R v Yasain

A case confirming the power of the Court of Appeal Criminal Division to re-open an appeal in order to correct an error

The appellant sought permission to appeal against conviction and sentence for multiple counts. The single judge, Walker J, refused permission on all grounds advanced.

However he noted that, according to the transcript of proceedings, no verdict in respect of the appellant had been taken from the jury on count 2, a count for which an 18 month consecutive sentence had been imposed. It seemed conceivable that there had been an error, and Walker J gave permission to appeal on that ground.

At the appeal everyone relied on the transcript. The Appellate court therefore accepted that there had been no conviction of the appellant on count 2, and directed the Crown Court record be amended; deleting the conviction on that count, and quashing the respective sentence.
Following an amendment to the record further investigation, as a result of enquiry by the original trial judge, revealed that the transcribers had made a serious error and had omitted to record the guilty verdict, which had been properly taken on count 2, against the appellant. Therefore, the judgment of the appellate court was founded on a mistake.

The question arose of what, if any, jurisdiction the Court of Appeal had to correct the mistake.
The appellate court considered different lines of authority. The court discussed case law that amendment could be made before the record had been amended. This was too late for that. A line of authority was discussed dealing with where an order had been a nullity, but this was not a nullity.

Finally there is an exception for where there has been a real injustice. The appellate court took the view that none of the previous case law however fully captured the scope of this principle and the court instead referred to broader principles and the Court of Appeal Civil Division case of Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528, which concluded that the Court has an implicit power to re-open a concluded appeal where it was necessary to correct wrong decisions and ensure public confidence in the administration of justice.

Held:
1. There is no basis for any distinction between the Civil Division and the Criminal Division as to the principles applicable to the jurisdiction under the implicit powers of an appellate court to correct procedural errors.

2. The Criminal Procedure Rules Committee should formulate a rule similar to that set out in CPR 52.17, to clarify the application of these principles in the Criminal Division.

3. This appeal was re-opened on the basis of the jurisdiction under Taylor v Lawrence.

4. The order of the court was set aside, the appellant's appeal against conviction and sentence was dismissed and the appellant's conviction on count 2 and the consecutive sentence of 18 months detention was affirmed.