REGINA v Powell

Factual and Procedural Background

This opinion concerns an application for leave to reopen the appeal of the Appellant against a confiscation order made by the Central Criminal Court on 18th December 2008. The confiscation order assessed the Appellant's benefit at £311,049.45 and realisable assets at £254,245.76. It was later agreed that the realisable assets figure incorrectly included a sum of £22,878.63, rendering the final confiscation order incorrect. The error was not identified during a previous hearing before this court in November 2010, where the order was varied but not sufficiently corrected.

The Appellant seeks to reopen the appeal to deduct the incorrect sum from the confiscation order. This application is not opposed by the Crown Prosecution Service, though they suggested that an application for a Certificate of Inadequacy would have been a more appropriate remedy, a view also supported by the Criminal Cases Review Commission (CCRC).

The Appellant had previously applied to the CCRC in February 2012 to refer the case to the Court of Appeal to amend the order but was unsuccessful. The CCRC later advised applying for a Certificate of Inadequacy, which the Appellant did, but the High Court refused the application. The court acknowledged that the error in the original order requires correction to prevent injustice, as the Appellant faces paying money not owed, accruing interest, and potential imprisonment for default.

The court noted that, ideally, earlier avenues should have been pursued to challenge the High Court decision or the CCRC ruling, but those opportunities have expired. The Appellant acted timely once the current counsel became involved, and the court emphasized the need to resolve this prolonged matter.

Legal Issues Presented

1. Whether the court has the jurisdiction and power to reopen a concluded appeal in order to correct an error in a confiscation order.
2. Whether the exceptional circumstances justify reopening the appeal to prevent a real injustice to the Appellant.
3. The appropriateness of reducing the time in default given the corrected confiscation order amount.
4. Whether to grant further time to pay the confiscation order following its amendment.

Arguments of the Parties

Appellant's Arguments

• The confiscation order included an erroneous figure of £22,878.63 in the realisable assets, which should be deducted.
• Previous attempts to correct the order through the CCRC and applications for a Certificate of Inadequacy have failed, leaving reopening the appeal as the only viable remedy.
• The Appellant has acted promptly once the error was identified and should not be penalized for earlier procedural shortcomings or delays.
• Requested a reduction in the time in default to reflect the lower confiscation amount.
• Requested additional time to pay the amended confiscation order.

Crown Prosecution Service's Position

• Did not oppose the application to reopen the appeal.
• Suggested that the appropriate remedy would have been an application for a Certificate of Inadequacy rather than reopening the appeal.

Criminal Cases Review Commission's Position

• Advocated for an application for a Certificate of Inadequacy as the proper route.
• Did not fully appreciate the nature of the error in the confiscation order itself.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognized that an error existed in the original confiscation order which had not been adequately addressed in prior proceedings. It acknowledged that while the proper procedural routes, such as appealing the High Court decision or challenging the CCRC ruling, were not pursued in time, the Appellant had acted promptly once current counsel was involved. Given the continuing injustice—payment of monies not owed, accruing interest, and risk of imprisonment—the court determined that it must exercise its implicit power to reopen the concluded appeal under exceptional circumstances as established in Yasain.

The court accepted that although the Crown Prosecution Service and CCRC suggested alternative remedies, these were no longer viable. The court therefore granted leave to reopen, allowed the appeal, and corrected the confiscation order by deducting the erroneous sum, reducing the order to £231,367.13.

Regarding the ancillary applications, the court agreed to reduce the time in default by three months to reflect the reduced confiscation amount, bringing the period in default to 26 months. However, the court refused the request for further time to pay, leaving enforcement matters to the Magistrates' Court.

Holding and Implications

The court granted leave to reopen the appeal, allowed the appeal, and corrected the confiscation order to £231,367.13.

The time in default was reduced by three months to a total of 26 months. The application for further time to pay was refused, with enforcement proceedings to continue in the Magistrates' Court. This decision directly rectifies the financial burden on the Appellant caused by the erroneous order but does not establish new legal precedent beyond applying the existing principle permitting reopening in exceptional circumstances.