do know is that the application had been made on four Grounds of which one was the judge’s conduct of the POCA hearing.”

At paras 100 & 101, the Court continued:

“…. While we rely upon our assessment of the materials we have had to consider, we are significantly influenced in our assessment that this case is exceptional by the prosecution’s (entirely proper) concession that, if we were to be satisfied that there was evidence that the available means were significantly less than the calculated benefit (which we are), we should remit the case to the Crown Court.

In our judgment the Crown’s concession justifies the conclusion that this is an exceptional case, which in turn justifies reopening the earlier determination of this issue. We do not consider that it is open to us to settle on the identified assets, as suggested by Mr Evans QC. Rather, we consider that it is necessary to remit the case to the Court below on this ground also.”

Thus, the Court quashed the Confiscation Orders made against Arshid Khan and the applicant and remitted the case to the Crown Court for a hearing de novo before a different judge.

On 6 April 2021 an application was made on behalf of the applicant to reopen the determination of the Full Court on 30 November 2016, when his renewed application for leave to appeal conviction was refused.

Shortly thereafter the application was reviewed by the Criminal Appeal Office, and Directions were given as to the need to perfect the application, in particular in relation to the reason(s) for the long delay. However, through no fault of the applicant, that was not brought to his attention until February / March 2022. A revised application was lodged promptly thereafter.

On 11 April 2022 Fulford LJVP directed that the application should be the subject of an oral hearing, with the Respondent attending.

Section 22 of the Criminal Appeal Act 1968 provides, in so far as material, that:

“(1)

Except as provided by this section, an appellant shall be entitled to be present, if he wishes it, on the hearing of his appeal, although he may be in custody.

Part 39.11 of the Criminal Procedure Rules provides that:

“A party who is in custody has a right to attend a hearing in public unless–

(a)

it is a hearing preliminary or incidental to an appeal, including the hearing of an application for permission to appeal;

(b)

it is the hearing of an appeal, and the court directs that –

(i)

the appeal involves a question of law alone; and

(ii)

for that reason the appellant has no leave to attend; or

Section 31 of the Criminal Appeal Act 1968 provides, in so far as material, that:

“(1)

There may be exercised by a single judge in the same manner as by the Court of Appeal, and subject to the same provisions –

(a)

the powers of the Court of Appeal under this part of this Act specified in subsection (2) below;

…

(2)

The powers mentioned in subsection (1)(a) above are the following–

…

(c)

to allow an appellant to be present at any proceedings …”

[“appellant” includes a person who has given notice of an application for leave to appeal – see section 51 (1) of the Act].

Criminal Practice Direction IX Appeal 39A: Appeals Against Conviction and Sentence – the Provision of Notice to the Prosecution (as amended) provides, in para 39A.1, that when an appeal notice is served, the Registrar will notify the relevant prosecution authority. Para 39A.2 deals with Respondents’ Notices. The Practice Direction continues:

“39A.3 The Registrar of Criminal Appeals will notify the relevant prosecution authority in the event that:

(a)

leave to appeal against conviction or sentence is granted by the single judge; or

(b)

the single judge or the Registrar refers an application for leave to appeal against conviction or sentence to the Full Court for determination; or

(c)

there is to be a renewed application for leave to appeal against sentence only.

If the prosecution authority has not yet been served with the appeal notice and transcript the registrar will serve these with the notification, and if leave is granted the registrar will also serve the authority with the comments of the single judge.

39A.4 The prosecution should notify the registrar without delay if they wish to be represented at the hearing. The prosecution should note that the registrar will not delay listing to await a response from the prosecution as to whether they wish to attend. Prosecutors should note that occasionally, for example, where the single judge fixes a hearing date at short notice, the case may be listed very quickly.

39A.5 If the prosecution wishes to be represented at any hearing, the notification should include details of counsel instructed and a time estimate. An application by the prosecution to remove the case from the list for counsel’s convenience, or to allow further preparation time, will rarely be granted.

39A.6 There may be occasions where the Court of Appeal Criminal Division will grant leave to appeal to an unrepresented applicant, and proceed forthwith with the appeal in the absence of the appellant and counsel. The prosecution should not attend any hearing at which the appellant is unrepresented (Nasteska v The former Yugoslav Republic of Macedonia (Application No.23152/05)). As a court of review, the Court of Appeal Criminal Division would expect the prosecution to have raised any matters of relevance with the sentencing judge in the first instance.

[Para 39A.7 is concerned with renewed applications for leave to appeal against a sentence imposed for an offence involving a fatality].

Nasteska (above) involved a series of four trials and appeals. In each of the first three trials the applicant was convicted of abuse of power, and in each instance the Court of Appeal remitted the case for re-hearing. The applicant was convicted again at the fourth trial and sentenced to a suspended prison sentence. In person and through her lawyer, she appealed again on a number of grounds, and requested permission to attend the Court of Appeal. Thereafter, in the absence of the applicant and her lawyer, but in the presence of the public prosecutor, the Court of Appeal dismissed the appeal – referring to the prosecutor’s written and oral submissions requesting that the appeal be dismissed. Further, the Court of Appeal stated that the presence of the applicant or her lawyer would not have contributed to establishing the facts. The European Court of Human Rights observed that the principle of equality of arms implies that each party must be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent, and that the principle does not depend on further quantifiable unfairness flowing from a procedural inequality. The Court observed the public prosecutor had attended all four appeals, whereas the applicant had only been summoned to the Court of Appeal once, and had not been summoned to the final session. In the result, the Court concluded that, even if the public prosecutor had not been permitted to make any comments, her presence at the Court of Appeal’s private sitting afforded her, if only to outward appearances, an additional opportunity to bolster her opinion in private, without fear of contradiction by the applicant. Thus, the Court concluded, the principle of equality of arms had not been respected, and there had therefore been a breach of Article 6.1 of the Convention.

The applicant drew our attention to the decision of this Court (presided over by Lord Lane CJ) in R v Pinfold [1988] 2 WLR 635. The offender was convicted of murder and his appeal against conviction was dismissed. Thereafter, he applied for leave to appeal out of time against conviction, on the ground that a fresh point was to be raised. The Court refused the application upon the basis that the Criminal Appeal Act 1968 provided for only one appeal against conviction, and therefore the Court had no jurisdiction to entertain the application. However, the Court acknowledged two possible exceptions - namely, if the appeal had been abandoned and (in exceptional circumstances) the Court treated the abandonment as a nullity; and if the first appeal involved some procedural irregularity which led to injustice to the appellant, such that the Court treated the dismissal as a nullity. We would add that it has since been made clear that a purely technical or administrative slip, whose rectification does not involve reconsideration of the justice of the case, requires no re-hearing and may be remedied by the Court on the papers. Otherwise, subject to its exceptional jurisdiction to reopen a determination of an appeal, the Court is functus officio – see R v Shoker, Lennox and Kuchhadia [2015] EWCA Crim 1939.

The principal authorities in relation to the exceptional jurisdiction to reopen an appeal include R v Daniel [1977] QB 364; R v Yasain [2016] QB 146; R v Gohil [2018] 1 WLR 3697; R v Rostami [2018] EWCA Crim 1383; R v Cunningham and Di Stefano [2020] 1 WLR 1203; R v Court [2021 EWCA Crim 242; R v Zuman [2021] EWCA Crim 399 (the application to reopen the applicant’s renewed application for leave to appeal the Confiscation Order – see also paras 41-43 above); and R v Field [2022] 1 WLR 3495. It suffices to quote in detail from the two most recent cases.

In Zuman Stuart-Smith LJ, giving the judgment of the Court, said this:

“70.

For present purposes it is sufficient to cite the comprehensive summary provided by the Court in Gohil at [129] which was cited with approval by the Lord Chief Justice in Cunningham and Di Stefano at [31]:

‘We venture to pull the threads together as follows:

(i)

The CACD has jurisdiction to reopen concluded proceedings in two situations. First, in cases of nullity, strictly so-called and distinguished from mere irregularities. Secondly, where the principles of Taylor v Lawrence [2003] QB 528 as adopted in R v Yasain [2016] QB 146 are applicable; thus where the necessary conditions are satisfied. For ease of reference, though not to be interpreted as a statute, the necessary conditions are: the necessity to avoid real injustice; exceptional circumstances which make it appropriate to reopen the appeal; and the absence of any alternative effective remedy. It is to be emphasised that these are almost invariably cumulative requirements, though not necessarily sufficient for the exercise of the discretion, in that the court retains a residual discretion to decline to reopen concluded proceedings even where the necessary conditions are satisfied;

(ii)

Though the principles of Taylor v Lawrence apply in both the Court of Appeal (Civil Division) and the CACD, as underlined in R v Yasain the jurisdiction need not necessarily be exercised in the same way, bearing in mind both the triangulation of interests in criminal proceedings (the state, the defendant and the complainant / victim) and the general availability of the CCRC to remedy the injustice of wrongful convictions;

(iii)

In exercising the jurisdiction to reopen concluded proceedings. The test applied by the CACD will be the same, regardless of whether the application is made by the Crown or on behalf of the defendant;

(iv)

We respectfully agree with the observation of the court in R v Yasain that the jurisdiction of the CACD to reopen concluded proceedings is probably best confined to “procedural errors”. Indeed, at least generally, we see the R v Yasain jurisdiction as directed towards exceptional circumstances involving (as submitted by the Amicus) the correction of clear and undisputed errors “where it is simpler and more expedient for the court itself to reopen the appeal and correct a manifest injustice without the need for further litigation”. Such an approach is healthy as it does not altogether exclude room for pragmatism in practice, while confining its scope to appropriately very limited circumstances, where, even if recourse to the CCRC were otherwise available, it would be a wholly unnecessary exercise. As it seems to us, fashioning the jurisdiction in this manner accords with authority, principle, practicality, and policy – not least the great importance of finality in criminal proceedings.

71.

The reference to confining the exercise of the jurisdiction to “procedural errors” is not an absolute prohibition on exercising it in other circumstances. We are mindful of the overarching obligation upon the Court to further the Overriding Objective of dealing with criminal cases “justly”. However, that does not give any encouragement to re-open the determination of an appeal simply because a later court takes a view of the merits of an appeal that differs from the view taken by the Court that determined it. Without attempting an exhaustive catalogue, “procedural errors” will typically encompass circumstances such as a failure to notify a party of a hearing, or where it can be shown that the determining Court did not have all the information that it should have had when reaching its decision. Beyond such cases we bear in mind the observation of the Lord Chief Justice in Cunningham and Di Stefano at [32]:

‘We entirely agree with the approach of this court in Yasain and Gohil that, save for decisions that are a nullity, the usual exercise of this jurisdiction is to be confined to correcting “procedural errors” that are clear and undisputed and where there is no alternative effective remedy (albeit we do not wish to close the door entirely on exceptional circumstances, when the lack of an alternative effective remedy, or some other reason, may lead the court to reopen a decision in order to avoid a manifest injustice). As Gross LJ observed in Gohil, although the jurisdiction to reopen concluded proceedings has not been removed by the availability of the CCRC, that will almost invariably be the proper route.”

72.

We highlight the passage in brackets to emphasise that (a) the jurisdiction is not rigorously confined to cases involving procedural errors but (b) it is likely to be confined to exceptional circumstances when the lack of an alternative effective remedy (or some other reason would or might otherwise lead to injustice.”

In Field (above) Dame Victoria Sharp P., giving the judgment of the Court, cited the terms of Part 36.15 of the Criminal Procedure Rules, and continued:

“38.

The underpinning rationale for this rule is, of course, the avoidance of injustice. But that has to be set in the context of the need for finality in judicial decision-making. A legal system would be unworkable if a party, having no further right of appeal under the Rules, could simply seek to open up a final decision, after a hearing where the respective arguments have been presented and debated, on the ground that that party considers the reasoning and outcome wrong and unjust. Moreover, the interests of the losing party are not the only interests to be considered. The wider public interest in the good administration of justice and its finality and the interests of the victim and the victim’s family also have to be taken into account: as reflected in the language of the rule.

39.

It is essentially for these reasons that an application to open up a final decision is regarded as an exceptional step. In the context of criminal appeals the position has been discussed in a number of cases. Some antedate Crim PR 36.15; but all authoritatively set out, in consistent terms, the approach required to be adopted and stress that such applications can succeed only in exceptional circumstances.

40.

Some instances where a final decision may be reopened involve cases where there has been a fundamental defect in procedure giving rise to real injustice, or where a decision can be treated as equivalent to a nullity: for example, where an applicant has stated a wish to renew an application for leave to appeal against sentence through counsel, but by error counsel is not notified of the hearing date: R v Daniel [1977] QB 364. The position is discussed further in R v Yasain [2016] QB 146.

41.

In Gohil [2018] 1 WLR 3697 the position was fully reviewed. It was held, at para 110, that the Court of Appeal (Criminal Division) will not reopen a final determination of an appeal unless (i) it is necessary to do so in order to avoid real injustice; (ii) the circumstances are exceptional and make it appropriate to reopen the appeal; and (iii) there is no alternative effective remedy. (These criteria, of course, were subsequently reflected in Crim PR r 36.15 [see above]). The Court went on to hold that there were what might be described as “necessary conditions” for the exercise of the jurisdiction and that, almost invariably, they had to be cumulatively satisfied. The Court further went on to suggest (at para 129) that the jurisdiction was “probably best confined to ‘procedural errors’ – the court contemplating that such errors were to be “clear and undisputed”.

42.

The courts’ reluctance to reopen final determinations is further illustrated by the view taken in R v Hockey [2018] 1 WLR 343. An application, some years after the original decision, to reopen a confiscation order was made on the footing that subsequent appellate authority had showed that the original confiscation order had been made on a misinterpretation of the proper application of the Proceeds of Crime Act 2002. The court refused the application. It emphasised the “very limited” nature of the jurisdiction. It went on to say (at para 14) that the jurisdiction was “absolutely not available” where it was said that the proper construction of the relevant legislation had been misunderstood.

43.

Finally, it should be added that the exceptional jurisdiction to reopen a final appellate determination perhaps may not necessarily be confined to cases of nullity or of procedural errors, as (with qualification) had been suggested in Gohil. Thus in R v Cunningham (Christopher) [2020] 1 WLR 1203, the court, whilst endorsing the decision in Gohil, stated (at para 32): “we do not wish to close the door entirely on exceptional circumstances, when the lack of an alternative effective remedy, or some other reason, may lead the court to reopen a decision to avoid a manifest injustice…”

…

48.

It is essential to re-emphasise one point (reflected in the authorities) at the outset. The point is fundamental to the availability and application of Crim PR r 36.15 procedure. That is that the procedure cannot properly be invoked simply as a means of having a second go. Were it otherwise, it would wholly subvert the finality of judicial decisions: hence the need for exceptional circumstances if such an application is to be entertained.

49.

To assert “real injustice” simply as a result of an adverse outcome on appeal therefore is nothing to the point. Many unsuccessful defendants whose appeals are rejected may say, and some may sincerely believe, that their lack of success is a grave injustice. Likewise, some advocates may choose to think that because their arguments have failed, it must be that they had not been properly understood. But parties and their advocates, with respect, are not independent or objective, and cannot, as it were, self-certify in that way. And for this purpose it adds nothing, save for the insertion of a few pejorative epithets, to describe a final decision not just as “wrong” or “misconceived” but as “utterly” or “wholly” or “demonstrably” wrong or misconceived.

…

75.

We would add, for the future, some more general observations. Parties and practitioners must clearly understand that the jurisdiction conferred by Crim PR r 36.15 is extremely limited and that the jurisdiction can indeed only be exercised in exceptional circumstances. Parties may disagree, even profoundly disagree, with the reasoning and conclusion of an appellate decision. But such disagreement gives no basis whatsoever for an application under this rule. It is inappropriate and wrong to make such an application with the ultimate aim of getting another constitution of the court to reconsider the merits of the appeal, by means of claims of procedural unfairness or of bias which have no sustainable basis. To do so will be an abuse of process. The court will be vigilant to ensure that applications under the rule will be confined to those narrow and exceptional circumstances where the rule is properly to be invoked.”

Given the delay in making the instant application, we observe that in R v AW [2017] EWCA Crim 819 this Court underlined that where there is unjustified delay in making an application to reopen a decision, the strong public interest in finality may prevail. Finally, in R v Gohil (above) it was held that the Court must “keep in mind the ‘end game’: what, if any, bearing does the application have on the safety of the conviction?”

We were also referred to R v James [2018] EWCA Crim 285 in which (to use Stuart-Smith LJ’s words at para 73 of the judgment in R v Zuman (above)) “………the Court gave trenchant advice on the circumstances in which it is appropriate to allow an appellant to advance fresh grounds of appeal before the Full Court: see [14]-[37] and the summary of general principles at [38].” However, detailed recitation of the principles is not necessary at this stage, as consideration of them will only become necessary if the instant application is successful, and another hearing is therefore required.

We have summarised the applicant’s written application in para 6 above. The factual errors made by the Court in its judgment on 30 November 2016 which, it is asserted, would have been corrected by the applicant if he had been present, are said to concern the following:

In his oral submissions, Mr Kelly underlined, amongst other things that:

In his oral submissions, Mr Little argued, amongst other things that:

We have summarised the applicant’s submissions at paras 6, 58 and 59 above. In essence, the central complaint is that the applicant was not present at the hearing when his renewed application to appeal was considered by the Full Court on 30 November 2016. It is suggested this amounted to a procedural irregularity, on the basis that the court reached wrong and ill-considered conclusions, in part because the applicant had been denied the opportunity to advance oral submissions. Furthermore, it is contended there was an additional procedural irregularity, in that the prosecuting counsel was present at the hearing and advanced submissions relevant to the applicant’s case, thereby undermining the principle of equality of arms. As a result, it is argued that the decision of 30 November 2016 was a nullity.

The starting point in considering these submissions is the undoubted absence of any entitlement on the part of an applicant in custody to attend at the hearing of a renewed application for leave to appeal. The domestic statutory provisions provide that the right to be present relates to an appeal and not to an application for leave to appeal (see paras 47-49 above, setting out, inter alia, sections 22 and 31 of the Criminal Appeal Act 1968), albeit the court has a discretion to allow this to occur. This statutory regime has been considered by the European Court of Human Rights in Monell and Morris v UK (1988) 10 E.H.R.R. 205, in which case the court observed:

“57.

On an application for leave to appeal, the Court of Appeal does not re-hear the case on the facts, and no witnesses are called, even though the grounds of appeal involve questions of fact as opposed to questions of law alone. The issue for decision in such proceedings is whether the applicant has demonstrated the existence of arguable grounds which would justify hearing an appeal. If the grounds pleaded are in law legitimate grounds for appeal and if they merit further argument or consideration, leave will be given; if one or other of these conditions is lacking, leave will be refused.

58.

As the Court held in its Delcourt judgment of 12 February 1985, albeit in a different context, as a general principle paragraph 1 of Article 6 requires that a person charged with a criminal offence be entitled to take part in the trial hearing. […] The limited nature of the subsequent issue of the grant or refusal of leave to appeal did not in itself call for oral argument at a public hearing or the personal appearance of the [applicants] before the Court of Appeal.”

The obligation, therefore, on applicants acting in person who are in custody is to ensure that in the written materials before the court they have demonstrated the existence of arguable grounds which would justify hearing an appeal. Exceptionally, the single judge or the Full Court may permit the applicant to be present, but that is a matter for the discretion of the court. In virtually every case involving a renewed application for leave to appeal either conviction or sentence before the Full Court (of which there are a significant number), applicants in custody are not present at the hearing, either in person or via a video link.

It was self-evidently convenient for the Full Court to deal with the applications for leave to appeal conviction and sentence by Arshid Khan, Shahalam Khan, Mughal and the applicant, and with Hanna’s application for leave to appeal conviction, along with the appeal by Shahalam Khan against sentence, in the course of the same hearing, given that they were co-defendants in the same trial. Counsel for the Crown was necessarily present, representing the respondent on Shahalam Khan’s sentence appeal, (not least because, as we have already indicated, psychiatric evidence was to be introduced for Shahalam Khan and the Crown). Arshid Khan, Shahalam Khan and Hanna were represented in their applications for leave to appeal against conviction and accordingly it was entirely correct for the respondent to advance submissions in their cases, at the invitation of the court, as to whether leave should be granted. Put otherwise, there was no arguable infringement of the principle of equality of arms (as described in Nasteska) vis-à-vis the position of the three represented applicants.

Mr Smith’s response to the conviction submissions by the three represented applicants was notably brief. He made it clear to the court that he relied on his written submissions, and he focussed almost entirely on the grounds of appeal advanced by the three represented applicants jointly in their grounds of appeal against conviction (which were, in the three respects that we have identified, shared with the present applicant). He briefly addressed a propensity issue concerning Shahalam Khan and he referred to Hanna’s abandonment of one ground of appeal. He did not address any of the materials supplied by the present applicant and he did not touch on the various arguments advanced by the applicant through his counsel or personally.

The Criminal Practice Direction in this regard must be applied with appropriate common sense and realism. In the present case, the respondent’s counsel was required to be present, and the court was entitled – as it did – to invite Mr Smith to respond to the oral submissions of Mr Wolkind, Mr Johnson and Mr Gilbert on their renewed applications for leave to appeal conviction. Mr Smith did not substantively depart from the written Respondent’s Notice, and he focussed on the oral submissions advanced by the three represented applicants. The injunction in the Practice direction at 39A.6 (“The prosecution should not attend any hearing at which the appellant is unrepresented […]”) should not be interpreted as preventing the prosecution from responding to applications advanced by represented applicants when there is a mix of represented and unrepresented applicants. Care will need to be taken by prosecuting counsel in those circumstances not to stray into issues that are particular to an unrepresented applicant. In the present case that did not happen.

It follows that there was no breach of the principle of equality of arms. The applicant was not at a substantial disadvantage vis-à-vis the respondent in the presentation of his case. There was, on analysis, no procedural inequality. It follows that it is not necessary to reopen this final determination in order to avoid a real injustice. Furthermore, these circumstances are not exceptional such as to make it appropriate to reopen the appeal, given that it is by no means unusual for the Court of Appeal (Criminal Division) to deal simultaneously with applications for leave to appeal by former co-defendants, some of whom are represented and some unrepresented on their renewed applications before the Full Court. As we have indicated, in these circumstances the prosecution must be careful to respect the decision in Nasteska and the Practice Direction at 39A.6.

Finally, we would also observe that, given that the claims made by the applicant against prosecuting counsel were wholly unsubstantiated, it was plainly within the proper exercise of the Court’s discretion not to require Mr Smith to withdraw; that there is no arguable merit in the alleged factual errors relied upon; that the delay in bringing this application to reopen has been considerable and that no good reason has been advanced for it; that the court has not been provided with a satisfactory explanation as to why the alternative effective remedy of approaching the Criminal Cases Review Commission has not been relied on (this issue was simply not addressed in Mr Kelly’s “Application to re-open oral application for Leave to Appeal Against Conviction”); and that the application bears the hallmarks of inappropriately trying to have a “second go”.

The decision of this court on 30 November 2016 was not a nullity and it was not procedurally unfair. The applicant has failed to demonstrate that his case comes within the extremely limited jurisdiction conferred by Criminal Procedure Rule 36.15. We have no hesitation in refusing this application to re-open.