THE QUEEN v Ghulam & Ors

Factual and Procedural Background

On 17th November 2015, in the Crown Court at Maidstone, confiscation orders were made against three applicants following their convictions for money laundering offences related to drug dealing. The applicants, two of whom are brothers and sons of a man referred to as the Father, had pleaded guilty to conspiracy to conceal criminal property. Other family members were also convicted or charged in related proceedings. After sentencing, confiscation proceedings under the Proceeds of Crime Act 2002 (POCA) were adjourned and later resumed.

The applicants, represented by a junior counsel who entered under a direct access agreement with the Father acting as intermediary, were required to disclose assets including commercial properties registered in their names but claimed to be held on trust for the Father. The prosecution initially asserted very large benefit figures but later substantially reduced them based on a commission calculation.

The confiscation hearing was listed for November 2015, during which the applicants and interested parties were represented by the same junior counsel. A joint meeting was held in court to facilitate discussion between the brothers and their Father, who was an interested party claiming an interest in the properties. Ultimately, confiscation orders were made on terms agreed between the prosecution and defence, with liberty to apply for a further hearing within 21 days.

Months later, after difficulties arose in mortgaging the properties to satisfy the orders, the applicants sought extensions of time and leave to appeal the confiscation orders, alleging negligence and improper pressure by their former counsel. The court conducted a three-day hearing, including evidence from the applicants, their Father, and the junior counsel, to determine whether to grant leave to appeal and the extensions of time requested.

Legal Issues Presented

1. Whether the applicants should be granted extensions of time to apply for leave to appeal against the confiscation orders.
2. Whether the applications for leave to appeal against the confiscation orders should be granted on the basis of alleged negligent representation and improper pressure by counsel.
3. Whether the Father, as an interested party claiming an interest in property under Section 10A of the Proceeds of Crime Act 2002, had a right of appeal against the confiscation order or any determination made under Section 10A.
4. Whether the junior counsel owed a duty of care to the Father and whether any conflict of interest arose from representing multiple parties.
5. The proper application and interpretation of Section 10A of the Proceeds of Crime Act 2002 regarding determination of interests in property subject to confiscation proceedings.

Arguments of the Parties

Appellants' Arguments

• The junior counsel was negligent and incompetent, failing to prepare adequately, failing to advise separately on conflicts of interest, failing to provide written advice, and failing to prepare submissions or keep proper records.
• The applicants were improperly pressured into agreeing to confiscation orders to which they did not truly consent, including threats related to prosecution of the Father and other adverse consequences.
• The Father did not have fair representation or proper advice, and there was a serious risk of injustice as he was not separately represented and was pressured to abandon his claimed interests.
• The applicants only became aware of the issues and sought to challenge the orders after discovering they could not mortgage the properties as planned.
• Extensions of time should be granted as the applicants were unsophisticated laypersons in custody and only later realized the alleged failings of their counsel.

Respondent's Arguments

• The applicants were content with the confiscation orders at the time they were made and only raised complaints after the mortgage difficulties arose.
• The junior counsel’s conduct, while open to some criticism, did not cause or contribute to an adverse outcome, and the applicants’ evidence was not credible.
• The applicants had agreed to the orders with informed consent, effectively "buying off risk" of a worse outcome if the proceedings were contested.
• The Father was not represented by the junior counsel and acted in person as an interested party; the court was properly informed of his status.
• The confiscation orders were fair, just, and based on appropriate evidence and agreements between parties.
• The applicants failed to show any exceptional circumstances necessary to set aside the agreed confiscation orders.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hirani [2008] EWCA Crim 1463	The limited grounds on which an appeal against a confiscation order can succeed due to negligent advice; the necessity of showing exceptional circumstances and a probable better outcome if properly advised.	The court applied Hirani to emphasize that appellants must show that competent representation would probably have resulted in a more favorable confiscation order; the applicants failed to do so.
Souleiman [2016] EWCA Crim 124	Reinforcement that agreed confiscation orders are binding absent exceptional circumstances.	Followed Hirani in rejecting the applicants’ claims of negligent advice and absence of exceptional circumstances.
Ayankoya [2011] EWCA Crim 1488	Exceptional circumstances may justify setting aside an agreed confiscation order if the appellant was wrongly denied an adjournment and faced unfair pressure.	The court distinguished this case from Ayankoya, noting no comparable procedural unfairness or denial of opportunity.
McCarthy [2015] EWCA Crim 1185	Exceptional circumstances recognized where inadequate advice led to an unsafe plea.	The court noted the distinction between appeals against conviction and appeals against sentence/confiscation orders, limiting the applicability of McCarthy.
Mackle [2014] UKSC 5	The court’s power to make confiscation orders depends on determining that the offender benefited from criminal conduct; consent to facts can constitute evidence.	The court referred to Mackle to confirm that the court must be satisfied on evidence of benefit and that consent to facts can justify an order.
Stack v Dowden [2007] UKHL 17	Difficulty in establishing beneficial ownership of property registered in another’s name.	The court cited Stack v Dowden to highlight the substantial evidential challenges the applicants would have faced in proving the properties were held on trust for the Father.

Court's Reasoning and Analysis

The court carefully considered the evidence and submissions, focusing on whether the applicants had demonstrated exceptional circumstances to justify setting aside the confiscation orders. It acknowledged shortcomings in the junior counsel’s preparation and conduct, including inadequate record-keeping, failure to provide written advice, and potential conflicts of interest arising from representing multiple related parties. The court also accepted that the junior counsel should have more clearly informed the court and parties that the Father was acting in person as an interested party rather than being represented by counsel.

Despite these criticisms, the court found the applicants’ evidence to be unreliable and their complaints to be concocted attempts to avoid the consequences of the confiscation orders after their financial plans to satisfy the orders failed. The court accepted the junior counsel’s evidence that the applicants were advised of the risks of contesting the proceedings, including the possibility of a finding of hidden assets and a higher confiscation amount, and that they consented to the orders to mitigate those risks.

The court emphasized that the applicants had effectively "bought off risk" by agreeing to the confiscation orders and had a reasonable opportunity to make representations, including liberty to apply for a further hearing, which they did not pursue in a timely manner. The court also found no evidence of improper pressure or coercion sufficient to render the process unfair.

Regarding the Father’s claim under Section 10A of the Proceeds of Crime Act 2002, the court concluded that the judge did not make a determination under that section and therefore the Father did not have a statutory right of appeal. The court noted the importance of clear judicial decisions on whether or not to make determinations under Section 10A and proper completion of related court forms.

In applying relevant case law, the court reiterated that appeals against confiscation orders based on negligent advice require a showing that competent representation would likely have led to a more favorable outcome, which was not demonstrated here. The court distinguished this case from others where procedural unfairness or inadequate legal advice had justified setting aside orders.

Holding and Implications

The court refused the applications for extensions of time and leave to appeal against the confiscation orders, and dismissed the appeals.

The applicants remain subject to the confiscation orders made on 17th November 2015 and liable to default sentences if they fail to comply. The court ordered the applicants to pay prosecution costs jointly and severally. No new precedent was established, but the court provided guidance on the application of Section 10A of the Proceeds of Crime Act 2002 and emphasized the need for clarity when interested parties claim property interests in confiscation proceedings.