Lehram Capital Investments Ltd, R (on the application of) v Southwark Crown Court & Anor

The Claimant was convicted of 3 offences at Westminster Magistrates Court and appealed to Southwark Crown Court, and the application for permission essentially criticises aspects of the way the latter Court dismissed the appeal. The specific bases for the attack on the decision of the Crown Court are a refusal to adjourn and a refusal to allow the possibilities of submissions to be made by video link.

The history and background to the appeal hearing on 17 August 2021 is significant: the Claimant company alternated between not engaging with the court process and bombarding the court with lengthy multiple skeleton arguments. At times before the Magistrates Court and in making applications to this Court the Claimant clearly had [and has] very able lawyers acting at their behest, and the terms of many of the skeletons also give the appearance of being professionally created; yet at other times before both the lower courts the Claimant suddenly claimed to be unable to afford any legal representation at all. At one stage a long list of proposed defence witnesses was sent to the Crown Court, which list included the Director of Public Prosecutions, that totally lacked any attempt to justify the need, purpose or significance of any of them. Typically, it was late in the afternoon before the appeal hearing that the Claimant sent communications to the Crown Court. Most of the various communications sent to the courts, or referred to in documents submitted to the courts, were from unnamed individuals supposedly acting for the company, usually without any address or even general location given. The explanation given for the absence of any director from the appeal hearing [‘they are in red list or amber list [COVID] countries’] was typical in lacking any credible detail.

Against that background the decisions of the Judge at the hearing on 17 August were not only entirely justifiable but well-nigh inevitable. The Court was right to reject the application to adjourn a hearing that had been fixed for many weeks, or even months, on the basis of a small number of new pages of documents having been received late. The Court was similarly entirely justified in refusing video link facilities given the lack of any clarity or properly-established safe basis to do so. Once the appeal was not being advanced the Court was bound to find for the Respondent, the Interested Party.

A further ground for refusing permission is section 31(2A) of the Senior Courts Act 1981, that it appears to me ‘to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’. The offences of which the Claimant was convicted are of declaring the company dormant; they did so at a time when the company was conducting high value transactions, instructing lawyers, and litigating against other corporations. I have seen no hint in any of the voluminous papers submitted in this application of any defence to those allegations.”

“…. the judge should have given you an opportunity, by Livelink, to address the question of your authorization to appear before the court for the purposes of the appeal, and/or the consequences of what appears to me, although I make no final decision on it, your failure to comply with direction (vi) made by His Honour Judge Griffith on 27 July 2020. If the judge was then satisfied that the issue was satisfactorily addressed and that there was before the court, at least by Livelink, somebody who was authorised by the company, duly authorised by the company to represent it, then the judge would have moved on to consider the question of whether … or not there should have been an adjournment and again I say the judge’s decision on that issue was in my view unsurprising. The concern that I am holding is arguable is a concern that you should have been able to have permitted to address the court before conclusion was reached on the matter as well.”

The Claimant is a private limited company incorporated on 8 November 2011. It is registered with Companies House under Company number: 07839142. The directors of the company are Igor Rudyk, Segundo Vargas, Hasbrone Overseas Limited. The company secretary is Pablo Saavedra. The Claimant is stated in Companies House records to be a non-trading company.”

Charge 1: the Claimant dishonestly made false representations to Companies House between 15 October 2014 and 15 August 2018, namely that it was a dormant company, contrary to ss 1 and 2 of the Fraud Act 2006.

Charge 2: the Claimant on 15 October 2014 delivered company accounts for the year ending 30 November 2013, asserting that the company was dormant, and that the accounts were false, misleading or deceptive, contrary to s 1112 of the Companies Act 2006.

Charge 3: the Claimant on 30 August 2015 delivered company accounts for the year ending 30 November 2014 asserting that the company was dormant and that the accounts were misleading, false or deceptive, contrary to s 1112 of the Companies Act 2006.

In summary, Lehram gained for itself the financial advantage of avoiding costs, and risked causing loss to HMRC and other regulatory bodies which might otherwise have an interest in it, and those behind the company must have appreciated this to be so.”

… The Claimant maintains that its directors and former directors remain subject to such threats and as such the officers of the Claimant have expressed reluctance to disclose their whereabouts in these proceedings in the United Kingdom. The Claimant avers that it has notified the courts of this position on more than one occasion.”

8/11/11 Claimant incorporated and registered with Companies House.

December 2016 Claimant and the Interested Party become involved in a dispute concerning a share transfer at Gramoteinskaya Mine in Siberia.

May 2018 Interested Party applies to strike the Claimant off the Register of Companies.

13/5/19 Interested Party applies for summonses at Westminster Magistrates’ Court.

16/7/19 Matter set down for summary trial before Westminster Magistrates’ Court.

3/3/20 CPS declines to take over the prosecution following a request by the Claimant.

6/3/20 Claimant convicted in absentia by Westminster Magistrates after its solicitors (MK Law) withdraw.

20/10/20 Claimant sentenced to a fine of £20,000 and ordered to pay costs of £200,000. The Claimant is represented by counsel instructed by MK Law at the sentencing hearing.

5/11/20 Notice of Appeal received by Southwark Crown Court.

10/5/21 Abuse of process application made by the Claimant and refused by HHJ Griffith. The Claimant is represented by counsel, instructed by MK Law.

June 2021 Claimant files a number of Skeleton Arguments. These are said to be filed ‘on behalf of the officers of Lehram Capital Investments’. One of them seeks to re-open the failed abuse of process application. At some point counsel and solicitors cease to act for the Claimant.

2/7/2021 Case management hearing before HHJ Griffith at Southwark Crown Court. The Interested Party appears by leading counsel. The Claimant is ‘represented’ by Ms Sokolova, via video link. The Interested Party does not take a point on her appearing for the Claimant, despite the lack of evidence of her appointment as a representative pursuant to Crim PR r 46.1.

23/7/21 Claimant requests an adjournment pending application to set aside the magistrates’ court judgment.

26/7/21 The Interested Party sends submissions to the Court opposing the adjournment application and raising the question of the Claimant’s representation. After noting that the Interested Party had not objected to Ms Sokolova appearing for the Claimant on 2 July, or communicating with the Court, it said:

27/7/21 HHJ Griffith refuses the adjournment application on the papers.

Late July 2021 The Claimant files some twenty applications for witness summons seeking the attendance of 26 witnesses, and further Skeleton Arguments. Claimant also applies to the Attorney General for a nolle prosequi, and in parallel files an application in the magistrates court to reopen proceedings there under s 142 of the Magistrates’ Court Act 1980 (which was the basis of the late July adjournment application referred to above).

29/7/21 Claimant writes to the Court to dispute the application of s 33.

30/7/21 Claimant sends submissions to the Court regarding s 33, among other things.

4/8/21 Solicitors for the Interested Party emails the Court a request for an extension to 9/8/21 to file the appeal bundle, in order to prepare responses to numerous applications made by the Claimant. The Court is asked to forward the email to the Claimant (Mr Jacobs said it was common ground this email was never forwarded).

9/8/21 Appeal bundle filed with Court. The bundle is not forwarded (then) to the Claimant. It is not forwarded until 16/8/21 (see below).

10/8/21 By an email timed at 7.24, the Claimant writes to the Court and applies for a video link. No mention is made about it not having received the appeal bundle.

12/8/21-13/8/21 Someone purporting to be writing on behalf of the Claimant’s Company Secretary sends the Court an email timed at 11:27pm on 12/8/21 stating that the Claimant is seeking to engage a translator to read out prepared submissions at the appeal and to read questionnaires to cross-examine the witnesses the Claimant wanted summonsed. A video link is requested.

12/8/21 HHJ Griffith sends an email to Court staff at 9.27 in the following terms:

16/8/21 An email timed at 5.06 ‘From: LCI Office’ is sent to the Court. It says that (sic):

16/8/21 By an email timed at 9.57 HHJ Baumgartner refuses an adjournment application from the Claimant on the basis that the issues raised had already been ‘considered and determined by HHJ Griffith’. (It is not clear which request this was in response to; it may have been the request timed at 15:29: see below, with the time zone of receipt behind London time being shown).

16/8/21 At 15.15 the Court sends the Interested Party’s appeal bundle to the Claimant.

16/8/21 In an email timed at 15.29 someone purporting to be writing on behalf of the Claimant’s Company Secretary emails the Court and requests an adjournment due to the late service of papers.

16/8/21 At 3.55pm HHJ Baumgartner asks for the location of where the Claimant seeks to video link the following day and says the law does not permit them to link outside of England and Wales.

16/8/21 In an email timed at 16:06, ‘LCI Office’ again requests an adjournment.

16/8/21 In an email timed at 16.08, ‘Maria’ writes to the Court as follows:

16/8/21 In an email timed at 16:37, ‘LCI Office’ sends an email about video links, quoting the CPS’s guidance.

17/8/21 Hearing of appeal at Southwark Crown Court. The Court refuses to adjourn and refuses to admit the Claimant by video link. Appeal dismissed.

18/10/21 Pre-action letter

20/10/21 Letter of authority from Mr Rudyk in untranslated English, asserting that ‘since at least May 2021’, Maria Sokolova ‘is and has been authorised to assist Lehram Capital, and to appear on behalf of Lehram Capital, whenever needed, before any courts in England and Wales’.

20/10/21 Letter of Authority in Spanish and English translation from Segundo Vargas (a director of the Claimant), to the same effect.

1/11/21 Claim Form issued.

26/1/22 Permission refused on the papers by Bennathan J.

4/5/22 Oral renewal hearing. Permission granted by Linden J. Claimant acting as a litigant in person with Ms Sokolova speaking for it.

“RULING

JUDGE BAUMGARTNER: This is our ruling. We are a bench of two with only one justice of the peace. I am told by the list office that, despite a request for two justices at the London bench support team at Westminster, no other justice is available to hear this four-day appeal. No indication has been given as to when an additional justice might become available. Section 74 of the Senior Courts Act 1981 provides that on the hearing by the Crown Court of any appeal, the Court shall consist of a circuit judge and at least two, but not more than four, justices of the peace, although rules of Court may provide differently. That Section is mirrored in the Criminal Procedure Rules at rule 34.11(1)(a), as the general rule that rule 34.11(2)(a)(i) provides that despite the general rule, the Court may include only one justice of the peace if the presiding judge decides that otherwise the start of the appeal hearing will be delayed unreasonably.

This is, as I said, listed as a four-day appeal and given the current demands upon this Court to accommodate work, and in the absence of any indication as to when another justice might become available, in my judgment failing to start this appeal today will lead to it being delayed unreasonably, and so we will proceed as we are presently constituted.

This is an appeal against conviction and sentence in the Magistrates’ Court, by Lehram Capital Investments Limited, following a suit by the Queen upon the prosecution of Cyrith Holdings Limited.

The appeal follows the appellants conviction upon one offence contrary to the Fraud Act 2006, and two offences contrary the Companies Act 2006: 1. That between 15 October 2014 and 15 August 2018 at Companies House, Cardiff, the appellant dishonestly made a false representation, namely that it was a dormant company within the meaning within the terms of the Companies Act 2006, knowing that this [is not?] true; intending to cause loss to Her Majesty’s Revenue and Customs, and any other revenue collection or regulatory body, or to expose that person to a risk of loss, contrary to Sections 1 and 2 of the Fraud Act 2006; 2. that on 15 October 2014 the appellant delivered or caused to be delivered to the registrar of companies, for the purposes of satisfying the requirements of the Companies Acts, a document, namely company accounts for the year ending November 2013, asserting that the said company was dormant in the said period, knowing the said accounts to be thereby misleading, false, or deceptive, in material, in particular the appellant not being a dormant company within the terms of the Companies Act 2006 in the period specified. Or being reckless as to whether the said document was so misleading, false or deceptive contrary to Section 1112 of the Companies Act 2006; and 3. that on 30 August 2015, the appellant delivered or caused to be delivered to the registrar of companies, for the purposes of satisfying the requirements of the Companies Act, a document, namely company accounts for the year ending November 2014, asserting that the said company was dormant in this said period, knowing the said accounts to be thereby misleading, false or deceptive in their material, in particular the appellant not being a dormant company within the terms of the Companies Act 2006 in the period specified, or being reckless as to whether the said document was so misleading, false, or deceptive contrary to Section 1112 of the Companies Act 2006.

Notice of the appeal was received on 5 November 2020 following sentence on 20 October 2020. A number of case management orders were made by this Court, and in the event the appeal was sent down for hearing today.

We turn first to consider the appellant’s application for an adjournment for at least 14 days ‘to review, translate, and prepare a response in response to the appeal file which contains over 600 pages, which was received just hours before the trial hearing’, made in an email timed at 16.06 yesterday. This is a renewed application following an earlier application to adjourn yesterday, which I refused.

This application was made yesterday by email on the basis that the appellants had only received the electronic appeal file yesterday. It developed the earlier application to adjourn made in a previous email, which said, in part, ‘how is the defendant (non-English speakers) able to translate 600 pages, prepare a defence, prepare statements for translator Maria Sokolova to read orally, the statement of the appellant, and be ready for the appeal trial hearing scheduled for tomorrow at 10.30am?’

Contrary, however, to the appellant’s assertion, we are told by the respondent that there is not 600 pages of new material. The only significant new material is contained in tab five which is the respondent’s consolidated reply; pages 51 to 71. The majority of the remainder of the bundle, over 450 pages, is material served by the appellant at tab six.

We are told by the respondent that the consolidated reply deals in a comprehensive but succinct way with the arguments advanced by the appellant. We further note that in an email sent to the Court office last Friday, the appellant said this: ‘Lehram Capital is a dormant company with no assets, no revenues, and not even a bank account. Lehram cannot afford representation and legal aid is not afforded to [legal persons?]’.

While that may be so, and as we will shortly mention, we note the appellant has for the most been represented by solicitors, and at sentence by experienced counsel. Those solicitors appeared at trial in the Magistrates’ Court, and there they also sought an adjournment which was refused. Having failed to obtain an adjournment, they withdrew.

The appellant also appears to have legal representation in proceedings being conducted in the United States, though we do not know what the basis of that retainer is.

Someone has been drafting very detailed and [inaudible] legal documents for the appellant in this hearing, whom we do not know. The appellant’s former solicitors have disavowed any responsibility for most of them. No doubt in light of the various serious allegations they contain.

Someone it seems is prepared to pay for the appellant’s representation as and when it suits. We suspect that the appellant retains lawyers when it suits its purpose and dispenses with them when it does not. However, we make no finding about that, and we do not let it influence the careful judgment that we now make.

We refuse the application for an adjournment, applying the principles in Criminal Practice Direction 6.24C which draws upon the well-known authority of the Crown Prosecution Service v Picton [2006] EWHC 1108. Criminal Practice Direction 6.24C.9 sets out the relevant principles relating to trial adjournment. We have followed them, and we make the following conclusions:

A) The Court’s duty is to deal justly with the case, which includes doing justice between the parties. We take this as a paramount concern, and in particular in doing justice between the parties.t

B) the Court must have regard to the need for expedition. We do so. These proceedings have been afoot for some years now. The appellant as we note elected a summary trial, and as such should be simple and speedy.

C) We have rigorously scrutinised the appellant’s application, and having reviewed the history of the case, and for the reasons we have already given, we see no clear reasons for adjourning.

D) We bear in mind the serious nature of the charges, but the underlying facts are, in our view, relatively straightforward, and not complex. There is, in our view, no reason why the parties should not now be trial ready. The matter is listed for four days. The need to deal with any new matter arising, should it do so, can be amply accommodated within the four-day trial window.

E) The matter has been subject to very careful case management by this Court in the lead up to today, and the previous application for an adjournment sought by the appellant on 23 July 2021, was refused by His Honour Judge Griffith on 27 July 2021.

F) Any adjournment of today’s appeal hearing is likely to result in further delay, as in all reality it is unlikely a hearing can be accommodated for some months and cause delay to the hearing of other cases. The re-listing of one case almost inevitably delays or displaces the hearing of others.

We turn next to consider the appellant’s failure to appear before us today. The appeal was called on before us for hearing at 10.30 this morning, although we sat slightly later than that.

Mr Jonathan Ashley-Norman QC, instructed by Edmonds Marshall McMahon, appears for the respondent. The appellant did not appear and is not represented. In such cases, the law is clear.

Where a party does not appear or is not represented, the proper course is to dismiss the appeal. See Croydon Crown Court, ex parte Clare [1986] 1 WLR 746. The decision of the Divisional Court, Queen’s Bench Division. We shall accordingly dismiss the appeal, but before we do so, while the law is clear, the circumstances leading to the appellant’s non-appearance today are less so, and so, it is useful for us to set out the background to the appeal before we provide our reasons for dismissing the appeal.

We take the following facts and matters from the numerous papers filed by the parties in the appeal, all of which we take to be uncontroversial. We have also seen an email from ‘the officers of Lehram Capital’ sent to the Court office this morning, timed at 04.33, but nothing in it adds to the submissions we have already received.

The appellant elected a summary trial on 16 July 2019. On 6 March 2020, the appellant was convicted before Deputy District Judge King sitting at the City of Westminster Magistrates’ Court, after it had failed to appear, then the Court proceeded to try the appellant in his

absence, as we shall explain.

Part of the respondent’s case before the Deputy District Judge was that the appellant demonstrably undertook significant accounting transactions in the acquisition of mining assets in Siberia; the disputed sale of one of the mines acquired; and protracted litigation in Russia arising from the disputed sale.

Charge one alleged fraud by false representation across the period in which a series of false accounts were filed; and charges two and three alleged false statement offences under the Companies Act 2006, each relating to a particular set of accounts.

The private prosecution was brought by the respondent as a subsequent owner of the disputed assets and opposing [inaudible] in the Russian proceedings. The appellant invited the Crown Prosecution to take over and discontinue the prosecution, but it declined to do so. As we mentioned the trial took place in the absence of both the appellant company and its solicitors of the record, MK Law. One of MK Law’s solicitors appeared with the appellant on the morning of the trial but withdrew following the refusal of his application to adjourn the trial.

We do not know the reasons why the appellant sought an adjournment of the trial then, but as we will note, such applications have become a feature of the case management of this appeal.

In the event, the appellant was convicted in the Magistrates’ Court. Sentence was adjourned until 20 October 2020, when Deputy District Judge King sitting at the City of London Magistrates’ Court fined the appellant £60,000, and ordered it to pay costs of £200,000, in addition to the victim surcharge. At sentence the appellant was represented by Mr Tom Wainwright of counsel, instructed by MK Law.

The matter was first listed for direction before His Honour Judge Griffith on 20 November 2020 at which lengthy and detailed directions were given for the conduct of the case up to and including the hearing of the appeal which was listed for today.

Amongst those directions, was a direction that the appeal be listed on 4 February 2021 for further directions before the presiding judge assigned to the appeal, who would consider ‘appeal readiness; [video link?] application; abuse of process application; and any other matters arising’. The time estimate given was half a day. MK Law remained instructed by the appellant throughout until in or about June 2021 when MK Law ceased acting for the

appellant.

Thereafter, a number of documents running to a great many number of pages were filed ‘on behalf of the officers of Lehram Capital Investments’, and we note the officers of Lehram Capital Investments are not there identified or, ‘for and by Pablo Saavedra, Lehram Capital Investments’.

It is evident to us that those documents have been produced either by, or with the assistance of a lawyer though perhaps not one practicing in this jurisdiction. They included a ‘skeleton argument in support of the abuse of process’ dated 11 June 2021, running to 54 pages; and ‘skeleton argument in support that this private prosecution violates Sections 5.4 and 7.2 [sic] of the Criminal Procedure Rules 2015’ dated 11 June 2021, running to 14 pages; and ‘skeleton argument, the rebuttal to Mr David Alexander’s report’, dated 11 June 2021, running to 45 pages; and ‘application for disclosure’ dated 5 July 2021, running to 37 pages; and ‘application to stay proceedings as there is no case to answer’, dated 6 July 2021, running to 32 pages; and ‘application to set aside the conviction – Magistrates did not have jurisdiction to convict Lehram’, dated 15 July 2021, running to nine pages; and various, and sometimes repeated, applications which we shall shortly run through.

His Honour Judge Griffith gave further directions on 2 July 2021, and subsequently on 27 July 2021 following case management hearings on the papers. He reserved to the outset of the appeal such arguments as the appellant wished to advance so far as the ‘skeleton’ and ‘application’ documents to which we have referred are concerned. On 27 July the learned judge directed any evidence in support of those arguments be filed and served by 30 July 2021. The appellant has failed to comply with that order.

Importantly, for our purposes, the Court gave the following direction, on 2 July:

‘4. In the event the appellant wishes to attend the appeal remotely and/or wishes witnesses to give evidence remotely, the appellant is to contact the Court case progression officer no later than 4pm on Wednesday 11 August 2021 in order that appropriate arrangements might be made’.

So far as we are aware, at that stage, no indication had been given as to the whereabouts of those said to be acting ‘for and on behalf’ of the appellant. The directions went on to note as follows:

‘Further, the Court brings to the appellant’s attention, the following:

a) the appellant is not obliged to attend the appeal listed on 17 August 2021. However, in common with every defendant or appellant appearing before the Court, the appellant is required to be notified that the failure by the appellant to attend, or to be represented at a hearing,

particularly the substantive hearing of an appeal, is likely to harm that party’s position.

b) the Court will not adjourn any fixed hearing without good reason. In particular, should the appellant choose not to attend on 17 August 2021, nor to avail itself of available facilities for remote attendance by its representatives or witnesses, then the Court may proceed to hear the appeal in the absence of the appellant and/or in the absence of the legal or other representatives of the appellant.

c) therefore, if a party does not appear, or is not represented at the hearing on 17 August 2021, not only should it not assume the hearing would be adjourned and should understand that such absence may adversely affect its position. Further, the appellant is neither present nor represented on 17 August 2021, it will be unable to challenge any evidence called by the respondent or call any evidence on its own behalf. These eventualities may also adversely affect the appellant’s position.

d) it is the appellant’s duty to remain in contact with the Court. In the circumstances, the inability of the Court or the respondent effectively to communicate with the appellant may be unlikely to lead to the adjournment of the appeal and may itself adversely affect the appellant’s position’.

The appellant is a company registered in England and Wales having been incorporated on 8 November 2011. At all time material to the charges, the appellant was registered with Companies House as a ‘non-trading’ or dormant company.

It remains listed at Companies House as an active company, with a registered address of 85 Great Portland Street, First Floor, London W1W 7LT. Companies House records show that the individuals who are the directing minds of the view of the appellant, are nationals of Spain, Columbia, Latvia, Russia, and Kazakhstan. None of them were before the Magistrates’ Court on 6 March 2020, which we note was before this country went into its

first Covid lockdown on 16 March last year.

The Criminal Procedure rules make specific provision regarding a party’s representatives. Criminal Procedure Rule 46.1 relevantly provides that anything a party may or must do, may be done a) by a legal representative on that party’s behalf; or b) by a person with the corporation’s written authority, where that corporation is a defendant.

In addition, Section 33(3) of the Criminal Justice Act 1925 provides that, ‘on arraignment of a corporation, the corporation may enter in writing by its representative, a plea of guilty, or not guilty; and if either the corporation does not appear by a representative, or, though it does so appear, fails to enter as a quarter[?] in plea, the Court shall order a plea of not guilty plea entered and the trial shall proceed as though the corporation had duly entered [inaudible]’.

Section 33(6) goes on to provide that, ‘In this Section, the expression “representative” in relation to a corporation, means a person duly appointed by the corporation to represent it for the purpose of doing any act or thing which the representative of the corporation is, by this Section, authorised to do; but a person so appointed, shall not, by virtue only of being so appointed, be qualified to act on behalf of the corporation before any Court for that purpose.

A representative for the purposes of this Section, need not be appointed under the seal of the corporation, and a statement in writing purporting to be signed by a managing director of the corporation; or by any person by whatever name called, having, or being one of the persons having, the management of the affairs of the corporation, to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this Section, shall be admissible without further proof as prima facie evidence that that

person has been so appointed’.

No such written authority has been provided to the Court, whether under rule 46.1 or by Section 33(4). Of course, arraignment has long since passed, and at that stage the appellant was represented by solicitors. However, we think the general approach laid out in Section 33 and rule 46 ought to follow now, insofar as the appellant’s representation is concerned, after MK Law ceased to act for it. It is, after all, an English company, subject to English law, in the English Courts, and in our judgment, proceedings such as these, are apposite in the circumstances.

The Companies House register shows that as of today, Pablo Saavedra also known as Juan[?] Saavedra is the appellant company’s secretary; and its directors are Igor Rudyk; Segundo Vargas; and Hasbrone Overseas Limited, a company registered in the British Virgin Islands.

Mr Rudyk’s nationality is given as Kazakh, and Mr Vargas’s as Columbian.

To our knowledge, none of the named directors put their names to any of the communications sent to the Court, apart from the generic description as the officers of Lehram. Communications since June appear to have come from a number of different generic email addresses, from a well-known domain name and email service provider, sometimes signed off by a ‘Miss Maria Sokolova’ and at other times signed off by Mr Saavedra.

Miss Sokolova appears to act as a translator for others. Just whom, she does not identify and at whose direction we do not know. There is no evidence before is that Miss Sokolova has authority to act for and on behalf of the appellant as its representative. This is despite the very clear direction given by His Honour Judge Griffith in further directions given by the Court on 27 July 2021 at paragraph six of those directions, that ‘the appellant needs to file and serve a written statement, duly appointing Maria Sokolova or such other representatives as may be selected by the appellant, to appear as a representative of the appellant, pursuant to Section 33 of the Criminal Justice Act 1925, by 4pm, Friday 13 August 2021’.

Nor do we have any such evidence that Mr Saavedra, who is, as we had already noted, the appellant’s company secretary, and not a director of the company, or anyone else for that matter, is so authorised.

The default position of common law is that, without more[?], a company secretary or even a director alone without the agreement of the company’s board cannot file the company in the way in which Mr Saavedra seeks to make submissions before us.

We have considered whether Mr Saavedra has the appellant’s ostensible or implied authority, which we can infer from the appellant’s conduct and from the circumstances of the case. Such as when the board of directors appoint one of their number to be managing director, and impliedly[?] authorise that director to do such things as fall within the usual service of that office.

On the material before us, we do not consider that the appellant has held out that Mr Saavedra as having such authority. In an email dated 13 August 2021, Mr Saavedra wrote to the Court in the following terms, ‘By no means the appellant intends to disobey the Court’s order dated 22 July 2021 [or appoint a representative in accordance with Section 33 of the Criminal Justice Act 1925]. The appellant cannot afford any representative as it is a dormant company with no assets, no revenues, not even a bank account. A pro bono translator/activist, hopefully a native English speaker, American, will appear on 17 August 2021, or [by its defect?], any other pro bono translator/activist willing to assist in this matter on a pro-bono basis will appear. If a native English speaker translator is not procured, a nominated English speaker translator will be procured, but the Court is assured someone will appear through the hearing to read the statement and/or submissions filed by the appellant and its position’.

In our view this reply misunderstands the very clear words in contention behind Section 33.

We do not consider the wording of that section so difficult to comprehend, nor what His Honour Judge Griffith meant in his clear direction six of 27 July. The skeletons and applications demonstrate to us that the appellant, or at least those purporting to act on its behalf, chose to understand more complex legal argument when it suits them.

His Honour Judge Griffith’s direction was not about legal representation. It was about the provision of a written statement appointing Miss Sokolova or someone else to appear as a representative of the appellant. The wording and intention behind the learned judge’s direction could not have been clearer, and nor could the wording of Section 33, in particular.

In any event, His Honour Judge Griffith’s clear direction six of 27 July, has not been complied with, and some caution must be exercised by this Court, in proceeding to deal with any party without the sort of representation envisaged by Section 33, and rule 46.1, and who does not appear in person before it, because the opportunity to abuse the Court’s process in those circumstances is heightened.

There is all the more need for caution in the absence of any written authority under the hands of the directors, or at least given in accordance with the company’s governing documents. Given the risk of fraud, or at the very least the risk that someone who seeks to lawfully bind[?] the company, without any real authority would seek to do so, especially in a case with allegations such as these, and the convictions of the Court alone which are the subject of this

appeal.

We hold little doubt that it is in part for those very reasons that the provisions of Section 33 and rule 46.1 exist; to ensure that whoever purports to appear as a representative of the company has the required standing. For the reasons we have outlined, we do not accept Miss Sokolova, or Mr Saavedra has the appellant’s authority and thus standing to appear before us.

Before we consider the legal framework for dismissing an appeal where a party fails to appear, we turn to the video link direction given by His Honour Judge Griffith.

His Honour Judge Griffith’s directions of 2 July gave leave to the appellant to apply to attend the hearing via video link. Putting to one side for the moment the fact that the appellant has failed to comply with his Honour Judge Griffith’s direction six, the appellant has not identified who will attend, or precisely where they might attend from.

In an email to the Court ‘on behalf of’ Mr Saavedra, on 13 August 2021, the Court was told this, ‘As of today, it is unknown the name of the translator who will appear on 17 August 2021. But it is assured to the Court that someone will appear in order to read in English a statement of the company and/or any submissions presented by the appellant, with all the evidence presented; and read the questionnaires to cross-examine [the 25?] witnesses that on July 29 the appellant kindly asked for the Court to be summoned’.

He continued, ‘The officers of Lehram and/or the possible translator ([inaudible]), who would appear on 17 August 2021 are six to seven hours behind London time, therefore it is kindly asked to the Court for the trial to take place within normal business hours at the locations of the officers and/or translators of the appellants’.

A six-to-seven-hour time zone would put the ‘officers and/or translators of the appellant’ in either Central or North America; six hours for Central America and some parts of North America, and seven hours for North America. The nationalities of Mr Rudyk, Kazakh; and Mr Vargas, Columbian; suggests that ‘the officers and/or translators of the appellant’ are not located in Kazakhstan or Columbia, or even the British Virgin Islands where Hasbrone Overseas Limited is registered.

From this it seems to us that the appellant was trying to hedge his bet, not committing one way or another as to just who would appear or from where. This was despite a direct request from me to Mr Saavedra yesterday through the list office to identify from where those seeking to represent the appellant would attend. All that was said in reply, the order is not a reply- email says it was sent ‘on behalf of Mr Saavedra’, was that ‘the offices of the defendant are based in red/amber [sic] Covid listed countries. They are not allowed to enter England’.

That of course is not a correct statement of the position. People travelling from red or amber listed countries are permitted to come to England provided they followed the rules issued by Her Majesty’s government. Unlike others, this country has reopened its borders, subject to those rules. The position as to where a party, representative, or indeed witness may attend via video link has direct implications as to the directions this Court can lawfully make.

Section 51(1) of the Criminal Justice Act 2003, as amended by the Coronavirus Act 2020, empowers the Court to give a direction for any participant in ‘eligible criminal proceedings’ to take part by live video link.

Section 51.2B of the Act defines eligible criminal proceedings to include a criminal appeal to the Crown Court, and any proceedings that are preliminary or incidental to such an appeal. Section 51 in its present form, will enable the appellant to appear remotely by a video link from outside England and Wales.

However, as we have said, the appellant has failed to comply with His Honour Judge Griffith’s direction six, and has not identified who will attend, or precisely where they might attend from.

On 12 August 2021, his Honour Judge Griffith granted a video link for the appellant’s representation. Although the appellant has applied to appear via video link, we are not prepared to grant permission for that to happen without the appellant complying with His Honour Judge Griffith’s direction six, so that the Court is aware of precisely who is to appear, and from where, and on what authority.

In email correspondence, the appellant has stated its intention that either Miss Sokolova or another person would read out the statements. In the directions which His Honour Judge Griffith gave, on 12 August, the learned judge said this, ‘2. There is reference to the translator reading out statements. Evidence must be given by the person who made the statement unless it is agreed by [the respondent]. If there is a video link, the witness can appear over it to tell the Court what they want to say. If [the appellant wants] to introduce evidence by statement being read, they must comply with the provisions of Sections 114 to 118 of the Criminal Justice Act 2003, and the Criminal Procedure Rules Part 20’.

So far as witnesses are concerned, yesterday I told the appellant, via the list office, that unless any person to give evidence for the appellant is in England and Wales, the law does not permit remote attendance outside the jurisdiction. That was a simple statement of position, but more particularly, unless formalities specific to the place from where the witness is to give evidence are complied with, in addition to Criminal Procedure rule 18.24, the law does not permit remote attendance.

Despite a request, we have not been told where any of the people whose evidence the appellant wishes to rely upon are present and so none of the usual formalities, such as seeking mutual legal assistance, often through a formal international letter of request, have to our knowledge, been addressed, or indeed have any of the matters set out in rule 18.24. So, for those reasons, and in light of the appellants failure to comply with His Honour Judge Griffith’s direction six, we refuse the delay[?] requested by the appellant.

We recognise this is robust case management, and in reaching that decision we have taken into account all the circumstances, including the nature of these proceedings and the appellant’s conduct to date.

We turn now to consider the legal framework where an appellant fails to appear and is not legally represented. An appeal against conviction and sentence from the Magistrates’ Court to the Crown Court is hearing de novo, or by way of re-hearing.

Section 79(3) of the Senior Courts Act 1981, which deals with appeals from Magistrates’ Courts to the Crown Court read as follows, ‘The customary practice and procedure with respect to appeals to the Crown Court, and in particular any practice has to the extent to which an appeal is by way of re-hearing of the case, shall continue to be observed’.

Section 9(6) of the Courts Act 1971 provides that, ‘Subject to any provision contained in or having effect under this Act, the transfer of appellant jurisdiction to the Crown Court from the Quarter Sessions, shall not affect the customary practice or procedure of any such appeal, and in particular shall not affect the extent to which the appeal is by way of re-hearing of the case’.

In ex parte Clare, Green-Johnson LJ, with whom Mann LJ agreed, cited the approval at page 748, a passage from the last edition of Archbold’s last Quarter Sessions, sixth edition, 1908 which said this, ‘If the parties on appeal do not appear by themselves or by counsel when it is thus called on, the Court will order the appeal to be struck out of the list, and they will not usually allow it to be restored to it without the consent of the opposite party, or a very strong and satisfactory statement on the part of the appellant, supported by affidavit, or the oath of witnesses present accounting for his absence’.

Mr Ashley-Norman of Queen’s Counsel drew our attention to the decision of Henriques J sitting in the Administrative Court, in the Queen’s Bench Division of the High Court, in R (Hayes) v Chelmsford Crown Court [2003] EWHC 73 (Admin) in which the Court decided that was not open to dismiss an appeal where an appellant did not appear. However, as Mr Ashley-Norman rightly pointed out, that case is distinguishable from this one, because there the appellant was represented, whereas here, the appellant is not.

Ex parte Clare is clear authority that the [inaudible] of this case in the circumstances which are now presented to us. No appearance was made on behalf of the appellant in the

Magistrates’ Court or before us, nor did the appellant appear [by counsel or solicitor?]. Is there a strong and satisfactory reason for not doing so? Given what we have rehearsed, we do not think there is.

Even if Miss Sokolova or Mr Saavedra did report to appear before us today, or indeed any director of the appellant whether in person or by video link, we would refuse to go behind His Honour Judge Griffith’s clear direction six of 27 July 2021.

Since that direction has not been complied with still to date, and the appellant does not appear before us by anyone else with such written authority, or by legal representation, we find that the appellant has failed to appear today for the hearing of this appeal. Accordingly

the appeal is dismissed.

We will hear Mr Ashley-Norman QC’s application for costs.”

Did the Court on 17 August act unlawfully and contrary to natural justice in refusing to admit the Claimant to the hearing, at the very least to resolve the issue as to the Claimant’s authorisation and to pursue the adjournment application ?

Did the Court deny the Claimant a fair hearing ?

Did HHJ Baumgartner on 17 August act with bias or the appearance of bias such that a fair minded and informed observer would conclude justice had not seen to be done ?

Is there any merit in the Interested Party’s argument (s 31(2A), Senior Courts Act 1981) that it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred ?