Inherent Jurisdiction Revived: Court of Appeal Confirms Power to Re-open Confiscation Appeals Excluded from Crim PR 36.15

1. Introduction

Jacob (Formerly Oyebola), R. v (Re s.31 Proceeds of Crime Act 2002 – Crim PR Part 36.15) ([2025] EWCA Crim 759) confronts one of the most technically vexed questions in post-conviction litigation: can the Court of Appeal (Criminal Division) revisit a concluded confiscation appeal when Criminal Procedure Rule 36.15 (re-opening appeals) deliberately omits confiscation proceedings (Rule 42)?

The case arose out of a complex series of confiscation orders made against Mr Folarin Oyebola (now Mr Jacob) following convictions for mortgage fraud and handling stolen goods. Over thirteen years, the benefit figure within those orders was repeatedly adjusted, yet serious errors—wrongful inclusion of two properties and a mis-calculated deduction—remained. After those errors were exposed in 2024 by HHJ Deacon KC in restraint proceedings, the Crown and the defendant made competing applications:

Crown: sought to reduce the benefit figure (from £816,514.78 to £514,175.78) by (i) re-opening the 2018 confiscation appeal under the court’s inherent jurisdiction (Powell) or (ii) a fresh, very out-of-time, prosecution appeal under s.31 POCA 2002.
Mr Jacob: filed four applications to re-open two conviction appeals (2012) and both previous confiscation appeals (2013 & 2018), arguing wider injustices.

2. Summary of the Judgment

The Court (Vice-President presiding):

Allowed the Crown’s and Mr Jacob’s applications to re-open only the 2018 confiscation appeal; it exercised its inherent jurisdiction, corrected the errors, and substituted a benefit figure of £514,175.78.
Dismissed the Crown’s alternative request for leave to bring a fresh s.31 POCA appeal.
Dismissed all four of Mr Jacob’s other applications (two conviction appeals and the 2013 confiscation appeal) for failure to meet the stringent criteria for re-opening.
Clarified that the available amount remains £368,354.72 unless varied in future s.22 POCA proceedings.

3. Analysis

3.1 Precedents Cited and Their Influence

R v Powell [2016] EWCA Crim 1539 – Confirmed the Court’s inherent power to re-open confiscation appeals in “exceptional circumstances” to avoid real injustice. The Court relied heavily on Powell to side-step the gap in Crim PR 36.15.
R v Gohil [2018] EWCA Crim 140 – Synthesised the criteria (necessity, exceptionality, no alternative remedy) for re-opening appeals, derived from civil authority (Taylor v Lawrence) and applied to criminal cases after Yasain [2015] EWCA Crim 1277. The Court transplanted those criteria to confiscation.
Waya [2012] UKSC 51 – Underpinned the first (2013) reduction of the benefit figure by imposing proportionality constraints post-conviction.
Powell & Gohil together provided the conceptual bridge: an explicit procedural lacuna (no Rule 36.15 route) does not extinguish the Court’s constitutional duty to remedy clear injustices.

3.2 Key Elements of the Court’s Legal Reasoning

Existence of Inherent Jurisdiction. Rule 36.15’s silence on confiscation appeals does not displace the Court’s common-law supervisory power (Gohil). The Court emphasised that inherent jurisdiction survives statutory and rule-based regimes unless expressly ousted.
Application of “Gohil tests”.
- Necessity to avoid real injustice: A benefit figure £302,339 too high risked triggering future s.22 POCA applications; the error was admitted by the Crown.
- Exceptional circumstances: An anomaly persisting through multiple litigations and uncorrectable elsewhere (CCRC and High Court channels exhausted).
- No alternative remedy: A fresh s.31 appeal was “inappropriate” and legally weak because the underlying confiscation order never included the disputed properties; only re-opening could surgically correct the mistake.
Separation of Benefit & Available Amount. The Court stressed that benefit figure errors do not retrospectively affect activated default sentences (calculated on available amount), curbing arguments for broader relief.
Finality vs. Fairness. Finality is “vital for legal certainty” but must yield to demonstrable injustice. By refusing to reopen the 2013 appeal and the conviction appeals, the Court underlined that the inherent jurisdiction is a scalpel, not a sledge-hammer.

3.3 Likely Impact on Future Litigation

Precedential Value: The judgment is the clearest post-2020 affirmation that confiscation appeals—although procedurally fenced off from Crim PR 36.15—remain subject to the Court’s inherent re-opening jurisdiction.
Strategic Guidance for Practitioners: The appropriate course is to apply to re-open (not to pursue out-of-time s.31 appeals) when: (i) the error stems from the Court’s own earlier decision, and (ii) correcting the error reduces liability (the Court hints unwillingness to use the jurisdiction to increase benefit figures).
Procedural Reform Pressure: The case exposes the oddity that Rule 36.15 omits confiscation appeals, inviting a future Rules Committee review.
Section 22 Applications: The clarified benefit figure can cap any future orders increasing the available amount; enforcement agencies must re-calibrate outstanding recovery work accordingly.

4. Complex Concepts Simplified

Benefit Figure: Total gain the defendant is deemed to have obtained from criminal conduct, often inflated by statutory assumptions.
Available Amount: Current realisable assets the defendant can pay; the sum actually ordered. Default prison terms are set by this figure, not by the benefit figure.
Section 22 POCA: Allows the prosecution to revisit the available amount if the defendant later acquires assets.
Section 31 POCA: Provides the prosecution’s route to appeal a confiscation order (e.g., to adjust the benefit figure) within 28 days; “out of time” appeals require leave.
Inherent Jurisdiction: The Court’s residual power, rooted in common law, to prevent abuse of process or cure grave injustices where no statutory route exists.
Crim PR 36.15 vs Rule 42: Rule 36.15 furnishes a mechanism for re-opening ordinary criminal appeals—but, puzzlingly, it does not list Rule 42 confiscation appeals, creating the lacuna addressed here.

5. Conclusion

Jacob (formerly Oyebola) cements an important principle: the Court of Appeal’s inherent jurisdiction to re-open a concluded confiscation appeal survives despite the deliberate omission of such appeals from the Criminal Procedure Rules’ re-opening provision. The judgment meticulously applies the Gohil criteria, draws a clear boundary between benefit and available amounts, and provides practitioners with a blueprint for future applications. While the Court protected the integrity of final convictions and earlier confiscation stages, it demonstrated a readiness to intervene narrowly and decisively where the arithmetic—and justice—went wrong.