Bahbahani, R v

On 26 August 2014, Ali Bahbahani was convicted at Ealing Magistrates’ Court of two offences of being in breach of an enforcement notice, dated 8 May 2009 and 24 October 2012 respectively, contrary to section 179(2) and (8) of the Town and Country Planning Act 1990. Sentence, including the question of a confiscation order, was committed to the Crown Court. The applicant seeks leave to appeal against sentence. On 15 September 2017 in the Crown Court at Isleworth Mr Recorder Shepherd QC fined the applicant £2,000 and ordered him to pay £31,080 towards the prosecution costs. In addition he made a confiscation order in the sum of £4,310,311 under the Proceeds of Crime Act 2002 [“POCA”]. He imposed a sentence of eight years’ imprisonment in default of payment of the confiscation order and in default of payment of the fine. The applicant seeks leave to appeal against the sentence imposed and also to quash the conviction in the Magistrates’ Court, on the following bases:

The applicant bought 1, Waldegrave Road, London W5 in 2008. It is a terraced house. A building at the back of the house had been converted for self-contained residential use without planning permission. An enforcement notice was issued against the applicant on 8 May 2009 which ordered cessation of use and removal of the kitchen and bathroom facilities to be removed. The second notice, dated 24 October 2012, was in respect of the same property and required the removal of extensions erected without planning permission, that the second floor should cease being used as self-contained flats and that the property should be restored to its original condition.

The applicant does not live in the United Kingdom. His property interests in this country were managed by Saad Maki Abdul-Jalil, to whom the applicant granted a power of attorney under section 10 of the Powers of Attorney Act 1971 on 26 January 2004. He signed and delivered a general power of attorney to Mr Abdul-Jalil on 29 May 2012 which expressly authorised him to act on his behalf in connection with all legal affairs, including “appearing in court for me”.

Failure to comply with the notices resulted in the local authority laying two informations before the Magistrates’ Court on 18 December 2013. The first hearing was on 29 April 2014 when someone attended and asked for an adjournment. The second hearing was on 15 May 2014. The applicant’s case is that Mr Abdul-Jalil attended that hearing and entered not guilty pleas and that he then attended for the trial on 26 August 2014. He gave evidence pretending to be the applicant. At the trial the Magistrates convicted and committed the matter pursuant to section 70(5) of POCA. It is the applicant’s case that he was unaware of the existence of the proceedings in the Magistrates’ Court until after the conviction.

The applicant did not immediately lodge a notice of appeal against conviction, pursuant to section 108 of the 1980 Act, nor did he apply for the Magistrates to state a case for the opinion of the High Court pursuant to section 111 of that Act. At no stage were proceedings for judicial review issued to quash the convictions in the Magistrates’ Court on the ground that they were a nullity.

On 29 April 2015 the applicant appeared at the Crown Court with Mr Abdul-Jalil at a hearing in connection with sentence and confiscation. There had been two earlier hearings which the applicant did not attend. On 16 June 2015 he applied for leave to appeal out of time to the Crown Court against the conviction in the Magistrates’ Court. On 29 June that application was refused by His Honour Judge Edmunds QC. A second application was made in August 2015 but was once more refused on 10 September 2015. We have not seen the basis upon which he asked to court to extend time or the material he placed before the Crown Court to support his application.

Some months later, and after a restraint order pursuant to section 41 of POCA had been made in the Crown Court, relating to five properties in London, the applicant made an application pursuant to section 142 of the 1980 Act asking the Magistrates’ Court to reopen his case to rectify the suggested mistake in convicting him. That application was heard and dismissed on 19 July 2016. Thereafter, the applicant issued judicial review proceedings in the High Court to challenge the much earlier refusal by the Crown Court to allow him to appeal against the conviction out of time. Permission to apply for judicial review was refused by Collins J on 7 October 2016.

The abuse of process argument was rejected on 3 March 2017 and the applicant was sentenced on 15 September 2017. In the course of his ruling on 15 September the recorder rejected a submission that he had no power to make the confiscation order, because of what transpired at the Magistrates’ Court.

On 5 October 2017 the applicant applied to the Crown Court to state a case for the opinion of the High Court pursuant to section 28 of the Senior Courts Act 1981 [“the 1981 Act”] relating to the decision of the recorder on 15 September 2017 that he had power to make the confiscation order. That application was refused by the recorder on 4 December. The essence of the argument was that the recorder should have gone behind the certificate of conviction and treated the underlying proceedings as a nullity. That suggestion raises immediate difficulties, to which we shall return, regarding the power of the Crown Court.

The appellants’ notice seeking leave to appeal against sentence was lodged on 13 October 2017. On 20 October 2017 the court received an application for a declaration that the original trial in the Magistrates’ Court was a nullity and for an order of venire de novo, i.e. that there should be a new trial in the Magistrates’ Court. The applicant submits that such an application has no time limit and does not require leave.

The jurisdiction of the Court of Appeal (Criminal Division) to issue a writ of venire de novo is preserved by section 53(2) of the 1981 Act.

An order of venire de novo may follow the finding that a trial was a nullity to require the matter to be heard again. It is abbreviation of a longer Latin phrase which directed the sheriff to cause new lawful jurors to try a case afresh. The central issue in this application is whether it is available to attack a summary trial in the Magistrates’ Court, rather than a trial on indictment in Crown Court.

In the course of the abuse of process hearing in the Crown Court the applicant gave evidence about what had happened in the Magistrates’ Court. The recorder accepted that the applicant took no personal part in the proceedings and that Mr Abdul-Jalil represented to the Magistrates that he was the applicant. Mr Armstrong QC submits that the Magistrates’ Court proceedings were thereby a nullity. He submits that it matters not, as may be the case, that Mr Abdul-Jalil thought he was doing what the applicant authorised him to do. He impersonated the applicant when he entered the not guilty pleas, rather than acting as his agent in some way, and then again when he attended the trial and gave evidence as the applicant. He submits that the circumstances demonstrate that the conviction was a nullity. This court should so declare and quash the convictions and award a venire de novo, and thereby cure that nullity and remit the matter to the Magistrates’ Court to be retried. The committal for sentence and all that followed would fall away. He recognises that there is no precedent for this court, or its predecessors, to remit a matter for trial in the Magistrates’ Court but submits that in the face of what he suggests is a plain error we should use, indeed develop, the jurisdiction to avoid an injustice.

For the purposes of this application, it is unnecessary to consider any of the procedural questions that may arise surrounding an application (as part of an application for leave to appeal against conviction, sentence or otherwise) for an award of a venire de novo. That is because the Criminal Division of Court of Appeal has power to order a venire de novo only in the circumstances in which its predecessor, the Court of Criminal Appeal, could do so pursuant to powers conferred on it by the Criminal Appeal Act 1907. Such power did not include a power to declare a summary trial a nullity, or quash a conviction recorded in such proceedings, and remit the matter for retrial. Venire de novo was, and is, concerned only with trials on indictment, and with fundamental irregularities which render such a trial a nullity.

In R v Rose [1982] AC 822 Lord Diplock, with whom all other members of the Judicial Committee of the House of Lords agreed, traced the jurisdiction of the Criminal Division of the Court of Appeal in the context of venire de novo, between 829G and 831A:

“My Lords, the Criminal Division of the Court of Appeal was created by the Criminal Appeal Act 1966 which abolished the former Court of Criminal Appeal that had itself been created by the Criminal Appeal Act 1907. Its jurisdiction is entirely statutory, and was conferred upon it by subsections (1) and (2)(b) of section 1 of the Act of 1966. Subsection (1) of section 1 of the Act of 1966 provided:

“The jurisdiction exercisable before the commencement of this Act by the Court of Criminal Appeal shall, subject to the provisions of this section, be exercisable by the Court of Appeal and the Court of Criminal Appeal shall cease to exist.”

That subsection was repealed by Schedule 7 to the Act of 1968, which also repealed subsection (8) of section 1 of the Act of 1966. The Act of 1968 by Schedule 5 substituted a new paragraph (b) in section 1(2) of the Act of 1966.

Subsection (8) of section 1 of the Act of 1966 had read:

“The Crown Cases Act 1848 is hereby repealed, but the repeal shall not affect the jurisdiction to order the issue of writs of venire de novo vested by virtue of section 2 of that Act and section 20(4) of the 1907 Act in the Court of Criminal Appeal, and that jurisdiction is transferred with the other jurisdiction of the court to the Court of Appeal by subsection (1) of this section.”

This subsection contains clear parliamentary recognition that immediately before its abolition the Court of Criminal Appeal by section 20(4) of the Act of 1907 had been vested with jurisdiction to order the issue of writs of venire de novo. Such recognition was continued by the amendment by the Act of 1968 of subsection (2) of section 1 of the Act of 1966. In the result, the jurisdiction now vested in the Court of Appeal (Criminal Division) is conferred upon it in the following terms by section 1, subsection (2), as amended by the Act of 1968:

“(2)

The Court of Appeal shall consist of two divisions, namely – (a) the civil division … and (b) the criminal division which shall, subject to any such rules, exercise – (i) all jurisdiction of the Court of Appeal under Parts I and II of the Criminal Appeal Act 1968; and (ii) all other jurisdiction which was that of the Court of Criminal Appeal immediately before it ceased to exist (including the jurisdiction to order the issue of writs of venire de novo).”

The Act of 1966 has since been wholly repealed by the Supreme Court Act 1981, section 53(2) of which re-enacts the provisions relating to the criminal jurisdiction of the Court of Appeal which were in section 1(2)(b) of the Act of 1966.

The Criminal Division of the Court of Appeal thus has a twofold jurisdiction, viz. (i) its principal jurisdiction under Part I of the Act of 1968 (Part II deals only with its functions in relation to appeals to the House of Lords), and (ii) such supplemental jurisdiction as was conferred on the Court of Criminal Appeal by section 20(4) of the Act of 1907. Section 20, notwithstanding that, by subsection (1), it had abolished “Writs of error, and the powers and practice” which prior to the passing of the Act in 1907 then existed “in the High Court in respect of motions for new trials or the granting thereof in criminal cases,” had, by subsection (4), preserved and vested in the Court of Criminal Appeal certain jurisdiction which had originally been vested in the Court for Crown Cases Reserved by the Crown Cases Act 1848 (11 & 12 Vict. c. 78). Subsection (4), so far as is relevant to the instant appeals, was in the following terms:

“All jurisdiction and authority under the Crown Cases Act 1848, in relation to questions of law arising in criminal trials which is transferred to the judges of the High Court by section 47 of the Supreme Court of Judicature Act 1873, shall be vested in the Court of Criminal Appeal under this Act…”

So it is in this provision of the Act of 1907 that any limits upon the current jurisdiction of the Criminal Division of the Court of Appeal to issue writs of venire de novo must be found.”

The question whether section 20(4) of the 1907 Act included a power to issue a writ of venire de novo, and if so in what circumstances, was decided by a majority of the House of Lords in Crane v Director of Public Prosecutions [1921] 2 AC 299. It held that section 20(4) preserved the power to issue a writ of venire de novo formerly vested in the Court of Crown Cases Reserved by the Crown Cases Act 1848 [“the 1848 Act”]. The statutory scheme explained by Lord Diplock confirmed that decision. The reach of such writs was considered by Robin Cooke, as he then was, in his article “Venire de Novo”, (1955) 71 LQR 100. In particular, he considered the concept of ‘nullity’ in such circumstances.

There is no doubt that the power of the old Court of Criminal Appeal to issue a writ of venire de novo was limited to cases following trial on indictment, either in the Quarter Sessions or on Assize: see sections 1 and 2 of the 1848 Act. The Supreme Court of Judicature Act 1873 transferred the relevant powers from the Court of Crown Cases Reserved to the High Court, which in turn were transferred to the Court of Criminal Appeal in 1907. Quarter Sessions and Assize Courts were swept away by the Courts Act 1971 when the Crown Court was created and conferred with jurisdiction to conduct trials on indictment. We do not overlook that the writ has been issued in cases where the committal for trial from the Magistrates’ Court was a nullity. That is the fourth category of nullity examined by Robin Cooke in his article, between pages 104 and 105. The cases he examined include R v Gee [1936] 2 KB 442 and R v Phillips [1939] 1 KB 63. But the point is that where the committal for trial on indictment was invalidated by a fundamental flaw, it followed that the bill of indictment and subsequent trial were also a nullity.

As the jurisdiction of this court is statutory, including the jurisdiction relating to venire de novo, we have no power to expand it, even were we minded to do so. However, there is no good reason to consider doing so. There are varied ways in which a conviction in the Magistrates’ Court can be challenged – an appeal by way of case stated; an appeal to the Crown Court; and in judicial review proceedings in the High Court which has supervisory jurisdiction over inferior courts, including Magistrates’ Courts. There is the jurisdiction under section 142 of the 1980 Act already referred to and also a procedure under section 14 of the 1980 Act whereby a convicted person can apply to set aside a conviction on the basis that he was unaware of the proceedings.

The applicant may yet seek to challenge head on the convictions in the Magistrates’ Court and committal for sentence. The issues which arise, were such a challenge made, may not be entirely straightforward, in particular whether questions of discretion arise in connection with delay and relief. It is part of the applicant’s argument that when a conviction is properly to be regarded as a nullity, there is no basis upon which either delay or the broad discretion that surrounds the grant of relief in judicial review proceedings could stand in the way of quashing the proceedings. But those are arguments for the court with jurisdiction to consider them.

We turn to the alternative grounds of appeal, namely that of abuse of process and the appeal against sentence relating to the confiscation order under POCA.

It is argued on behalf of the applicant that the recorder wrongly refused to grant his application for a stay of the confiscation proceedings. It is submitted that in circumstances where the applicant was not present and could not be proved to have been aware of the criminal proceedings in the Ealing Magistrates’ Court before he was convicted, it was an abuse of process to continue with the sentencing and confiscation proceedings. It was also argued that once it was apparent that a third party had appeared before the Magistrates’ Court and impersonated the applicant, the recorder should have stopped the Crown Court proceedings because the committal for sentence was a nullity. Further, it is submitted that there was no evidence for the recorder to conclude that the applicant was the author of his own difficulties, thereby preventing his claim of an abuse of process.

In response the respondent contends that the recorder heard evidence over a number of days and gave a detailed ruling on the abuse of process application. There was ample evidence to support the findings made by the recorder. Further, it is argued that the Crown Court was bound to accept the validity of the committal for sentence if it appeared good on its face, that is to say that without inquiry beyond the certificate of conviction and committal it could not be said to be bad. It is also submitted that the recorder was entitled to find as a fact that the applicant was the cause of his own difficulties.

In a detailed and impressive ruling, the recorder concluded that the applicant had signed his section 18 POCA statement on the 10 October 2014, long before the sentence hearing and any attempt to challenge his conviction. It was drafted by Mr Abdul-Jalil. Later the applicant confirmed on oath that he had signed the statement and appeared before the Crown Court on the 29 April 2015. The confiscation hearing took place over eight days between the 31 March and the 18 July 2016. After hearing both evidence and argument, the recorder made the following findings:-

From these facts the recorder concluded:-

“All of the foregoing leads me to conclude that the prosecution is right to observe that this was not a case where the defendant (applicant) was impersonated by or faced with the actions of antagonistic third parties whose actions he disowned. To the contrary, (Mr Abdul-Jalil) was his trusted agent, as he confirmed when he gave evidence during the hearing”[page 10G – 11A]

In the course of his ruling the recorder correctly addressed his mind to the test to be applied in an application to stay criminal proceedings on the grounds of abuse of process, namely by the second limb to protect the integrity of the criminal justice system – see R v Latif [1996] 1WLR 104. He observed, as was not in dispute, that neither the court nor the prosecution had contributed to any conduct that undermined the integrity of the criminal justice system. The difficulties, the recorder concluded, were of the applicant’s own making. In his ruling he stated:-

“(Mr Abdul-Jalil) pretended in the Ealing Magistrates Court that he was (the applicant), unbeknown to the prosecution. Far from complaining about this at the earliest opportunity, or distancing himself from (Mr Abdul-Jalil), (the applicant) appears to have adopted until now what was done in his name. But more than this, having failed to appeal in time or obtain permission to appeal out of time (to the Crown Court against the convictions), and that he failed in judicial review, to my mind this application would be a collateral attack on those decisions. It could be seen as attacking the integrity of the judicial system…I do not find that there has been an abuse of process at all”

We agree with the recorder and his reasons for rejecting the abuse of process application. There is no merit in the applicant’s criticism of the refusal to stay the proceedings as an abuse of process. He was himself the cause of the very matters of which he complained. To the extent that the process was abused, it was by Mr Abdul-Jalil in a way which was initially endorsed by the applicant for his own advantage.

The applicant also argued that the committal for sentence to the Crown Court was defective, thereby rendering the sentence and confiscation proceedings a nullity. It was submitted before the recorder and in this court that the committal was “bad on its face” because the applicant was not present when the committal was made. That, of course, was not apparent from any document emanating from the Magistrates’ Court.

The recorder concluded that the committal was not bad on its face: the details of the committal on the register were not, without collateral inquiry, obviously incorrect. In paragraphs 27 – 42 of his ruling the recorder set out his full reasons. The applicant was inviting the recorder to inquire into what occurred in the Magistrates’ Court in a way appropriate in judicial review proceedings, but not in the Crown Court. The recorder was right to decline that invitation.

The correct approach has recently been restated in the High Court. In Westminster City Council v Owadally [2017] EWHC 1092, the Crown Court had acceded to a request to inquire into whether pleas taken in the Magistrates’ Court were valid, and then concluded that they were not. The judge remitted the matter to the Magistrates, thereby declining to proceed to sentence or to embark upon confiscation proceedings. That was challenged by the prosecutor by way of case stated in the High Court. Gross LJ said this on the jurisdiction issue:

“16.

As has been seen, the Respondents challenged the validity of their pleas in the Crown Court and the matter has since come to this Court by way of case stated. At the outset, we raised with counsel, Mr Heller for the Appellant and Mr Clegg QC for the Respondents, our concern as to whether the Crown Court had had jurisdiction to entertain the Respondents' challenge. In this regard, we drew to the attention of counsel the observations of this Court in R v Sheffield Crown Court and Sheffield Stipendiary Magistrate (1994) 15 Cr App R (S) 768.

17.

In Sheffield, this Court upheld the validity of the decision of the stipendiary magistrate to commit the matter to the Crown Court for sentence and set aside the Crown Court's decision to the contrary. Kennedy LJ went on to say this (at p.771):

"But in any event….the Crown Court had no power to go behind the order of the Magistrates' court which committed these matters to the Crown Court for sentence. That order was, on the face of it, a valid order. If it was to be challenged, it could only be properly challenged in this Court [i.e., the Divisional Court]. The position can be different where the order is obviously bad on the face of it, for example, where a case has been purportedly committed for trial when the offence is one which can only be tried summarily….but that is not this case. "

Scott Baker J (as he then was) added (ibid):

"Only where a committal is plainly invalid on its face should it be sent back by the Crown Court."

We have touched on the various routes available to a person convicted in the Magistrates’ Court to challenge that conviction. In the absence of an appeal against conviction to the Crown Court, the proper and well-established course in circumstances such as alleged by the applicant is to challenge the conviction and committal for sentence in the High Court. The Crown Court had no jurisdiction to quash the committal; neither could it decline to proceed on the basis that the committal was bad on its face. It was not.

The applicant also seeks leave to appeal the confiscation aspect of his sentence. The applicant was fined £1000 on each of the two offences for breach of an enforcement notice, but he was ordered to pay £4,310,311 as his benefit from his general criminal conduct. It was also found that he had available assets in the same amount, such that he was therefore ordered to pay that sum pursuant to section 6(5) of POCA.

The applicant argues that the recorder was wrong to apply the criminal lifestyle assumptions contained within section 10 of POCA, because to do so created a serious risk of injustice – see section 10(6). Alternatively, the confiscation sum was in breach of the applicant’s rights protected by Article 1 of Protocol 1 of the European Convention of Human Rights, because it was disproportionate.

The respondent submits that the confiscation order was correctly made by properly applying the provisions of POCA in a general criminal lifestyle case. Further, that the recorder correctly considered the proportionality of the order before determining its extent.

There is no doubt that the relatively low fines for the offences and the sum ordered in confiscation are vastly different. But they are the product of two very different processes. Proportionality in this context is not concerned with the relationship between the sanction imposed for the offence in question and the confiscation order made. It is concerned with whether the sum ordered to be confiscated is proportionate to the aim of divesting criminals of the proceeds of their criminal activity. In a criminal lifestyle case it would be very unusual for a confiscation order to be disproportionate in Article 1 Protocol 1 terms. This was confirmed by the Supreme Court in R v Waya [2013] 1 AC 294, see paragraphs 21-25. The example of disproportionality given there arose in a non-criminal lifestyle case, in circumstances where the offender had restored to the loser the proceeds of criminality.

The confiscation order made in this case reflected the sum calculated by applying the criminal lifestyle provisions of POCA. This larger sum is not the benefit gained by the applicant’s specific crimes for breaching the enforcement notices (which was assessed at £26,000), but his benefit from a criminal lifestyle over a much greater period of time.

It was accepted on behalf of the applicant that the recorder was correct to treat this as a criminal lifestyle case under section 75 of POCA. It involved offences committed over a period of at least six months and the defendant had benefitted, in a sum in excess of £5000, from the offences – section 75 (2)(c). It follows from this that the court was required to assess the applicant’s benefit from his criminal lifestyle and in doing so, to apply the section 10 assumptions, unless they created a serious risk of injustice.

The recorder heard detailed and extensive evidence and submissions over eight days of hearings, which looked very closely at the applicant’s activities worldwide. He knew next to nothing about his London properties. The recorder concluded that none of his London properties were funded from legitimate sources and rejected the applicant’s account that the money to buy these properties had been transferred legitimately through Hawala banking from Iraq as the proceeds of legitimate business activity. There was much evidence which the recorder concluded was false and manufactured. The recorder found that everything in the United Kingdom was tainted. The prosecution did not invite the recorder to apply the assumptions to the applicant’s identified assets abroad, themselves worth about £5million. The applicant was represented by counsel (although there was a change from junior counsel alone to leading and junior counsel) and the recorder gave a detailed ruling at the conclusion of the hearings. He found no basis for disapplying the section 10 assumptions and did not find any basis to reduce the benefit figure for disproportionality. Further the recorder had at the forefront of his mind the question of proportionality, both when approaching the evidence and when reaching his conclusions [paragraphs 52 – 58 of his ruling].

We have carefully considered the submissions made on behalf of the applicant and are not persuaded that the orders made were wrong. The recorder correctly applied the section 10 assumptions and made appropriate findings of fact on the evidence. Further, it cannot be argued that the confiscation sum was disproportionate; it was the proper calculation of the benefit from the applicant’s criminal lifestyle.

Whilst we reject the arguments of substance advanced on behalf of the applicant, there is a technical error in the sentence in respect of which we will grant leave to enable a correction to be made. It is agreed between the parties that the default sentence of eight years’ imprisonment was appropriate only to the confiscation sum under POCA, and not to the fines. To correct this error we quash the sentence of eight years’ in default of payment of the fines and impose a sentence in default of 40 days’ imprisonment. To that extent only the sentence is varied.