Koli, R (on the application of) v Maidstone Crown Court & Ors

MR JUSTICE OUSELEY: This is an application for permission to apply for judicial review, together with interim relief, which was adjourned to this hearing by order of Charles J. The claim as formulated is obscure, but Mr Koli (in person but with Mr McDonald as his McKenzie Friend) seeks to challenge three orders. The first is a confiscation order made on 28 January 2011 under section 6 of the Proceeds of Crime Act 2002 by HHJ Macdonald QC at Maidstone Crown Court, a Serious Crime Prevention Order made under sections 1 and 19 of the Serious Crime Act 2007 on the same occasion by the same judge, and a Financial Reporting Order under section 76 of the Serious Organised Crime and Police Act 2005.

The defendant in those proceedings (the claimant here) pleaded guilty in April 2009 to conspiring to launder money and was sentenced, following a successful sentence appeal to the Court of Appeal, Criminal Division, to three and a half years. He is currently at liberty on licence.

The confiscation proceedings were dealt with by the judge in his ruling of which I have a transcript, in which he records that, subject to a series of items in dispute, it was accepted that the defendant's benefit included a large number of items, and it was accepted that he had a criminal lifestyle and the confiscation orders had to proceed.

There was a dispute as to the extent of benefit only. Mr Koli was contending that the correct benefit figure was nearly £2.3 million. The Crown contended that the benefit was nearly £3.3 million. The defendant contended that the recoverable amount was only £32,983.

The judge heard the evidence in relation to benefit and the availability of assets, found that the defendant's evidence in many respects was wholly unreliable, concluded that there were hidden assets, and made an order that the benefit was £3.296 million. He accepted that the available amount, applying the Act, was £1.6 million, and set a default term of seven years' imprisonment. He then made the further orders to which I have referred.

Mr Koli has shown to the defendants and to this court the advice he received from counsel then representing him in relation to the prospects of an appeal. The advice was that there should be no appeal. The advocate is clearly advising that there are no grounds for an appeal, rather than that an appeal in law is not available to deal with factual grounds that are sound. The advocate made the same point in relation to the seven-year period in default, and in relation to the Serious Crime Prevention and Financial Reporting Orders.

The fundamental contention that Mr Koli raises is that he has been found liable to pay an amount derived from benefits which he says come from offending with which he has never been charged and which has never been proved to the required criminal standard. It appeared that he was contending that such an outcome was incompatible with Article 6(2) of the European Convention on Human Rights, although in argument before me, with the benefit of whispered comments from Mr McDonald, he said he was complaining about section 3, the so-called "reading down" provision of the Human Rights Act.

The application for permission to apply for judicial review is wholly untenable. It has been got up through the misconceptions of Mr McDonald as the McKenzie Friend.

Mr Gullick's helpful skeleton, I accept, explains succinctly why this case is hopeless. The three orders relate to a trial on indictment. By section 29(3) of the Senior Courts Act, judicial review does not lie in respect of matters relating to trial on indictment. The three orders are orders which relate to trial on indictment, since they are the sentencing consequences of such a trial. As Mr Gullick points out in his skeleton argument, that conclusion was reached in R(Faithfull v Ipswich Crown Court [2007] EWHC 2763 (Admin), in which the Divisional Court concluded that the decision not to make a compensation order was not judicially reviewable. The same reasoning applies to the making of the orders in this case.

In addition, the reasoning of the Court of Appeal (Criminal Division) in R v Adams [2008] EWCA Crim 914; [2009] 1 WLR 301 at paragraph 24 makes it clear that a Financial Reporting Order is also a matter relating to a trial on indictment, since part of its reasoning that an appeal lay to that court was that the legality of the order could not otherwise be challenged, since judicial review did not lie since it was a matter relating to a trial on indictment.

So, in my judgment, the position is perfectly clear: this court has no jurisdiction to hear judicial review applications in respect of those three orders.

Secondly, in any event, it is perfectly clear that each of those orders is appealable to the Court of Appeal (Criminal Division), and the statutory provisions in respect of the confiscation order and default term is to be found in section 50 of the Criminal Appeal Act 1968.

So far as the Serious Crime Prevention Order is concerned, it is in section 24 of the Serious Crime Act 2007, and the decision in R v Adams to which I have just referred, holds that it falls within the exclusionary general provision of section 9 of the Criminal Appeal Act 1968.

The claimant has not appealed against any of those orders, notwithstanding that that is the route available. It is not for this court to enable an alternative route to the appeal route to be instituted, nor for it to enable the requirement for leave to appeal to the Court of Appeal (Criminal Division) to be evaded.

I also note that, in the light of counsel's advice, there is no possible arguable appeal on the merits, and even if judicial review lay, there would be no ground upon which judicial review could possibly be granted.

At root, Mr Koli complains that he has been effectively sentenced for offences with which he has never been charged. But that is a complete misconception of the way in which confiscation orders work. They are amply explained, and the relationship to the criminal conduct and offences charged and not charged, in the decision of the House of Lords in R v Briggs-Price [2009] UKHL 19; [2009] 1 AC. It is perfectly clear that Article 6(2) does not apply to those proceedings.

If there were to be an issue as to incompatibility, it would in any event lie by means of the appeal to the Court of Appeal (Criminal Division), which has not been pursued. If there were anything in the point, that is where the appeal should lie. But, in reality, the concessions made on Mr Koli's behalf as to the extent of benefit make his case in relation to the criminal standard completely otiose.

Mr Koli then says that in fact he is relying on the reading down provision rather than the declaration of incompatibility. If that is in reality what he is relying on, then it follows yet more strongly that the only route available to him was an appeal to the Court of Appeal (Criminal Division) seeking to raise that point.

This case is completely hopeless. In my judgment, it is an abuse of the process of the court. I mark this case as totally devoid of merit, and I consider that the involvement of Mr McDonald in essentially inspiring this sort of case should be a matter of concern to any court, and they should be on the alert for the misconception that he is perpetuating, at least in England and Wales, and the courts should be very chary of any further involvement by Mr McDonald since the consequences are a waste of public time, court time and defendant's time.

This application is dismissed.

MR GULLICK: My Lord, I seek two things from your Lordship: one is the order for costs set out in the summary grounds which I drafted, which is --

MR JUSTICE OUSELEY: Can you take me to those?

MR GULLICK: My Lord, there is no separate statement; it is within the grounds.

MR JUSTICE OUSELEY: Yes.

MR GULLICK: At 48.

MR JUSTICE OUSELEY: And the total is £5,496.

MR GULLICK: Yes. My Lord, I seek an order for those costs, the costs of SOCA in preparing the original grounds, the Treasury Solicitor's charges following their involvement and my costs of drafting the separate grounds, so not the costs of the hearing itself.

MR JUSTICE OUSELEY: Do you want to say anything about that, Mr Koli?

CLAIMANT: No.

MR JUSTICE OUSELEY: There will be an order for payment of costs in the sum of £5,496.

MR GULLICK: And, my Lord, also, as your Lordship says, the case is wholly misconceived. Your Lordship's order would reflect that both the application and, if your Lordship is so minded, the application for interim relief and the application for permission were both totally and completely without merit.

MR JUSTICE OUSELEY: Thank you; you are quite right. The application for interim relief was absurd. The application for permission I have dealt with. They are both totally without merit. Thank you very much.