Bahbahani, R v, Court of Appeal - Criminal Division, February 05, 2018, [2018] EWCA Crim 95

Resolution Date:February 05, 2018
Issuing Organization:Criminal Division
Actores:Bahbahani, R v
 
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Case No: 201704690 C2

Neutral Citation Number: [2018] EWCA Crim 95

IN THE COURT OF APPEAL

ON APPEAL FROM THE CROWN COURT AT ISLEWORTH

RECORDER PHILIP SHEPHERD QC

S20140392

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 05/02/2018

Before:

THE LORD CHIEF JUSTICEOF ENGLAND AND WALES

THE RT HON THE LORD BURNETT OF MALDON

THE HON MR JUSTICE WILLIAM DAVIS

and

THE HON MR JUSTICE GOOSE

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Between:

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Mr Dean Armstrong QC and Mr Quentin Hunt (instructed by Blackfords LLP) for the Appellant

Mr Ellis Sareen (instructed by The London Borough of Ealing) for the Respondent

Hearing dates : 20 December 2017

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JudgmentLord Burnett of Maldon CJ:

  1. 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:

    (i) The applicant seeks an order that his trial was a nullity and a writ of venire de novo awarding him a new trial on the basis that the proceedings in the Magistrates' Court were of no effect because he was impersonated at his trial. That impersonation was by an associate, to whom he had given a general authority to conduct legal proceedings on his behalf. He says that he was unaware of the proceedings in the Magistrates' Court until after the conviction. The proceedings were a nullity because of a failure to comply with the strict requirements of section 17 and 17A of the Magistrates' Courts Act 1980 [``the 1980 Act''] about conducting proceedings in the presence of the defendant;

    (ii) The sentence proceedings were an abuse of process once it became known that he had not personally appeared in the Magistrates' Court. The recorder should have stayed them;

    (iii) In any event, the confiscation order made was wrong in principle.

    The Facts

  2. 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.

  3. 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''.

  4. 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's efforts to overturn the conviction

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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...

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