Bavi v Snaresbrook Crown Court

As long ago as Saturday 27^th August 2005 the applicant, Malik Bavi, who is of Iranian extraction and is now in his early sixties, attended the Reading rock music festival. Shortly after his arrival and admission he was found not to be wearing the correct identification bracelet and in consequence he attracted the interest of the authorities, who in due course alerted the police.

The police found that in his rucksack was £18,500 in cash. That has given rise to a series of events, culminating in an application today, over seven years later, to re-open an application for permission to appeal to this court, which was itself finally determined, or arguably finally determined, by Sedley LJ in April 2009: that is to say, over three-and-a-half years ago.

Without going unnecessarily into the details, the police exercised a power under section 294 of the Proceeds of Crime Act 2002 to seize the cash which they had found in Mr Bavi's rucksack. Section 294 entitles the police to proceed in that way if a constable has reasonable grounds for suspecting that the cash is either recoverable property or intended by any person for use in unlawful conduct. According to certain authorities to which we have been directed, it is unnecessary for the constable to indicate from what criminal activity the property may have been derived; equally it is unnecessary for the constable to indicate the nature of the unlawful conduct for which he has reasonable grounds to suspect the person in possession of that cash may intend to use it in the future.

Having carried out that seizure, the police then made an application to the magistrates’ court under section 298 of the Proceeds of Crime Act. That gives to the magistrates power to entertain and to make an order for forfeiture of the cash if satisfied that the cash or any part of it is recoverable property or is intended by any person for use in unlawful conduct. Recoverable property, putting it broadly, is property which is derived from criminal conduct.

Mr Bavi appealed against that decision, which had been made by Deputy District Judge Maxwell in the Reading Magistrates’ Court on 15 March 2006, and his appeal was heard in January 2007 at the Snaresbrook Crown Court before Ms Recorder Booth QC, sitting with lay justices. The appeal was dismissed.

The only method of redress in such circumstances is to bring an application for judicial review. An application was made to the Administrative Court for permission to apply for judicial review. That came before HHJ Denyer, sitting as a Deputy High Court Judge, and on 1 December 2008 he refused permission to Mr Bavi to apply for judicial review. Mr Bavi sought permission to appeal to this court. That application came before Sedley LJ on the papers, and on 30 April 2009 Sedley LJ refused permission to appeal and, furthermore, certified that the application was totally without merit, which had the effect that it could not be the subject of an oral renewal.

I should perhaps explain very briefly that one reason, perhaps the principal reason, why Mr Bavi had been unsuccessful at every level was because, when confronted by the police with the circumstance that he was attending a music festival with a very large amount of cash in his possession, he gave explanations for having that large sum on his person which were not entirely consistent and which were thought at the time to lack credibility. I do not think it necessary to go into it any further than that.

There matters rested, although it is apparent from the papers that the confiscation and forfeiture of this very substantial sum has had severely deleterious and adverse consequences upon Mr Bavi, leading in particular to a period of homelessness. However, in due course he was able to obtain further medical assistance and in November of last year there was prepared on his behalf a report by a Dr Lachlan B Campbell, who is a consultant forensic neuropsychiatrist at the Blackfriars Medical Legal Consultancy. In that report Dr Campbell gives his reasons, having conducted an interview of Mr Bavi on his own at the doctor's London consulting rooms, for saying that Mr Bavi exhibits Asperger's syndrome, which Dr Campbell describes as a "developmental disorder of reciprocal social interaction". Dr Campbell also indicated that, with maturity (and I mentioned earlier that Mr Bavi is now in his early sixties), he now presents mainly with obsessive-compulsive-type symptoms. Furthermore Dr Campbell reported that, arising from this condition, Mr Bavi has seemingly submerged himself in a fantasy existence and that his capacity to form reasoned judgments about his abilities and prospects is correspondingly compromised.

Dr Campbell explains that Asperger's syndrome is a developmental disorder which emerges in the first few years of life and that, in consequence, there is little doubt that Mr Bavi would have been impaired by this condition on and around the 27 August 2005, which was the date on which he attended the music festival.

Dr Campbell also explains that many of the features of Mr Bavi's account which were found to be implausible are readily explicable in terms of the manifestations of Asperger's Syndrome in Mr Bavi, in particular a tendency to compulsive saving and a tendency to fantasize about his ability to set up a business of his own in the construction world and matters of that sort.

In short, if Dr Campbell's evidence is in due course accepted as reliable, and for the present there is no indication that it might not be, it might well offer a complete explanation for what was otherwise regarded by both the magistrates’ court and the Crown Court as an implausible explanation for his being found in possession of this large amount of cash at a music festival, in circumstances where it is clear that all concerned formed the view (rightly or wrongly) that the money was probably derived from unlawful activity and was further intended to be used in further unlawful activity, no doubt of the nature of drug trading at a music festival.

In those circumstances an application has been made pursuant to CPR 52.17 for the re-opening of the appeal, invoking what is colloquially known as the Taylor v Lawrence jurisdiction, and, in accordance with the usual practice, the application was in the first instance placed before Sir Stephen Sedley (as he had by then become), he being, as I have indicated, the single Lord Justice to whom the application had come in the first instance. 15 June of this year Sir Stephen Sedley set aside or revoked the totally without merit order which he had himself made on 13 April 2009 and adjourned to a full court the application under CPR 52.17.

One point which potentially arises on this application concerns the status of Sedley LJ's original order of 30 April 2009 refusing permission to appeal. Since Sedley LJ certified that the application was totally without merit, it was not possible for Mr Bavi at that time to seek an oral renewal of the application. Sir Stephen Sedley has now revoked that certification, but any application for an oral renewal is of course out of time. There are two possible routes home for Ms Mahmutaj, who has appeared today on behalf of the applicant, Mr Bavi. One would be that this court simply determine that an oral renewal is now possible provided an extension of time is granted. The second is that the court treats Sedley LJ's order of 30 April 2009 as the final determination of an appeal and entertains an application for it to be reopened pursuant to CPR 52.17.

The latter course presents Ms Mahmutaj with the higher hurdle to surmount because of the provisions of CPR 52.17, but since I am satisfied that she can surmount that hurdle with some ease it is unnecessary to determine for present purposes what is the precise status of Sedley LJ's earlier order. CPR 52.17 provides that:

“The Court of Appeal or the High Court will not reopen a final determination of any appeal unless –

(a)

it is necessary to do so in order to avoid real injustice;

(b)

the circumstances are exceptional and make it appropriate to reopen the appeal; and

(c)

there is no alternative effective remedy.”

Subparagraph (6) of the Rule provides that the judge (here, therefore, the single Lord Justice) "will not grant permission without directing the application to be served on the other party to the original appeal and giving him an opportunity to make representations."

The application to reopen the determination of the application for permission to appeal has been served on the respondents, Snaresbrook Crown Court, and the court service has indicated by letter to this court that it does not seek to be represented at this hearing and furthermore that the court wishes to remain neutral in the matter and will not attend unless otherwise directed by the court.

There is an interested party in the shape of the Thames Valley Police, who were of course the police force who took the initiatives to which I have already referred, but they too do not wish to take part in the application under CPR 52.17, nor indeed do they wish to oppose the grant of permission to appeal or indeed the grant of permission to bring an application for judicial review should the court feel so minded, although they do wish to reserve their position and may in due course wish to file detailed grounds and evidence in opposition to any application for judicial review.

The Court of Appeal has given guidance as to the circumstances in which the jurisdiction under CPR 52.17 may successfully be invoked in Re Uddin (A Child) [2005] EWCA Civ 52 at paragraph 5. Putting it shortly, it must be demonstrated that the integrity of the earlier litigation process has been critically undermined or corrupted, or at least that the injustice that would be perpetrated if the appeal were not re-opened would be so grave as to overbear the pressing claims of finality in litigation, and it must be demonstrated that there is a powerful probability that an erroneous result was arrived at on the earlier occasion.

For my part I have no doubt whatsoever that the case made out by Ms Mahmutaj, in her very helpful skeleton argument and in her brief submissions today, demonstrates overwhelming grounds upon which it is appropriate that the court should permit the re-opening of the application for permission to appeal and indeed should go further and grant permission to appeal against the order made by HHJ Denyer and take the step of granting permission to apply for judicial review. It is plain that, if the evidence of Dr Campbell is accepted, there is the real possibility that there has been real injustice in this case and furthermore that the integrity of the process both before the magistrates’ court and before the Crown Court has been critically undermined by the unavailability to those courts of medical evidence explaining the condition suffered by Mr Bavi, which may -- and of course I put it no higher -- provide a complete explanation for his otherwise irrational behaviour.

Accordingly, I would for my part grant permission under CPR 52.17 if that is necessary to reopen the determination of the permission to appeal application. I would grant permission to appeal against the order made by HHJ Denyer on 1 December 2008 refusing permission to apply for judicial review and I would grant permission to apply for judicial review. I do not think it is appropriate that we should go further and give directions. I would merely, for my part, remit the matter now to the Administrative Court for directions, bearing in mind that it may be, in the event, that the Thames Valley Police will require a little time to consider their position in the light of this judgment.

For all those reasons, therefore, I would dispose of this application in the manner which I have indicated.

I agree.

I also agree.