R v Saqub Asif Malik

A later criminal prosecution founded on the same or substantially the same facts as concluded proceedings will generally be an abuse of process, absent special circumstances. Overlapping evidence is not enough: the court must compare the offences, dates, participants and scope, having regard to the information known when the earlier proceedings concluded. A later, wider laundering conspiracy may therefore be distinct from earlier fraud proceedings. An alleged expectation that no further prosecution would follow requires evidence of a promise or actual expectation. Evidence of a prior fraud conviction may be admissible in a later criminal-property case where it concerns the funds and bears on their criminal character and the defendant’s knowledge. A related acquittal does not necessarily affect admissibility.

The applicant was convicted at Bristol Crown Court of conspiracy to convert criminal property after an earlier guilty plea at Birmingham Crown Court to conspiracy to commit fraud. He was sentenced in absence and later became subject to a confiscation order. He applied out of time to renew an application for leave to appeal his conviction, seeking an extension of 1,666 days.

The proposed appeal alleged, first, that the Bristol prosecution was an abuse of process because the prosecution had earlier offered no evidence on a possession-of-criminal-property count. Secondly, it challenged the admission of evidence of the Birmingham fraud conviction, relying on alleged non-disclosure, the related acquittal and fairness under section 78. The central questions were whether either ground was arguable and, if so, whether time should be extended.

Disposition. The applications for an extension of time and for leave to appeal the conviction were refused.

1. Abuse of process. Successive proceedings based on the same or substantially the same facts will generally be abusive unless special circumstances exist. The relevant comparison includes the type of offence, dates, participants and scope, viewed against the state of affairs known to the prosecutor when the earlier proceedings concluded. The principles in R v Dwyer ([2012] EWCA Crim 10) and R v Bihe (Nuh) ([2022] EWCA Crim 939) did not assist the applicant because the Birmingham proceedings concerned the provenance, possession and handling of the stolen cheques, whereas the Bristol proceedings concerned a wider and separate conspiracy involving what happened to the funds after clearance, other monies, different participants and a different period.
2. The failure to deal with all matters in one set of proceedings, or to explain why that was not done, did not make the Bristol prosecution abusive on these facts. There was no evidence of any express or implied promise that the applicant would not face further proceedings, nor of the asserted expectation. The acceptance of the guilty plea and the decision to offer no evidence on the possession count were properly treated as pragmatic decisions, since possession formed part of the fraud facts and a separate prosecution on that count would have added nothing.
3. Admissibility. Evidence relating to the earlier fraud conspiracy concerned funds later alleged to form part of the Bristol conspiracy. It was therefore evidence to do with the facts of the case and was relevant and admissible under section 98 and section 101(1)(d) of the Criminal Justice Act 2003 to show the criminal nature of the funds and the applicant’s knowledge of their origins. The related not-guilty verdict on the possession count did not alter that analysis. Service of the certificate of acquittal, together with the applicant’s knowledge of the charges and guilty plea, was sufficient to meet the complaint advanced.
4. Extension of time. The court did not need to decide the extension application independently because no ground of appeal was arguable. It nevertheless confirmed that, consistently with R v Okedare & Others ([2014] EWCA Crim 228), an applicant’s absconding may be taken into account with the merits and the explanation for delay. The extreme delay was inadequately explained, and there was no explanation for leaving or failing to return to the jurisdiction.

• Court of Appeal (Criminal Division): refused the applications for an extension of time and leave to appeal ([2025] EWCA Crim 1420).
• Single judge of the Court of Appeal: refused the applicant’s application for an extension of time on 18 December 2023.
• Bristol Crown Court: convicted the applicant of conspiracy to convert criminal property, sentenced him in absence, and later made a confiscation order.