Lehram Capital Investments Ltd, R (on the application of) v Southwark Crown Court & Anor [2023] EWHC 3190 (Admin)

“1. The Claimant was convicted of 3 offences at Westminster Magistrates Court and appealed to Southwark Crown Court, and the application for permission essentially criticises aspects of the way the latter Court dismissed the appeal. The specific bases for the attack on the decision of the Crown Court are a refusal to adjourn and a refusal to allow the possibilities of submissions to be made by video link. 2. The history and background to the appeal hearing on 17 August 2021 is significant: the Claimant company alternated between not engaging with the court process and bombarding the court with lengthy multiple skeleton arguments. At times before the Magistrates Court and in making applications to this Court the Claimant clearly had [and has] very able lawyers acting at their behest, and the terms of many of the skeletons also give the appearance of being professionally created; yet at other times before both the lower courts the Claimant suddenly claimed to be unable to afford any legal representation at all. At one stage a long list of proposed defence witnesses was sent to the Crown Court, which list included the Director of Public Prosecutions, that totally lacked any attempt to justify the need, purpose or significance of any of them. Typically, it was late in the afternoon before the appeal hearing that the Claimant sent communications to the Crown Court. Most of the various communications sent to the courts, or referred to in documents submitted to the courts, were from unnamed individuals supposedly acting for the company, usually without any address or even general location given. The explanation given for the absence of any director from the appeal hearing [‘they are in red list or amber list [COVID] countries’] was typical in lacking any credible detail. 3. Against that background the decisions of the Judge at the hearing on 17 August were not only entirely justifiable but well-nigh inevitable. The Court was right to reject the application to adjourn a hearing that had been fixed for many weeks, or even months, on the basis of a small number of new pages of documents having been received late. The Court was similarly entirely justified in refusing video link facilities given the lack of any clarity or properly-established safe basis to do so. Once the appeal was not being advanced the Court was bound to find for the Respondent, the Interested Party. 4. A further ground for refusing permission is section 31(2A) of the Senior Courts Act 1981, that it appears to me ‘to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’. The offences of which the Claimant was convicted are of declaring the company dormant; they did so at a time when the company was conducting high value transactions, instructing lawyers, and litigating against other corporations. I have seen no hint in any of the voluminous papers submitted in this application of any defence to those allegations.”

“…. the judge should have given you an opportunity, by Livelink, to address the question of your authorization to appear before the court for the purposes of the appeal, and/or the consequences of what appears to me, although I make no final decision on it, your failure to comply with direction (vi) made by His Honour Judge Griffith on 27 July 2020. If the judge was then satisfied that the issue was satisfactorily addressed and that there was before the court, at least by Livelink, somebody who was authorised by the company, duly authorised by the company to represent it, then the judge would have moved on to consider the question of whether … or not there should have been an adjournment and again I say the judge’s decision on that issue was in my view unsurprising. The concern that I am holding is arguable is a concern that you should have been able to have permitted to address the court before conclusion was reached on the matter as well.”

“3. The Claimant is a private limited company incorporated on 8 November 2011. It is registered with Companies House under Company number: 07839142. The directors of the company are Igor Rudyk, Segundo Vargas, Hasbrone Overseas Limited. The company secretary is Pablo Saavedra. The Claimant is stated in Companies House records to be a non-trading company.”

“32. In summary, Lehram gained for itself the financial advantage of avoiding costs, and risked causing loss to HMRC and other regulatory bodies which might otherwise have an interest in it, and those behind the company must have appreciated this to be so.”

“11. … The Claimant maintains that its directors and former directors remain subject to such threats and as such the officers of the Claimant have expressed reluctance to disclose their whereabouts in these proceedings in the United Kingdom. The Claimant avers that it has notified the courts of this position on more than one occasion.”

“D. It is the Appellant’s duty to remain in contact with the Court; in the circumstances the inability of the Court and or the Respondent effectively to communicate with the Appellant may be unlikely to lead to the adjournment of the appeal and may itself adversely affect the Appellant’s position.”

“JUDGE GRIFFITH: Now have you seen a letter, or do you know if Lehram Capital have seen a letter from Cyrith Holdings Limited concerning their submissions for today’s hearing ? MS SOKOLOVA: No, I have not, because the company is dormant, it is entitled to receive, at registered address to receive only letters from the court, from some Government entities but not from private companies because a registered address is needed because the company doesn’t make any business, doesn’t conduct activities. That’s why, because it’s dormant, that’s why no correspondence was received. Registered address just does not receive letters from private companies, and due to security. In terms of submissions, it was mentioned that [inaudible] give our emails because I am also the person who suffered death threats and other threats from the… [Inaudible] was attorney of [inaudible] and I was threatened many years ago. JUDGE GRIFFITH: All right, all right. Yes. I am not here today really to talk about death threats that may or may not have been made …”

“The court is not happy to adjourn this case at this stage because it seems to me that whatever is going on between Lehram and any English representatives, you will have to sort it out and they will have to make sure that either they are represented, or they will have to be in a position to deal with this appeal on their own, whether that is you acting on their behalf or somebody else, if you have been appointed by them to do so. I do not suppose you know very much about it, about the law in this country … JUDGE GRIFFITH: Yes. Right, the various documents that have been served by Lehram say that the accountant, Mr Alexander and Fanny Gamon[?] are two witnesses they require and they are still required for the appeal on, which I say at the moment is on Tuesday 17 August. So those are the people who will be turning up. They will be giving evidence to the court, and they will be cross-examined by whoever represents Lehram, whether it’s an English lawyer or you or whoever else they appoint. There have been a number of, well they are called ‘skeleton arguments but they are not very skeletal. There have been a number of documents which have been served, I think one of them was 54 pages long and another one was 45 or so. They raise some issues. A lot of it goes back over what was heard by me in May and upon which I have, I gave my ruling on that occasion. You cannot reopen things like that, but you can if you want to advance the argument about the time that had passed before these prosecutions took place and whether or not they are time-barred, because that has not been canvassed in front of me until now. … Later he says: “JUDGE GRIFFITH … Well the position is Maria that this case is going to be heard in August. MS SOKOLOVA: I understand. JUDGE GRIFFITH: And so these directions I am going to be giving are to try and ensure that we do not turn up in August and somebody from your side says ‘Well we have not seen this document’ or somebody from this side says ‘We have not seen that document’ because we are now arranging for documents to be sent as between the two sides without your email address being disclosed to Cyrith. It is purely a means of allowing things to proceed and to go further. I am not deciding anything about anything that has happened in the past. We are just talking here about how we can let your side see whatever documents there are and their side see whatever documents you have got.”

“JUDGE GRIFFITH: Yes. Well that is a matter that we raise and can be raised by you in the appeal if you say that there is no fraud. They say there is and you say there is not. So that is a matter for the appeal. I am talking now about what is going to happen between now and when the appeal takes place. You I am afraid, Lehram Capital have got to sort out representation in this country if they want to be represented because that is the appeal date, and I am afraid they will have to work to that in order to be represented if they want to do so. Otherwise, it may be you, if they ask you to come along and do it, and you and they will have to decide at some point what evidence they are going to put before the court about whatever it is that you are talking about. MS SOKOLOVA: I understand, Your Honour. I think that the problem- MR ASHLEY-NORMAN: I wonder if I might assist, Your Honour? JUDGE GRIFFITH: Yes. MR ASHLEY-NORMAN: There is an open question as to the capacity in which Ms Sokolova appears before Your Honour today. JUDGE GRIFFITH: Yes. MR ASHLEY-NORMAN: Nonetheless, the prosecution does not take a point on that- JUDGE GRIFFITH: No. MR ASHLEY-NORMAN: -and is content to follow Your Honour’s lead and to hear from Ms Sokolova. It is plain that Ms Sokolova is anxious that arguments that she has been asked to advance should be advanced. However, Ms Sokalova may not appreciate that the purpose of today’s hearing was merely a directions hearing, not to actually hear any argument. JUDGE GRIFFITH: Yes. MR ASHLEY-NORMAN: And the draft directions that the prosecution have prepared for Your Honour’s consideration and expecting that nobody would appear today on behalf of Lehram, the draft directions provide that any fresh arguments, not arguments Your Honour has already heard, but any fresh arguments can be dealt with on 17 August at the beginning of the trial. JUDGE GRIFFITH: Yes. MR ASHLEY-NORMAN: And so what I might respectfully suggest, that if Ms Sokolova were to hear read now the draft directions which will require slight amendment in the light of her appearance, then she will appreciate that she is not being closed out from making new arguments and Lehram is able to make those arguments. It will be necessary for documents to be prepared in preparation for those arguments, but they can be heard on 17 August. JUDGE GRIFFITH: Yes. He put it more succinctly than I was. Right, these are the directions that Mr Ashley-Norman has drawn up, and I agree with them, so perhaps you will read them out and will have the amendment.”

“JUDGE GRIFFITH: Thank you very much. Right, thank you Ms Sokalova for the assistance you have given me this morning. MS SOKOLOVA: Thank you very much, Your Honour. JUDGE GRIFFITH: And either you or somebody will be appearing on 17 August for the appeal. MS SOKOLOVA: I think because due to the circumstances I’m not sure that we’ll be able to legal aid because the company doesn’t have money- JUDGE GRIFFITH: No. MS SOKOLOVA: And this is a problem. JUDGE GRIFFITH: Yes, okay. Well I am sorry, I cannot do much about that problem. That is just the problem. Right. MS SOKOLOVA: I just [inaudible], Your Honour, thank you very much. JUDGE GRIFFITH: But we are able to handle cases in which people are not represented by lawyers. We try to help. MS SOKOLOVA: I hope I can do”

“22. Since then and pursuant to the Order made on that date, the Court has received and forwarded to the Respondent a number of emails. The emails and their attachments have purported to be ‘on behalf of the directors of Lehram.’ The emails are signed off ‘Maria’. No objection is raised during these interlocutory stages to the informal and unorthodox mode of communication with the Appellant. 23. However, it is respectfully submitted that it will be necessary to ensure compliance with the formal requirements for the purposes of the appeal itself. … 25. If Ms Sokolova is to represent the Appellant in the forthcoming appeal, she is required to be ‘duly appointed’ by Lehram Capital Investments Limited for the purposes of doing anything which she is authorised by the company to do. She (or any other representative) need not be appointed under the seal of the corporation. A statement in writing that Ms Sokolova has been appointed as the representative of the Appellant for the purposes of Section 33 of the Criminal Justice Act 1925 would suffice. The statement would have to be, or purport to be, signed by the managing director of the Appellant, or by any person having or being one of the persons having the management of the affairs of the company.”

“(v) The Respondent is to file and serve an Appeal File comprising the key documents, and a proposed timetable for the hearing of the appeal by 4pm on Friday 6 August 2021. The Appeal File is to be served electronically upon the Court, whereupon the Court will forward the same electronically to the Appellant. The Respondent is to file four hard copies of the Appeal File with the Court by the same date and time.”

“The Appellant is to file and serve a written statement duly appointing Maria Sokolova (or such other representative as may be selected by the Appellant) to appear as a representative of the Appellant pursuant to Section 33 of the Criminal Justice Act 1925 by 4pm on Friday 13 August 2021.”

“The appellant cannot afford any representative as it is a dormant company with no assets, no revenues and not even a bank account, a pro-bono translator-activist, hopefully a native English speaker (American) will appear on 17th August 2021, or on its defect any other pro bono translator/activist willing to assist in this matter on a pro bono basis will appear. If a native English speaker translator is not procured, a non-native English speaker translator will be procured, but the Court is assured that someone will appear through the video link to read the statement and/or submissions filed by the appellant and its position. … It is kindly hoped the Court will understand that the appellant does not have a ‘representative’ as defined by s 33 of the Criminal Justice Act 1925, a section which is understood applies to stages before or at, plea and mode of trial hearings. ”

“Just before you send the email that I set out last night please amend it as follows:- 1. I will grant the video link for their representation. 2. There is a reference to the translator reading out statements. Evidence must be given by the person who made the statement unless it is agreed by Cyrith. If there is a video link the witnesses can appear over it to tell the court what they want to say. If Lehram want to introduce evidence by statements being read they must comply with the provisions of Sections 114-118 of the Criminal Justice Act 2003 and the Criminal Procedure Rules part 20. 3. They have also served some voice recordings said to be of identifiable people speaking in Russian. Do they have a transcript of the words and a translation of the transcript? 4. Is the video link going East or West. If they are East of us (which I had assumed) a 1000 listing here will be late afternoon there. Only if they are West of us would a 1400 listing here be 0700 there. Can we check before we list it one way or the other.”

“As of the date of this letter, the appellant has not been able to secure any representative, a contingent/pro bono UK qualified attorney nor UK barrister, to assist in this matter, therefore it appears the appellant will have to rely on the pro bono assistance of Maria Sokolova’s non-native translation skills to read the statement of the appellant and to read the submissions presented on behalf of the Claimant.”

“RULING JUDGE BAUMGARTNER: This is our ruling. We are a bench of two with only one justice of the peace. I am told by the list office that, despite a request for two justices at the London bench support team at Westminster, no other justice is available to hear this four-day appeal. No indication has been given as to when an additional justice might become available. Section 74 of the Senior Courts Act 1981 provides that on the hearing by the Crown Court of any appeal, the Court shall consist of a circuit judge and at least two, but not more than four, justices of the peace, although rules of Court may provide differently. That Section is mirrored in the Criminal Procedure Rules at rule 34.11(1)(a), as the general rule that rule 34.11(2)(a)(i) provides that despite the general rule, the Court may include only one justice of the peace if the presiding judge decides that otherwise the start of the appeal hearing will be delayed unreasonably. This is, as I said, listed as a four-day appeal and given the current demands upon this Court to accommodate work, and in the absence of any indication as to when another justice might become available, in my judgment failing to start this appeal today will lead to it being delayed unreasonably, and so we will proceed as we are presently constituted. This is an appeal against conviction and sentence in the Magistrates’ Court, by Lehram Capital Investments Limited, following a suit by the Queen upon the prosecution of Cyrith Holdings Limited. The appeal follows the appellants conviction upon one offence contrary to the Fraud Act 2006, and two offences contrary the Companies Act 2006: 1. That between 15 October 2014 and 15 August 2018 at Companies House, Cardiff, the appellant dishonestly made a false representation, namely that it was a dormant company within the meaning within the terms of the Companies Act 2006, knowing that this [is not?] true; intending to cause loss to Her Majesty’s Revenue and Customs, and any other revenue collection or regulatory body, or to expose that person to a risk of loss, contrary to Sections 1 and 2 of the Fraud Act 2006; 2. that on 15 October 2014 the appellant delivered or caused to be delivered to the registrar of companies, for the purposes of satisfying the requirements of the Companies Acts, a document, namely company accounts for the year ending November 2013, asserting that the said company was dormant in the said period, knowing the said accounts to be thereby misleading, false, or deceptive, in material, in particular the appellant not being a dormant company within the terms of the Companies Act 2006 in the period specified. Or being reckless as to whether the said document was so misleading, false or deceptive contrary to Section 1112 of the Companies Act 2006; and 3. that on 30 August 2015, the appellant delivered or caused to be delivered to the registrar of companies, for the purposes of satisfying the requirements of the Companies Act, a document, namely company accounts for the year ending November 2014, asserting that the said company was dormant in this said period, knowing the said accounts to be thereby misleading, false or deceptive in their material, in particular the appellant not being a dormant company within the terms of the Companies Act 2006 in the period specified, or being reckless as to whether the said document was so misleading, false, or deceptive contrary to Section 1112 of the Companies Act 2006. Notice of the appeal was received on 5 November 2020 following sentence on 20 October 2020. A number of case management orders were made by this Court, and in the event the appeal was sent down for hearing today. We turn first to consider the appellant’s application for an adjournment for at least 14 days ‘to review, translate, and prepare a response in response to the appeal file which contains over 600 pages, which was received just hours before the trial hearing’, made in an email timed at 16.06 yesterday. This is a renewed application following an earlier application to adjourn yesterday, which I refused. This application was made yesterday by email on the basis that the appellants had only received the electronic appeal file yesterday. It developed the earlier application to adjourn made in a previous email, which said, in part, ‘how is the defendant (non-English speakers) able to translate 600 pages, prepare a defence, prepare statements for translator Maria Sokolova to read orally, the statement of the appellant, and be ready for the appeal trial hearing scheduled for tomorrow at 10.30am?’ Contrary, however, to the appellant’s assertion, we are told by the respondent that there is not 600 pages of new material. The only significant new material is contained in tab five which is the respondent’s consolidated reply; pages 51 to 71. The majority of the remainder of the bundle, over 450 pages, is material served by the appellant at tab six. We are told by the respondent that the consolidated reply deals in a comprehensive but succinct way with the arguments advanced by the appellant. We further note that in an email sent to the Court office last Friday, the appellant said this: ‘Lehram Capital is a dormant company with no assets, no revenues, and not even a bank account. Lehram cannot afford representation and legal aid is not afforded to [legal persons?]’. While that may be so, and as we will shortly mention, we note the appellant has for the most been represented by solicitors, and at sentence by experienced counsel. Those solicitors appeared at trial in the Magistrates’ Court, and there they also sought an adjournment which was refused. Having failed to obtain an adjournment, they withdrew. The appellant also appears to have legal representation in proceedings being conducted in the United States, though we do not know what the basis of that retainer is. Someone has been drafting very detailed and [inaudible] legal documents for the appellant in this hearing, whom we do not know. The appellant’s former solicitors have disavowed any responsibility for most of them. No doubt in light of the various serious allegations they contain. Someone it seems is prepared to pay for the appellant’s representation as and when it suits. We suspect that the appellant retains lawyers when it suits its purpose and dispenses with them when it does not. However, we make no finding about that, and we do not let it influence the careful judgment that we now make. We refuse the application for an adjournment, applying the principles in Criminal Practice Direction 6.24C which draws upon the well-known authority of the Crown Prosecution Service v Picton [2006] EWHC 1108. Criminal Practice Direction 6.24C.9 sets out the relevant principles relating to trial adjournment. We have followed them, and we make the following conclusions: A) The Court’s duty is to deal justly with the case, which includes doing justice between the parties. We take this as a paramount concern, and in particular in doing justice between the parties.t B) the Court must have regard to the need for expedition. We do so. These proceedings have been afoot for some years now. The appellant as we note elected a summary trial, and as such should be simple and speedy. C) We have rigorously scrutinised the appellant’s application, and having reviewed the history of the case, and for the reasons we have already given, we see no clear reasons for adjourning. D) We bear in mind the serious nature of the charges, but the underlying facts are, in our view, relatively straightforward, and not complex. There is, in our view, no reason why the parties should not now be trial ready. The matter is listed for four days. The need to deal with any new matter arising, should it do so, can be amply accommodated within the four-day trial window. E) The matter has been subject to very careful case management by this Court in the lead up to today, and the previous application for an adjournment sought by the appellant on 23 July 2021, was refused by His Honour Judge Griffith on 27 July 2021. F) Any adjournment of today’s appeal hearing is likely to result in further delay, as in all reality it is unlikely a hearing can be accommodated for some months and cause delay to the hearing of other cases. The re-listing of one case almost inevitably delays or displaces the hearing of others. We turn next to consider the appellant’s failure to appear before us today. The appeal was called on before us for hearing at 10.30 this morning, although we sat slightly later than that. Mr Jonathan Ashley-Norman QC, instructed by Edmonds Marshall McMahon, appears for the respondent. The appellant did not appear and is not represented. In such cases, the law is clear. Where a party does not appear or is not represented, the proper course is to dismiss the appeal. See Croydon Crown Court, ex parte Clare [1986] 1 WLR 746. The decision of the Divisional Court, Queen’s Bench Division. We shall accordingly dismiss the appeal, but before we do so, while the law is clear, the circumstances leading to the appellant’s non-appearance today are less so, and so, it is useful for us to set out the background to the appeal before we provide our reasons for dismissing the appeal. We take the following facts and matters from the numerous papers filed by the parties in the appeal, all of which we take to be uncontroversial. We have also seen an email from ‘the officers of Lehram Capital’ sent to the Court office this morning, timed at 04.33, but nothing in it adds to the submissions we have already received. The appellant elected a summary trial on 16 July 2019. On 6 March 2020, the appellant was convicted before Deputy District Judge King sitting at the City of Westminster Magistrates’ Court, after it had failed to appear, then the Court proceeded to try the appellant in his absence, as we shall explain. Part of the respondent’s case before the Deputy District Judge was that the appellant demonstrably undertook significant accounting transactions in the acquisition of mining assets in Siberia; the disputed sale of one of the mines acquired; and protracted litigation in Russia arising from the disputed sale. Charge one alleged fraud by false representation across the period in which a series of false accounts were filed; and charges two and three alleged false statement offences under the Companies Act 2006, each relating to a particular set of accounts. The private prosecution was brought by the respondent as a subsequent owner of the disputed assets and opposing [inaudible] in the Russian proceedings. The appellant invited the Crown Prosecution to take over and discontinue the prosecution, but it declined to do so. As we mentioned the trial took place in the absence of both the appellant company and its solicitors of the record, MK Law. One of MK Law’s solicitors appeared with the appellant on the morning of the trial but withdrew following the refusal of his application to adjourn the trial. We do not know the reasons why the appellant sought an adjournment of the trial then, but as we will note, such applications have become a feature of the case management of this appeal. In the event, the appellant was convicted in the Magistrates’ Court. Sentence was adjourned until 20 October 2020, when Deputy District Judge King sitting at the City of London Magistrates’ Court fined the appellant £60,000, and ordered it to pay costs of £200,000, in addition to the victim surcharge. At sentence the appellant was represented by Mr Tom Wainwright of counsel, instructed by MK Law. The matter was first listed for direction before His Honour Judge Griffith on 20 November 2020 at which lengthy and detailed directions were given for the conduct of the case up to and including the hearing of the appeal which was listed for today. Amongst those directions, was a direction that the appeal be listed on 4 February 2021 for further directions before the presiding judge assigned to the appeal, who would consider ‘appeal readiness; [video link?] application; abuse of process application; and any other matters arising’. The time estimate given was half a day. MK Law remained instructed by the appellant throughout until in or about June 2021 when MK Law ceased acting for the appellant. Thereafter, a number of documents running to a great many number of pages were filed ‘on behalf of the officers of Lehram Capital Investments’, and we note the officers of Lehram Capital Investments are not there identified or, ‘for and by Pablo Saavedra, Lehram Capital Investments’. It is evident to us that those documents have been produced either by, or with the assistance of a lawyer though perhaps not one practicing in this jurisdiction. They included a ‘skeleton argument in support of the abuse of process’ dated 11 June 2021, running to 54 pages; and ‘skeleton argument in support that this private prosecution violates Sections 5.4 and 7.2 [sic] of the Criminal Procedure Rules 2015’ dated 11 June 2021, running to 14 pages; and ‘skeleton argument, the rebuttal to Mr David Alexander’s report’, dated 11 June 2021, running to 45 pages; and ‘application for disclosure’ dated 5 July 2021, running to 37 pages; and ‘application to stay proceedings as there is no case to answer’, dated 6 July 2021, running to 32 pages; and ‘application to set aside the conviction – Magistrates did not have jurisdiction to convict Lehram’, dated 15 July 2021, running to nine pages; and various, and sometimes repeated, applications which we shall shortly run through. His Honour Judge Griffith gave further directions on 2 July 2021, and subsequently on 27 July 2021 following case management hearings on the papers. He reserved to the outset of the appeal such arguments as the appellant wished to advance so far as the ‘skeleton’ and ‘application’ documents to which we have referred are concerned. On 27 July the learned judge directed any evidence in support of those arguments be filed and served by 30 July 2021. The appellant has failed to comply with that order. Importantly, for our purposes, the Court gave the following direction, on 2 July: ‘4. In the event the appellant wishes to attend the appeal remotely and/or wishes witnesses to give evidence remotely, the appellant is to contact the Court case progression officer no later than 4pm on Wednesday 11 August 2021 in order that appropriate arrangements might be made’. So far as we are aware, at that stage, no indication had been given as to the whereabouts of those said to be acting ‘for and on behalf’ of the appellant. The directions went on to note as follows: ‘Further, the Court brings to the appellant’s attention, the following: a) the appellant is not obliged to attend the appeal listed on 17 August 2021. However, in common with every defendant or appellant appearing before the Court, the appellant is required to be notified that the failure by the appellant to attend, or to be represented at a hearing, particularly the substantive hearing of an appeal, is likely to harm that party’s position. b) the Court will not adjourn any fixed hearing without good reason. In particular, should the appellant choose not to attend on 17 August 2021, nor to avail itself of available facilities for remote attendance by its representatives or witnesses, then the Court may proceed to hear the appeal in the absence of the appellant and/or in the absence of the legal or other representatives of the appellant. c) therefore, if a party does not appear, or is not represented at the hearing on 17 August 2021, not only should it not assume the hearing would be adjourned and should understand that such absence may adversely affect its position. Further, the appellant is neither present nor represented on 17 August 2021, it will be unable to challenge any evidence called by the respondent or call any evidence on its own behalf. These eventualities may also adversely affect the appellant’s position. d) it is the appellant’s duty to remain in contact with the Court. In the circumstances, the inability of the Court or the respondent effectively to communicate with the appellant may be unlikely to lead to the adjournment of the appeal and may itself adversely affect the appellant’s position’. The appellant is a company registered in England and Wales having been incorporated on 8 November 2011. At all time material to the charges, the appellant was registered with Companies House as a ‘non-trading’ or dormant company. It remains listed at Companies House as an active company, with a registered address of 85 Great Portland Street, First Floor, London W1W 7LT. Companies House records show that the individuals who are the directing minds of the view of the appellant, are nationals of Spain, Columbia, Latvia, Russia, and Kazakhstan. None of them were before the Magistrates’ Court on 6 March 2020, which we note was before this country went into its first Covid lockdown on 16 March last year. The Criminal Procedure rules make specific provision regarding a party’s representatives. Criminal Procedure Rule 46.1 relevantly provides that anything a party may or must do, may be done a) by a legal representative on that party’s behalf; or b) by a person with the corporation’s written authority, where that corporation is a defendant. In addition, Section 33(3) of the Criminal Justice Act 1925 provides that, ‘on arraignment of a corporation, the corporation may enter in writing by its representative, a plea of guilty, or not guilty; and if either the corporation does not appear by a representative, or, though it does so appear, fails to enter as a quarter[?] in plea, the Court shall order a plea of not guilty plea entered and the trial shall proceed as though the corporation had duly entered [inaudible]’. Section 33(6) goes on to provide that, ‘In this Section, the expression “representative” in relation to a corporation, means a person duly appointed by the corporation to represent it for the purpose of doing any act or thing which the representative of the corporation is, by this Section, authorised to do; but a person so appointed, shall not, by virtue only of being so appointed, be qualified to act on behalf of the corporation before any Court for that purpose. A representative for the purposes of this Section, need not be appointed under the seal of the corporation, and a statement in writing purporting to be signed by a managing director of the corporation; or by any person by whatever name called, having, or being one of the persons having, the management of the affairs of the corporation, to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this Section, shall be admissible without further proof as prima facie evidence that that person has been so appointed’. No such written authority has been provided to the Court, whether under rule 46.1 or by Section 33(4). Of course, arraignment has long since passed, and at that stage the appellant was represented by solicitors. However, we think the general approach laid out in Section 33 and rule 46 ought to follow now, insofar as the appellant’s representation is concerned, after MK Law ceased to act for it. It is, after all, an English company, subject to English law, in the English Courts, and in our judgment, proceedings such as these, are apposite in the circumstances. The Companies House register shows that as of today, Pablo Saavedra also known as Juan[?] Saavedra is the appellant company’s secretary; and its directors are Igor Rudyk; Segundo Vargas; and Hasbrone Overseas Limited, a company registered in the British Virgin Islands. Mr Rudyk’s nationality is given as Kazakh, and Mr Vargas’s as Columbian. To our knowledge, none of the named directors put their names to any of the communications sent to the Court, apart from the generic description as the officers of Lehram. Communications since June appear to have come from a number of different generic email addresses, from a well-known domain name and email service provider, sometimes signed off by a ‘Miss Maria Sokolova’ and at other times signed off by Mr Saavedra. Miss Sokolova appears to act as a translator for others. Just whom, she does not identify and at whose direction we do not know. There is no evidence before is that Miss Sokolova has authority to act for and on behalf of the appellant as its representative. This is despite the very clear direction given by His Honour Judge Griffith in further directions given by the Court on 27 July 2021 at paragraph six of those directions, that ‘the appellant needs to file and serve a written statement, duly appointing Maria Sokolova or such other representatives as may be selected by the appellant, to appear as a representative of the appellant, pursuant to Section 33 of the Criminal Justice Act 1925, by 4pm, Friday 13 August 2021’. Nor do we have any such evidence that Mr Saavedra, who is, as we had already noted, the appellant’s company secretary, and not a director of the company, or anyone else for that matter, is so authorised. The default position of common law is that, without more[?], a company secretary or even a director alone without the agreement of the company’s board cannot file the company in the way in which Mr Saavedra seeks to make submissions before us. We have considered whether Mr Saavedra has the appellant’s ostensible or implied authority, which we can infer from the appellant’s conduct and from the circumstances of the case. Such as when the board of directors appoint one of their number to be managing director, and impliedly[?] authorise that director to do such things as fall within the usual service of that office. On the material before us, we do not consider that the appellant has held out that Mr Saavedra as having such authority. In an email dated 13 August 2021, Mr Saavedra wrote to the Court in the following terms, ‘By no means the appellant intends to disobey the Court’s order dated 22 July 2021 [or appoint a representative in accordance with Section 33 of the Criminal Justice Act 1925]. The appellant cannot afford any representative as it is a dormant company with no assets, no revenues, not even a bank account. A pro bono translator/activist, hopefully a native English speaker, American, will appear on 17 August 2021, or [by its defect?], any other pro bono translator/activist willing to assist in this matter on a pro-bono basis will appear. If a native English speaker translator is not procured, a nominated English speaker translator will be procured, but the Court is assured someone will appear through the hearing to read the statement and/or submissions filed by the appellant and its position’. In our view this reply misunderstands the very clear words in contention behind Section 33. We do not consider the wording of that section so difficult to comprehend, nor what His Honour Judge Griffith meant in his clear direction six of 27 July. The skeletons and applications demonstrate to us that the appellant, or at least those purporting to act on its behalf, chose to understand more complex legal argument when it suits them. His Honour Judge Griffith’s direction was not about legal representation. It was about the provision of a written statement appointing Miss Sokolova or someone else to appear as a representative of the appellant. The wording and intention behind the learned judge’s direction could not have been clearer, and nor could the wording of Section 33, in particular. In any event, His Honour Judge Griffith’s clear direction six of 27 July, has not been complied with, and some caution must be exercised by this Court, in proceeding to deal with any party without the sort of representation envisaged by Section 33, and rule 46.1, and who does not appear in person before it, because the opportunity to abuse the Court’s process in those circumstances is heightened. There is all the more need for caution in the absence of any written authority under the hands of the directors, or at least given in accordance with the company’s governing documents. Given the risk of fraud, or at the very least the risk that someone who seeks to lawfully bind[?] the company, without any real authority would seek to do so, especially in a case with allegations such as these, and the convictions of the Court alone which are the subject of this appeal. We hold little doubt that it is in part for those very reasons that the provisions of Section 33 and rule 46.1 exist; to ensure that whoever purports to appear as a representative of the company has the required standing. For the reasons we have outlined, we do not accept Miss Sokolova, or Mr Saavedra has the appellant’s authority and thus standing to appear before us. Before we consider the legal framework for dismissing an appeal where a party fails to appear, we turn to the video link direction given by His Honour Judge Griffith. His Honour Judge Griffith’s directions of 2 July gave leave to the appellant to apply to attend the hearing via video link. Putting to one side for the moment the fact that the appellant has failed to comply with his Honour Judge Griffith’s direction six, the appellant has not identified who will attend, or precisely where they might attend from. In an email to the Court ‘on behalf of’ Mr Saavedra, on 13 August 2021, the Court was told this, ‘As of today, it is unknown the name of the translator who will appear on 17 August 2021. But it is assured to the Court that someone will appear in order to read in English a statement of the company and/or any submissions presented by the appellant, with all the evidence presented; and read the questionnaires to cross-examine [the 25?] witnesses that on July 29 the appellant kindly asked for the Court to be summoned’. He continued, ‘The officers of Lehram and/or the possible translator ([inaudible]), who would appear on 17 August 2021 are six to seven hours behind London time, therefore it is kindly asked to the Court for the trial to take place within normal business hours at the locations of the officers and/or translators of the appellants’. A six-to-seven-hour time zone would put the ‘officers and/or translators of the appellant’ in either Central or North America; six hours for Central America and some parts of North America, and seven hours for North America. The nationalities of Mr Rudyk, Kazakh; and Mr Vargas, Columbian; suggests that ‘the officers and/or translators of the appellant’ are not located in Kazakhstan or Columbia, or even the British Virgin Islands where Hasbrone Overseas Limited is registered. From this it seems to us that the appellant was trying to hedge his bet, not committing one way or another as to just who would appear or from where. This was despite a direct request from me to Mr Saavedra yesterday through the list office to identify from where those seeking to represent the appellant would attend. All that was said in reply, the order is not a reply- email says it was sent ‘on behalf of Mr Saavedra’, was that ‘the offices of the defendant are based in red/amber [sic] Covid listed countries. They are not allowed to enter England’. That of course is not a correct statement of the position. People travelling from red or amber listed countries are permitted to come to England provided they followed the rules issued by Her Majesty’s government. Unlike others, this country has reopened its borders, subject to those rules. The position as to where a party, representative, or indeed witness may attend via video link has direct implications as to the directions this Court can lawfully make. Section 51(1) of the Criminal Justice Act 2003, as amended by the Coronavirus Act 2020, empowers the Court to give a direction for any participant in ‘eligible criminal proceedings’ to take part by live video link. Section 51.2B of the Act defines eligible criminal proceedings to include a criminal appeal to the Crown Court, and any proceedings that are preliminary or incidental to such an appeal. Section 51 in its present form, will enable the appellant to appear remotely by a video link from outside England and Wales. However, as we have said, the appellant has failed to comply with His Honour Judge Griffith’s direction six, and has not identified who will attend, or precisely where they might attend from. On 12 August 2021, his Honour Judge Griffith granted a video link for the appellant’s representation. Although the appellant has applied to appear via video link, we are not prepared to grant permission for that to happen without the appellant complying with His Honour Judge Griffith’s direction six, so that the Court is aware of precisely who is to appear, and from where, and on what authority. In email correspondence, the appellant has stated its intention that either Miss Sokolova or another person would read out the statements. In the directions which His Honour Judge Griffith gave, on 12 August, the learned judge said this, ‘2. There is reference to the translator reading out statements. Evidence must be given by the person who made the statement unless it is agreed by [the respondent]. If there is a video link, the witness can appear over it to tell the Court what they want to say. If [the appellant wants] to introduce evidence by statement being read, they must comply with the provisions of Sections 114 to 118 of the Criminal Justice Act 2003, and the Criminal Procedure Rules Part 20’. So far as witnesses are concerned, yesterday I told the appellant, via the list office, that unless any person to give evidence for the appellant is in England and Wales, the law does not permit remote attendance outside the jurisdiction. That was a simple statement of position, but more particularly, unless formalities specific to the place from where the witness is to give evidence are complied with, in addition to Criminal Procedure rule 18.24, the law does not permit remote attendance. Despite a request, we have not been told where any of the people whose evidence the appellant wishes to rely upon are present and so none of the usual formalities, such as seeking mutual legal assistance, often through a formal international letter of request, have to our knowledge, been addressed, or indeed have any of the matters set out in rule 18.24. So, for those reasons, and in light of the appellants failure to comply with His Honour Judge Griffith’s direction six, we refuse the delay[?] requested by the appellant. We recognise this is robust case management, and in reaching that decision we have taken into account all the circumstances, including the nature of these proceedings and the appellant’s conduct to date. We turn now to consider the legal framework where an appellant fails to appear and is not legally represented. An appeal against conviction and sentence from the Magistrates’ Court to the Crown Court is hearing de novo, or by way of re-hearing. Section 79(3) of the Senior Courts Act 1981, which deals with appeals from Magistrates’ Courts to the Crown Court read as follows, ‘The customary practice and procedure with respect to appeals to the Crown Court, and in particular any practice has to the extent to which an appeal is by way of re-hearing of the case, shall continue to be observed’. Section 9(6) of the Courts Act 1971 provides that, ‘Subject to any provision contained in or having effect under this Act, the transfer of appellant jurisdiction to the Crown Court from the Quarter Sessions, shall not affect the customary practice or procedure of any such appeal, and in particular shall not affect the extent to which the appeal is by way of re-hearing of the case’. In ex parte Clare, Green-Johnson LJ, with whom Mann LJ agreed, cited the approval at page 748, a passage from the last edition of Archbold’s last Quarter Sessions, sixth edition, 1908 which said this, ‘If the parties on appeal do not appear by themselves or by counsel when it is thus called on, the Court will order the appeal to be struck out of the list, and they will not usually allow it to be restored to it without the consent of the opposite party, or a very strong and satisfactory statement on the part of the appellant, supported by affidavit, or the oath of witnesses present accounting for his absence’. Mr Ashley-Norman of Queen’s Counsel drew our attention to the decision of Henriques J sitting in the Administrative Court, in the Queen’s Bench Division of the High Court, in R (Hayes) v Chelmsford Crown Court [2003] EWHC 73 (Admin) in which the Court decided that was not open to dismiss an appeal where an appellant did not appear. However, as Mr Ashley-Norman rightly pointed out, that case is distinguishable from this one, because there the appellant was represented, whereas here, the appellant is not. Ex parte Clare is clear authority that the [inaudible] of this case in the circumstances which are now presented to us. No appearance was made on behalf of the appellant in the Magistrates’ Court or before us, nor did the appellant appear [by counsel or solicitor?]. Is there a strong and satisfactory reason for not doing so? Given what we have rehearsed, we do not think there is. Even if Miss Sokolova or Mr Saavedra did report to appear before us today, or indeed any director of the appellant whether in person or by video link, we would refuse to go behind His Honour Judge Griffith’s clear direction six of 27 July 2021. Since that direction has not been complied with still to date, and the appellant does not appear before us by anyone else with such written authority, or by legal representation, we find that the appellant has failed to appear today for the hearing of this appeal. Accordingly the appeal is dismissed. We will hear Mr Ashley-Norman QC’s application for costs.”

‘the Panel (sic) erred and acted unreasonably in failing to adjourn the hearing of the appeal on 17 August 2021 upon being notified by those acting for the Claimant that they had only been sent (by the Court) the Respondent’s trial bundle/appeal file at 15:15 hours on 16 August 2021.’

‘dismissal of appeal on basis that Claimant had failed to appear before the court’

“The so- called rules of natural justice are not engraved on tablets of stone: to use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.”

“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

“51. Case management decisions are discretionary decisions. They often involve an attempt to find the least worst solution where parties have diametrically opposed interests. The discretion involved is entrusted to the first instance judge. An appellate court does not exercise the discretion for itself. It can interfere with the exercise of the discretion by a first instance judge where he has misdirected himself in law, has failed to take relevant factors into account, has taken into account irrelevant factors or has come to a decision that is plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree. So the question is not whether we would have made the same decisions as the judge. The question is whether the judge's decision was wrong in the sense that I have explained.”

“56. This court will interfere with a case management decision of a trial judge only in exceptional circumstances. It is well established that a case management decision will not be interfered with or reversed by appellate courts unless it was, as Lord Neuberger put it in Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] UKSC 64(approving of the test in Broughton v Kop Football (Cayman) Ltd [2012[ EWCA Civ 1743, ‘plainly wrong in the sense of being outside the generous ambit where reasonable decisions-makers may disagree’.”

“23 … The importance of litigants obeying orders of court is self-evident. Once a court order is disobeyed, the imposition of a sanction is almost always inevitable if court orders are to continue to enjoy the respect which they ought to have. And, if persistence in the disobedience would lead to an unfair trial, it seems, at least in the absence of special circumstances, hard to quarrel with a sanction which prevents the party in breach from presenting (in the case of a claimant) or resisting (in the case of a defendant) the claim. And, if the disobedience continues notwithstanding the imposition of a sanction, the enforcement of the sanction is almost inevitable, essentially for the same reasons. Of course, in a particular case, the court may be persuaded by special factors to reconsider the original order, or the imposition or enforcement of the sanction.”

“The duty of the participants in a criminal case 1.2. (1) Each participant, in the conduct of each case, must- (a) prepare and conduct the case in accordance with the overriding objective; (b) comply with these Rules, practice directions and directions made by the court; and (c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective. (2) Anyone involved in any way with a criminal case is a participant in its conduct for the purposes of this rule.”

“11. Time wasting, extension of hearings and taking hopeless points in the hope of wearing down an opponent or the court are neither proper nor legitimate ways in which to conduct a case, for a party or for a party’s lawyers. Courts must be aware of such behaviour and employ firm case management to prevent it. 12. Each participant in a case has the obligation set out in CPR 1.2(1)(c): ‘At once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.’ That means, for example, that if defence lawyers consider that a document is missing or service of a document has not taken place, their obligation is to say so early. Not to say so early may hinder the overriding objective because it is likely to cause an adjournment which could be avoided, and thus prevent the case being decided ‘efficiently and expeditiously”

“18. This judgment is an intentional reminder to criminal courts that active case management using the Criminal Procedure Rules is their duty. Increased rigour and firmness is needed. This judgment can be cited pursuant to the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001.”

“8. The magistrates were referred to the relevant authorities. They concluded that the prosecution failure was unreasonable; that in accordance with R (Walden and Stern) v Highbury Corner Magistrates' Court [2003] EWHC 708 (Admin) the request for an adjournment should be subject to rigorous scrutiny; that in accordance with Essen v Director of Public Prosecutions [2005] EWHC 1077 (Admin) they should consider carefully whether it was right to rescue the prosecution from the consequences of its own neglect; that in accordance with Walden and Stern to do so would encourage such failings; that the interests of the accused and his witnesses had to be considered as well as those of the victim; that on any basis if they granted an adjournment there was likely to be significant delay before the trial could be completed; and, finally, that given the unreasonable failure of the prosecution and balancing the interests of the victim and the accused and the likely delay, it was not in the interests of justice to grant an adjournment until later that day or to a new trial date. 9. In Essen this court considered the relevant law and it considered in particular the judgments of Lord Bingham in R v Aberdare Justices ex parte Director of Public Prosecutions (1990) 155 JP 324 (then as Bingham LJ) and in R v Hereford Magistrates' Court ex parte Rowlands [1998] QB 110 (then as Lord Bingham CJ). The following points emerge: (a) A decision whether to adjourn is a decision within the discretion of the trial court. An appellate court will interfere only if very clear grounds for doing so are shown. (b) Magistrates should pay great attention to the need for expedition in the prosecution of criminal proceedings; delays are scandalous; they bring the law into disrepute; summary justice should be speedy justice; an application for an adjournment should be rigorously scrutinised. (c) Where an adjournment is sought by the prosecution, magistrates must consider both the interest of the defendant in getting the matter dealt with, and the interest of the public that criminal charges should be adjudicated upon, and the guilty convicted as well as the innocent acquitted. With a more serious charge the public interest that there be a trial will carry greater weight. (d) Where an adjournment is sought by the accused, the magistrates must consider whether, if it is not granted, he will be able fully to present his defence and, if he will not be able to do so, the degree to which his ability to do so is compromised. (e) In considering the competing interests of the parties the magistrates should examine the likely consequences of the proposed adjournment, in particular its likely length, and the need to decide the facts while recollections are fresh. (f) The reason that the adjournment is required should be examined and, if it arises through the fault of the party asking for the adjournment, that is a factor against granting the adjournment, carrying weight in accordance with the gravity of the fault. If that party was not at fault, that may favour an adjournment. Likewise if the party opposing the adjournment has been at fault, that will favour an adjournment. (g) The magistrates should take appropriate account of the history of the case, and whether there have been earlier adjournments and at whose request and why. (h) Lastly, of course the factors to be considered cannot be comprehensively stated but depend upon the particular circumstances of each case, and they will often overlap. The court's duty is to do justice between the parties in the circumstances as they have arisen.”

“As from its nature a company cannot appear in person, not having as a legal entity any visible person, it must appear by counsel or solicitor, or by leave of the judge some other person may be allowed to appear instead of the company to address the Court, which includes the examination of the witnesses and generally conducting the case. There is no limit or restriction imposed on the judge as to the persons whom he may allow, or as to the nature of the cases in which he may allow some other person to address him instead of counsel or solicitor for the company. It is left to his discretion …”

“46.1. - (1) Under these Rules, anything that a party may or must do may be done - … (b) by a person with the corporation’s written authority, where that corporation is a defendant; … unless other legislation (including a rule) otherwise requires.” unless other legislation (including a rule) otherwise requires.”

“Section 33(6) of the Criminal Justice Act 1925, section 46 of the Magistrates’ Courts Act 1980 and Schedule 3 to that Act provide for the representation of a corporation.”

“The provisions of Schedule 3 to this Act shall have effect where a corporation is charged with an offence before a magistrates’ court.”

“Subsection (6) of section 33 of the Criminal Justice Act 1925 shall apply to a representative for the purposes of this Schedule as it applies to a representative for the purposes of that section.”

“Representation at trial of companies or other corporations 39.6 A company or other corporation may be represented at trial by an employee if – (a) the employee has been authorised by the company or corporation to appear at trial on its behalf; and (b) the court gives permission.”

“51 Live links in criminal proceedings (1) A person may, if the court so directs, take part in eligible criminal proceedings through - (a) … or (b) a live video link. (2) In this Part ‘eligible criminal proceedings’ means - (a) a summary trial, (b) a criminal appeal to the Crown Court and any proceedings that are preliminary or incidental to such an appeal … (3) A direction may be given under this section - (a) on an application by a party to the proceedings, or (b) of the court's own motion. (4) But the court may not give a direction for a person to take part in eligible criminal proceedings through a live audio link or a live video link unless - (a) the court is satisfied that it is in the interests of justice for the person concerned to take part in the proceedings in accordance with the direction through the live audio link or through the live video link, (b) the parties to the proceedings have been given the opportunity to make representations … (4A) The power conferred by this section includes power to give - … (c) a direction for a person who is outside England and Wales (whether in the United Kingdom or elsewhere) to take part in eligible criminal proceedings through a live audio link or a live video link.” … (4E) The court may rescind a live link direction under this section at any time before or during the eligible criminal proceedings to which it relates (but this does not affect the court's power to give a further live link direction in relation to the proceedings). (4F) A live link direction under this section may not be rescinded unless— (a) the court is satisfied that it is in the interests of justice for the direction to be rescinded, (b) the parties to the proceedings have been given the opportunity to make representations, (4G) A live link direction under this section may be varied or rescinded by the court of its own motion or on an application by a party; but such an application may not be made unless there has been a material change of circumstances since the direction was given. (4H) If a hearing takes place in relation to the giving or rescinding of a live link direction under this section, the court may require or permit a person to take part in that hearing through— (a) … (b) a live video link. (6) In deciding whether to give or rescind a direction under this section the court must consider all the circumstances of the case. (7) Those circumstances include in particular— (a) in the case of a direction relating to a witness— (i) the importance of the witness's evidence to the proceedings; (ii) whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness's evidence; (b) in the case of a direction relating to any participant in the proceedings— (i) the availability of the person; (ii) the need for the person to attend in person; (iii) the views of the person; (iv) the suitability of the facilities at the place where the person would take part in the proceedings in accordance with the direction; (v) whether the person will be able to take part in the proceedings effectively if he or she takes part in accordance with the direction. (8) The court must state in open court its reasons for refusing an application for a direction under this section …”

“5. A bundle the subject of analysis in the Judicial Review is a bundle entitled ‘Appeal Trial Bundle’. I was a party to the assembly and service of the Appeal Trial Bundle for the purposes of the hearing of the conviction appeal in the Crown Court. It was intended to encapsulate for the Crown Court all of the relevant documents for the appeal. Pursuant to the order of the Crown Court dated 27 July 2021, it was due for service on Southwark Crown Court by 4pm on Friday 6 August 2021. However, by reason of the multiplicity of additional material served by or on behalf of the Claimant after 27 July 2021 it was not possible to complete the Appeal Trial Bundle by that deadline. It was served instead on the Court on the following Monday, Monday 9 August 2021, in readiness for the appeal which was due to commence on Tuesday 17 August 2021.”

“JUDGE BAUMGARTNER: Very good. I think first that we would consider the application to adjourn which came late. It was a renewed application yesterday evening and again I hoped it would have found its way to you. … MR ASHLEY-NORMAN: The respondent - the respondent’s approach to that application is as follows: ‘By virtue of the orders made on 2 July and 29 July, by your brother judge, His Honour Judge Griffith, the appellant was well aware that the respondent was to serve material on Friday 6 August. The appellant continued to serve material after our skeleton argument of Friday 26 July, and shortly before the date upon which we were to provide our response, we received 25 applications for witness summons and a further skeleton argument. As a result of that, our material was one working day late, arriving at this Court on Monday 9 August. The appellant well knew that that material was due to arrive before this Court. The appellant communicated with the Court on 10 August, so last week, making enquiries about CVP. At no point did the appellant say, “We haven’t received the material. Please could the Court forward the material to us, pursuant to the arrangement that we asked the Court to make”

“As of the date of this letter, the appellant has not been able to secure any representative, a contingent/pro bono UK qualified attorney nor UK barrister, to assist in this matter, therefore it appears the appellant will have to rely on the pro bono assistance of Maria Sokolova’s non-native English translation skills to read the statement of the appellant and to read the submissions presented on behalf of the Appellant.”

“1) Should had I been provided with the videolink for the 17 August 2021 appeal hearing at Crown Court in the matter of Cyrith v Lehram, I would have connected, as I was ready and available to participate since July 2021. 2) Should had I been provided with the videolink for the 17 August 2021 appeal hearing at Crown Court in the matter of Cyrith v Lehram, I would have clarified any concerns in relation to the authority of Maria Sokolova in relation to Lehram Capital and its members. 3) Should had I been provided with the videolink for the 17 August 2021 appeal hearing at Crown Court in the matter of Cyrith v Lehram, I would have made certain representations on behalf of Lehram irrefutably evincing that the private prosecution Cyrith v Lehram is inappropriate”

“ 9. In her witness statement Ms Sokolova said this: ‘127. I have witnessed how pursuant to the power of attorneys from Mr Saavedra and Mr Vargas jointly with the request and authorization from Lehram's members and officers, when in late May 2021/June 2021 the counsel acting for Lehram in the private prosecution Cyrith v Lehram demanded more fees which could not be satisfied, and Lehram and its members could not continue to instruct him, I took over assisting the officers of Lehram, and Lehram itself in relation to the private prosecution Cyrith Holdings v Lehram Capital as I speak multiple languages and the registered persons with significant control of Lehram who are also officers of Lehram do not speak any English. ‘127. I have witnessed how pursuant to the power of attorneys from Mr Saavedra and Mr Vargas jointly with the request and authorization from Lehram's members and officers, when in late May 2021/June 2021 the counsel acting for Lehram in the private prosecution Cyrith v Lehram demanded more fees which could not be satisfied, and Lehram and its members could not continue to instruct him, I took over assisting the officers of Lehram, and Lehram itself in relation to the private prosecution Cyrith Holdings v Lehram Capital as I speak multiple languages and the registered persons with significant control of Lehram who are also officers of Lehram do not speak any English. 128. I was authorized by Lehram and its officers to act for them since at least May 2021, as shown in the under penalty of perjury statements of its directors (pages 156, 157 of renewal bundle). 129. I am not legally trained in the UK and nor legally trained in any jurisdiction in the world regarding dispute resolution proceedings nor litigation to properly understand the difference between 'emanation of Claimant' and 'authorized by Claimant'. 130. I am not the legal person Claimant, neither a director of Claimant.’ 10. In a Reply from Mr Ashley-Norman dated 10 June 2022, and a witness statement from Andrew Marshall, a barrister and a partner with the firm representing the Interested Party, of the same date, and in its Skeleton Argument for this CMC, the Interested Party objects to Ms Sokolova taking (further) part in this case. 11. It says that despite Linden J's order, considerable doubt remains about Ms Sokolova's status and that: (a) if she is seeking to act as a McKenzie friend (which some of what she has written would suggest) then I should not let her address me, as McKenzie friends are generally not entitled to address the Court: Administrative Court Judicial Review Guide 2022, [4.6.2] and [4.6.3]; alternatively (b) if she is seeking to appear for the Claimant pursuant to CPR r 39.6, then she has not shown she is an employee (or a director) of the Claimant, and in any event I should exercise my discretion not to allow her to appear for the company because of how she has conducted the case to date. 12. Among the points it makes are: her witness statement does not comply with CPR Part 32 because it provides no place of residence [PD32 18.1(2)]; (b) she provides no occupation or, if she has none, her description [PD32 18.1(3)]; (c) she fails to indicate which of the statements in it are made from her own knowledge and which are matters of information or belief [PD32 18.2(1)]; (d) the format requirement is not met, in that the statement has been provided only in electronic form [PD32 19.1 (1)]. At [323], p76, of its Skeleton Argument, the Claimant requests electronic submission because it claims to have no printing facilities and claims physical submissions are impossible because of the Interested Party (an assertion which is not further explained). 13. Mr Marshall says this in his witness statement: ‘15. I consider so little is known of the witness such as to make her untraceable. In relation to a witness who will not attend the UK or the court, I consider there to be an importance to very clear identification of the witness. The witness is silent about all matters that provide a basis for identification a. No identity documents have been provided. b. The witness communicates (vis a vis this matter) only from an (untraceable Protonmail) email account. c. The witness' qualifications are unspecified, as is her (presumed) university. d. The witness' whereabouts in the world are unstated, her usual address is unstated and the location where the statement was made is unstated. e. Nobody vouches for her or introduces her save for documents whose provenance is equally unclear and whose authors are equally untraceable. 16. At paragraphs 64-69 of her statement, the witness states what she is not but at no point does the witness state these in the positive by providing such details about herself. Where she does state matters about herself, for example paragraph 68 WS, it is expressed in a way that provides no detail at all by which the witness may be identified – the witness avoids stating what job, when she held that job, with which employer and where that job was. 17. With a view to establishing evidence of identity, I carried out Google searches of the names 'Maria Sokolova' or 'Maria Vladimirovna Sokolova', the reason for the latter name explained below. Other than Companies House, I have been unable to find an internet mention of anyone that I consider likely to be the witness; to the best of my knowledge, none of the results showed an image that approximates to the image of the person I saw on the video link in the High Court on 4 May 2022. I am not a professional researcher but I did seek to find public source evidence of the witness.’”

“7. I was asked by the officers of Lehram (directors and secretary) to assist in all matters related to their interests in Lehram, in their capacity as officers of Lehram as well as in their capacity as registered persons with control of Lehram. 8. In August 2017 I received powers from Mr Saavedra, Mr Vargas to represent them and represent Lehram before any public authority due to the trust relationship I have with them. Those powers were notarized in August 2017 and are valid until August 2022. 9. Those powers allow me to act for them and for Lehram before any public entity, including any Court.”

“55. Should the Court had shown any hesitation or concern in regard to me being authorized by the officers of Lehram and Lehram itself, a copy of the notarized power of attorney dated August 2017 and valid until August 2022, would have been shared with the Court, an email from one of Lehram’s directors would have been provided, or any other remedy would have been implemented to the satisfaction of the Court such as the under penalty of perjury letters of authority of Lehram’s directors seen in exhibit 1.”

“Even if Miss Sokolova or Mr Saavedra did report to appear before us today, or indeed any director of the appellant whether in person or by video link, we would refuse to g behind His Honour Judge Griffith’s clear direction six of 27 July 2021. Since that direction has not been complied with still to date, and the appellant does not appear before us by anyone else with such written authority, or by legal representation, we find that the appellant has failed to appear today for the hearing of this appeal.”

“62. The second and third grounds are in fact a single ground. This is made explicit in the first particular of Ground Two, which avers at paragraph 66 that the Court ‘erred and acted unreasonably in dismissing the appeal…on the basis that the Claimant had failed to comply with paragraph (vi) of the Order…dated 27 July 2021’. The subsequent paragraphs address the Court’s failure to permit the Claimant to enter the hearing. This aspect is therefore considered compendiously. Furthermore, the appeal was not dismissed because of the failure to comply with direction (vi); rather the Court refused to permit Ms Sokolova or Mr Saavedra to appear because of this failure. The dismissal of the appeal was a consequence of the failure to appear.”

“JUDGE BAUMGARTNER: -and they do not have a corporate domain. And my concern is to make sure that this appellant, which is an English-registered company, is properly before the Court. MR ASHLEY-NORMAN: Yes. JUDGE BAUMGARTNER: And so in those circumstances, without any resolution, or without any written appointment of a representative for the purposes of these proceedings, or even without having a director before the Court- MR ASHLEY-NORMAN: Yes. JUDGE BAUMGARTNER: -the only people who appear to have been in the background, are a translator, I think, by the name of Miss- MR ASHLEY-NORMAN: Maria Sokolova. JUDGE BAUMGARTNER: -Sokolova and the company secretary who ordinarily could not [bind] the company.”

“28. For the avoidance of doubt, if the Appellant chooses not to comply with the requirements of Section 33 and duly appoint Ms Sokolova (or another representative) to represent the Appellant, then the Respondent will object to Ms Sokolova appearing as a representative of the Appellant. 29. The Appellant has more than adequate time between the service of this Note and the appeal listed on the 17 August 2021 to attend to the appointment of Ms Sokolova, should the Appellant choose to do so. 30. Should the Appellant choose not to appoint Ms Sokolova (or any other representative) prior to the trial, with the result that the Appellant is unrepresented at the trial, the Respondent will apply for the appeal to proceed in the absence of the Appellant.”

“You I am afraid, Lehram Capital have got to sort out representation in this country if they want to be represented because that is the appeal date, and I am afraid they will have to work to that in order to be represented if they want to do so. Otherwise, it may be you, if they ask you to come along and do it, and you and they will have to decide at some point what evidence they are going to put before the court about whatever it is that you are talking about.”

“The Court erred in dismissing (or purporting to dismiss) the appeal due to procedural difficulties arising from the presentation of the Claimant’s case. Whilst there might have been procedural difficulties if the Claimant’s directors had sought to give evidence without enquiries having been made as to mutual legal assistance – those difficulties may not have proved insurmountable. Neither would any such difficulties have prevented Miss Sokolova or any other individual acting as a Mackenzie Friend and making submissions on the legal points which the Claimant had persisted in seeking to raise (for example in relation to abuse of process and the argument that the charges were time-barred and whether the Respondent had discharged the burden of proof in relation to the offences). The Claimant did not intend for Miss Sokolova to give hearsay evidence on behalf of the Claimant. Neither would such procedural matters have necessarily impeded the ability of Miss Sokolova to apply for an adjournment or put questions to the Respondent’s witnesses.”

“He relies, first, on section 79(3) of the Supreme Court Act 1981, which deals with appeals from magistrates' courts to the Crown Court. It reads: “The customary practice and procedure with respect to appeals to the Crown Court, and in particular any practice as to the extent to which an appeal is by way of rehearing of the case, shall continue to be observed.”

“Subject to any provision contained in or having effect under this Act, the transfer of appellate Jurisdiction to the Crown Court from quarter sessions shall not affect the customary practice or procedure on any such appeal, and in particular shall not affect the extent to which the appeal is by way of re-hearing of the case.”

“24. In Re AZ (A Child) (Recusal) [2022] EWCA Civ 911, [2022] 1 WLR 78 at paragraph 54, this Court observed: ‘… case law has established that an appellate challenge to the conduct of a judge during a trial may take two forms. The first is a broad challenge to the fairness of the trial which is a matter for judicial evaluation. The second is an assertion that the judge gave the appearance of ‘bias’. The test for apparent bias involves a well-established two stage process summarised by Leggatt LJ in Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468, [2018] BLR 341 at paragraph 17 in these terms: ‘The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased . It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased: see Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, paragraphs 102-103.’ 25. It has been stated in several cases since Porter v Magill that apparent bias means a prejudice against one party or its case for reasons unconnected with the merits of the case: Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117, per Scott Baker LJ at paragraph 28; Secretary of State for the Home Department v AF (No2) [2008] EWCA Civ 117, [2008] 1 WLR 2528, per Sir Anthony Clarke MR at paragraph 53; Bubbles and Wine, supra, per Leggatt LJ at paragraph 17. As Lord Wilson observed in Serafin v Malkiewicz [2020] UKSC 23, [2020] 1 WLR 2455 at paragraph 39, this definition of bias is ‘quite narrow’. For that reason, like Lewison LJ, whose judgment I have read, I consider it preferable to consider the matter on the more general level of whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the father would not receive a fair trial. 26. A party may argue that a particular decision during proceedings was unfair. If so, his remedy is to seek to appeal against that decision. Alternatively, he may argue that the judge's treatment of his case was unfair over the course of the proceedings and that he should therefore recuse himself. In those circumstances, however, it is necessary to consider the whole of the proceedings to determine whether the judge's approach to the aggrieved party has been unfair. In Singh v Secretary of State for the Home Department [2016] EWCA Civ 492, [2016] 4 WLR 183, a case about apparent bias Davis LJ said, at paragraph 36: "It is necessary to consider the proceedings as a whole in engaging in the objective assessment of whether there was a real possibility that the tribunal was biased. In my judgment, it is also necessary to consider the proceedings as a whole when addressing an allegation that over the course of the proceedings the judge has treated a party unfairly.” ‘… case law has established that an appellate challenge to the conduct of a judge during a trial may take two forms. The first is a broad challenge to the fairness of the trial which is a matter for judicial evaluation. The second is an assertion that the judge gave the appearance of ‘bias’. The test for apparent bias involves a well-established two stage process summarised by Leggatt LJ in Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468, [2018] BLR 341 at paragraph 17 in these terms: ‘The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased . It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased: see Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, paragraphs 102-103.’ "It is necessary to consider the proceedings as a whole in engaging in the objective assessment of whether there was a real possibility that the tribunal was biased. In my judgment, it is also necessary to consider the proceedings as a whole when addressing an allegation that over the course of the proceedings the judge has treated a party unfairly.”

‘There is no evidence before us that Miss Sokolova has authority to act for and on behalf of the appellant as its representative’