Ghulam & Ors v R. [2018] EWCA Crim 1691

[2018] EWCA Crim 1691Case No 201605697 B2201605698 B2201702540 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
HHJ MacDonald QC
T20127321
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/07/2018
Before
LORD JUSTICE HOLROYDEMR JUSTICE JULIAN KNOWLESHIS HONOUR JUDGE PEGDEN QC
Between
RABANI GHULAMApplicantsMOHAMMED KABIR BUTTApplicantTHE QUEENRespondent
Mr Ali QC & Mr Gorst (instructed by Scarmans) for Yazdani and Rabani GhulamMr Garlick QC & Mr Ganesan (instructed by Scarmans) for Mohammed Kabir ButtMr Ashley-Norman QC & Mr P Caldwell (instructed by CPS) for RespondentHearing Hearing dates: 11th, 12th and 13th July 2018
Judgment Approved
[1]On 17th November 2015, in the Crown Court at Maidstone, confiscation orders were made against the applicants Yazdani Ghulam and Rabani Ghulam. Each of the three applicants applied for an extension of time in which to apply for leave to appeal against those confiscation orders. In the course of a three-day hearing, the court heard the submissions of all parties and heard, de bene esse, the evidence of a number of witnesses. At the conclusion of the hearing we announced that the applications for extensions of time would be refused, and that the applications for leave to appeal would in any event have been refused. We indicated that we would give the reasons for our decisions in writing at a later date. These are our reasons.[2]Yazdani Ghulam, now aged 36, and Rabani Ghulam, now aged 35, are two of the sons of Mohammed Kabir Butt. On 25th September 2012 all three applicants, together with other persons including other members of their extended family, were arrested on suspicion of involvement in laundering the proceeds of drug dealing. They were interviewed under caution. Mr Butt was then bailed. He was again interviewed under caution in March 2013, but was not charged with any offence. On 26th September 2012 Yazdani and Rabani Ghulam were charged with money laundering offences, and on 25th January 2013, they both pleaded guilty to conspiracy, between 11th September 2008 and 25th September 2012, to conceal, disguise, convert, transfer or remove criminal property, contrary to section 1(1) of the Criminal Law Act 1977. Other accused were convicted of drugs and/or money laundering offences after a trial: these included Mohammed Habib and Mohammed Khalil, who are brothers of Mr Butt and uncles of Yazdani and Rabani Ghulam. Mohammed Khalil was convicted in his absence, having fled the jurisdiction before his trial.[3]Following the trial of other accused, Yazdani and Rabani Ghulam were sentenced on 17th November 2015 to terms of 7 years 6 months’ imprisonment, and 5 years 3 months’ imprisonment, respectively. Confiscation proceedings pursuant to the Proceeds of Crime Act 2002 were adjourned to a later date.[4]On 2nd July 2014, Yazdani and Rabani Ghulam, and their uncle Mohammed Habib, made renewed applications to the full court for leave to appeal against their sentences of imprisonment. This court, differently constituted, refused their applications, and summarised their offending as follows:
“There is no doubt that this was money laundering on a very major scale, lasting over a period of several years. The drugs conspiracy in which the applicant Habib was concerned involved some 8.8 kilograms of heroin. There is also no doubt that all of those involved in the money laundering knew that the money derived from drug dealing.”
This court further noted that cash sums seized from the accused came to over £900,000, and concluded that the trial judge had been fully entitled to find as he did that the minimum amount of money which had been laundered exceeded 3 million pounds.[5]In relation to that unsuccessful application for leave to appeal against sentence, all three applicants were represented by leading counsel and by junior counsel, Mr Aullybocus. Mr Aullybocus had not been involved in the Crown Court proceedings, but having come into the case at this later stage he went on to act in the confiscation proceedings. He was initially instructed by Saints Solicitors, but later acted on a direct access basis.[6]A timetable was set for the confiscation proceedings, and directions were given in the usual way. Yazdani and Rabani Ghulam were required to state their assets. Land registry records showed that commercial properties at 181 and 185 Dunstable Road, Luton were registered to Yazdani Ghulam and Rabani Ghulam respectively. Each of those applicants stated that he held the relevant property on trust for his father.[7]The court was provided with a chart which conveniently summarised the land registry records in relation to the block which comprises 179-185 Dunstable Road. At one stage, title to the whole block had been transferred to Mr Butt’s brother Mohammad Jamil. In 2000, Mohammad Jamil transferred title to 181 and 185 to his brothers Mohammed Habib and Mohammed Khalil respectively, and in 2004 they transferred the titles to Yazdani and Rabani Ghulam. Title to other parts of the block was transferred in 2003 to Mr Butt, and in part in 2004 by him to his wife.[8]Section 6 of the Proceeds of Crime Act 2002 required the learned judge in the Crown Court to decide whether a particular offender had benefited from his relevant criminal conduct and, if so, the value of the benefit so obtained. The judge was then required to decide the amount which was available to be recovered and to make a confiscation order requiring the offender to pay that amount. In determining the available amount, the court may make findings not only as to known and identifiable assets but also as to “hidden assets” which have not been traced, but the existence of which can safely be inferred. The burden lies on the offender to prove that the assets available to him are such that the recoverable amount is less than the full amount by which he has benefited.[9]In the present case, the prosecution initially asserted that each of the two brothers had benefited in an amount of over £136 million. As to the amounts available to each brother, the prosecution - i) asserted that Yazdani Ghulam held available assets of £311,676 (mainly on the basis that he owned 181 Dunstable Road, and his family home at 32 Kirby Drive, Luton) and also held hidden assets in his own name or in the names of family members living abroad; ii) sought forfeiture of a BMW X5 vehicle, which Yazdani Ghulam had frequently used but which he asserted was owned by his father and had been registered by error in his (Yazdani’s) name; iii) asserted that Rabani Ghulam held available assets of £313,432 (mainly on the basis that he owned 185 Dunstable Road and had a rental income of £50,000 from that property), and also held hidden assets in his own name or in that of his wife, who lives abroad; iv) denied that Mr Butt was the beneficial owner of either 181 or 185 Dunstable Road.[10]In their respective statements pursuant to Section 17 of the 2002 Act, which were drafted by Mr Aullybocus on the basis of the instructions which he had received, Yazdani Ghulam and Rabani Ghulam each maintained that he held the relevant property on trust for his father. Each denied any hidden assets.[11]It will be appreciated that, as the confiscation proceedings progressed towards a hearing date, Yazdani and Rabani Ghulam were in prison. They were in regular telephone contact with their father Mr Butt. He, in turn, was active in communicating with Mr Aullybocus about the case, sometimes ringing him three or four times in a week. His youngest son, Jillani Ghulam, was also in communication with Mr Aullybocus.[12]For reasons which we need not relate in detail, the applicants withdrew their instructions from the solicitors who had acted in the application for leave to appeal against sentence and in the confiscation proceedings, and who had originally instructed Mr Aullybocus. There was an issue as to whether the individual who had been handling their cases, a Mr Qureshi, was professionally qualified. At a later date, a curious episode occurred in which letters (“the confession letters”) were sent to the prosecution, which amongst other things purported to incriminate Mr Butt. As we understand it, all parties viewed the confession letters as forgeries, and it does not appear that the prosecution attached any significance to them. It was suspected by the applicants that Mr Qureshi was the author of the confession letters.[13]Following the dismissal of the solicitors, Mr Aullybocus entered into a direct access agreement, which was set out in a letter to Mr Butt dated 29th July 2015. The letter confirmed that Mr Aullybocus would be pleased to accept instructions from Mr Butt “on the terms set out in this letter”. Mr Aullybocus recorded that Mr Butt wished to instruct him “to deal with the Proceeds of Crime Act proceedings issues against your two sons, Yazdani and Rabani Ghulam”. The work he would do included “negotiate throughout this case with the prosecution in relation to potential agreements on the sums available to be recovered and the POCA requirements generally”, and “to advise you and your sons on the best way forward including advice on evidential and legal issues relating to these proceedings. To advise on the evidence required to discharge the duties placed on a defendant in such proceedings”. The letter indicated a fixed fee which was “the total fee for both defendants”. It said that Mr Aullybocus’ contract would be with Mr Butt, who was responsible for paying the fees:
“I will receive my instructions from and through you, but the client [sic] I am instructed for are both Yazdani and Rabani Ghulam. You are acting as an agent for the two of them. You are not acting as my agent (an agent is somebody who acts on another’s behalf)”
. On 2nd August 2015 Mr Butt signed a copy of that letter, beneath an endorsement saying: “I confirm that I have read and accept the above terms. Intermediaries name: Mr Kabir Butt”.[14]From the outset, it was clear that Mr Butt would have relevant evidence to give on the issue of whether his sons held the properties at Dunstable Road on trust for him. Mr Aullybocus advised Mr Butt that, in addition to being a prospective witness, a recent change in the law enabled him also to apply to the court to be recognised as a person as claiming an interest in property subject to the confiscation proceedings. The relevant provisions are to be found in Section 10A of the 2002 Act, which were inserted with effect from 1st June 2015 by the Serious Crime Act 2015. Section 10A provides as follows:
“(1) Where it appears to a court making a confiscation order that a) there is property held by the defendant that is likely to be realised or otherwise used to satisfy the order, and b) a person other than the defendant holds, or may hold, an interest in the property, the court may, if it thinks it appropriate to do so, determine the extent (at the time the confiscation order is made) of the defendant’s interest in the property. (2) The court must not exercise the power given by subsection (1) unless it gives to anyone who the court thinks is or may be a person holding an interest in the property a reasonable opportunity to make representations to it. (3) A determination under this section is conclusive in relation to any question as to the extent of the defendant’s interest in the property that arises in connection with – (a) the realisation of the property, or the transfer of an interest in the property, with a view to satisfying the confiscation order, or (b) any action or proceedings taken for the purpose of any such realisation or transfer. (4) Subsection (3) – (a) is subject to section 51(8B), and (b) does not apply in relation to any question that arises in proceedings before the Court of Appeal or the Supreme Court. (5) In this Part, the ‘extent’ of the defendant’s interest in property means the proportion that the value of the defendant’s interest in it bears to the value of the property itself.”
[15]For convenience, we shall refer to a person who claims to hold an interest in property, within the ambit of section 10A, as an “interested party”. Prior to the amendment which brought section 10A into effect, the claims of interested parties were in general considered only in relation to proceedings to enforce a confiscation order (for example, when a property was to be sold in order to satisfy a confiscation order). The introduction of section 10A made it possible for claims by interested parties to be determined at an earlier stage.[16]There is an issue, to which we shall return, as to whether Mr Aullybocus merely advised Mr Butt as to the possibility of making an application pursuant to that section, and assisted him with the relevant paperwork, or agreed to act as his advocate in the proceedings.[17]The confiscation hearing was initially listed in September 2015, but it became necessary to put that date back. It was ultimately listed to be heard by the trial judge, HH Judge MacDonald QC, over 5 days commencing on Monday 16th November 2015. On the Friday before that hearing, prosecuting counsel served a skeleton argument which substantially altered the prosecution approach to the benefit figure. In summary, the prosecution put forward a calculation of benefit based on a commission of 4 percent of the criminal money which had been laundered. On this new basis, the huge benefit figures which had initially been put forward were dramatically reduced. In the cases of Yazdani and Rabani Ghulam, the revised benefit figure was of the order of £5 million.[18]It is common ground that at the hearing, Mr Aullybocus represented three of the defendants against whom confiscation orders were sought: Yazdani Ghulam, Rabani Ghulam and Mohammed Habib. He also represented two further persons who were interested parties, namely Nayyer Sultana and Asif Mohammed, the wife and son of the absent defendant Mohammed Khalil.[19]Mr Butt contended that Mr Aullybocus also represented him. He relied on his own evidence to that effect. He pointed to passages in the transcript of the hearing which are said to show that the learned judge clearly understood that Mr Aullybocus was also acting for Mr Butt. Mr Butt also relied on an indication by the respondent that prosecuting counsel at the confiscation hearing understood, and proceeded on the basis, that Mr Aullybocus acted for Mr Butt. Mr Aullybocus for his part denied that he acted for Mr Butt. He said that he had extensive dealings with Mr Butt in his capacity as the intermediary under the direct access agreement, and that he had given him some voluntary assistance in relation to the formalities of applying to the court to be recognised as claiming an interest in relevant properties. He had also delivered the completed application to the court. Mr Aullybocus nonetheless contended that Mr Butt acted in person in his capacity as an interested party.[20]On the first day of the hearing, Monday 16th November 2015, all defendants and interested parties were present except for Yazdani Ghulam, who – as a result of an administrative error - had not been produced from prison. Enquiries were made with a view to his being produced later in the day, but these were unavailing. He was therefore absent for the whole of the first day. The parties had in any event asked the judge to allow time for discussions, which was granted. The learned judge indicated that he would not be able to sit on the Wednesday.[21]We should at this point note that as a matter of law, the parties to confiscation proceedings cannot “settle” them in the sense of agreeing the terms of an order between themselves. It is for the court to determine what order is appropriate, whether or not the parties would prefer an order in different terms. In practice, however, it is of course commonplace for the prosecution and defence, by sensible discussion and negotiation, to determine the figures upon which they can agree and to invite the court to approve an order in those terms. In the majority of cases, the court does so approve. This familiar course of discussion and negotiation has obvious and important advantages: it can achieve a very substantial saving of court time and resources, thus enabling other cases to be heard: and it may also assist in identifying what proceeds of crime can in practice be recovered, thus avoiding the expenditure of time and money in seeking unsuccessfully to recover further sums. The reaching of agreement between prosecution and defence as to appropriate figures can therefore very frequently serve the wider public interest. It can also, of course, have pragmatic advantages for the offender in a particular case. The benefit figure is important to an offender facing confiscation proceedings: where it exceeds, and perhaps greatly exceeds, the amount of the confiscation order, there is scope for the prosecution to make a further application in the event that the offender subsequently acquires substantial further assets. For many offenders, however, the important question in practice is what sum they will be required to pay, bearing in mind that in default of payment they will have to serve a prison sentence consecutive to the sentence for the underlying offending. Further, whilst the amount to be recovered will be determined by reference to available assets, the court’s order will not necessarily require that a particular asset must be realised in order to satisfy the confiscation order. To take a simple example: an order may be made on the basis that the offender owns a car which could be sold for £10,000. The car may have to be sold in order to satisfy the confiscation order; but if the offender can pay £10,000 without selling the car, for example by borrowing from his family, then he may be able both to satisfy the confiscation order and to keep the car. In addition, the making of a confiscation order in a sum which the offender can satisfy may have the considerable advantage from his point of view of avoiding any risk that a contested hearing may result in a finding of hidden assets and a consequently larger confiscation order. In practice, therefore, the offender’s focus will often be on the amount which he will be ordered to pay rather than on the benefit figure.[22]Mr Aullybocus spent time on the first day of the hearing discussing matters with Rabani Ghulam (in the cells), Mr Butt and Jillani Ghulam (elsewhere in the court building) and no doubt his other lay clients. He also discussed matters with the prosecution representatives. As is commonplace in such situations, he anticipated that the prosecution would indicate what figures would be acceptable to them, so that he could then take specific instructions from his clients.[23]On the second day of the hearing, Tuesday 17th November 2015, Yazdani Ghulam was produced and all other defendants and interested parties were present at court. Mr Butt was accompanied, as he had been on the previous day, by his youngest son Jillani Ghulam. The learned judge again allowed further time for discussions. He had been told that the parties were hopeful of reaching agreement. In the course of the morning he indicated that by 2pm he would need to know if that would be possible, as the time allowed for the hearing was passing by.[24]In the course of that day, prosecuting counsel indicated the terms on which the prosecution would be prepared to agree to orders against Yazdani and Rabani Ghulam. Mr Aullybocus took instructions from Yazdani and Rabani Ghulam (in the cell area) about those figures. He told this court, and we accept, that they were unwilling to agree to any figures without having the approval of their father, both because he was the head of the family and also because it would in practice be he who would be the source of the funds by which any order would be satisfied. This posed a practical problem, because Mr Butt could not be allowed into the cell area to participate in any discussion.[25]Mr Aullybocus inventively proposed that he ask the judge to permit the court room to be used for the purposes of a conference, on the basis that the two brothers could be brought up from the cells and their father could be in the court room at the same time. Mr Aullybocus recognised there would be restrictions on any such use of the court room. In the event, the learned judge gave permission on the basis that the court recording system would be in operation throughout, that a member of the court staff must be present, that one or more dock officers be present, and that an interpreter be present. Mr Aullybocus and the applicants were content to proceed on that basis.[26]We have a transcript of that joint meeting, which lasted about 15 minutes. It is an incomplete transcript, as not everything which was said could be made out on the recording, and there is an issue as to who spoke certain important words. It is however sufficient for present purposes. After a few minutes, the following was recorded:
“Mr Aullybocus: The reason we’re talking is three hundred is a lot better than six hundred and something. Defendant One (admitted to be Yazdani Ghulam): Yeah, that’s what I’m hearing, of course I respect that. At the end of the day it’s got to come out (?) from somewhere, isn’t it? Mr Aullybocus: That’s why he’s here. Defendant One: Yeah. Look, I can say to him for myself, ‘Look, that money’s nothing for us in the future’. Obviously God can give you a better future of course. Mr Aullybocus: It’s better than spending time in prison. Defendant One: Yeah, he understands that as well, but what do you think, like? Female Speaker: Yes, we have to sort it out. At the end of the day, sort it out.”
We will refer later to the evidence relating to the question which we have underlined, and the response to that question which the transcriber attributed to a female speaker.

Defendant One: Yeah, he understands that as well, but what do you think, like?

[27]At the end of the joint meeting, the transcript shows the following:
“Mr Aullybocus: But, look, is there any more you want to say to me before we go? We have had a conference at the same time so that everybody is clear what we are talking about. Defendant One: yes, do the best, the best, that’s all we can say. People asking for me to talk to me, so what’s the update like? Mr Aullybocus: I am going to see the prosecutor now. I am going to get the draft orders. I am going to check with him whether that is the best we can do and then I am going to come down and see you again in a minute. Defendant One: All right, thank you very much.”
Defendant One: All right, thank you very much.”[28]The learned judge allowed further time in the early part of the afternoon. There was then a hearing, at which he was told that the parties had reached agreements as to the appropriate confiscation orders. The judge heard evidence from a financial investigator, heard submissions and gave judgment. He made confiscation orders in the terms which the parties had agreed as between themselves, which he was satisfied (having read the statements) were a fair reflection of the evidence and were just. In Yazdani Ghulam’s case, the benefit figure was £2,274,043; the available amount, shown to be less, was £180,000; the confiscation order was in that lower sum, with 3 months to pay and a default term of 2 years’ imprisonment. An order was made depriving him of the BMW X5. In Rabani Ghulam’s case, the benefit figure was £2,274,043; the available amount, shown to be less, was £150,000; the confiscation order was in that lower sum, with 3 months to pay and a default term of 2 years’ imprisonment. The learned judge specifically directed that – “… the defendant … or any other person claiming ownership of the property I have referred to or otherwise seeking to oppose the making of this order has liberty to apply to the Crown Court for an oral hearing within 21 days.”[29]The orders made by the judge were subsequently drawn up by a court official on court forms known as Form 5050. These are templates onto which the relevant details can be entered. In relation to each of the brothers, a box had been ticked to indicate that the available amount (£180,000 and £150,000 respectively) was an amount that had been determined by the court. A box indicating that the defendant’s assets were those described in a schedule, Form 5050A, had not been ticked. There was however in each case an attached Form 5050A schedule: in Yazdani Ghulam’s case it listed 181 Dunstable Road and 32 Kirby Drive, with values of £150,000 and £30,000 respectively; in Rabani Ghulam’s case it listed 185 Dunstable Road, with a value of £150,000.[30]All three applicants, and Jillani Ghulam, were in court when the learned judge recited the order. No complaint was made by any of the applicants at the time about the terms of the order. Indeed, Mr Aullybocus was subsequently asked to advise Mr Butt about a tax matter. No issue as to the terms of the order arose for several months. However, on 10th March 2016 Rabani Ghulam sent an email to Mr Aullybocus in which he said that a bank had previously offered to lend sums totalling £220,000 against the Dunstable Road properties but had now refused the loan “due to the tenants credibility”. He said he had spoken to the prosecution “regarding this setback”, and had been advised to speak to his legal representative. He said “We would like to know how this can be resolved and also what can be the next steps we can take to finalise this whole matter”. It was very shortly after that development that the applicants began to criticise Mr Aullybocus. They did not pay the confiscation orders.[31]As we have indicated, all three applicants applied for extensions of time in order to appeal against the confiscation order with a view to the confiscation orders being quashed. In a nutshell, all three alleged that Mr Aullybocus was negligent and incompetent in his representation, and that he improperly pressurised the applicants into accepting an order to which they did not agree. Legal professional privilege was waived, and Mr Aullybocus provided his detailed responses to the criticisms made of him.[32]Two different routes of appeal were engaged. So far as Yazdani and Rabani Ghulam are concerned, the application was for leave to appeal against sentence, pursuant to section 9 of the Criminal Appeal Act 1968, for which the time limit is 28 days from the date of the confiscation order. For the purposes of such an appeal, Section 50(1)(ca) of the 1968 Act provides that “sentence” includes a confiscation order under Part 2 of the Proceeds of Crime Act 2002, but not a determination under Section 10A of that Act. Each brother required an extension time of about one year. If granted the necessary extension, and leave to appeal, section 11(3) of the Act provides:
“On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may – a) Quash any sentence or order which is subject of the appeal; and b) In place of it pass sentence or make such order as they think appropriate for the case and as the court below have power to pass or make when dealing with him for the offence; but the court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below.”
[33]So far as Mr Butt was concerned, the application for leave to appeal was made pursuant to section 31 of the Proceeds of Crime Act 2002. The time limit in his case also was 28 days, and he required an extension of time of nearly 18 months. If granted the necessary extension, and leave to appeal, this court’s powers are set out in section 32 of the 2002 Act. We must quote the relevant parts of those two sections:
“31. Appeal by prosecutor, etc. (1) If the Crown Court makes a confiscation order the prosecutor may appeal to the Court of Appeal in respect of the order. (2) If the Crown Court decides not to make a confiscation order the prosecutor may appeal to the Court of Appeal against the decision. (3) Subsections (1) and (2) do not apply to an order or decision made by virtue of section 10A … . (4) An appeal lies to the Court of Appeal against a determination, under section 10A, of the extent of the defendant’s interest in property. (5) An appeal under subsection (4) lies at the instance of - a) the prosecutor; b) a person who the Court of Appeal thinks is or may be a person holding an interest in the property, if subsection (6) or (7) applies. (6) This subsection applies if the person was not given a reasonable opportunity to make representations when the determination was made. (7) This subsection applies if it appears to the Court of Appeal to be arguable that giving effect to the determination would result in a serious risk of injustice to the person. (8) An appeal does not lie under subsection (4) where – (a) the Court of Appeal believes that an application under section 50 is to be made by the prosecutor for the appointment of a receiver, (b) such an application has been made but not yet determined, or (c) a receiver has been appointed under section 50. 32. Court’s powers on appeal (1) On an appeal under section 31(1) the Court of Appeal may confirm, quash or vary the confiscation order. (2) On an appeal under section 31(2) the Court of Appeal may confirm the decision, or if it believes the decision was wrong it may – a) itself proceed under section 6 (ignoring subsections (1) to (3)), or (b) direct the Crown Court to proceed afresh under section 6. (2A) On an appeal under section 31(4) the Court of Appeal may – a) confirm the determination, or b) make such order as it believes is appropriate. (3) In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the Court of Appeal may make. (4) If a court makes or varies a confiscation under this section or in pursuance of a direction under this section it must – (a) have regard to any fine imposed on the defendant in respect of the offence (or any of the offences) concerned; (b) have regard to any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned, unless the order has already been taken into account by a court in deciding what is the free property held by the defendant for the purposes of section 9.”
Thegrounds of appeal[34]We next summarise the grounds of appeal, which were set out at length in writing, responded to in writing by Mr Aullybocus, and expanded in oral submissions by counsel.[35]Mr Ali QC submitted on behalf of Yazdani and Rabani Ghulam that Mr Aullybocus was guilty of inadequate preparation and conduct of the case, in that he failed to recognise potential conflicts of interest, failed to advise each of the brothers and his other lay clients separately, failed to provide any written advice, failed to advise on the law of implied trusts, failed to prepare any submissions for the hearing, failed to keep records of instructions, advices and conferences, and failed to record the applicants’ agreement to the terms of the confiscation orders. He further submitted that Mr Aullybocus subjected Yazdani and Rabani Ghulam to improper pressure, such the will of each was overborne. Pressure arose from the late production of Yazdani Ghulam from prison, joint conferences, inadequate advice, the “generally cajoling and pressurising nature” of counsel’s advice at court, his advice to the brothers that failure to agree terms would result in criminal charges against Mr Butt, his failure to challenge the view expressed during the joint meeting that the judge would be unfair, his advice that agreeing terms would lead to Yazdani’s recategorisation in prison and counsel’s plan to leave the country before the projected end of the hearing. He submitted that these matters amount to exceptional circumstances rendering the process of making the confiscation orders unfair, and that the orders should therefore be set aside.[36]Mr Garlick QC submitted that Mr Butt did not have a fair hearing, in particular because Mr Aullybocus had agreed to represent him but did so negligently and incompetently in respects similar to those listed by Mr Ali. Alternatively, he submitted that giving effect to the confiscation orders would lead to a serious risk of injustice to Mr Butt as the beneficial owner of the Dunstable Road properties. The evidence[37]Each of the applicants applied for leave to call evidence at the hearing of the appeal. They asked the court to call Mr Aullybocus to give evidence, so that he could be cross-examined on behalf of each applicant. We indicated at the start of the hearing that we would do so, and that we would hear all the desired evidence de bene esse. In the event, we heard evidence from Mr Aullybocus, the three applicants and Jillani Ghulam. We can summarise briefly the principal features of their evidence.[38]Mr Aullybocus confirmed that he had seen Yazdani and Rabani Ghulam in conference at a prison in September 2014, and had spoken to them on the telephone in October 2015 when each had called their father’s house whilst he was there speaking to Mr Butt, but had not seen them again in person until the hearing. He denied that he had ever given the applicants the impression that they had a strong case: he had always said that it would depend on what the judge made of their evidence. It would have been a stronger case if there had been documentary evidence to support it, but none was ever forthcoming despite his repeated requests. In the course of the police investigation, covert recording devices had captured conversations which included some in which Mr Butt had taken part: Mr Aullybocus had read the transcripts of those recordings and had spoken to Mr Butt about them because he wanted to know whether he would be able to call Mr Butt as a witness on behalf of his sons. The covert recordings included indications that Mr Butt had known at the time what his sons were doing, and Mr Aullybocus said that he had told Mr Butt of the possibility that the prosecution might reconsider their decision not to charge him if further evidence came to light.[39]Mr Aullybocus said that he had told Mr Butt of his right to be an interested party who could make representations to the court, and that he had assisted Mr Butt to draft and serve an application, but denied that he agreed to or did act for Mr Butt. He accepted that the judge may have thought he was acting for Mr Butt, but said that none of the Crown Court records showed him as doing so. He had not thought there was any issue in that regard, and therefore had not corrected any possible misunderstanding by the judge. He said that in the course of the discussions at court, he had accompanied Mr Butt and Jillani Ghulam to a meeting with prosecuting counsel, at which Mr Butt spoke on his own behalf making representations about his interest in the properties. He agreed that Mr Butt, when speaking to others, was in the habit of referring to Mr Aullybocus as “my barrister”; that, he said, was because of his dealings with Mr Butt in his capacity as intermediary. Later in his cross-examination he accepted a possibility that Mr Butt believed he was acting for him in his capacity as an interested party, but said he did not think that at the time.[40]As to actual or possible conflicts of interest, Mr Aullybocus said that the three applicants were all giving identical accounts to the effect that Mr Butt was the beneficial owner of the two Dunstable Road properties. If it had been otherwise, he would not have been able to act for them all; but there was no conflict between them. He accepted that his position would have changed if one applicant had wished to reach an agreement with the prosecution to which another applicant objected, and said that if that had happened he would have raised the problem with the judge. He also agreed that a potential conflict could arise if the sons wanted to agree an order, because they did not think they would be able to prove the existence of any trust, but their father wanted them to contest the proceedings. He said however that he knew Mr Butt was willing to negotiate, because his main concern had always been to minimise the amount that would have to be paid. He said that the three applicants knew he was also acting for other persons in the proceedings: indeed, it was Mr Butt who had asked him to take on the representation of Mohammed Khalil’s wife and son.[41]Mr Aullybocus said that after the proceedings had been concluded, he had returned his case papers to Rabani Ghulam at the latter’s request. His own notes were limited to records of dates and times of conferences and the like: he said he did not know where these notes are now, because he had subsequently moved chambers and his former chambers had then closed. He said it was not his normal practice to make drafts of his proposed cross-examination or speeches, and he was fully prepared to argue the case. He agreed that he had not filed any skeleton argument, but said he had not thought it was necessary in the circumstances of the case.[42]Mr Aullybocus pointed out that the terms of the direct access agreement specifically authorised him to negotiate on behalf of Yazdani and Rabani Ghulam. He agreed that at court there was a substantial change from their wanting to contest the proceedings to their agreeing to the orders, but said there was a risk of a finding of hidden assets. He referred to the amount of time he had spent on the first day of the hearing going between Rabani Ghulam, Mr Butt and the prosecution, and said he would not have been doing that if there had been firm instructions to contest the proceedings. He said that the family dynamics were that the sons would not agree to anything unless their father agreed: Mr Butt is the head of the family, they needed his permission, and he would have to pay the orders. They wanted to speak to their father before agreeing the terms of orders. He had arranged the joint meeting in the courtroom so that all three could talk to each other. If Mr Butt had not been happy with the proposed orders, his sons would not have agreed to them. He denied that he had put the applicants under pressure: “it didn’t matter to me what deal they made”, and he was prepared to fight the case. He denied the suggestion that he had told the sons that their father would be at risk of prosecution if they did not agree the terms of the orders, and he denied that he had told them that he would arrange for Yazdani Ghulam’s prison categorisation to be altered if they agreed orders. He denied that he had advised the applicants that the judge was against them and would not believe them. He accepted that he was due to fly to Mauritius on the Saturday, but said that he would have stayed if the case had not been concluded by the Friday.[43]In cross-examination by Mr Garlick, Mr Aullybocus denied the suggestions that Mr Butt had remained silent throughout the joint meeting in the courtroom, and had not agreed to any deal. His evidence was that at the end of the meeting Mr Butt had said “Don’t worry, we’ll sort it out”.[44]In cross-examination by Mr Ashley-Norman QC, for the respondent, Mr Aullybocus confirmed that he had asked for evidence of the sources of income available to the applicants, because he knew they would be cross-examined about that if the proceedings were contested. Mr Butt told him he had sold a property in Holland for £700,000 but had never responded to requests for documentary evidence of that sale. Mr Butt had also told him that he had used the sale proceeds to pay a ransom of £400,000 for a brother who had been kidnapped in Holland. He had told Mr Aullybocus that he was not sure why his brother had been kidnapped.[45]As to the joint meeting, Mr Aullybocus said that neither brother was shy: they would have said if they had disagreed with any negotiation with the prosecution. In the exchange which we have underlined in paragraph 25 above, he thought that the “female speaker” was in fact Mr Butt: it was not the court clerk.[46]Mr Aullybocus summarised the position at the hearing as follows. If the proceedings were contested, there was a risk that the judge would not accept the oral evidence of the applicants as to the existence of the trusts. In that event, they could be made subject to orders based on the full value of the Dunstable Road properties, and there was a risk that the judge would find that they had hidden assets. They wanted to resolve the proceedings in order to avoid those risks, and were happy to agree the terms of the orders provided their father approved, which he did. When he saw them in the cells after the orders had been made, they were content. So were their father and Jillani, to whom he spoke next. There was no issue with the terms of the orders until months later, when they found they could not mortgage the Dunstable Road properties, which had been the means by which they had intended to pay the confiscation orders.[47]Yazdani Ghulam gave evidence that Mr Aullybocus always gave him “full confidence” that they would be successful in the confiscation proceedings. He said he had never seen the direct access agreement or been told its meaning and effect, and did not know until he attended the hearing that Mr Aullybocus would also be representing others. He had assumed that he and his brother would be separately represented, as they had been in the Crown Court. There was never any talk of negotiation or settlement until he was produced at court on the second day of the hearing, and Mr Aullybocus immediately told him there was a problem, that his father could be prosecuted, that there could be a finding of hidden assets, that the prosecution would be relying on the confession letters, that Mr Qureshi would be called as a witness against the applicants, that the judge and the CPS would “shaft” the applicants’ family, and that he needed to come to an agreement. Yazdani Ghulam said he felt very pressurised, and didn’t want his innocent father to go to prison. He said that the joint meeting was arranged because Mr Aullybocus wanted him and his brother to persuade their father and make him agree to an order. His father didn’t speak at all during the meeting, and the “female speaker” was the court clerk.[48]Yazdani Ghulam’s pleaded case in this appeal was that he had agreed to the confiscation order against him, but only as a result of the improper pressure placed upon him. In striking contrast, his evidence was that he had never agreed to any order. He had thought there would be an order relating only to 181 Dunstable Road, and it wasn’t until the judge read out the orders that he knew anything about 32 Kirby Drive also being included, or about the deprivation order in respect of the BMW X5. He asked what was going on, but Mr Aullybocus told him not to worry. He was very upset by what happened at court.[49]In answer to Mr Garlick, Yazdani Ghulam said the property at 181 Dunstable Road had been transferred by his father into his name, when he was aged 19 or 20, because it was in their culture to do so.[50]In answer to Mr Ashley-Norman, Yazdani Ghulam said he didn’t recall an uncle being kidnapped and held hostage, and didn’t remember a ransom of £400,000 being paid. He gave a notably vague account of his role in the money laundering and claimed he had not benefited at all from it. He agreed that the BMW X5 had been used for the purpose of moving money which was being laundered, but asserted that it was his father’s car. As to the joint meeting, he agreed that the question “what do you think?” was asked by him of his father, and said he didn’t know why the court clerk answered with the words attributed to “female speaker”. He accepted he had told Mr Aullybocus to “do the best you can”, but only because of the advice he had been given.[51]Rabani Ghulam said in evidence that before the hearing, Mr Aullybocus had always said there was nothing to worry about, they would give evidence that the properties belonged to their father and it was “a piece of cake”. As a result, he had felt confident. But on the first day at court, Mr Aullybocus had told him that the prosecution would use the confession letters against his father and would call Mr Qureshi as a witness against him. He said the prosecution were looking for a deal, but Rabani Ghulam’s evidence was that he could not negotiate anything because the property belonged to his father. He had telephoned his father from prison that evening, and had been told they would proceed with the hearing.[52]On the second day of the hearing, said Rabani Ghulam, Mr Aullybocus had changed his tune: he said the best thing was for the brothers to convince their father to take a deal, and he arranged the joint meeting for that purpose. At that joint meeting, he was under pressure to agree a deal to avoid his father being prosecuted. He felt he had no choice but to agree to the order. He said that the interpreter had interpreted a few words which he and his brother exchanged with their father, but he also said that his father had not said anything during the meeting. He did not know who spoke the words attributed to “female speaker”.[53]Rabani Ghulam said he was released from his sentence on 9th December 2015 and returned to his parents’ home. The very next day, papers arrived relating to a tax case against his parents. His father had spoken to Mr Aullybocus about that. He himself had later spoken to Mr Aullybocus about the proceedings to enforce his confiscation order. He collected papers from Mr Aullybocus in about April 2016, his brother Jillani having previously collected some papers on behalf of his father in December 2015.[54]Rabani Ghulam maintained that his father was the beneficial owner of both 181 and 185 Dunstable Road, which the brothers held on trust for their father.[55]In cross-examination by Mr Ashley-Norman, Rabani Ghulam said he was not aware of an uncle having been kidnapped. As to the joint meeting, the court clerk did speak, but he did not remember her saying the words attributed to “female speaker”. He agreed the question had been asked of his father, but said that his father had not replied.[56]As to his emailof 10th March 2016, to which we have referred at paragraph 30 above, he said that “we” referred to him and his brother. Their father had agreed to the mortgaging of the properties, but it had proved to be impossible and they therefore could not satisfy the confiscation orders. He didn’t criticise Mr Aullybocus at that time because he was asking him for help about getting an extension of time for satisfying the order. He accepted that the assets were all really the assets of the family, and that he had instructed Mr Aullybocus to do the best he could in order to save the family. He had understood that the judge’s order included a cooling-off period, but none of the applicants had sought a review because at the time they thought they’d got a good deal.[57]Mr Butt gave evidence that Mr Aullybocus was going to represent his sons and him. He signed but did not read the direct access agreement, and Mr Aullybocus did not explain what was meant by an intermediary. He too said that Mr Aullybocus always expressed confidence that they would prove that the Dunstable Road properties were held in trust for him. They had been registered in the names of his sons because it was in their culture to do so. There had been High Court litigation between Mr Butt and his brother Mohammad Jamil some years earlier, in which Mohammad Jamil had abandoned his claim and accepted that Mr Butt owned the properties. Mr Butt also said that title to 32 Kirby Road was held by Yazdani Ghulam’s partner: he had loaned money to her to buy it, and he was the beneficial owner.[58]At court on the first day of the hearing, Mr Aullybocus had for the first time talked of trying to reach a settlement, which Mr Butt said he and his son Jillani refused to do. On the morning of the second day, he and Jillani again instructed Mr Aullybocus to proceed with the hearing. When the joint meeting was arranged, Jillani told him not to attend it, but Mr Butt felt he should go and hear what his sons had to say. As far as he knew, it was not he who spoke the words attributed to “female speaker”. After that meeting, he and Jillani, accompanied by Mr Aullybocus, went to speak to the prosecution: they tried to say that the property could not be taken off them, but the prosecution were not interested. He felt helpless and really upset, to such an extent that he wasn’t concentrating in court when the judge allowed 21 days’ liberty to apply. If he had known that Mr Aullybocus was not his lawyer, he would have wanted another lawyer to appear at the hearing and protect his property.[59]Mr Butt confirmed that he later contacted Mr Aullybocus in connection with the tax demand. He was not helpful. Three or four months later he contacted his present solicitors.[60]When cross-examined by Mr Ashley-Norman, Mr Butt said that as far as he knew, it was not true that his brother had been kidnapped. It was not true that he had told Mr Aullybocus that he had paid a ransom of £400,000. It was not true that the confiscation orders would be paid by him. As to the joint meeting, the question “what do you think?” was addressed to him, but he did not reply and could not say who did. He did not agree to the deal which his sons were forced to consider.[61]Jillani Ghulam gave evidence similar to that of his father. He said that he was very angry when Mr Aullybocus talked at court of reaching a settlement, and kept telling him that they were there for a trial and counsel was being paid for a trial. He did not attend the joint meeting. He went with his father and Mr Aullybocus to meet the prosecution, and he spoke for his father, saying that the properties belonged to Mr Butt. He was in court when the judge made the orders but he did not hear, or did not understand, the provision for liberty to apply.[62]In cross-examination, Jillani Ghulam said he did not know how much his brothers had made from money laundering. He realised they were at risk in the confiscation proceedings, but the properties belonged to his father. Both his brothers agreed to the orders, but his father did not. He had no problem with it when his father later asked Mr Aullybocus to advise in relation to the tax matter. The submissions[63]Mr Ali for Yazdani and Rabani Ghulam invited the court to conclude that the evidence of Mr Aullybocus had been evasive and unreliable. He submitted that Mr Aullybocus had clearly failed to prepare for a contested hearing, had failed to take sufficient instructions, had not complied with the directions of the court, had failed to advise about the evidence needed to support the existence of the trusts in favour of Mr Butt, had taken a clear risk of conflict by acting for so many persons, and had taken great efforts to make the applicants agree to the orders.[64]Mr Ali argued that it was not possible to say what would have happened in the confiscation proceedings if counsel had acted in accordance with his professional duties, and did not accept that he had to show a contrast between the orders actually made and the orders which would have been made if Mr Aullybocus had not acted improperly. He said that he and his junior were not instructed to litigate the confiscation orders, and he therefore could not say precisely what evidence would have been available to support the applicants’ case as to the existence of the trusts.[65]Mr Ali made submissions as to why the necessary extensions of time should be granted, arguing that the delay was not long when the court took into account that the brothers were unsophisticated laymen who were in custody, and who only had cause to question Mr Aullybocus’ conduct when it emerged that the properties could not be mortgaged. He submitted that the criteria in section 23 of the Criminal Appeal Act 1968 were satisfied and that the evidence of the applicants should be accepted. The court should quash the confiscation orders and remit the case to the Crown Court for rehearing.[66]Mr Garlick submitted that Mr Butt’s position could be distinguished from that of his sons. Mr Butt was under pressure, as a father who might have to forego his property rights in the interests of his sons, and needed legal advice. His primary submission was that Mr Aullybocus was in fact acting for Mr Butt; but whether he was or not, a stage was reached at which he owed a duty to advise Mr Butt that he needed to be separately represented from his sons. Further, if Mr Aullybocus was not acting for Mr Butt, he should have informed the court that Mr Butt was an interested party who was acting in person, so that the judge could make any necessary enquiries to satisfy himself that Mr Butt did not wish to pursue his claimed rights. Mr Garlick submitted that Mr Butt did not freely consent to the orders which were made. The joint meeting was highly unsatisfactory in the absence of separate representation for Mr Butt, who had made it clear throughout that he wanted to contest the proceedings but was put under inappropriate pressure to fall in with what was being agreed by his sons.[67]Mr Garlick submitted that if Mr Butt had been properly advised, he would have been able to adduce the evidence of himself and his wife to confirm the existence of the trusts, and could have called expert evidence to confirm the practice in his community of putting property into the names of sons. He could also have relied on the High Court proceedings which had been brought but abandoned by his brother. He argued that it would be harsh to shut Mr Butt out on the basis that his application was made late, and that accordingly the necessary extension of time should be granted.[68]Mr Garlick argued that Mr Aullybocus’ conduct prevented Mr Butt from making representations about his interest in the Dunstable Road properties, and that there was no true consent by Mr Butt to the orders made.[69]As to the applications for extensions of time, Mr Ashley-Norman focused on the period from the date of the orders until April 2016, when the applicants’ present solicitors were instructed. He submitted that the evidence showed plainly that the applicants were content with the orders until it emerged that the necessary sums could not be borrowed by way of mortgage, and that they had then confected complaints against Mr Aullybocus. As to the merits of the appeals, he noted that the evidence of the applicants was that they were very upset and angry about the events at court on 17th November 2015; but that evidence was contradicted by their subsequent behaviour. Features of their evidence showed that they were not capable of being believed on important issues. Although legitimate criticism could be made of some aspects of Mr Aullybocus’ conduct, the process as a whole was fair to the applicants, all three of whom instructed Mr Aullybocus to negotiate the best agreement he could and all three of whom thereafter gave informed consent (either expressly or by acquiescence) to the orders made.[70]The evidence was given at length, and we have done no more than sketch the principal submissions. We have however summarised the course of the proceedings before us sufficiently to enable us now to consider the law and to come to our conclusions. The relevant case law[71]In Hirani [2008] EWCA Crim 1463 the appellant had agreed to a confiscation order based on particular available assets. On appeal he contended that he did not have those assets, and that he had been negligently advised. The judgment of the court was given by Burnett J (as he then was), who at paragraph 18 stated that it was implicit in the appellant’s argument that if he had been properly advised, he would have contested the confiscation order and would either have escaped an order or achieved a lower figure. After a review of a number of cases in which appellants had argued that they had only pleaded guilty because of negligent advice, Burnett J said this at paragraphs 33-36:
“33. This court will interfere with a sentence on appeal on a limited number of well established bases, one of which is that the sentence was manifestly excessive. The appellant in this case suggests that the amount ordered to be confiscated in the confiscation order was manifestly excessive because the court proceeded on a wrong factual basis, namely that the appellant accepted that he had assets which were realisable in the sum of £110,000. In our judgment, it is impossible to squeeze the alleged erroneous advice into this basis for allowing an appeal. In confiscation proceedings, the burden is on the defendant to show a lower figure of realisable assets than the benefit, if he can. The judge in this case made the confiscation order on the basis on which he was invited to by the appellant. He did not proceed on a wrong factual basis, as, for example, may happen if a judge sentences on a factual basis not available on the material that was before him. 34 Additionally, the appellant was not representing that he had assets of £110,000. He was prepared to agree that figure as a matter of compromise to avoid additional potential liability. Similarly, the prosecution were not representing by this agreement that the appellant had no more than £110,000. This was in effect a consent order in which the appellant had bought off risk, both as to the amount of the confiscation order and the period he would be allowed to meet it. There was also in this case a real concern about perjury which gave rise to additional risks. 35 In other jurisdictions, those who have entered into consent orders may set them aside on very narrow grounds. We do not exclude the possibility in the arena of confiscation orders that such circumstances might conceivably arise. But we do not consider that they arise where the essence of the complaint is that, in seeking to secure the best deal available, erroneous advice was given to one of those who was party to the agreement, save in the most exceptional circumstances. We would not wish to identify exhaustively what those circumstances might be but, in our judgment, there would need to be a well-founded submission that the whole process was unfair. We do not consider that the circumstances of this case come close to that. 36 We see no warrant for reading over generally the approach that has developed in appeals against conviction based upon erroneous advice into confiscation proceedings. There is a fundamental difference between sentence and conviction. On an appeal against conviction, where it is suggested that erroneous legal advice resulted in a guilty plea, the court may allow the appeal and then a trial will take place. The defendant will be either acquitted or convicted and, if convicted, he will be given an appropriate sentence. On a successful appeal against sentence, the matter is not sent back to the court with the issue, as it were, at large. This court can vary a sentence but it cannot increase it. So if [counsel] were correct, an appellant in Mr Hirani's position could appeal to this court, having agreed the confiscation order on a false basis, and seek to set it aside, but in doing so he would deny the prosecution the possibility of contending for a higher figure. In other words, the prosecution would in effect be bound by the agreement from which the appellant, on this hypothesis, had been released. That would, in our judgment, be an undesirable — not to say extremely odd — result.”
[72]The applicants emphasise that in paragraph 35, this court left open the nature of the exceptional circumstances which might lead to a successful appeal. We accept that the presence or absence of exceptional circumstances will be a fact-specific decision in each case. It is however clear from the decision in Hirani that an appeal against a confiscation order based upon exceptional circumstances relating to negligent advice or representation must recognise the realities of the appellant’s situation, including, where appropriate, that the appellant in agreeing to the order had “bought off risk”. Speaking generally, such an appeal cannot in our judgment have any realistic prospect of success unless it can be shown that competent representation would probably have resulted in a more favourable outcome for the appellant. It was, in our view, for that reason that the court in Hirani specifically referred to the implicit argument that if properly advised, the appellant would have achieved a better result.[73]Hirani was followed in Souleiman [2016] EWCA Crim 124. The appellant in that case contended that an agreed confiscation order had been based on assets which he did not have. He contended that he had been badly advised. The court rejected that contention, but held in any event that there were no exceptional circumstances which would justify going behind the agreed order.[74]The applicants relied on Ayankoya [2011] EWCA Crim 1488. The appellant in that case argued that his assets were worth rather less than an agreed figure which he complained he had been bullied into accepting. The court, emphasising that where an agreement has been reached as to the amount of a confiscation order it will be binding unless exceptional circumstances are shown, was persuaded that there were exceptional circumstances which made it appropriate to allow the appeal and to substitute a confiscation order in a lower sum. The factors which influenced the court, and which in our view plainly distinguish Ayankoya from the present case, were that the appellant – who wanted to seek an adjournment to obtain bank statements which would assist his case - was wrongly told that the judge had already ruled that no adjournment would be granted. The appellant was therefore faced with a choice between agreeing the order, or contesting the proceedings without the assistance of the bank statements and taking the risk that the court might impose an order in a higher sum than could be agreed. In fact, no such ruling had been made: an adjournment might have been obtained, and the bank statements were in fact helpful to the appellant’s case.[75]Mr Ali relied on McCarthy [2015] EWCA Crim 1185, in which this court accepted that there were exceptional circumstances, because inadequate advice had been given to the appellant about his plea, and the court could not be confident that he had properly understood the offence to which he was pleading guilty. However, as Hirani makes clear, the principles relating to cases in which a plea has been entered on the basis of inadequate or incorrect legal advice, with the result that a conviction is unsafe, cannot be read across to the very different situation of an appeal against sentence, in which the court must consider whether the sentence imposed was wrong in principle or manifestly excessive in length.[76]Mr Garlick relied on a passage in paragraph 50 of Lord Kerr’s judgment in Mackle [2014] UKSC 5, which emphasises that the court itself must decide whether an offender has benefited from his criminal conduct: the power to make a confiscation order only arises when the court has made that determination, and the offender’s consent cannot confer jurisdiction to make a confiscation order. Lord Kerr went on to say:
“On the other hand, if it is clear from the terms on which a defendant consents to a confiscation order that he has accepted facts which would justify the making of an order, a judge, provided he is satisfied that there has been an unambiguous acceptance of those facts from which the defendant should not be permitted to resile, will be entitled to rely on the consent. This is not because the defendant has consented to the order. It is because his acceptance of the facts itself constitutes evidence on which the judge is entitled to rely.”
[77]Mr Ashley-Norman relied on Stack v Dowden [2007] UKHL 17 as indicating the very substantial difficulties which the applicants would have faced if they had tried to establish that properties registered in the names of the sons were beneficially owned by the father. If they had taken on that burden, they would have done so at considerable risk of orders being made which were more severe than those which were agreed. Discussion[78]We accept that in a number of respects, Mr Aullybocus’ conduct is open to criticism. His inability to produce contemporaneous notes is very unsatisfactory, as is his failure to assist the Crown Court by providing at least a brief skeleton argument in advance of the hearing. In the circumstances of this case, there was a clear potential for conflicts of interest to arise in his professional relationships with those for whom he was acting, and he should have taken more care to give and record advice as to that possibility and to take and record instructions about it. Moreover, quite apart from the potential for conflicts of interest, he was in our view over-ambitious in agreeing to act for so many persons at the confiscation hearing, thereby taking on a very considerable burden of work and creating a clear risk that he would cause delay to the proceedings. We also see considerable force in Mr Garlick’s submission that Mr Aullybocus should have taken much more care than he did to ensure that the court, the prosecution and other parties knew that Mr Butt was acting in person in his capacity as an interested party. We accept, therefore, that valid points can be made about aspects of Mr Aullybocus’ conduct.[79]However, as we made clear to the parties at an early stage of the hearing, the proceedings before us related to an appeal against sentence, in which the issue was whether the confiscation orders were wrong in principle or manifestly excessive in amount; they were not a disciplinary inquiry, in which the issue was whether Mr Aullybocus had in one respect or another breached his professional duties. Moreover, as we have noted above in referring to Hirani, an appellant who seeks to avoid an agreed confiscation order on grounds of incompetent representation must show that, if properly represented, he would probably have achieved a more favourable order. We therefore considered with care whether there was anything in the criticisms of Mr Aullybocus which could arguably be said to have caused or contributed to an adverse outcome. We were entirely satisfied that there was not, for two principal reasons: first, because on all the points which were important to the real issues in the case, we accepted Mr Aullybocus’ evidence and found the applicants’ evidence to be incapable of belief; and secondly, because no arguable basis was shown for saying that if Mr Aullybocus had conducted the proceedings differently, the applicants would have achieved a more favourable outcome.[80]As to the first of those points, it was in our view clear from the evidence as a whole that all three applicants viewed the confiscation proceedings against Yazdani and Rabani Ghulam as raising issues for the whole family, which they wished if possible to resolve in the way most favourable to the family as a whole. Throughout the proceedings the sons were content for their father to be the primary line of communication with counsel, because they would in any event defer to his wishes. We reject the submission that the applicants were starved of necessary advice as to the law relating to implied trusts, or were not given appropriate advice as to what evidence should be sought or adduced. On the contrary, we accepted Mr Aullybocus’ evidence that he advised the applicants that everything would turn on whether the judge accepted their evidence, and that he repeatedly asked for evidence to support the existence of the claimed trusts in favour of Mr Butt, none of which was ever forthcoming.[81]We also accepted Mr Aullybocus’ evidence that he only agreed to represent Yazdani and Rabani Ghulam, and to deal with and through Mr Butt as their intermediary, and that he did not agree to represent Mr Butt in his capacity as an interested party. There was no challenge to his evidence that he played no active part when he escorted Mr Butt and Jillani Ghulam to the meeting with the prosecution at which they tried unsuccessfully to present their arguments. That evidence, in our view, was wholly irreconcilable with any suggestion that Mr Aullybocus had been engaged as counsel representing Mr Butt.[82]We regard the transcript of the joint meeting in the court room as clear evidence that all three applicants were content to agree to confiscation orders on the best terms that could be agreed with the prosecution, and did not wish to take the considerable risks which they all faced if the proceedings were contested. In the exchange which we have underlined in paragraph 25 above, it is accepted that the question was posed to Mr Butt. The proposition that in such a meeting he simply remained silent is not credible. Equally incredible is the proposition that the court clerk took it upon herself to intervene at that critical moment, and that the applicants said nothing about her intervention. It is in our view clear that Mr Butt answered his son’s question: in view of what we were told by junior counsel who had listed to the recording, we accept that the transcribed answer was probably spoken by a female voice; but we agree with Mr Ashley-Norman that the only realistic explanation is that it was the voice of the female interpreter repeating in English what Mr Butt had said in a different language. Moreover, the concluding exchange which we have quoted at paragraph 26 above is a clear indication that the applicants wished Mr Aullybocus to do the best he could to agree terms with the prosecution, and that they would agree to an order in those terms, with Mr Butt implicitly agreeing to abandon his claim to an interest in the properties. Mr Butt had a reasonable opportunity to make representations to the court, but chose not to do so because he agreed to the orders which were made. Although there had been a risk of a conflict between the applicants, there was no actual conflict: they were content to present a united front, which had obvious advantages for all of them.[83]Further confirmation that the applicants were content with the outcome of the confiscation proceedings is provided by their failure to make any immediate complaint, or any complaint in the following days or weeks, or any attempt to invoke the liberty to apply which the judge had granted for a period of 21 days. We reject the applicants’ evidence that they were too shocked and upset by what had happened to be able to take it in or to realise that they might seek a further hearing before the court: if their accounts were true, they would surely have sought immediate advice from another lawyer as to what could be done in circumstances where counsel had blatantly disregarded their instructions and had bullied them into letting the court make unfair orders against them.[84]We do not find it in any way surprising that the applicants were content with the orders made. In our view, the terms which were agreed with the prosecution, and endorsed by the judge, were satisfactory from the applicants’ point of view, and they had good cause to be grateful to Mr Aullybocus. On any objective view, the applicants were on weak ground in pursuing their assertions that the properties were held in trust for Mr Butt; and on any objective view they faced a difficult time in contested proceedings, with a clear risk of a finding of hidden assets. This was, after all, a case in which very large sums of money had been handled by Yazdani and Rabani Ghulam over a lengthy period of time, and neither the prosecution nor the court could be expected to accept without more their assertions that there was not a penny of that money available to them. It was moreover a case in which Mr Butt, though not charged, had twice been interviewed under caution, and must have expected that he would face difficult cross-examination if he gave evidence in support of his sons. The weakness of the applicants’ positions, should they have to face cross-examination, was in our view plainly illustrated by their evidence to this court. It suffices for present purposes to say that we did not believe important aspects of their evidence, and drew the inevitable inferences from their respective claims of an inability to remember important matters.[85]As to the second point, it was the applicants’ position that they did not need to show what would probably have happened if the applicants had been competently represented. For the reasons we have indicated, we regard that stance as untenable. Moreover, it was in our view striking that even after the indication we had given at an early stage of the three-day hearing, the applicants were unable to identify any document to support the claimed existence of the trusts. A late attempt was made on behalf of Mr Butt to adduce in evidence a copy of the consent order by which Mohammad Jamil had abandoned his claim against Mr Butt for an interest in 179-185 Dunstable Road. That document, however, could not possibly help the applicants. It merely acknowledged that “as between the claimant and the defendants” (who were Mr Butt, his wife and Yazdani and Rabani Ghulam), Mohammad Jamil was at no time the beneficial owner of the properties but merely a trustee for Mr Butt. It raised more questions than it answered, not least because of the timing of the agreed order in relation to the date when the applicants and other members of the extended family had been arrested.[86]We concluded that Mr Ashley-Norman was correct in his submission that the applicants were all content with the confiscation orders which – with Mr Aullybocus’ assistance – had been agreed with the prosecution and were endorsed by the court. They ceased to be content only when the planned mortgaging of the Dunstable Road properties fell through. They thereupon embarked upon a cynical exercise of seeking to blame Mr Aullybocus, with a view to persuading this court to quash the orders and to direct a rehearing at which the applicants would be in no danger of any more severe order. Because there were respects in which Mr Aullybocus could legitimately be criticised, the applicants were able to establish a plausible foothold for their attempt to present an argument. But in the important respects which might have been capable of amounting to exceptional circumstances, we are satisfied that the applicants’ criticisms were concocted. We reject the unseemly attempt by the applicants to create grounds of appeal by making false allegations against their former counsel. We refuse the applications to adduce fresh evidence because the evidence on which the applicants wished to rely was in important respects not capable of belief, and in any event could not afford any ground for allowing the appeal. In short, the applicants gave their informed consent to the confiscation orders, thereby successfully “buying off risk”, and there is no ground on which it could be argued that the orders should be quashed.[87]We must mention finally an issue which arises in relation to Mr Butt alone. As we have indicated in paragraphs 31 and 32 above, an offender against whom a confiscation order is made can appeal against his sentence, but – unlike the prosecutor and the interested party - does not have a right of appeal against the section 10A determination. It seems to us that there is a possible tension between the relevant statutory provisions in a case in which the confiscation order is made solely on the basis that the offender, contrary to the assertions of the offender and of the interested party, did have a particular interest in property. That possible tension does not arise in this case, and must await detailed consideration in a case in which it does arise.[88]What does arise in this case is an issue as to whether the judge made a determination under section 10A. If he did not, then Mr Butt had no right of appeal under section 31(4) of the 2002 Act.[89]Mr Ashley-Norman, in his very fair submissions on this issue, accepted that the judge did make a determination. He referred in this regard to the Forms 5050A showing the available assets of Yazdani and Rabani Ghulam, and he invited this court to treat as a clerical error the failure to tick the box on Form 5050 to which we have referred in paragraph 28 above. We would have been willing to accept that submission if there had been anything in the transcript of the hearing on 17th November 2015 to support the view that the judge had thought it appropriate to make a section 10A determination. However, nothing in the transcript does support that view. As we have indicated in paragraph 21 above, a confiscation order – even if made on the basis that an offender has a particular asset – does not necessarily require that the asset be realised in satisfaction of the order. It follows that, even when the court is in a position to make a section 10A determination, the court will not invariably “think it appropriate to … determine the extent … of the defendant’s interest” in property in relation to which an interested party has made a claim. In this case, the judge was clearly in full command of the details of the case as indicated in the papers provided to him, and he had allowed the parties a full day and a half to try to agree terms as between themselves. It seems to us that there were a number of reasons why he would have felt it appropriate to make the orders which he was invited to make, without expressly determining competing interests in the properties concerned. In such circumstances, the absence from his short but careful judgment of any express determination of the claims of any of the three interested parties leads us to conclude that no such determination was made.[90]We bear in mind that section 10A had only recently been brought into effect, and that there was no case law giving detailed guidance as to its application. We conclude however, in the circumstances of this case, that the judge did not make a determination under section 10A and that Mr Butt accordingly did not have a right of appeal. We have in any event indicated our reasons for concluding that, even if a determination had been made, Mr Butt would not have succeeded in bringing himself within either subsection 10(6) or 10(7) of the Act.[91]We would add, with a view to helping judges and recorders in the Crown Court, that where there is a claim by an interested party, the court should make clear whether or not it thinks it appropriate to make a determination under section 10A, and give reasons (which may not need lengthy exposition) for that decision. In such a case, it will be necessary for care to be taken in completing Forms 5050 and 5050A so as to reflect the court’s determination, or decision not to make a determination.[92]It was for those reasons that we refused the applications for extensions of time and made clear that we would in any event have refused the applications for leave to appeal. The prosecution applied for costs in the sum of £29,772.60. There was not, and could not be, any argument against that award. We therefore ordered that the applicants jointly and severally pay costs in that sum.[93]It follows that Yazdani and Rabani Ghulam remain subject to the confiscation orders, and liable to a default sentence if they do not comply with those orders.

Cited in 2 later judgments