Terence John Hockey v The Queen
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P |
| Judgment Date | 14 June 2017 |
| Neutral Citation | [2017] EWCA Crim 742 |
| Docket Number | Case No: 200700022 C5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 June 2017 |
[2017] EWCA Crim 742
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Mr Justice Haddon-Cave
and
His Honour Judge Inman Q.C.
sitting as a Judge of the Court of Appeal (Criminal Division)
Case No: 200700022 C5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BRISTOL
His Honour Judge Lambert
S2006/0204
Royal Courts of Justice
Strand, London, WC2A 2LL
Application considered on the papers
On 17 November 2006, in the Crown Court at Bristol, His Honour Judge Lambert sentenced Terence John Hockey to concurrent terms of 9 months' imprisonment for six offences to which he had previously pleaded guilty in the Magistrates Court. For those which arose after the implementation of the Criminal Justice Act 2003, he also ordered that he undertake 240 hours' unpaid work.
The underlying offences arose out of three mortgage applications which were each based on false representations as to income. As a result, very substantial sums were loaned, secured on the properties. However, moving from sentence to confiscation proceedings which were conducted pursuant to s. 6 of the Proceeds of Crime Act 2002 ("the 2002 Act"), Judge Lambert declined to make an order, not least because the mortgagors were prepared to rely on the security which the properties provided and collect the interest payments. On the basis that to proceed would do nothing for the victims of the crime, he adjourned the application on the basis that he reserved the matter to himself and would not restore it.
By s. 31(2) of the 2002 Act, the prosecutor is entitled to appeal to the Court of Appeal (Criminal Division) against a decision in confiscation proceedings and such an appeal was mounted. On 12 June 2007, it came before the court (Pill LJ, Dobbs and Lloyd Jones JJ); the question which arose was as to the justification for refusing to make the order, having regard to the terms of the legislation. Moreover, it was common ground between the parties that the sum of £298,457 constituted the benefit which he had obtained within the meaning of the 2002 Act and that he had realisable assets substantially in excess of that sum. Having dismissed the reasons advanced by the judge for adjourning the application (and, in effect, refusing to make a confiscation order), the court did so in the sum of £298,457 and imposed a term of three years' imprisonment imposed in default of payment within 6 months: see [2007] EWCA Crim 1577, [2008] 1 Cr App R (S) 50. By selling his home, Mr Hockey paid the compensation. The properties were later repossessed and sold when the mortgage repayments were not made.
Nearly ten years have since elapsed and an application has now been made to re-open the decision of the Court of Appeal under the implicit jurisdiction identified in R v Yasain [2015] EWCA Crim 1277, [2016] QB 146. The application has been referred to the full court by the Registrar for determination on the papers.
In support of the application, Philip Bown (who did not appear in the original proceedings) argues that a proper consideration of s. 76(4), 84(1)(b) and 79(2)–(3) of the 2002 Act identifies that the true benefit obtained by Mr Hockey was not the mortgage monies but the properties such that the benefit would have been the difference between the purchase price and the then current market value of the properties after deduction of the mortgage. He asserts that this was not new law as is clear from R v Pattinson [2007] EWCA Crim 1536, [2008] 1 Cr App R (S) 51: in fact, as he recognises, that case was decided on 13 June 2007, that is to say, the day after the appeal. In any event, he goes on to say that this method of calculation has been approved in R v Waya [2012] UKSC 51 (see [114].
Mr Bown suggests that the only route for appeal would be provided by s. 33 of the 2002 Act to the Supreme Court which, he says, was "clearly, not available in this case". It in those circumstances that he considers that Yasain "provides the answer", citing the implicit jurisdiction to re-open an appeal where there has been a defect in the procedure leading to real injustice.
The Jurisdiction to re-open Decisions
In Yasain, supra, the Court considered the circumstances in which a final determination of the Court of Appeal (Criminal Division) could be re-opened. There were two established categories. The first arose where the decision had not been entered into the record: it was common ground that there was a wide power to revise any order that had been pronounced (see [19]–[22] of Yasain). The second arose where the decision had been entered into the record but, on proper analysis, the order was a nullity (as in R v Majewski (1976) 62 Cr App R 5 and confirmed in Yasain [24]–[25]).
A further exception could be identified where there had been some defect in procedure which may have led to a real injustice. An example was identified in R v Daniel (1977) 64 Cr App R 50, [1977] QB 364 where a renewed application was determined when, as a result of administrative error on the part of the court, notice had not been given to those acting for the applicant. Even then (as Lawton LJ observed at 370A) relisting depended on the likelihood of injustice having been done: this would not obtain if "it is clear beyond argument that the application cannot succeed". There was no such exception based on fresh evidence ( R v Pinfold (1988) 87 Cr App R 15, [1988] QB 462), or where a further challenge was to be mounted on a finding of dangerousness ( R v Pedley [2009] 1 WLR 2517).
Yasain was particularly concerned with the existence and extent of this last category and examined the question as a matter of general principle. Having analysed the power identified by the Court of Appeal (Civil Division) in Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528, Lord Thomas CJ found there was no basis for any distinction between the two Divisions although having noted the observations of Lord Woolf in that case (at [54] to the effect that the jurisdiction was "to avoid real injustice in exceptional circumstances", "linked to a discretion which enables the court to confine the use of jurisdiction to the cases in which it is appropriate for it to be exercised"), Lord Thomas CJ went on (at 40)
"The fact that both have the same implicit jurisdiction does not mean that the jurisdiction has necessarily to be exercised in the same way by the Criminal Division as it would be by the Civil Division. For example, in a criminal case there will often be three interests that have to be considered – that of the State, that of the defendant and that of the victim or alleged victim of the crime, even though the victim is not a party to the proceedings under the common law approach: see R v B [2003] 2 Cr App R 197 at paragraph 27; R v Killick [2012] 1 Cr App R 10, [2011] EWCA Crim 1608 at paragraph 48. There is the strongest public interest in finality. The jurisdiction is probably confined to procedural errors, particularly as there are alternative remedies for fresh evidence cases through the Criminal Cases Review Commission".
A good example of the type of procedural error leading to injustice can be found in Yasain itself. When the case first came to the Court of Appeal, although the trial record sheet printed from CREST recorded convictions for rape, robbery, assault and kidnapping, the transcript then obtained disclosed, on its face, that no verdict had, in fact, been taken on a count of kidnapping. As a result, that conviction was deleted (without it being recorded that he had been acquitted). It later transpired that a serious error had been made in transcribing the proceedings and the process had been carried out "impeccably": the conviction for kidnapping had been returned by the jury. In those circumstances, the record of the conviction (and the consecutive term of imprisonment) was restored on the basis that a real injustice would result if the order could not be re-opened and corrected. It is not difficult to see the exceptional circumstances which justified this course.
The availability of a remedy through the Criminal Cases Review Commission ("CCRC") was emphasised in R v Bush [2015] EWCA Crim 2002 where an attempt was made to re-open a previously dismissed appeal against conviction for murder. Rafferty LJ explained (at [26], [27]) that the court was functus and that the CCRC provided a tried and tested route to achieve the objectives of an...
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