CrPR 36.15 (Reopening determinations in the CACD) and the perils for litigants in person
Zuman & Khan v R [2021] EWCA Crim 399
On Friday, 19th March, the Court of Appeal handed down an unusual judgment in which it revisited, and overruled, an earlier determination by the Full Court. The judgment clarifies the operation of CrPR 36.15 – reopening the determination of an appeal – and highlights some of the challenges represented by litigants in person, both to themselves and to the court.
Background
In 2015, the Appellants were convicted of conspiracy to defraud lenders by the obtaining of mortgages to purchase residential property in Birmingham. Pursuant to the Proceeds of Crime Act 2002 (POCA), Confiscation Orders were made in the sum of £8,010,811.05 against Mr Khan, and in the sum of £4,058,852.02 against Mr Zuman. Prison sentences were imposed in default – 10 years and 9 years respectively – and these exceeded the original sentences on conviction. Both proceeded to appeal against their orders.
In April 2018, Brendan Kelly QC, representing both Appellants, made an oral and written submission in the lower court that the judge should recuse himself from hearing any further matters connected to the case for reasons that will become clear. The application was rejected by the judge, but he shortly afterwards notified prosecution Counsel of having “reconsidered” this position, without giving reasons.
Original grounds, described by Stuart-Smith LJ as being “distinctly thin”, were submitted in February 2018. The single judge refused permission. The Appellants renewed their applications to the full court in February 2020, with Mr Kelly now representing only Mr Zuman. Both Appellants raised grounds relating to errors on the part of the Financial Investigator, and issues flowing from the Appellants’ decisions to dispense with representation (Ground 1). On most grounds, including Ground 1, permission was refused.
At a further hearing before a differently constituted full court the Appellants were directed to finalise and submit the submissions they wished to make. Mr Kelly “nailed his colours firmly to the mast” – He wished to revisit the decision of the full court to refuse permission on Ground 1.
Revisited Ground
The issues contained within the revisited ground were:
- Was CrPR 36.15 engaged?
- Were there “exceptional circumstances”?
- Was any material error of law or fact made to justify the court reconsidering the ground?
The POCA Hearing
To understand how CrPR 36.15 might be engaged, some explanation of the POCA hearing is needed. “On any view [Stuart-Smith LJ concludes] the three-day hearing did not run smoothly”. It began with two logistical problems: Mr Zuman’s position in the dock made him difficult to hear and was inconvenient for the management of his papers; and, in relation to Mr Khan, the translation of proceedings by his interpreter was unsatisfactory. The prosecution opening, which dealt with hidden assets and the POCA assumptions, would have been clear to a lawyer, but was not to the (unrepresented) Appellants.
The hearing went from bad to worse. Replying to Mr Zuman, who claimed not to understand the procedure since he had “never been in this position before”, the Judge said: “That is your problem, quite frankly… The procedure has certainly been explained to you [and] you have had months to prepare”. Stuart-Smith LJ draws a distinction between the matters that the Court had to decide and the procedure to be adopted, and concludes that the latter, in fact, had not been explained.
Stuart-Smith LJ identified a “complete mismatch” between the understanding of the Judge and the Appellants and concludes: (1) the Appellant had no idea how to cross-examine on the issues; (2) the Judge was faced with defendants whose approach was not structured in accordance with normal proceedings conducted by lawyers; and (3) by simply stating that matters were “irrelevant” the judge did not explain the proceedings.
CrPR 36.15 – Reopening the determination of an appeal
CrPR 36.15 ends with the following note: “The Court of Appeal has the power only in exceptional circumstances to reopen a decision to which this rule applies”. In Gohil [2018] EWCA Crim 140, the court stated:
“We respectfully agree with the observation of the court in R v Yasain that the jurisdiction of the CACD to reopen concluded proceedings is probably best confined to “procedural errors”. Indeed, at least generally, we see the R v Yasain jurisdiction as directed towards exceptional circumstances…”
However, the present judgment clarifies that this is “not an absolute prohibition on exercising it in other circumstances”, citing the overarching obligation upon the Court to further the Overriding Objective by dealing with cases ‘justly’. It finds succour for this proposition in the Lord Chief Justice’s words in Cunningham and Di Stefano [2019] EWCA Crim 2101:
“We do not wish to close the door entirely on exceptional circumstances, when the lack of an alternative remedy, or some other reason, may lead the court to reopen a decision in order to avoid a manifest injustice”.
Therefore, there does not need to be a procedural error in order to engage CrPR 36.15. It is “likely to be confined to exceptional circumstances when the lack of an alternative effective remedy (or some other reason) would or might otherwise lead to manifest injustice”.
Judgment
The confiscation orders made in the lower Court were quashed and the case was remitted to the Crown Court at Birmingham to be tried de novo by another Judge. The Appellants succeeded on the revisited ground, albeit needlessly due to success on their other grounds of appeal. The judgment concludes:
- There was no procedural irregularity that could justify reopening the full court’s determination.
- The judge’s “bald statement” that there was “no evidence” to show that the available amount was no less than the sum established as each Appellant’s benefit was, simply, wrong.
- There was evidence and information that the available assets were significantly less than the calculated benefit.
The court decided to “grasp the nettle” and to declare that this is an “exceptional case” where the lack of an alternative remedy should lead us to reopen the decision of the full court in order to avoid a potential “manifest injustice”.
Litigants in person
The decision to dispense with representation was made by the Appellants. The result was a state of affairs which “operated greatly to their disadvantage”. Although the Appellants had a “well-developed sense of grievance”, they “failed to grasp the nature of the proceedings”, and this was exacerbated by the “vast disparity” between the benefit which was being contended by the prosecution and identified assets.
Mr Kelly submitted to the (first) full court that the judge ought to have “tried to persuade the defendant to seek representation in order to dispense with the issue fairly and properly”. Judicial impatience and a failure to explain the procedure properly, Mr Kelly submitted, had led to a process that was “arbitrary and lacking in proper scrutiny”.
The present full court concludes, inter alia: The Appellants did not understand the nature of the hearing in which they were engaged; the judge did not explain what was wrong with the Appellants’ questions that he found to be objectionable or assist either of them to formulate appropriate and relevant lines of questioning; and the judge lost patience. It then issues the following guidance to the courts: “A person who chooses to represent themselves bears responsibility for that choice; but it does not obviate the principle that the defendant may need assistance from the Court”.
Observations
The door which the Lord Chief Justice in Cunningham and Di Stefano wished to leave open is left a little wider by this judgment, albeit the threshold for reopening determinations remains high. Crucially, it confirms that CrPR 36.15 is not limited to procedural errors.
Judicial impatience worked against the litigants in person, and in due course, invalidated the Confiscation Order. Whilst the judgment acknowledges that it was reasonable for the judge to have wished to proceed if possible, ultimately the court failed on the general principle that it ought to assist an unrepresented party in conducting their case, particularly when examining or cross-examining a witness, or deciding whether or not to give evidence.
Of equal importance is the caution with which anyone considering dispensing with representation should tread, for this case acts as a kitemark for the perils of such a path, particularly where there are complex matters at issue. At least on this occasion the appellants get to fight another day!
Brendan Kelly QC and Jack Gilliland
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