Extension of Time Granted Where Merits Show Injustice in a “Closed Conspiracy” Following Co‑Conspirators’ Convictions Being Quashed

1. Introduction

Milton, R. v ([2025] EWCA Crim 444) concerns a late application for leave to appeal against conviction arising out of an alleged “boiler room” investment fraud. The applicant, Sonny Milton, had been convicted (after trial in March 2022) of:

  • conspiracy to commit fraud by false representation; and
  • conspiracy to conceal criminal property,

and sentenced to concurrent 4-year terms plus a 5-year director disqualification.

The indictment named co-conspirators Atheer Al Rawe, Clive Ellis (the applicant’s father), Gary Grosvenor, and Michael Gay, later amended at trial to include “others unknown”. Al Rawe and Ellis were convicted but subsequently had their convictions quashed in R v Al Rawe and Ellis [2023] EWCA Crim 812. Grosvenor and Gay were acquitted.

The applicant sought an extension of time of 785 days to appeal. The central issues were:

  1. Whether there was a sufficient basis to extend time despite extensive delay largely attributable to advisers; and
  2. Whether, given the prosecution’s case theory, the applicant’s conspiracy convictions could safely stand after the acquittals and the quashing of the other alleged conspirators’ convictions.

2. Summary of the Judgment

The Court of Appeal (Criminal Division) granted:

  • an extension of time,
  • permission to appeal, and
  • allowed the appeal, quashing both conspiracy convictions.

Although the Court was not satisfied that the explanations for delay (mistaken advice initially and counsel’s workload thereafter) amounted, of themselves, to a “good reason” for such delay, it accepted:

  • the delay was not attributable to the applicant, and
  • refusing an extension would cause injustice because the proposed appeal had merit—his case was “inextricably linked” to Al Rawe’s, and the prosecution had effectively run a closed conspiracy case.

The Court ordered a retrial on both counts alongside Al Rawe and Ellis (retrial listed for September 2025), directed service of a fresh indictment under Criminal Procedure Rules 10.8(2), and gave directions for re‑arraignment under section 8(1) of the Criminal Appeal Act (as amended). Bail was granted pending retrial. The Court continued a reporting restriction under section 4(2) of the Contempt of Court Act 1981 until after the retrial.

3. Analysis

3.1 Precedents Cited

The Court situated the extension-of-time application within established authority emphasising that lateness is not cured by formality and requires a principled assessment. It cited:

  • R v Hughes [2009] EWCA Crim 841 – relied upon for the proposition that an extension of time is exceptional and typically requires a compelling explanation and/or a demonstrated risk of injustice if refused.
  • R v Thorsby [2015] EWCA Crim 1 – reaffirming that the Court must look at (i) the reasons for delay and (ii) whether refusing an extension would cause injustice, with merits often central to the injustice inquiry.
  • R v Johnson [2017] 4 WLR 104 – authority emphasising the disciplined approach to time limits while recognising that where the conviction appears arguably unsafe, the “interests of justice” may require an extension.
  • Towers and Hawkes [2019] EWCA Crim 1918 – illustrating the modern emphasis on finality and procedural compliance, but not at the expense of substantial injustice, especially where delay is not the defendant’s fault and merits are strong.

On the substantive safety of the conviction, the case’s decisive contextual driver was: R v Al Rawe and Ellis [2023] EWCA Crim 812. The Court in Milton treated the quashing of those convictions as highly material because the prosecution’s case theory against Milton was not independent; it was structurally tied to the alleged joint enterprise of the named conspirators.

3.2 Legal Reasoning

(a) Extension of time: “good reason” and “injustice” as distinct filters

The Court adopted the familiar two-stage evaluation reflected in the cited authorities:

  1. Reasons for delay: The Court was explicit that the stated reasons—initial mistaken advice and later delay due to counsel’s inability to finalise grounds “as swiftly… as would be desirable”—did not amount to a sufficient “good reason” for the delay duration.
  2. Injustice assessment anchored in merits: The Court nevertheless proceeded to evaluate whether refusing an extension would produce injustice, emphasising that the applicant himself was not responsible for the delay. The merits of the proposed appeal therefore became pivotal.

This judgment is notable for its candour: it does not dilute the “good reason” requirement, but it also does not allow professional delay to foreclose a potentially unsafe conviction where the applicant is blameless and where adverse consequences persist (licence until 2026, ongoing director disqualification, and reputational/professional impact).

(b) Closed conspiracy reality: safety of conviction after acquittals and quashed convictions

The Court focused on the actual way the prosecution case was run. Although the indictment was amended to include “others unknown,” the prosecution had started with a closed conspiracy involving the named individuals; the amendment occurred due to judicial intervention, and the prosecution did not identify evidence of any “others unknown” with whom Milton could have conspired.

Against that factual and forensic background, the Court held it was “artificial” to determine Milton’s appeal without considering:

  • the acquittals of Grosvenor and Gay, and
  • the quashing of convictions of Al Rawe and Ellis.

The Court emphasised a foundational proposition of conspiracy law: “the applicant cannot conspire with himself.” In practical terms, where the prosecution’s case is that the conspiracy is constituted by identified individuals and it cannot (on the evidence advanced) sensibly be expanded to unidentified parties, the collapse of the case against the other alleged conspirators severely undermines the integrity of the remaining conspiracy conviction.

(c) “Inextricably linked” defendants and the centrality of co-accused evidence

Milton’s alleged role (running the office, overseeing sales staff using false names, familiarity with CFX accounts, and a £50,000 transfer later linked to Ellis and Al Rawe) was presented as part of a single fraudulent scheme “from the outset,” with Al Rawe characterised as mastermind.

The Court accepted the submission that Milton’s case “stood or fell” with Al Rawe’s in the way the case was put. Even though Milton chose not to give evidence and was present throughout the trial (unlike an issue that may have applied to Ellis), the Court concluded the core unfairness/safety concerns that led to Al Rawe’s conviction being quashed were materially relevant because the jury’s assessment of Al Rawe’s case was “crucial” to Milton’s conviction within the prosecution’s own narrative.

3.3 Impact

(a) Extension of time applications: stricter on reasons, flexible on injustice where applicant blameless

The decision underscores that the Court will not treat workload-based professional delay as a “good reason,” but will still protect against injustice where:

  • the applicant is not to blame, and
  • the merits indicate a real risk that the conviction is unsafe.

Practically, this reinforces the need for advisers to act promptly after a co-defendant’s successful appeal; but it also signals that defendants should not automatically lose the opportunity to correct an unsafe conviction due to systemic or professional delay.

(b) Conspiracy prosecutions: pleading “others unknown” does not cure an evidentially closed case

The judgment is a cautionary marker for conspiracy prosecutions: adding “others unknown” to an indictment will not necessarily preserve a conviction if the case was tried as a closed conspiracy and the prosecution cannot point to evidence of such “others.” Where the named co-conspirators’ convictions are quashed (and the remaining named individuals are acquitted), the remaining defendant’s conspiracy conviction may become difficult to sustain.

(c) Case management consequences

The Court’s directions on a fresh indictment under Criminal Procedure Rules 10.8(2) and re‑arraignment under section 8(1) of the Criminal Appeal Act highlight the procedural reset required after a successful appeal allowing retrial, and the operational preference for trying alleged conspirators together where appropriate.

4. Complex Concepts Simplified

  • Extension of time: permission to bring an appeal after the normal deadline has passed. The Court considers the explanation for delay and whether refusing would cause injustice.
  • Leave (permission) to appeal: a filter stage; the applicant must show an arguable basis that the conviction is unsafe or the trial was unfair.
  • Conspiracy: an agreement between two or more people to commit a crime. A person cannot be guilty of conspiracy alone—hence “cannot conspire with himself.”
  • Closed vs. open conspiracy: a “closed” conspiracy is presented as involving only identified individuals. An “open” conspiracy contemplates participation by unnamed persons. Merely adding “others unknown” on paper does not make a case “open” if no evidence supports it.
  • Quashing a conviction: setting aside the conviction; it is treated as no longer valid.
  • Retrial: a new trial ordered after the conviction is quashed; prosecution starts again on a fresh indictment.
  • Section 4(2) Contempt of Court Act 1981 order: postpones reporting to avoid prejudicing pending proceedings (here, the upcoming retrial).

5. Conclusion

[2025] EWCA Crim 444 consolidates two practical principles. First, while the Court will not treat delay—particularly adviser delay—as automatically excusable, it will extend time where refusal would cause injustice, especially when the applicant is not at fault and the appeal has real merit. Second, in conspiracy cases tried as a closed conspiracy, the collapse of the case against the other alleged conspirators (acquittals and/or quashed convictions) can critically undermine the integrity of the remaining conviction, because the defendant cannot “conspire with himself” and “others unknown” cannot be assumed without evidential foundation.

The case therefore stands as an important procedural-and-substantive checkpoint: finality and deadlines matter, but they do not override the Court’s responsibility to prevent an arguably unsafe conspiracy conviction from persisting where the prosecution’s own case theory no longer coheres.