R Ali Bahbahani v Ealing Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde,Mr Justice Dove |
| Judgment Date | 06 June 2019 |
| Neutral Citation | [2019] EWHC 1385 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 June 2019 |
| Docket Number | Case No: CO/2028/2018 |
[2019] EWHC 1385 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Holroyde
and
Mr Justice Dove
Case No: CO/2028/2018
Louis Mably QC and Benjamin Waidhofer (instructed by Lawrence & Co CDS LLP) for the Claimant
No appearance or representation for the Defendant
Ellis Sareen (instructed by London Borough of Ealing) for the Interested Party
Hearing dates: 14th February 2019
Approved Judgment
Lord Justice Holroyde and
Introduction
The facts of this case are extraordinary, and we think it almost inconceivable that they will ever be replicated. The Claimant Mr Bahbahani applies for judicial review of his convictions following a summary trial as long ago as 26 th August 2014. It now appears that the man who attended that trial (and earlier court appearances) and identified himself as the Claimant, and who gave evidence in the Claimant's name, was not in fact the Claimant but rather his trusted agent Saad Maki Abdul-Jalil, to whom he had granted power of attorney. In essence, the Claimant contends that the proceedings as a whole were unlawful because he had been impersonated. This is the judgment of the court, to which we have both contributed.
We summarise the relevant facts so far as practicable in chronological order.
On the 26 th January 2004 the Claimant appointed Mr Abdul-Jalil to be his attorney for the purposes of the Powers of Attorney Act 1971.
On 7 th December 2005 Mr Abdul-Jalil was convicted of offences of conspiracy to defraud and money laundering. He was remanded in custody until 20 th January 2006, when he was sentenced to 6 years' imprisonment. Confiscation proceedings under the Proceeds of Crime Act 2002 (hereafter, “ POCA”) were heard at a later date, and on 11 th December 2006 Mr Abdul-Jalil was made subject to a confiscation order in the sum of £598,000, with two years' imprisonment in default of payment.
On 22 nd October 2007, for an offence of conspiracy to handle stolen goods to which he had pleaded guilty, Mr Abdul-Jalil was sentenced to a further two years' imprisonment.
On the 27 th May 2008 (whilst Mr Abdul-Jalil was still in custody serving his sentences) the Claimant became the owner of a residential dwelling house at 1 Waldegrave Road, Ealing, London. That property had been the subject of investigation by the London Borough of Ealing (the Interested Party in these proceedings) for breaches of planning control. The Interested Party served an enforcement notice dated the 16 th December 2008. On the 5 th May 2009 it appears that Mr Abdul-Jalil, impersonating and pretending that he was the Claimant, attended the offices of the Interested Party and complained that he had not had any knowledge of the enforcement notice. He provided a new address for the Claimant, and the Interested Party decided to serve a fresh notice. A further enforcement notice dated the 8 th May 2009 was served. The enforcement notice alleged a material change of use of a detached and ancillary domestic outbuilding arising from its use as a self-contained residential unit.
An enforcement notice appeal was lodged bearing (or purporting to bear) the signature of the Claimant. A public inquiry was held in relation to the appeal on the 12 th January 2010. At the inquiry a copy of the Claimant's passport and also the power of attorney dated the 26 th January 2004 (see [3] above) were submitted by Mr Abdul-Jalil, who gave evidence in support of the appeal in his own name on behalf of the Claimant. In the course of her decision dismissing the appeal the Inspector noted that she had not been provided with “any evidence whatsoever relating to accounts or income from the property except for the rent book”. She further noted that the rent book did not cover the period of the whole term of the tenancy, and that no explanation had been provided in relation to that discrepancy. The notice having been upheld, it came into effect. The Claimant did not comply with it.
On 29 th May 2012 the Claimant granted Mr Abdul-Jalil another wide-ranging General Power of Attorney to act on his behalf. Amongst other things, this authorised Mr Abdul-Jalil –
“… to sign and negotiate all documentation and any other ancillary documents, including bank documentation on my behalf, as well appearing in court for me and accepting any thing for me and on my behalf in respect of any legal proceedings.”
The Interested Party's investigation in relation to breach of planning control at 1 Waldegrave Road continued. Ultimately a further enforcement notice was served dated the 24 th October 2012. This enforcement notice related to a breach of planning control caused by the use of the first floor flat as two self-contained residential units, together with operational development in the form of rear extensions and the creation of roof terraces along with the sub-division of the rear garden. No appeal was lodged in respect of that enforcement notice and therefore it came into effect. The time for compliance expired on 12 th June 2013. Again, the Claimant did not comply with it.
On the 7 th May 2013 Mr Abdul-Jalil commenced serving a sentence in default of payment of the December 2006 confiscation order (see [4] above).
The proceedings in the Ealing Magistrates' Court
On the 18 th December 2013 an information was laid before the Ealing Magistrates' Court (the Defendant in these proceedings) by the Interested Party's solicitor, alleging failure by the Claimant to comply with the enforcement notices. The first hearing date was adjourned following a request by Mr Abdul-Jalil, in the guise of the Claimant. The memorandum entered in the Defendant's register records that on the 15 th May 2014 a plea of not guilty was entered in respect of both charges. It is an agreed fact that the not guilty pleas were entered not by the Claimant, but by Mr Abdul-Jalil impersonating him and pretending that he was the Claimant. It is again an agreed fact that Mr Abdul-Jalil impersonated the Claimant, and gave evidence as the Claimant, at his trial on the 26 th August 2014, which ended with findings of guilt in relation to both charges. Pursuant to section 70 of POCA, the Claimant was committed for sentence to the Crown Court at Isleworth so that a confiscation order could be considered.
The proceedings in the Crown Court
The proceedings in the Crown Court began on the 26 th September 2014, when Mr Abdul-Jalil impersonated the Claimant at a mention hearing. As part of the usual procedure followed on that occasion, he admitted the convictions and the committal for sentence. On the 10 th October 2014 a statement pursuant to section 18 of POCA was signed, admittedly by the Claimant, after it had been prepared by Mr Abdul-Jalil. It was not however served, and as a result the Interested Party applied for the case to be listed for mention.
By the time of that further mention hearing, on 28 th November 2014, the Interested Party's investigations had led (understandably, in view of the events to date) to suspicion that the Claimant was using the name Abdul-Jalil. When Mr Abdul-Jalil attended the hearing, in the guise of the Claimant, he was therefore asked if he had previously served a sentence in the name of Abdul-Jalil. He said that he had. He did not however say that he was not the Claimant.
On 20 th February 2015 the Interested Party served a statement alleging that the Claimant and Mr Abdul-Jalil were one and the same person.
The next significant milestone in the proceedings was a mention on the 29 th April 2015 when, for the first time, the Claimant attended the criminal proceedings at the Crown Court with Mr Abdul-Jalil. The judge ordered that the Claimant produce his passport and that the issue of identity be tried as a preliminary issue. On the 8 th May 2015 the Interested Party wrote to the Claimant accepting that the passport he had provided was genuine and therefore accepting that he was not the man who had, up until that point, participated under the Claimant's name as the defendant in the prosecution brought by the Interested Party. It was accordingly no longer necessary for the preliminary issue to be tried. At a further mention hearing on 29 th May 2015 a revised timetable was set for the confiscation hearing.
On 16 th June 2015 an application was made by the Claimant (without notice to the Interested Party) for leave to appeal to the Crown Court against his convictions on 26 th August 2014. The application was long out of time and made no reference to the Claimant having been impersonated by Mr Abdul-Jalil in the criminal proceedings. On the 29 th June 2015 the application was dismissed by HHJ Edmunds QC on the basis that it was totally without merit, in that it raised no new issues and provided no reasonable excuse for the delay in making the application. On the 6 th August 2015 there was a further application to the Crown Court for leave to appeal against conviction out of time. It was made on a different basis, namely an alleged failure in disclosure by the Interested Party, but again made no reference to impersonation of the Claimant. On the contrary, the application drafted by counsel on the Claimant's behalf, and no doubt on his instructions, stated that the Claimant was served with the first enforcement notice; said that he had unsuccessfully appealed that notice; referred to a “preparation for effective trial form” in which the applicant had indicated that he had not been served with the second enforcement notice; and submitted that disclosure of the relevant document “would have had a profound effect upon the [Claimant's] ability to comply” with the enforcement notice. On...
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