Neophytou & Anor, R. v [2026] EWCA Crim 489 (27 March 2026)

Neutral Citation Number: [2026] EWCA Crim 489 Case No 2020/00507/B4 & 2020/00508/B4

IN THE COURT OF APPEAL

CRIMINAL DIVISION

ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM (HIS HONOUR JUDGE BOND) [T20157984] Royal Courts of Justice The Strand WC2A 2LL 27 March 2026 B e f o r e :

THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION (Lord Justice Edis)

MR JUSTICE CAVANAGH

MRS JUSTICE BRUNNER DBE ____

R E X - v -

ACHILLEOS NEOPHYTOU

STEFANOS NEOPHYTOU ____ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) ____ Mr T Schofield KC appeared on behalf of both Applicants Mr J W Curtis KC appeared on behalf of the Crown ____

HTML VERSION OF JUDGMENT ____ Crown Copyright © This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. Friday 27 March 2026 LORD JUSTICE EDIS: I shall ask Mr Justice Cavanagh to give the judgment of the court. MR JUSTICE CAVANAGH: This is a renewed application by the applicants to re-open their applications for leave to appeal against a confiscation order that was made against them, following their convictions for running a brothel. Their application for leave to appeal against the confiscation order was refused by the single judge. It was renewed before the full court (Popplewell LJ, Spencer J and His Honour Judge Lodder KC) and was refused on 9 February 2021: see [2021] EWCA Crim 169. One of a number of grounds relied upon by the applicants in relation to their appeal against the confiscation order was delay in the confiscation proceedings, from the date of their convictions on 16 September 2016 until the time at which the judge (His Honour Judge Bond, sitting in the Crown Court at Birmingham) delivered his ruling on 17 January 2020. The full court held that this ground was not arguable. The applicants subsequently made an application to the European Court of Human Rights ("the ECHR") on the ground that the delay in

the confiscation proceedings, including not just the period from their convictions until the judge gave his ruling, but also the period between that ruling and the determination of the application for permission to appeal on 9 February 2021 – a period of four years and five months in total – amounted to a breach of their rights under Article 6(1) of the European Convention on Human Rights ("the Convention"). The application number was 28805/21. In a judgment dated 2 September 2025, the Second Section of the ECHR: (1) Declared that the complaint concerning the excessive length of the confiscation proceedings was admissible, in so far as it related to the period between the applicants' conviction and the refusal by the Court of Appeal of permission to appeal. The applicants' complaints in relation to alleged further delays in enforcement decisions since 9 February 2021 were declared inadmissible; and (2) Held that there had been a violation of Article 6(1) of the Convention. The applicants make their application to re-open their appeals under rule 36.15 of the Criminal Procedure Rules. This provides, in relevant part, under the heading "Re-opening the determination of an appeal": "(1) This rule applies where — (a) a party wants the court to re-open a decision which determines an appeal or reference to which this Part applies (including a decision on an application for permission

to appeal or refer); …. (2) Such a party must — (a) apply in writing for permission to re-open that decision, as soon as practicable after becoming aware of the grounds for doing so; and (b) serve the application on the Registrar. (3) The application must — (a) specify the decision which the applicant wants the court to re-open; and (b) explain — (i) why it is necessary for the court to re-open that decision in order to avoid real injustice, (ii) how the circumstances are exceptional and make it appropriate to re-open the decision notwithstanding the rights and interests of other participants and the importance of finality, (iii) why there is no alternative effective remedy among any potentially available, and (iv) any delay in making the application. …. (6) The court must not re-open a decision to which this rule applies unless each other party has had an opportunity to make representations. [Note. The Court of Appeal has power only in exceptional circumstances to re-open a decision to which this rule applies.] " The Facts and the Procedural History It is necessary first to summarise the facts of this case and the procedural history. The first applicant is the father of the second applicant. On 16 September 2016, following a trial in the Crown Court at Birmingham, each applicant was convicted of conspiring to manage a brothel. On 17 October 2016, each was sentenced to 27

months' imprisonment, and each served this sentence. The prosecution applied for a confiscation order under the Proceeds of Crime Act 2002 ("POCA"). The applicants operated two brothels in Birmingham. One, "Bunny's" was operated between 1 February 2010 and 19 March 2012, when it was closed down by the police. The relevant starting date for the purposes of calculating the benefit in the confiscation proceedings was 5 September 2010. The second club, "Libra", was operated from 13 September 2010 to 10 February 2015. The issues in the confiscation proceedings, and the calculations required, were complex. The applicants refused to disclose any documentation or data in relation to the turnover of the brothels or the benefit received from them. The prosecution and their financial analyst were, therefore, required to design a methodology for calculating benefit from the information available to the police and prosecution. In short, they designed a methodology based on the prices charged by the sex workers, and the footfall by customers at the premises, adjusted for the length of time they spent on the premises, and making adjustments for other factors, such as different levels of business at different times of the week and different times of the year. The applicants instructed their own forensic accounting expert. She criticised the methodology of, and the figures produced by, the

prosecution analyst. There were numerous delays in the confiscation proceedings being concluded. The reasons for these delays were summarised by Popplewell LJ as follows: "4. … The delays in concluding the hearings were principally caused by (1) the financial reports on each side needing to be revised by the experts to rectify mistakes and to deal with new points raised by counsel and by the judge; and (2) court days and counsel being unavailable – a problem exacerbated by inadequate time estimates giving rise to a number of adjournments. In addition the judge was unable to produce the judgment for several months due to the lack of reading days provided for him to be able properly to consider the case." There were directions hearings in relation to the confiscation hearing in May and December 2017 and in March 2018. The substantive hearing of the confiscation proceedings took place on dates in July and August 2018, February 2019, March 2019, April to May 2019, and June 2019. On 7 June 2019, closing submissions were made by the parties. His Honour Judge Bond indicated at that stage that he would hand down his ruling by 17 July 2019. In the event, as we have said, the ruling was not handed down until 17 January 2020. In his ruling, the judge explained that the delay since July 2019 had been caused by the fact that he had not been provided with judgment writing time by the

court. On 17 January 2020, the judge made the following determinations. He found that the benefit was £6,043,548.18, and the total expenditure to be £2,868,739. This meant that the available amount was £3,174,809.18. The judge found that this money had not been spent but was a hidden asset. He therefore made confiscation orders, in respect of each of the applicants, in the sum of £3,174,809.18. He ordered that payment should be made within three months. The judge was required to set a default term of imprisonment in the event of non-payment, pursuant to section 35 of POCA. Section 35(2) of POCA provides that where the amount of the confiscation order exceeded £1 million, the maximum default term is 14 years' imprisonment. The judge imposed a default term of ten years' imprisonment. It is worth noting that, pursuant to section 38(5) of POCA, where a defendant serves a term of imprisonment in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect so far as any other method of enforcement is concerned. In the course of his judgment in the confiscation proceedings, the judge said that the applicants' expert had produced a 50 page report. He said that the finances in this case had been complicated. The judge said, at paragraphs 4 and 5 of his judgment: "4. … Mistakes have been made by

both Mr Tinsley, the prosecution's financial analyst, and by Ms Claire Berrington, the defence financial expert. From my point of view this has been unsatisfactory as the reports have had to be revised on several occasions causing real delays in this case and making the case even more complicated. The time estimate for these POCA proceedings was wholly inadequate which meant on several occasions the case had to be adjourned to another date. The delays were lengthy as all counsel were unavailable for long periods of time.

5. I was unable to produce this judgment for several months having heard the final submissions of counsel. I apologise for this delay. I was simply not given the number of reading days required to consider and write this judgment until now. The delays in the case meant that I had to refresh my memory on several occasions in order to comprehend the evidence which was complicated to say the least." The judge's judgment was very detailed and thorough; it ran to 20 pages. The Court of Appeal in 2021 described it as an "impressive, detailed and clearly reasoned judgment" – a view with which we concur. The applicants each gave evidence in the confiscation proceedings. They both said that the first applicant was not involved in the running of the brothels. The judge said: "I reject these assertions completely". Indeed, by the time that closing submissions were made, the applicants' own counsel conceded that the first applicant was responsible for the benefit along with his son, thereby accepting that their evidence had been lies. At paragraph 19 of his judgment, the judge said: "In those circumstances, I am sure that both defendants have lied to me on oath". The judge also rejected the applicants' evidence that there were no records relating to the earnings of the brothels, or the expenses in running them, and that the applicants were not aware of the income coming into the business

or of the expenses. The judge found that the applicants had chosen to hide their criminal gains by not keeping or disclosing any records. The judge said that the only persons who knew of the true benefit received from the brothels were the applicants themselves. They refused to divulge it and so it ill-behoved them to criticise the methodology adopted by the prosecution, or simply to assert that the figures were too high. He said: "Having seen both defendants give evidence, I am sure … that they are trying to take advantage of their lack of records." Later, in the course of her evidence, Ms Berrington (the applicants' expert) suggested a completely different methodology, which the judge rejected. It was based on evidence from the second applicant, which the judge found to be untruthful. The judge further rejected the applicants' evidence that the available money had been spent. As we have said, the applicants sought leave to appeal against the confiscation order. They relied on a large number of proposed grounds of appeal, one of which was delay. Leave was refused on all grounds by the single judge. In the judgment given by the full court on the renewed application for leave on 9 February 2021, Popplewell LJ dealt with the delay ground at paragraph 20, as follows: "Ground 6 is that the hearing was unfair because of the delay and that some adjustment should accordingly be made.

This too in our view is unarguable. The delays were not such as to prejudice the applicants. Their evidence that no records had been kept was disbelieved and the judge was entitled to find that it was a deliberate choice not to deploy records which existed. The passage of time cannot therefore have had any significant adverse prejudicial impact. Indeed, counsel appearing before the judge on their behalf did not at any stage in the confiscation proceedings suggest that the delay had caused any prejudice or unfairness." It is important to note that the applicants did not seek to rely upon Article 6 of the Convention as part of their delay argument. We have looked at the proposed grounds of appeal and they do not make any mention of Article 6. A separate ground, ground 5, was that the default period was too long, for various reasons enumerated by Mr Schofield KC, who also appears for the applicants before us, in oral argument. Those grounds did not include the delay in the confiscation proceedings. On 25 November 2021, the case was listed before District Judge Qureshi at Birmingham Magistrates' Court for enforcement. The applicants applied for the enforcement proceedings to be stayed as an abuse of process. That application was refused by the District Judge, and warrants were issued for the applicants' arrest. The District Judge issued warrants of commitment in respect of each

applicant, in which he activated 3,598 days of the ten year term. He reduced the term by 56 days because the applicants had paid £49,000 towards the total. The applicants then sought permission to judicially review the District Judge's ruling. They argued, inter alia , that the delay between their conviction and the making of the order, and between the making of the order and the exhaustion of their appeal rights, had breached their Article 6 rights to a hearing within a reasonable time. Permission to apply for judicial review was refused on the papers. The reasons for the refusal are summarised at paragraph 16 of the ECHR judgment as follows: "16. On 27 April 2022 the High Court refused the application for permission. It noted that the delay had occurred before the Court of Appeal refused permission to appeal; the applicants had not alleged, and there was no basis for alleging, that there had been any subsequent delays. As the Court of Appeal had found that the delays had no significant prejudicial impact on the applicants, there was no arguable basis for challenging the decision not to stay the enforcement proceedings on grounds of delay." The second applicant began to serve his prison sentence in default in August 2022. The warrant of committal was never executed against the first applicant, because he has absconded and remains outside the jurisdiction. He has not spent any

time in prison as part of the default term, although he is liable to serve the term if he is apprehended or returns to the jurisdiction. Those who are imprisoned in default for failure to comply with confiscation orders serve one-half of their sentences in prison. A person sentenced to ten years' imprisonment can, therefore, expect to serve five years in prison. The second applicant applied in 2024 for release from prison on compassionate grounds. He was refused and commenced proceedings for judicial review. These proceedings had nothing to do with any delays in the confiscation proceedings. They resulted in a ruling of the Court of Appeal on 26 March 2025 in R (Neophytou) v Governor of HMP Berwyn and another [2025] EWCA Civ 348 ; [2025] 4 WLR 37 . The Court of Appeal held that the Governor of HMP Berwyn had been wrong to refuse to submit the first applicant's application for early release on compassionate grounds under section 258 of the Criminal Justice Act 2003 to the Secretary of State for determination. In his judgment in the appeal in the judicial review proceedings, Bean LJ said that the second applicant's psychological symptoms arising from an incident in 2014, when he had been kidnapped by criminals, had been significantly exacerbated by his imprisonment. Despite his success in his appeal in the judicial review proceedings, the second applicant remains in prison. His

application for release on compassionate grounds was reviewed by the Secretary of State, and, on 30 September 2025, it was refused. He is due for release in 2027, when he will have served five years' imprisonment. As we have said, the first applicant has absconded and has not spent any time in prison as part of the enforcement of the default term. The next strand in the litigation is the application to the European Court of Human Rights. The applicants lodged their application with the ECHR at Strasbourg on 15 May 2021. They contended that the United Kingdom was in breach of Article 6.1 of the Convention as a result of the delay in the confiscation proceedings. Article 6.1 provides, in relevant part, that "in the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time …" As we have said, the ECHR handed down its judgment on 23 September 2025. The ECHR held that only the complaint of delay which related to the period from conviction in September 2016 until the hearing of the application for leave to appeal against the confiscation order in February 2021 was admissible. In our judgment, whilst the ECHR referred to the period to be taken into consideration as being the period of four years and five months, between 16 September 2016 and 9 February 2021, the Court did not find that the whole of that period

amounted to an unreasonable period of delay in breach of Article 6(1). Indeed, it would be very surprising if the Court had done so. It is inevitable that complex confiscation proceedings will take some considerable time, especially where, as here, the offenders in respect of whom confiscation orders are being sought are being as obstructive and dilatory as possible. At paragraph 28 of its judgment, the Court said: "The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities, and what was at stake for the applicants (see, among many other authorities, Pélissier and Sassi v France [GC], no. 25444/94, paragraph 67, ECHR 1999-II)." At paragraph 29 of its judgment, the ECHR said that both parties would appear to bear some responsibility for many of those delays. These included: delays in submitting statements to the court; inadequate time estimates; the unavailability of counsel which resulted in several lengthy adjournments; and mistakes by the parties' financial experts, which required their reports to be revised and which caused further delays. It is clear from the judgment that the Court did not hold the State responsible for these delays. At paragraph 30 of the judgment, the Court said: "The

respondent State, on the other hand, would appear to have been solely responsible for the unavailability of court days and the judge having insufficient reading days, which delayed his ruling for six months." We will come back later in this judgment to address the issue of how much of the period under consideration was found by the ECHR to be the result of unreasonable delay. Pursuant to Article 41 of the Convention, the applicants were entitled to submit a claim for just satisfaction, that is, for a remedy from the ECHR that went beyond the declaration and finding that the Court made at the end of its judgment. The judgment records that the applicants did not submit a claim for just satisfaction. Just satisfaction, when awarded, takes the form of an award of financial compensation against the State. Following the judgment of the ECHR, on 26 September 2025, solicitors acting for the second applicant wrote to the Ministry of Justice, requesting that, in light of the judgment, the confiscation order and the term of imprisonment in default should be quashed; and that the second applicant should be released from prison on the basis that, as the solicitors put it, "every day that he spends in prison is a further breach of Article 6". In a response dated 30 October 2025, the Ministry of Justice said that it did not accept these propositions. The letter said that there was no ongoing

breach of the Article 6(1) reasonable time requirement. The letter pointed out that the ECHR did not find that the proceedings or the order made were unfair. The Ministry of Justice further said that it is well-established that a violation of the reasonable time requirement does not act as a bar to the matter in which the violation has occurred proceeding further. The Ministry referred to paragraph 24 of Lord Bingham's judgment in Attorney General's Reference (No 2 of 2001) , to which we will refer below. The Ministry of Justice's letter said that the Secretary of State has no general and unfettered power to direct the release of prisoners who are serving terms of imprisonment imposed by the courts. The outcome of the application to the Strasbourg Court did not bring the applicant within the terms of the Early Release on Compassionate Grounds procedure. The letter pointed out that it was open to the applicants to make an application to the court. Also, on 23 October 2025, the second applicant contacted Birmingham Magistrates' Court (the enforcement court) and requested that the court release him from custody following the Strasbourg Court's decision. On 24 October 2024, the second applicant was informed that his letter had been placed before District Judge Qureshi, who said that the magistrates' court has no power to re-open the case or to amend the decision to issue the

committal warrant. Next, on 3 November 2025, an application was made to His Honour Judge Bond at Birmingham Crown Court to vary the confiscation order by reducing the default term. The judge was invited to reduce the default term to one of seven years' imprisonment, which would have resulted in the second applicant's immediate release. On 19 December 2025, His Honour Judge Bond announced his decision, which was that he had no power to vary the default term. He gave a written judgment to this effect on 23 February 2026. The applicants thereafter made the application to this court to re-open the appeal for which leave was refused in February 2021. This is the application with which we are currently concerned. The Parties' Submissions On behalf of the applicants, Mr Thomas Schofield KC accepted that it is only in exceptional circumstances that this court should re-open an appeal that has already been determined, whether those exceptional circumstances follow a procedural defect, or whether they arise in any other way. Mr Schofield KC submitted that such exceptional circumstances exist in the present case. He said that a delay in breach of Article 6 of the Convention is an exceptional procedural defect, or, in any event, is an exceptional circumstance. It is different from a case in which the outcome might have been different in light of a change of law or reformulation of legal

principles in a separate case. He accepts that the fact that the law applied by a court has subsequently been declared in a different case to be mistaken will not amount to exceptional circumstances: see R v Jogee [2016] UKSC 8 , at paragraph 100. However, he said, the present case is different, because the clarification of the law that has been provided by the ECHR has been made in the same case and upon the same issues as in the previous renewed application before the Court of Appeal. As a result, the current application does not undermine the "finality" principle. Mr Schofield KC observed that, pursuant to section 2(1) of the Human Rights Act 1998, domestic courts are obliged to "take into account" the judgments of the ECHR. He said that where the ECHR was dealing with the same point as the domestic court, it would be an extremely rare case indeed in which the domestic court should conclude that the Strasbourg Court had got it wrong. In other cases of the Strasbourg Court on delay and Article 6, in the context of confiscation proceedings, there has been no subsequent criticism of the Strasbourg Court's decision. He referred to Bullen and Soneji v UK (Application 3383/06) and Minshall v UK (Application 7350/06). Mr Schofield KC submitted that there are exceptional circumstances why the delay issue should be re-opened in the present case, arising from a number of factors.

First, there is the disjointed nature of the lengthy confiscation proceedings before His Honour Judge Bond. Second, a default sentence imposed such a long time after release from imprisonment for the substantive offence imposes a hardship on the offender. Mr Schofield relied upon the decision in R(Lloyd) v Bow Street Magistrates' Court [2003] EWHC 2294 (Admin) ; [2004] 1 Cr App R 11, in which the Divisional Court stayed proceedings to commit an offender to prison for default in paying a confiscation order, because of breaches of Article 6.1, resulting from delay. Third, there are the personal circumstances of the offenders. The first applicant is 75 years old and is said to be in ill-health. The second applicant is now 35 years old. He has a child. Both applicants are a lot older than they were when they committed the offences. It is submitted that there has been a decline in the second applicant's mental health. No evidence has been placed before the court about this. Rather, reference was made to the observations of Bean LJ in the HMP Bedwyn case. Mr Schofield KC also referred to the current overcrowded state of prisons. As for the length of the period of exceptional delay, Mr Schofield submitted that the fact that the applicants had not provided the court with any contemporaneous accounting documents meant that the exercise was not as complex as it might have been. Mr

Schofield said that the judge, in his judgment, did not attribute any of the delay to the applicants personally. As for the seven month period between the final hearing and the ruling being handed down, Mr Schofield submitted that this period was particularly inexcusable, because it was a stressful period and was the result of the judge not being given sufficient reading and judgment writing days. Mr Schofield KC submitted that the period between the judge's ruling and the decision of the Court of Appeal on the renewed application should also be taken into account, although he acknowledged that the ECHR did not criticise delays in this period. The applicants were entitled to exercising their entitlement to appeal against the decision. Indeed, Mr Schofield submitted that this court should take account of the whole of the period between the second applicant's release from his sentence for the index offence (that is December 2017), and his return to custody to commence serving the default term, which was a period of four years and eight months. He also said that we should take account of the fact, which he described as no small irony, that the ECHR itself took four years from application to judgment. Next, Mr Schofield KC said that this court should re-open the appeal, because there is simply no alternative remedy available to the applicants to implement the judgment of the

Strasbourg Court. The Ministry of Justice has refused to act. He submitted that this court can act under section 8(1) of the Human Rights Act 1998, which provides that, in relation to any act which is unlawful under that Act, the court may grant such relief or remedy, or make such order within its powers as it consists just and appropriate. Mr Schofield KC said that the applicants do not seek a reduction of the benefit figure, the available amount figure, or the confiscation order. They accept that the confiscation order will remain effective in the full amount, plus interest, until they have fully disgorged the order. They simply seek a reduction of the default term, to a period of seven years, which will result in the second appellant's immediate release. In his skeleton argument, Mr Schofield also suggested that, in any event, a seven year default term was more proportionate than a ten year term in this case, and he developed that submission orally before us. On behalf of the respondent, Mr James Curtis KC submitted that the fact and the terms of the ECHR judgment do not ipso facto place any legal duty on the Court of Appeal to alter the original penalty. The determination of this court must depend on the facts. Mr Curtis KC submitted that the exceptional power to re-open an appeal under CPR 36.15 should not be exercised because, at all material times, the applicants had an

alternative remedy, namely, to pay the sums owed. Therefore, the applicants have suffered no injustice. Mr Curtis KC further submitted that the finding that there had been a delay, in breach of Article 6, does not mean that a defendant is automatically deprived of a fair trial. Mr Curtis KC submitted that in R v Guraj [2016] UKSC 65 , the Supreme Court held that a procedural defect which gave rise to no unfairness, or none that could not be cured, would be no obstacle to making a con?scation order. By the same reasoning, a procedural defect in the form of delay which gives rise to no unfairness, as here, does not justify the re-opening of an appeal. Mr Curtis KC submitted that it appears that the ECHR judgment limited the delay to that occasioned by the lack of court time. This was only a small part of the total period under consideration of four years and five months. The confiscation proceedings were complex and would inevitably have taken a considerable time. Most of the delay had nothing to do with any default on the part of the court. The only delay that can be taken into consideration as exceptional and unreasonable delay is the six months between July 2019 and February 2020, during which the judge was denied sufficient reading and preparation time for his judgment. Mr Curtis KC submitted that this relatively small period of delay does not give rise to any prejudice

affecting the applicants and does not give rise to exceptional reasons for allowing the appeal to be re-opened. Discussion This court's power to re-open appeals, pursuant to Criminal Procedure Rule 36.15 An authoritative summary of the scope of this power, and the circumstances in which it should be exercised, has been given by this court in R v Field [2022] EWCA Crim 316 . In that case, the President of the King's Bench Division, Sharp LJ, said: "38. The underpinning rationale for this rule is, of course, the avoidance of injustice. But that has to be set in the context of the need for finality in judicial decision making. A legal system would be unworkable if a party, having no further right of appeal under the Rules, could simply seek to open up a final decision, after a hearing where the respective arguments have been presented and debated, on the ground that that party considers the reasoning and outcome wrong and unjust. Moreover, the interests of the losing party are not the only interests to be considered. The wider public interest in the good administration of justice and in finality and the interests of the victim and victim's family also have to be taken into account: as reflected in the language of the Rule.

39. It is essentially for these reasons that an application to open up a final decision is regarded as an exceptional step. In the context of criminal appeals, the position has been discussed in a number of cases. Some antedate Crim PR 36.15; but all authoritatively set out, in consistent terms, the approach required to be adopted and stress that such applications can succeed only in exceptional circumstances.

40. Some instances where a final decision may be re-opened involve cases where there has been a fundamental defect in procedure giving rise to real injustice or where a decision can be treated as equivalent to a nullity: for example, where an applicant has stated a wish to renew an application for leave to appeal against sentence through counsel but by error counsel is not notified of the hearing date: R v Daniel (1977) 64 Cr App R 50; [1977] QB 364. The position generally is discussed further in R v Yasain [2015] EWCA Crim 1277 ; [2015] 2 Cr App R 28 ; [2016] QB 146 .

41. In R v Gohil [2018] EWCA Crim 140 ; [2018] 1 Cr App R 30 ; [2018] 1 WLR 3697 , the position was fully reviewed. It was held, at paragraph 110, that the Court of Appeal (Criminal Division) will not re-open a final determination of an appeal unless (i) it is necessary to do so in order to avoid real injustice; (ii) the circumstance are exceptional and make it appropriate to re-open the appeal; and (iii) there is no alternative effective remedy. (These criteria, of course, were subsequently reflected in Crim PR 36.15). The court went on to hold that these were what might be described as 'necessary conditions' for the exercise of the jurisdiction and that, almost invariably, they had to be cumulatively satisfied. The court further went on to suggest (at paragraph 129) that the jurisdiction was 'probably best confined to "procedural errors"' – the court contemplating that such errors were to be 'clear and undisputed'.

42. The courts' reluctance to re-open final determinations is further illustrated by the approach taken in R v Hockey [2017] EWCA Crim 742 ; [2017] 2 Cr App R 23 ; [2018] 1 WLR 343 . An application, some years after the original decision, to re-open a confiscation order was made on the footing that subsequent appellate authority had shown that the original confiscation order had been made on a misinterpretation of the proper application of the Proceeds of Crime Act 2002. The court refused the application. It emphasised the 'very limited' nature of the jurisdiction. It went on to say (at paragraph 14) that the jurisdiction was 'absolutely not available' where it was said that the proper construction of the relevant legislation had been misunderstood.

43. Finally, it should be added that the exceptional jurisdiction to re-open a final appellate determination perhaps may not necessarily be confined to cases of nullity or of procedural errors, as (with qualification) had been suggested in Gohil . Thus in R v CC [2019] EWCA Crim 2101 ; [2020] 1 Cr App R 15 , the court, whilst endorsing the decision in Gohil , stated (at paragraph 22): '… 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 re-open a decision to avoid a manifest injustice'." In summary, therefore, this court can re-open an appeal in exceptional circumstances, if it is necessary to do so in order to avoid real and manifest injustice, and there is no alternative effective remedy. The court should be aware of the importance of finality. Although the power will normally be exercised in cases of procedural errors, it is not limited to such errors. The grounds for the present application can, in our view, be characterised as a procedural error on the part of the Crown Court at the confiscation hearing stage. There was no procedural error on the part of the Court of Appeal which dealt with the applicants' cases in 2021. What is the period of unreasonable delay, in breach of Article 6.1, that the ECHR found to have taken place ? On behalf of the applicants, Mr

Schofield KC submitted that this court should proceed on the basis that the ECHR had found there to be an unreasonable delay on the part of the State, for the whole of period of four years and five months, from the convictions in 2016 until the Court of Appeal's rejection of the applicants' application for leave to appeal in February 2021. In the alternative, he submitted that the court should treat the whole of the period from the second applicant's release from prison for the index offence, in December 2017, until his return to custody to commence serving the default term, a period of four years and eight months, as delay tainted by the breach of Article 6.1. We do not accept this submission. It is clear from paragraph 30 of the ECHR's judgment, set out above, and from the judgment as a whole, that the ECHR did not decide that the whole of the period of four years and five months that it had been asked to consider amounted to an unreasonable delay in breach of Article 6.1. The Strasbourg Court only found the United Kingdom responsible for the delays that were the fault of the court system. Paragraph 30 of the judgment makes clear that these were limited to delays resulting from the unavailability of court days and the judge having insufficient reading days. It is absolutely plain from the judgment that the ECHR did not hold the State responsible for the other delays resulting

from the complexity of the case; inaccurate time estimates by counsel; the unavailability of counsel; the lack of co-operation and deliberate obfuscation on the part of the applicants; mistakes by experts; or the pressing demands on the court system arising from the rest of its caseload. Also, there is no criticism by the ECHR of the time taken in the period between 21 January 2020, when His Honour Judge Bond handed down his ruling, and 9 February 2021, when the Court of Appeal rejected the renewed oral application for leave to appeal. Nor could there be. So far as the delay arising from the fact that insufficient reading or judgment writing days were made available to the judge after the final hearing came to an end in June 2019, it is clear that the Court considered that the unreasonable delay lasted for six months. This is explicable on the basis that the judge, somewhat optimistically, announced that he would hand down his judgment in July 2019, but did not do so for a further six months. We do not read the judgment to mean that there was a further unreasonable delay, beyond the six months resulting from a different failure on the part of the State, arising from the unavailability of court days. We read paragraph 30 of the judgment to mean that the words "unavailability of court days and the judge having insufficient reading days" refer to the same thing, namely that not

enough time was built in for the judge to consider, write, and prepare his judgment in a reasonable time after the final hearing date. We do not think that this is a reference to the unavailability of court days during earlier stages of the confiscation hearing process, for two reasons. First, if that was so, then the Court would have quantified it, by saying for how much more than six months the delay had lasted. Second, it is hard to see how the Court could or would blame the State for the unavailability of court days, when it had already recognised that the case was a complex one, that adjournments were required because of inadequate time estimate and mistakes on the part of experts, and that the difficulty in finding dates was caused by the unavailability of counsel, none of which can possibly be the fault of the State. Also, if the Strasbourg Court was thinking of holding the State to account for the unavailability of court days, it would no doubt have considered and factored in the other legitimate demands on court time and the need to deal with other Crown Court work, such as cases of rape and other serious sexual offences. The fact that no reference is made to this in the judgment leads us to conclude that the only culpable delay that the Court found to have taken place was the six months between July 2019 and January 2020. The question of prejudice, and the question

whether exceptional circumstances exist which justify the re-opening of the appeal, must therefore be considered against the background that the relevant delay was no longer than six months. Is this court bound to accept the conclusion of the ECHR on the breach of Article 6 ? Section 2(1)(a) of the Human Rights Act 1998 provides that: "(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any — (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights …" This court is not, therefore, bound by a judgment of the ECHR. It must take a relevant judgment of the ECHR into account. What this means was explained by the Supreme Court in R v Horncastle and others [2009] UKSC 14 , at paragraph 11. The Supreme Court said: "… The requirement to 'take into account' the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this Court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this Court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the

opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court ..." We must confess to having some doubts about the conclusion that was reached by the ECHR on the issue of delay and Article 6.1. Read literally, it would appear to suggest that any delay beyond one month between the end of the hearing and delivery of the judgment, was an unreasonable delay and a breach of Article 6.1. This seems, with respect, somewhat harsh in the circumstances of the present case. The judge was a very busy judge in a large criminal court centre with a very heavy workload. The judge had to consider a complex set of facts, made much more difficult by the lies and lack of co-operation on the part of the applicants, which resulted in the need to design and work through a complex methodology to calculate benefit. The suggestion, made in the skeleton argument on behalf of the applicants and repeated orally, that the lack of documentation disclosed by the applicants made the judge's job easier, rather than more difficult, is, we think, wholly misconceived, to put it mildly. The judge had to consider expert evidence. The judge had to recall the evidence and arguments presented to him on numerous separate occasions over many months. He then had to marshal his thoughts and to

draft a judgment. If it is being suggested that it is a breach of Article 6.1 for a judge to fail to achieve all of this within a period of one month, we would respectfully disagree. It may be, however, that the Strasbourg Court was influenced by the fact that, at the end of the final hearing, the judge announced that he would deliver his judgment one month later. We do not, for the purposes of the issue before us, have to decide whether we agree with the conclusions reached by the ECHR. For the purposes of the matter in hand, we will assume, in the applicants' favour, that the Strasbourg Court was right to conclude that there was an unreasonable delay of six months in breach of Article 6.1. Have the applicants suffered a real and manifest injustice as a result of the refusal of their applications for leave to appeal in 2021, and should the court remedy this by re-opening the appeal and by reducing the period of the default sentence from ten years to seven years' imprisonment ? These are two sides of the same coin. The only purpose that would be served by re-opening the appeal would be to do so in order to grant leave to appeal and then to allow the appeal to the extent of reducing the default sentence from ten years to seven years' imprisonment, so that the second applicant achieves immediate release. We do not consider that exceptional circumstances exist such that this court

should re-open the appeal so as to reduce the period of the default sentence. We fully accept the submission made on the applicants' behalf that, in an appropriate case, the court may respond to a delay in breach of an offender's Article 6.1 rights by waiving or reducing the term of imprisonment in default in confiscation proceedings. This power is derived from section 8(1) of the Human Rights Act 1998, which provides: "8. Judicial remedies (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate." In Attorney-General's Reference (No 2 of 2001) [2001] UKHL 68 , the House of Lords said, at paragraph 24: "If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant's Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. … If the breach of the reasonable time requirement is established

retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant …" In the Lloyd case, there was an unreasonable delay of five years in the institution of proceedings to enforce a confiscation order by means of a warrant to commit the claimant to custody for non-payment of the sums outstanding. The Divisional Court held, at paragraph 34 of its judgment, that the only proper remedy for the breaches of Article 6.1 in that case was to order that the enforcement proceedings to commit the claimant to prison for default in paying be stayed. It does not follow, however, that in every case in which the ECHR or a domestic court finds that there has been a breach of Article 6.1 by reason of delay, the court must make a reduction to the term to be served in default. As the House of Lords said in Attorney General's Reference (No 2 of 2001) , the court must afford the affected person or persons such remedy as is just and appropriate; but the appropriate remedy will depend on the nature of the breach and all the circumstances. Each case will depend on its own facts. The House of Lords also made clear in that case that the appropriate remedy may simply be a public acknowledgment. In our judgment, in the present case, the key reason why the delay which resulted in a breach of

Article 6 should not result in a reduction in the default prison term is that there is no connection, in logic or in fact, between the culpable delay and the length of the default term. The six month additional delay between the hearing and the judgment had no impact whatsoever on the judge's decision on the length of the default term. It did not have an adverse effect on the evidence upon which the applicants relied. Indeed, to the extent that they provided the court with evidence at all during the confiscation hearing, it consisted mainly of lies. It did not in any way impede the judge's ability to reach and explain his decision. As we have indicated, his judgment, when it came, was clear, thorough and very well-reasoned. The delay did not, therefore, give rise to any injustice so far as the length of the default term was concerned. We do not accept the submission made orally by Mr Schofield on behalf of the applicants that the court should take account of the entirety of the time that has elapsed, regardless of whether that delay was in breach of Article 6.1. There is a logical inconsistency at the heart of the applicants' argument before us. With respect, it makes no sense to accept that the judge's decisions as regards the benefit figure, and the available amount figure should stand, and yet to contend that the judge's decision in relation to the length of the default

prison term should be amended. Similarly, it makes no sense that the applicants should be inviting the court to amend the term in default, whilst accepting that the confiscation order will remain effective in the full amount, plus interest, until they have fully disgorged the order. If the delay caused injustice, then the whole machinery of the confiscation regime should fall away, so far as the applicants are concerned, as it is did for the claimant in Lloyd . We add that Lloyd was a completely different case, not least because the period of unreasonable delay was five years. In our judgment, the applicants' attempt to obtain a reduction of the term in default, as the prize for success in the proceedings in Strasbourg, is opportunistic. That is why the reduction sought is exactly the amount that would result in the second applicant's immediate release. This is a case in which the unjustifiable delay for which the State is responsible, although unfortunate, did not cause any harm or injustice for the applicants. It is impossible to say that the first applicant has suffered any significant prejudice or unfairness from the delay, since he has chosen to flee abroad and has not surrendered to the warrant, notwithstanding that he is still liable to serve the default sentence if he is apprehended or returns voluntarily to the jurisdiction. There is no sign that he plans to do so. It

is, to put it bluntly, a bit rich in these circumstances for him to contend that he has suffered a real injustice which requires this court to take the exceptional step of re-opening his appeal. As for the second applicant, the delay in breach of Article 6.1 did not significantly alter the point at which the second applicant went to prison. There is no evidence before this court that the second applicant has suffered any particularly or unusually adverse consequences from going to prison for failing to pay the sum due; but, even if he did, this would have nothing to do with the delay identified by the ECHR. This is not a case in which there was a long period in which nothing was done which misled the applicants into thinking that the confiscation proceedings had been dropped, such that it would be unfair to revive the proceedings. The general submissions made by Mr Schofield to the effect that on the facts of the case a sentence of ten years' imprisonment in default was disproportionate, and in particular that no sentence in default should ever be imposed that exceeds the custodial sentence for the index offence, are unrelated to the finding by the ECHR about the delay which is the trigger for this application to re-open the appeal. The culpable delay had no impact on the length of the default sentence. These were submissions that could be, and to some extent were, made in the

original appeal in 2021, and there is no reason why the applicants should be permitted to have a second opportunity to make them. We note in passing, however, that there have been occasions in which the Crown Court has imposed sentences in default following confiscation orders in the case of offences, such as environmental offences, that had resulted in a fine or a conditional discharge for the index offence itself, and those sentences have been upheld by this court. The position contended for by Mr Schofield is contrary to the express terms of the statue and would render the statutory scheme unworkable. This is a paradigm case in which the appropriate remedy for a breach of Article 6.1 arising from delay is a public acknowledgement of the breach. That has been done by means of the ECHR's judgment. It would not be just and appropriate for the court to do anything more. It is significant that the applicants only sought a declaration from the Strasbourg Court; they did not seek just satisfaction (although we recognise that just satisfaction would have led to a financial remedy, not to a reduction in the default term). There are other, perhaps subsidiary, reasons why in our judgment no real injustice would be caused if the 2021 application for leave to appeal is not re-opened; and nor are there any other exceptional circumstances why this should be done. First, the application

that we are dealing with is an application to re-open the application for leave to appeal that was dismissed in 2021. The applicants could have relied on Article 6.1 at that stage, but they did not do so. It is true that they relied upon delay in general, but that is a different matter from asking the court to exercise its power under section 2 of the Human Rights Act 1996 to consider whether there was a breach of Article 6 of the Convention. The applicants are, therefore, asking the court to re-open an appeal so that they can argue a point that they could have argued, but did not argue, first time around. Second, it is somewhat distasteful for the applicants to seek a substantial reduction in their terms in default because of a relatively short delay on the part of the State, when they were, through their lies and lack of co-operation, and through mistakes made by their forensic accountant, responsible for much longer delay to the process. They also delayed the putting into operation of their terms in default by the unsuccessful judicial review of the warrants of committal. Finally, there is some force in the respondent's submission that the applicants have, throughout, had an alternative remedy. They could have paid up and thereby avoided prison altogether, or could have obtained their release from prison. It does not avail them to say that they could not afford to do so. The

judge made findings that there was an available amount in the sum of £3,174,809.18, which had not been spent and which the applicants possess as a hidden asset. These findings were made on the basis of the evidence before the judge. The attempts by the applicants to obtain leave to appeal against the judge's findings in this regard were unsuccessful and there is no application to re-open them. Conclusion For these reasons, there are no exceptional circumstances which would justify the re-opening of this appeal, and the applicants' renewed application to re-open the appeal is refused. _________ BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII