Judges reject appeal by planning defendant over ‘impersonation’ in magistrates court

The Court of Appeal has rejected a claim that a fine and a £4m-plus proceeds of crime order made over a planning case in Ealing should be overturned because the defendant was impersonated in the magistrates’ court.

Ali Bahbahani was convicted at Ealing Magistrates' Court of two offences of being in breach of an enforcement notice, and last September 2017 Recorder Shepherd QC fined him £2,000 and ordered him to pay £31,080 towards the prosecution costs, plus a confiscation order for £4,310,311 under the Proceeds of Crime Act 2002.

The recorder imposed an eight years prison sentence in default of payment of the confiscation order and fine.

The London Borough of Ealing had imposed the notices over the unauthorised conversion of part of a building to residential use.

Bahbahani sought an order that his trial was a nullity and a writ of venire de novo awarding him a new trial on the basis that the proceedings in the magistrates' court were of no effect because he was impersonated there by Saad Maki Abdul-Jalil, to whom he had given a general authority to conduct legal proceedings on his behalf.

He claimed he was therefore unaware of the proceedings in the Magistrates' Court until after the conviction.

It was additionally argued that the sentence proceedings were an abuse of process once it became known that he had not personally appeared in the magistrates' court, and that the confiscation order made was wrong in principle.

Bahbahani does not live in the United Kingdom and had given Abdul-Jalil authority in his legal affairs including "appearing in court for me”.

Recorder Shepherd accepted that Bahbahani took no personal part in the proceedings and that Abdul-Jalil told the magistrates that he was the applicant.

Giving judgment in Bahbahani, R v [2018] EWCA Crim 95, the Lord Chief Justice, Lord Burnett Of Maldon, said the Court of Appeal could not order a new trial as its powers did not include declaring a summary trial a nullity.

Even if the court had had the power, Burnett CJ said: “There is no good reason to consider doing so. There are varied ways in which a conviction in the magistrates' court can be challenged.”

He noted on the abuse of process claim that in the crown court trial the recorder had said: “The prosecution is right to observe that this was not a case where [Mr Bahbahani] was impersonated by or faced with the actions of antagonistic third parties whose actions he disowned.

“To the contrary, Mr Abdul-Jalil was his trusted agent, as he confirmed when he gave evidence during the hearing.

“Mr Abdul-Jalil pretended in the Ealing Magistrates Court that he was [Mr Bahbahani] unbeknown to the prosecution. Far from complaining about this at the earliest opportunity, or distancing himself from Mr Abdul-Jalil, [Mr Bahbahani] appears to have adopted until now what was done in his name.”

The appeal court said: “There is no merit in the applicant's criticism of the refusal to stay the proceedings as an abuse of process. He was himself the cause of the very matters of which he complained.

“To the extent that the process was abused, it was by Mr Abdul-Jalil in a way which was initially endorsed by the applicant for his own advantage.”

Burnett CJ also said the fine and proceeds of crime orders were correct, despite being very different in the amounts involved as “proportionality in this context is not concerned with the relationship between the sanction imposed for the offence in question and the confiscation order made.

“It is concerned with whether the sum ordered to be confiscated is proportionate to the aim of divesting criminals of the proceeds of their criminal activity.”

Mark Smulian