Bahbahani, R v

The Court of Appeal’s jurisdiction to order venire de novo is statutory and is confined to trials on indictment. It does not permit the court to declare a summary trial in the Magistrates’ Court a nullity, quash the resulting conviction, or order a retrial there.

A Crown Court must act on a committal for sentence that is valid on its face. A challenge requiring inquiry into the Magistrates’ Court proceedings must be made by the appropriate statutory route or in the High Court. In a criminal lifestyle confiscation case, the Proceeds of Crime Act 2002 assumptions must be applied unless they create a serious risk of injustice. Proportionality concerns the aim of stripping criminal benefit, rather than any disparity between the fine and the confiscation order.

The appellant was convicted in Ealing Magistrates’ Court of two breaches of planning enforcement notices and committed to the Crown Court for sentence. At Isleworth Crown Court, the recorder imposed fines, a confiscation order of £4,310,311 under the Proceeds of Crime Act 2002, and default imprisonment.

The appellant alleged that an associate had impersonated him in the Magistrates’ Court. He sought a declaration that the summary trial was a nullity and an order of venire de novo. Alternatively, he contended that the Crown Court proceedings were an abuse of process, that the committal was defective, and that the confiscation order was unjust and disproportionate. The central issues were the Court of Appeal’s power to grant venire de novo, the Crown Court’s power to question the committal, and the validity of the confiscation order.

1. The application for an order of venire de novo failed. The Criminal Division’s power is statutory. Under Senior Courts Act 1981 section 53(2), it inherited only the jurisdiction formerly held by the Court of Criminal Appeal. That jurisdiction concerns trials on indictment and fundamental irregularities that render such trials nullities. It does not extend to a summary trial in the Magistrates’ Court. The court could neither enlarge that jurisdiction nor quash the convictions and remit the case to the Magistrates’ Court.

2. The recorder was right not to investigate the validity of the Magistrates’ Court proceedings. A Crown Court cannot go behind a committal for sentence which is valid on its face. The alleged impersonation was not apparent from the conviction or committal documents. The proper route for a challenge of that kind was an appeal, case stated, reopening application, or judicial review in the High Court.

3. The abuse-of-process ground was without merit. Applying the integrity limb in R v Latif [1996] 1WLR 104, neither the prosecution nor the court had undermined the integrity of the criminal justice system. The recorder was entitled to find that the associate was the appellant’s trusted agent and that the appellant had initially endorsed the conduct from which he later sought to benefit.

4. The confiscation order was correct. The appellant accepted that this was a criminal lifestyle case under the Proceeds of Crime Act 2002. The recorder was therefore required to apply the section 10 assumptions unless they created a serious risk of injustice. Having heard extensive evidence, he was entitled to reject the asserted legitimate source of the London properties and to find no basis for disapplying the assumptions. Under Article 1 of Protocol 1, proportionality concerned confiscation of the benefit of criminal conduct, not the contrast between the fines and the order. The order was not disproportionate.

5. The court identified a technical error in the default sentence. Eight years’ imprisonment was appropriate only for default on the confiscation order. The sentence in default of payment of the fines was quashed and replaced with 40 days’ imprisonment. The sentence was varied to that extent only.

• Court of Appeal (Criminal Division) — In [2018] EWCA Crim 95, the court rejected the nullity, abuse-of-process, committal, and confiscation grounds, but varied the default sentence for the fines.
• High Court — Collins J refused permission to apply for judicial review of the earlier refusal to extend time for an appeal against conviction.
• Crown Court at Isleworth — The recorder rejected the abuse-of-process application and, on 15 September 2017, imposed fines, a confiscation order, and default imprisonment.
• Ealing Magistrates’ Court — On 26 August 2014, the appellant was convicted of two breaches of enforcement notices and committed for sentence.