R v Saqub Asif Malik

On 30 October 2018, following a trial at the Bristol Crown Court, the applicant was convicted of conspiracy to convert criminal property. The applicant thereafter left the jurisdiction and a warrant was issued for his arrest. On 28 November 2018 the applicant was sentenced in absence to four-and-a-half years' imprisonment. On 7 December 2020 a confiscation order was made in the sum of £486,029.50 , to be paid within 3 months; a term of 3 years' imprisonment in default was ordered to run consecutively. The defendant remains out of the jurisdiction and the warrant remains outstanding.

On 20 June 2023, as a litigant in person, the applicant lodged an application for an extension of time to appeal his conviction on the basis of grounds drafted with the assistance of counsel (Mr Qureshi). That application was considered and refused by the single judge on 18 December 2023 but notified to the applicant in January of the following year.

The applicant is now represented by new counsel Mr Heywood KC on a privately funded basis.Mr Heywood KC appears before us today, and applies for an extension of time of 1,666 days in which to renew the application for leave to appeal. We are grateful to Mr Heywood for his careful submissions made to us this morning.

"If the application to appeal/renew is out of time then the fact that it is being made by a person who has absconded is a matter which the Court can properly take into account (amongst other factors including the reason for its delay and its merits) when deciding whether to extend time to the applicant or not. Such an approach is not disproportionate."

" … you were involved in a criminal agreement to defraud a bank of money … having acquired cheques made out to companies on cheques to be honoured by that bank. You submitted them into a company account so that you could reap the benefit of the monies paid out in recompense for them. …

Parallel with the investigations being carried out by the West Midlands Police into the stolen cheques in the Dharna Group account which resulted in the proceedings before the Birmingham Crown Court, a separate investigation was carried out by the Avon and Somerset Police into the disposal of those funds amongst others. That investigation established that once the cheques had cleared, the money was diverted through multiple other accounts that could be connected to the applicant or his co-defendants and used to purchase gold, silver or other precious metals that were then sold to precious metal dealers. The money from the sale of these commodities was then paid into other accounts opened for the purpose of receiving these funds and was thereafter transferred again into accounts including accounts in the Middle East, thereby disguising the illegal origin of the funds. In order to carry out this process it was alleged that the applicant recruited others, including his co-accused and others unknown, to assist by creating shell companies with bank accounts through which money could be laundered, and by buying and selling gold and other precious metals. At trial it was the prosecution case that in excess of £500,000 worth of criminal money, including but not limited to the cheques that were paid into the Dharna Group account subject of the Birmingham proceedings, was laundered in this way.

The Grounds

The application for leave to appeal conviction is made on two principal grounds. First, it is contended that it was an abuse of process for the applicant to be prosecuted for an offence when it is clear that the facts giving rise to the Bristol offence were known to the prosecution and formed part of the evidence against him in earlier proceedings at Birmingham Crown Court. Whilst Mr Heywood confirms that it is not contended that these circumstances give rise to a plea in bar of autrefois convict, it is argued that by the way in which the proceedings in Birmingham were dealt with, and in particular the decision to offer no evidence on the count of possession of criminal property, the applicant had a legitimate expectation that he would not be prosecuted for any matters concerned with money laundering arising from the fraud, It is argued that, in these circumstances, to proceed with a further separate prosecution amounts to an abuse of process.

Ground 1 - Abuse

Dealing with the first ground, it is well established that where proceedings arise out of the same or substantially the same facts as earlier proceedings that have concluded then those latter proceedings will generally be an abuse of process in the absence of special circumstances: see Connelly v DPP [1964] AC 1254 ; R v Beedie (1997) 2 Cr App R 167 ; R v Phipps [2005] EWCA Crim 33 ; R v Dwyer [2012] EWCA Crim 10 ; R v Wangige (2021) 1 Cr App R 6 ; and R v Bihe (Nuh) [2022] EWCA Crim 939 .

"… the principle which underlies the court’s special discretion to stay proceedings save in the presence of special circumstances, when the second set of proceedings is founded upon the same or substantially the same facts as the first, is that the obligation is upon the prosecutor to lay all the charges which it wishes to bring arising out of the same incident. … In our judgment, the words ‘the same or substantially the same facts’ and ‘the same incident’ refer to the relevant state of affairs as they existed to the knowledge of the prosecutor at the date the proceedings were concluded. At any time up to that date the prosecutor may lay the charges it wishes for the purpose of capturing the offender’s known culpability. If that culpability embraces further offences committed on other occasions which are not charged, ordinarily they should be charged or taken into consideration.."

" This outcome should serve to encourage prosecutors to try to bring everything capable of being alleged against a defendant before the same sentencing judge at the same hearing. Where for good reason that cannot be done or should not be done, the prosecutor should ensure that the court and defence are informed of the position, unless there is some reason why this cannot be done, such as the need to protect on-going investigations. In the absence of a factor of that kind, efficiency and fairness require clarity of thought and openness of expression."

Mr Heywood, in his oral submissions before us today, says very much the same thing. He draws our attention to the overlap between the investigations carried out by the West Midlands and the Somerset and Avon Police, and submits that there is both direct and inferential evidence that the two investigations were run in a coordinated manner with the knowledge of investigators from both areas. To this end he has provided an analysis in writing of the cross service of evidence from one investigation to another. Indeed, in his written submission he puts it in this way, that the "entire effect of the West Midlands' investigation into the applicant was transferred into the Bristol investigation, and then the proceedings, by the service of the West Midlands' evidence". As already stated, he does not argue that this gives rise to an argument of autrefois, however, he does submit that the Crown Prosecution Service was clearly in a position to take a fully informed decision on prosecution in respect of the applicant on each investigation and taking account of each. It follows, he argues, that when the prosecution decided to offer no evidence in respect of the count alleging possession of criminal property in the Birmingham proceedings, they (as he put it in writing) “clearly, emphatically and consciously passed up the opportunity to prosecute the applicant for any money laundering offence” based on the evidence relating to that criminal property. His central submission indeed, as expanded before us today, is that the prosecution ought not in those circumstances to have been permitted to offer no evidence in Birmingham and then to prosecute from the same starting point in Bristol. If further proceedings were contemplated, the proper course would have been to invite the court to direct that the count lie on the file or at the very least to make the position clear to the applicant and to the court and to invite any disposal on that count to be adjourned. Acting in the way that they did, Mr Heywood argues, is an affront to the integrity of the criminal justice system and therefore an abuse of process. Furthermore, in his written submissions Mr Heywood contended that when the applicant indicated that he would plead guilty to the conspiracy to commit fraud, he did so on the basis and understanding that the prosecution would not thereafter proceed with the possession count and that he therefore had a legitimate and justifiable explanation that he would not be prosecuted for any further matters concerned with money laundering arising out of the fraud.

In our judgment, no abuse arises. Whilst there was undoubtedly overlap between the two investigations and indeed some of the underlying facts, the circumstances of the two sets of proceedings were very far from those that gave rise to successful abuse applications in cases such as Dwyer and Bihe , in each of which the defendant had been prosecuted upon, and sentenced for, an offence or offences which were factually the same or very nearly the same as the offence subject of the subsequent prosecution. Here, there were very significant differences, in our judgment, in terms of the type of offence, the dates, the participants and, importantly, scope. Whereas the Birmingham proceedings were concerned with the provenance of cheques paid into the Dharna Group account and the applicant's possession, knowledge of and intentions regarding them, by contrast the Bristol proceedings were concerned with what happened to those sums once the cheques had cleared, as well as to other monies that could inferentially be determined had derived from criminal conduct. This was a much wider and indeed wholly separate conspiracy to that prosecuted in the Birmingham proceedings and was one in which, as the sentencing judge in Bristol found, the applicant played a leading role, organising and involving others, including relatives who worked under his direction. Whilst arguably it would have been better had all matters been dealt with in the course of the same set of proceedings or an explanation provided as to why that was not desirable in accordance with the observations made in Bihe , the failure to do so does not, in the circumstances of this case, render the proceedings an abuse.

In so far as a submission that the applicant pleaded guilty to the conspiracy to commit fraud on the assurance (whether implied or direct) that were he to do so the prosecution would offer no evidence on the possession count, as indeed happened, and on an assumption that there would be no further proceedings against him, no material has been identified to show that there was any such promise made either directly or impliedly or that the applicant did in fact have the expectation asserted. There was no basis of plea in the Birmingham proceedings and no assertions to this effect were ever made in Bristol, whether in his Defence Statement or otherwise in submissions to the court. There was a clear overlap between the two Birmingham offences, and it is clear from the sentencing remarks that the possession of the criminal property was part and parcel of the facts of the conspiracy to commit fraud. In those circumstances a separate prosecution and conviction for the possession count alone would have added nothing. There is nothing to suggest that the decision to accept the plea to the fraud conspiracy in satisfaction of the indictment as a whole was anything other than a pragmatic decision on the facts of the case

In so far as ground 2 is concerned, namely the admission of the bad character, it is submitted that the admission of the facts of the defendant's conviction for fraud in respect of the cheques in the Dharna Group account was in itself an abuse of the process of the court and unfair in circumstances in which the prosecution had not disclosed in the Bristol proceedings the entirety of the served case or disclosed material in the Birmingham proceedings; where although the certificate of acquittal on the possession count had been served, the effect of that acquittal had not been fully appreciated; and where as a consequence neither those representing the applicant nor the court had considered any argument relating to that acquittal or the effect an acquittal had on the relevance and admissibility of the conviction for the fraud and thus on the application to rely on that conviction, whether under section 98 or section 101(1) Criminal Justice Act 2003 . Had they done so, Mr Heywood argues, the court would have considered whether or not it was fair under section 78 to adduce the evidence.

We cannot accept the defence argument in this respect. The funds cleared by the cheques that were the subject of the Birmingham proceedings formed part of the monies subsequently alleged to have been part of the conspiracy to convert in the Bristol proceedings. Evidence relating to the conspiracy to commit fraud in respect of those cheques was therefore clearly evidence to do with the facts of the Bristol case, and was relevant and admissible both to show the criminal nature of the funds in the Dharna Group account and the applicant's awareness of their criminal origins. The learned judge's approach to the admissibility of this evidence was, in our judgment, correct. The fact that the prosecution had not proceeded with the possession count and that a not guilty verdict was entered accordingly does not, in our view, impact upon either the approach to be taken to the admissibility of the evidence or to the conclusions about it. Furthermore, whilst it is said that not all of the Birmingham case material had been disclosed and the circumstances in which a not guilty verdict had been entered were unclear, a certificate of acquittal had been served and clearly the applicant knew what he had been charged with and to what he had pleaded guilty.

Had there been arguable grounds to appeal, which, as will be clear, in our judgment there are not, then this court would have had to have considered whether the merits of the case and fairness require that an extension of time should be granted. In this case we are not at all satisfied that there is a sufficient explanation for the extreme delay, and none at all for the applicant's decision to leave the jurisdiction and his failure to return; indeed Mr Heywood does not put before us any explanation for that aspect. Even if there had been arguable grounds of appeal, in accordance with Okedare (to which reference has already been made) the fact that the applicant has absconded is something that we would have been entitled to take into account when assessing whether it was appropriate to grant the necessary extension of time for leave to appeal. However, given that in our judgment no arguable grounds of appeal in fact arise, we do not have to consider what would have been in the event a highly unattractive submission.

Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.