Ghulam & Ors v R.

An agreed confiscation order will not ordinarily be set aside merely because the representation was open to criticism. Exceptional circumstances require a well-founded case that the whole process was unfair. An appellant must also show that competent representation would probably have produced a more favourable outcome, while recognising that an agreement may have bought off the risks of contested proceedings.

An interested party has an appeal under section 31(4) only where the Crown Court actually made a determination under section 10 A of the Proceeds of Crime Act 2002. Treating property as an offender’s available asset does not alone establish such a determination.

Yazdani and Rabani Ghulam received confiscation orders in the Crown Court at Maidstone after terms were agreed with the prosecution. They asserted that properties registered in their names were held on trust for their father, Mohammed Kabir Butt. Mr Butt asserted an interest in those properties.

About a year later, the brothers sought extensions of time and leave to appeal against their orders. Mr Butt sought to appeal as an interested party. All alleged that counsel had acted incompetently and had improperly pressured them into accepting the orders. The central issues were whether there were exceptional circumstances to reopen agreed confiscation orders, and whether the Crown Court had made a section 10 A determination capable of appeal.

1. The court refused all applications for extensions of time. It held that leave to appeal would in any event have been refused. The brothers remained subject to their confiscation orders.

2. Following Hirani [2008] EWCA Crim 1463, an agreed confiscation order may only exceptionally be reopened on the basis of negligent advice or representation. The complaint must establish that the whole process was unfair. It must also show that competent representation would probably have produced a more favourable outcome. This reflects the reality that an offender may agree an order to avoid the risks of a contested hearing, including a finding of hidden assets.

3. Although counsel’s lack of notes, failure to provide a skeleton argument, and handling of potential conflicts were open to criticism, the appeal was not a disciplinary inquiry. The court accepted counsel’s evidence that the family had authorised negotiations and had given informed consent to the orders. It rejected the applicants’ evidence of pressure and found no arguable basis for saying that different representation would have produced better orders. The claimed trusts were weakly supported, and contesting the proceedings carried substantial risks.

4. Mr Butt had no right of appeal under section 31(4) of the Proceeds of Crime Act 2002. The Crown Court had not made a determination under section 10 A of the extent of either brother’s interest in the properties. The orders’ treatment of the properties as available assets did not itself amount to such a determination. In any event, Mr Butt would not have met the statutory conditions for an appeal.

5. The court added guidance that, where an interested party claims an interest in property, a Crown Court should state whether it considers a section 10 A determination appropriate, give reasons, and ensure that Forms 5050 and 5050A accurately reflect that decision. The applicants were ordered jointly and severally to pay prosecution costs of £29,772.60.

• Court of Appeal (Criminal Division) — refused the applications for extensions of time and held that leave to appeal would in any event have been refused ([2018] EWCA Crim 1691).
• Crown Court at Maidstone — made agreed confiscation orders against Yazdani and Rabani Ghulam on 17 November 2015.