Benjamin Waidhofer

Benjamin Waidhofer successfully quashes £4.3 million confiscation order

In R (on the application of Bahbahani) v Ealing Magistrates Court [2019] EWHC 1385 (Admin), [2019] 3 WLR 901, [2020] 1 Cr App R 2, Benjamin Waidhofer, led by Louis Mably QC and instructed by Fadi Daoud on behalf of Lawrence & Co CDS LLP successfully quashed (1) convictions dating back to 2014; and (2) a confiscation order made in 2017 to a value in excess of £4.3million on the basis that criminal proceedings at the Ealing Magistrates’ Court had been a nullity.

The claim was brought on the basis that the man who entered pleas of ‘not guilty’ was not in fact Mr Bahbahani, but a man impersonating him.  That imposter consented to summary trial in the name of Mr Bahbahni and gave evidence purporting to be the Mr Bahbahani at Ealing Magistrates’ Court.  The trial process ended with findings of guilt and the case was committed for sentence to the Crown Court for the purposes of confiscation proceedings.

An application was made by Mr Bahbahani’s previous legal team for proceedings in the Crown Court to be stayed as an abuse of process.  That application was unsuccessful and, following the imposition of sentence including a confiscation order in excess of £4.3 million, Mr Bahbahani’s previous legal team subsequently appealed against conviction and sentence to the Court of Appeal (Criminal Division) [2018] EWCA Crim 95, [2018] 1 Cr App R 29, seeking to quash the convictions at Ealing Magistrates’ Court (together with the sentences that flowed from them) and obtain a writ of venire de novo.  The application for permission to appeal against conviction and sentence was refused on the basis that the power to issue a writ of venire de novo was confined to trials in the Crown Court and that the Court of Appeal had no power to quash convictions at the magistrates’ court.

In the Judicial Review proceedings, permission to proceed was initially refused on the papers but Benjamin Waidhofer obtained permission to apply at a renewed oral hearing before Supperstone J. on three of the four grounds advanced in writing.

In R (on the application of Bahbahani) v Ealing Magistrates Court [2019] EWHC 1385 (Admin), [2019] 3 WLR 901, [2020] 1 Cr App R 2, the Divisional Court confirmed that compliance with sections 17A and 20 of the Magistrates’ Courts Act 1980 is a precondition of a magistrates’ court having jurisdiction to try an either-way offence.  In other words, a defendant in criminal proceedings must be in court when the plea before venue and mode of trial is determined.  As a result, the Divisional Court explained that Ealing Magistrates’ Court had no jurisdiction to embark upon a summary trial or to either convict the claimant or commit him for sentence.

In addition to questions of jurisdiction, the Divisional Court held that on the facts on the case, the claimant had been denied the right to a fair trial therefore as a matter of discretion the conviction against him should be quashed.

The Divisional Court further quashed all decisions of the Crown Court.

In considering the question of costs, the Divisional Court provided decisive guidance on the proper approach to determining costs in judicial review proceedings arising from criminal proceedings.  The Divisional Court made it clear that costs incurred in the course of Judicial Review of criminal proceedings at the magistrates’ court will, unless ‘exceptional’, be assessed in accordance with the Prosecution of Offences Act 1985.  That Act, following its amendment by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, significantly limits legal costs which can be recouped.  In future, practitioners may want to carefully consider the guidance provided by the Divisional Court carefully before advising clients to bring Judicial Review proceedings of decisions of the magistrates’ court.