R Koli v Maidstone Crown Court and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 10 May 2011 |
| Neutral Citation | [2011] EWHC 2821 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2173/2011 |
| Date | 10 May 2011 |
[2011] EWHC 2821 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/2173/2011
The Claimant appeared in person (With the aid of a McKenzie Friend, Mr McDonald)
Mr Matthew Gullick (instructed by Treasury Solicitors) appeared on behalf of the Defendants
This is an application for permission to apply for judicial review, together with interim relief, which was adjourned to this hearing by order of Charles J. The claim as formulated is obscure, but Mr Koli (in person but with Mr McDonald as his McKenzie Friend) seeks to challenge three orders. The first is a confiscation order made on 28 January 2011 under section 6 of the Proceeds of Crime Act 2002 by HHJ Macdonald QC at Maidstone Crown Court, a Serious Crime Prevention Order made under sections 1 and 19 of the Serious Crime Act 2007 on the same occasion by the same judge, and a Financial Reporting Order under section 76 of the Serious Organised Crime and Police Act 2005.
The defendant in those proceedings (the claimant here) pleaded guilty in April 2009 to conspiring to launder money and was sentenced, following a successful sentence appeal to the Court of Appeal, Criminal Division, to three and a half years. He is currently at liberty on licence.
The confiscation proceedings were dealt with by the judge in his ruling of which I have a transcript, in which he records that, subject to a series of items in dispute, it was accepted that the defendant's benefit included a large number of items, and it was accepted that he had a criminal lifestyle and the confiscation orders had to proceed.
There was a dispute as to the extent of benefit only. Mr Koli was contending that the correct benefit figure was nearly £2.3 million. The Crown contended that the benefit was nearly £3.3 million. The defendant contended that the recoverable amount was only £32,983.
The judge heard the evidence in relation to benefit and the availability of assets, found that the defendant's evidence in many respects was wholly unreliable, concluded that there were hidden assets, and made an order that the benefit was £3.296 million. He accepted that the available amount, applying the Act, was £1.6 million, and set a default term of seven years' imprisonment. He then made the further orders to which I have referred.
Mr Koli has shown to the defendants and to this court the advice he received from counsel then representing him in relation to the prospects of an appeal. The advice was that there should be no appeal. The advocate is clearly advising that there are no grounds for an appeal, rather than that an appeal in law is not available to deal with factual grounds that are sound. The advocate made the same point in relation to the seven-year period in default, and in relation to the Serious Crime Prevention and Financial Reporting Orders.
The fundamental contention that Mr Koli raises is that he has been found liable to pay an amount derived from benefits which he says come from offending with which he has never been charged and which has never been proved to the required criminal standard. It appeared that he was contending that such an outcome was incompatible with Article 6(2) of the European Convention on Human Rights, although in argument before me, with the benefit of whispered comments from Mr McDonald, he said he was complaining about section 3, the so-called "reading down" provision of the Human Rights Act.
The application for permission to apply for judicial review is wholly untenable. It has been got up through the misconceptions of Mr McDonald as the McKenzie Friend.
Mr Gullick's helpful skeleton, I accept, explains succinctly why this case is hopeless. The three orders relate to a trial on indictment. By section 29(3) of the Senior Courts Act, judicial review does not lie in respect of matters relating to trial on indictment. The three orders are orders which relate to trial on indictment, since they are the sentencing consequences of such a trial. As Mr Gullick points out in his skeleton argument, that conclusion was reached in R(Faithfull v Ipswich Crown Court [2007] EWHC 2763 (Admin), in which the Divisional Court concluded that the decision not to make a compensation order was not...
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