Bakhtiar Abbasi, R (on the application of) v The Crown Court at Southwark

A Crown Court may issue a witness summons under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 during confiscation proceedings. Criminal proceedings before the Crown Court are not confined to determination of the criminal charge. Confiscation proceedings form part of sentencing, and applications may be made when the need for evidence becomes reasonably apparent. Procedural defects do not ordinarily remove jurisdiction. Judicial review is excluded for decisions relating to trial on indictment unless the Crown Court acted without jurisdiction through an error of substantial gravity.

The claimant had been convicted and sentenced following a private prosecution. During continuing confiscation proceedings, the Crown Court issued witness summonses requiring banks to produce records concerning the claimant and associated companies.

The claimant sought permission to apply for judicial review, arguing that section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 did not authorise summonses after conviction, that private prosecutors could not use the provision, and that procedural defects invalidated the summonses. The central issues were whether the decision concerned trial on indictment and whether the Crown Court had acted outside its jurisdiction.

1. Permission refused; claim not arguable. The Crown Court had jurisdiction to issue the summonses, and the decision concerned a matter relating to trial on indictment within section 29(3) of the Senior Courts Act 1981.
2. The exclusion in section 29(3) extends to orders integral to the wider trial process, including sentencing and confiscation. Confiscation proceedings remain part of sentencing and may affect the propriety of a confiscation order on appeal. The reasoning in Re Sampson was applied; R v Smalley and R (T.B.) v Stafford Crown Court were distinguished.
3. A jurisdictional exception requires an error of substantial gravity. Section 2(1)(a) of the 1965 Act refers broadly to evidence material for any criminal proceedings before the Crown Court. It does not cease to operate once the charge has been determined.
4. Section 2(4) requires an application as soon as reasonably practicable, assessed in context. The requirement is not confined to the period following service of papers after sending for trial. Here, the need for banking material became apparent only after the claimant’s section 18 statement proved inadequate.
5. The use of section 2 by private prosecutors was lawful. The summons was issued by the Crown Court, which remained bound by Convention rights. R (Virgin Media Limited) v Zinga did not address the possible use of section 2. R v H arose in a different Convention context and did not assist.
6. The alleged procedural defects did not deprive the Crown Court of jurisdiction. The claim was also out of time, and probably defeated by the alternative-remedy bar under CPR 17.7(1)(c), although that issue was not finally determined.

First-instance judicial review application heard by the Divisional Court. Permission to apply for judicial review was refused following a rolled-up hearing; the claim was held not arguable.