Summary of Judgment
Factual and Procedural Background
This is a renewed application by two appellants (a father and his son, referred to below as "Appellant 1" and "Appellant 2") to re-open their applications for leave to appeal against a confiscation order made after convictions for conspiring to manage brothels following a Crown Court trial on 16 September 2016. Each appellant was sentenced on 17 October 2016 to 27 months' imprisonment and served that sentence. The prosecution sought a confiscation order under the Proceeds of Crime Act 2002 ("POCA") in respect of two brothels operated in The City. After extensive and repeated hearings and delays, Judge Bond delivered a detailed judgment on 17 January 2020, finding an available amount of £3,174,809.18 and making confiscation orders for that sum against each appellant, with payment to be made within three months and a default term of ten years' imprisonment for non-payment. The appellants' application for leave to appeal against the confiscation order was refused initially by a single judge and then by a full Court of Appeal on 9 February 2021.
The appellants applied to the European Court of Human Rights ("the ECHR"), alleging excessive length of the confiscation proceedings in breach of Article 6(1). The ECHR declared admissible the complaint relating to the period from conviction until the refusal of permission to appeal, and, in a judgment, found a violation of Article 6(1), limiting state responsibility to delays attributable to the court system (notably the judge's lack of sufficient reading/judgment-writing time). The appellants then applied under Criminal Procedure Rule 36.15 to re-open the Court of Appeal's 2021 refusal in light of the ECHR judgment and sought reduction of the ten-year default term to seven years so that Appellant 2 could be released immediately. The Secretary of State/the Ministry of Justice declined to quash the order or direct release. The Crown (enforcement court and respondent) resisted re-opening. The present judgment decides that renewed application to re-open.
Legal Issues Presented
- Whether, in the light of the ECHR judgment finding a breach of Article 6(1) for delay, the Court of Appeal should re-open its 2021 determination under Criminal Procedure Rule 36.15.
- If re-opening is permissible, whether the appellants have demonstrated exceptional circumstances and real and manifest injustice warranting re-opening and a reduction of the default term from ten to seven years' imprisonment.
- What period of delay the ECHR found to be attributable to the State and in breach of Article 6(1), and the legal effect of that finding on domestic relief.
- What remedies, if any, are appropriate domestically for a breach of Article 6(1) by delay in confiscation proceedings (including the scope of relief under section 8(1) of the Human Rights Act 1998).
Arguments of the Parties
Appellants' Arguments (Attorney Schofield)
- The ECHR finding of a breach of Article 6(1) in the same case constitutes an exceptional procedural defect justifying re-opening under Crim PR 36.15.
- The Strasbourg clarification addresses the same points decided by this Court and thus does not undermine finality in the usual way; domestic courts must “take into account” ECHR judgments (HRA s.2).
- The delay (including a particularly inexcusable seven-month period between final hearing and judgment) and the personal circumstances of the appellants (age, health, mental health deterioration, overcrowded prisons) justify reduction of the default term; the appellants seek reduction only of the default term to seven years, not alteration of the confiscation sums.
- There is no effective alternative remedy: the Ministry of Justice has refused to act, and the Court can grant relief under section 8(1) of the Human Rights Act 1998.
Respondent's Arguments (Attorney Curtis)
- The Court's power to re-open under Crim PR 36.15 is exceptional and should not be exercised here; the appellants had an alternative remedy (payment) and so have suffered no real injustice.
- The ECHR did not hold that the whole period (four years and five months) was attributable to the State; it identified a limited six-month delay relating to insufficient reading/judgment-writing time. Most delay arose from the complexity of the case, counsel unavailability, parties' conduct and experts' mistakes.
- A finding of a procedural defect in Strasbourg that gives rise to no unfairness does not preclude making or upholding confiscation orders (relying on authority such as R v Guraj); therefore the limited breach does not justify re-opening or reducing the default term.
- Re-opening to achieve release would be opportunistic and incompatible with finality; the appellants could have relied on Article 6 earlier but did not.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Pélissier and Sassi v France [GC], no. 25444/94, paragraph 67, ECHR 1999-II |
Criteria for assessing reasonableness of length of proceedings: complexity, conduct of parties and authorities, and what was at stake. |
Used to explain how the ECHR assessed reasonableness and to note factors that weigh in assessing delay. |
| R v Jogee [2016] UKSC 8 |
Limits on when change in law/clarification justifies reopening (example cited by appellants). |
Distinguished: the Court noted Jogee principle but held the present Strasbourg clarification was in the same case and on the same issues. |
| Bullen and Soneji v UK (Application 3383/06) |
Example Strasbourg authority on delay in confiscation contexts (cited by appellants). |
Referenced to show Strasbourg approach to delay in confiscation cases; no further domestic consequences drawn beyond taking the judgment into account. |
| Minshall v UK (Application 7350/06) |
Another Strasbourg example cited on delay issues. |
Referred to support the submission that Strasbourg authorities address delay in similar contexts. |
| R(Lloyd) v Bow Street Magistrates' Court [2003] EWHC 2294 (Admin); [2004] 1 Cr App R 11 |
Domestic example where enforcement proceedings were stayed because of Article 6 delay (five-year delay). |
Distinguished: Lloyd involved a longer delay and resulted in staying enforcement; Court held present facts materially different. |
| R v Guraj [2016] UKSC 65 |
Principle that a procedural defect giving rise to no unfairness may not prevent a confiscation order. |
Relied on by respondent to argue that the Article 6 breach, absent unfairness, does not require setting aside or reducing confiscation-related penalties. |
| R v Field [2022] EWCA Crim 316 |
Authoritative summary of scope of power to re-open appeals under Crim PR 36.15 and the need to balance avoidance of injustice with finality. |
Adopted as a principal guide to the Court's exercise of its re-opening jurisdiction in this case. |
| R v Gohil [2018] EWCA Crim 140; [2018] 1 Cr App R 30; [2018] 1 WLR 3697 |
Set out necessary conditions for re-opening: (i) necessary to avoid real injustice; (ii) circumstances exceptional; (iii) no alternative effective remedy. |
Applied by the Court as the test to decide whether to re-open the 2021 determination. |
| R v Hockey [2017] EWCA Crim 742; [2017] 2 Cr App R 23; [2018] 1 WLR 343 |
Emphasises the very limited nature of the re-opening jurisdiction and that it is not available merely because of later appellate authority on construction. |
Relied on to underscore the limited scope of the power to re-open and to reject applicants' broader re-opening arguments. |
| R v Daniel (1977) 64 Cr App R 50; [1977] QB 364 |
Example of re-opening where decision treated as nullity (fundamental procedural defect). |
Illustrated the class of cases where re-opening may be appropriate; Court contrasted those extremes with present facts. |
| R v CC [2019] EWCA Crim 2101; [2020] 1 Cr App R 15 |
Acknowledges exceptional circumstances beyond procedural error may warrant re-opening where no alternative remedy exists. |
Permitted the Court to retain a residual discretion for rare cases; Court considered but found no such exceptional circumstances here. |
| Attorney-General's Reference (No 2 of 2001) [2001] UKHL 68 |
Holds that where a criminal charge is not determined within a reasonable time there must be afforded such remedy as section 8(1) HRA allows; remedies vary according to circumstances and may include reduction in penalty. |
Applied to confirm that a variety of remedies are available for Article 6 breaches; Court held public acknowledgement may be sufficient here and that reduction is not automatically required. |
| R (Neophytou) v Governor of HMP Berwyn and another [2025] EWCA Civ 348; [2025] 4 WLR 37 |
Judicial-review appeal concerning refusal to submit a compassionate-release application and observations about appellant's mental health effects of imprisonment. |
Referred to as a separate (successful) judicial-review appeal by Appellant 2; Court noted its relevance to personal circumstances but found it unrelated to Article 6 delay remedies. |
Court's Reasoning and Analysis
The Court began by summarising the facts and procedural history, noting the complexity of the confiscation proceedings, the appellants' non-disclosure and obstructive conduct, repeated adjournments and expert report revisions, and the judge's statement that lack of reading/judgment-writing time caused a six-month delay between July 2019 and January 2020.
The Court set out the statutory and procedural framework for re-opening under Criminal Procedure Rule 36.15 and the established authorities (notably R v Field and R v Gohil) that require re-opening only in exceptional circumstances where re-opening is necessary to avoid real injustice and no alternative effective remedy exists.
On the ECHR finding, the Court analysed the Strasbourg judgment and concluded that the ECHR did not attribute the whole period (four years and five months) to state responsibility. Rather, the breach identified by Strasbourg was confined to delay attributable to the court system, specifically the judge's insufficient reading/judgment-writing time—a period the Court construed as six months.
The Court observed it is not bound by ECHR judgments but must take them into account (Human Rights Act s.2) and noted guidance (Horncastle) permitting domestic divergence in rare cases. The Court expressed reservations about a literal reading of the ECHR approach if it implied that any delay beyond one month for delivery of a judgment would be a breach, but for present purposes assumed in the appellants' favour that the six-month period constituted an Article 6(1) breach.
Applying the Gohil/Field criteria, the Court concluded that the appellants had not shown real and manifest injustice attributable to the six-month delay that would justify re-opening. The Court reasoned that there was no logical or factual connection between the culpable six-month delay and the judge's determinations of the benefit figure, the available amount, or the length of the default term. The delay did not prejudice the appellants' ability to present evidence; much of their evidence was rejected as untruthful, and the judge's judgment was comprehensive and unaffected by the delay. The appellants retained an alternative effective remedy (payment) and had not relied upon Article 6 in the original 2021 proceedings. The Court regarded the appellants' request as opportunistic, designed to secure immediate release rather than to vindicate a substantive unfairness caused by delay.
Finally, the Court held that a public acknowledgment of the breach (as effected by the Strasbourg judgment) was the appropriate remedy in the circumstances and that no exceptional circumstances existed to re-open the appeal or to reduce the default term.
Holding and Implications
DISMISSED: The renewed application to re-open the 2021 refusal of leave to appeal is refused.
Implications:
- The Court refused to re-open its prior determination under Crim PR 36.15; the confiscation order and the findings about the available amount remain in force.
- The default term imposed (ten years' imprisonment) remains unaltered; Appellant 2 therefore remains liable to serve the default term in accordance with enforcement procedures (subject to other lawful applications), and Appellant 1 remains liable but has absconded outside the jurisdiction.
- The Court held that the appropriate domestic response to the limited Article 6(1) breach in these facts was acknowledgement by the Strasbourg judgment rather than alteration of the confiscation enforcement outcome; no new domestic precedent altering the scope of re-opening jurisdiction was established beyond the application of existing authorities.
Note: All information in this summary is taken exclusively from the provided judgment.