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Malik, R. v
Factual and Procedural Background
The Court (Judge Norton) considered an application by the Applicant, who was convicted after trial on 30 October 2018 at The Court of conspiracy to convert criminal property. The Applicant left the jurisdiction after trial; a warrant for arrest remains outstanding. On 28 November 2018 the Applicant was sentenced in absence to 4.5 years' imprisonment. On 7 December 2020 a confiscation order for £486,029.50 was made, payable within three months, with a consecutive default term of three years.
In June 2023, while a litigant in person, the Applicant applied for an extension of time to appeal the conviction (originally assisted by Attorney Qureshi); that application was refused by a single judge on 18 December 2023 (notified January following). The Applicant is now represented by Attorney Heywood and applies for an extension of time of 1,666 days to renew the application for leave to appeal. The Court first assessed whether any grounds in the renewed application were arguable before addressing the extension request.
Factual background: In January 2011 the Applicant and his wife formed Company A and opened an account with Company B structured so cheques not payable to Company A could be paid in. In February 2015 a number of stolen cheques were paid into that account (23 cleared, ≈£173,000). The Applicant pleaded guilty at The Court in relation to a conspiracy to commit fraud (February–March 2015) and was sentenced in August 2017 (suspended sentence). A separate investigation by Police A and Police B tracked funds from cleared cheques through multiple accounts, purchases of precious metals, and transfers (including to the Middle East), alleging laundering in excess of £500,000. Proceedings in relation to the laundering/conversion offence proceeded at The Court (indictment charging conspiracy to convert criminal property between March and June 2015). The prosecution sought to rely on the Applicant's earlier fraud conviction as evidence under section 98 or alternatively section 101(1)(d) of the Criminal Justice Act 2003. The defence challenged admissibility and argued lack of nexus; the judge ruled the earlier conviction evidence admissible. The Applicant was convicted and sentenced; the renewed appeal application raises two principal grounds.
Legal Issues Presented
- Whether the subsequent prosecution for conspiracy to convert criminal property constituted an abuse of process given earlier proceedings arising from overlapping facts.
- Whether the admission in evidence of the Applicant's earlier conviction (bad character) was unfair or an abuse of process and whether the judge ought to have refused admission under section 78.
- Whether an extension of time to apply for leave to appeal should be granted, having regard to delay, explanation for delay, merits and the Applicant's absconsion.
Arguments of the Parties
Applicant's Arguments (as advanced by Attorney Heywood)
- Ground 1: The Bristol prosecution was an abuse because the facts relied on were known and formed part of evidence in earlier Birmingham proceedings; when the prosecution offered no evidence on the possession count there was a legitimate expectation that further prosecution for laundering arising from the fraud would not follow.
- Ground 2: Reliance on the Applicant's earlier fraud conviction as bad-character evidence was unfair and an abuse because the prosecution had not disclosed all Birmingham material; the effect of the acquittal on the possession count had not been appreciated and the judge should have been referred to section 78.
- Delay/explanation: Delay in seeking leave to appeal is explained by difficulties obtaining material from previous solicitors (older material not on the Digital Case System), the Applicant's Covid illness and family bereavements.
Prosecution's Position (as recorded)
- The prosecution contended the Birmingham conviction evidence related to facts of the Bristol offence and was admissible under section 98 or, alternatively, as relevant evidence under section 101(1)(d) of the Criminal Justice Act 2003.
- The prosecution relied on the factual link between funds that cleared the Company A account and subsequent laundering activity to establish relevance and admissibility.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Okedare & Others [2014] EWCA Crim 228 | Permissible relevance of a defendant's absconsion in assessing extension of time; court may take absconding into account. | Cited to justify considering Applicant's absconsion when assessing extension of time. |
| Connelly v DPP [1964] AC 1254 | General principle on abuse of process where later proceedings arise from same or substantially same facts. | Placed among authorities establishing the abuse-of-process principle. |
| R v Beedie (1997) 2 Cr App R 167 | Authority on abuse of process where second proceedings arise from same facts. | Used as part of the line of authority on staying proceedings as an abuse. |
| R v Phipps [2005] EWCA Crim 33 | Authority on abuse of process doctrine. | Included in the list of relevant authorities. |
| R v Dwyer [2012] EWCA Crim 10 | Explains prosecutors' obligation to lay all charges known at the time proceedings concluded; defines "same or substantially the same facts". | Cited and applied to test whether the later prosecution arose from the same state of affairs known to earlier prosecutors. |
| R v Wangige (2021) 1 Cr App R 6 | Part of authority on abuse of process where facts substantially overlap. | Included among authorities considered. |
| R v Bihe (Nuh) [2022] EWCA Crim 939 | Holds later prosecution may be an abuse where earlier proceedings encompassed substantially the same facts and the defendant could assume he had been sentenced for everything; guidance on prosecutors' duty to inform the court and defence if matters remain outstanding. | Considered for the proposition that prosecutors should bring all allegations before the court or explain why they cannot; Court compared facts of this case to Bihe and found material differences. |
Court's Reasoning and Analysis
The Court proceeded in two stages: first to assess whether any grounds of appeal were arguable; second to consider the extension of time if arguable grounds existed.
On Ground 1 (abuse): the Court applied the established abuse-of-process test (Connelly, Dwyer, Bihe and others). The Court found that although there was overlap between investigations, the Bristol proceedings were materially different from the earlier proceedings in terms of offence type, dates, participants and scope. The Birmingham proceedings dealt with provenance, possession and intention regarding cheques paid into Company A's account; the Bristol proceedings concerned the subsequent diversion and laundering of funds (a wider separate conspiracy). The Court concluded the cases were not "the same or substantially the same facts" in the sense required to find an abuse; Bihe's guidance about prosecutors informing court/defence was noted but the facts did not establish abuse here. The Court also found no material establishing any promise or legitimate expectation that further proceedings would not follow; there was no basis of plea or material showing an assurance.
On Ground 2 (admission of bad character): the Court accepted the judge's conclusion that the earlier fraud conviction was evidence "to do with the facts" of the Bristol case and admissible under section 98 (alternatively relevant under section 101(1)(d)). The not-guilty outcome on the possession count in the earlier proceedings did not affect admissibility; a certificate of acquittal had been served and the Applicant knew the charges and pleas. The Court rejected the contention that nondisclosure of some Birmingham material or lack of appreciation of the acquittal's effect rendered admission unfair or an abuse.
On extension of time and delay: the Court noted the extreme delay (over 4.5 years between conviction and the initial extension application). The explanations proffered (difficulty obtaining material from previous solicitors, Covid illness, family bereavements) lacked supporting evidence and detail. The Applicant's absconsion and failure to return to the jurisdiction had no explanation and were material adverse factors (citing Okedare). The Court concluded there were no arguable grounds of appeal and, in any event, even if arguable, the delay and absconsion would weigh strongly against granting an extension.
Holding and Implications
Both the application for leave to appeal and the application for an extension of time were refused.
Implications: The Applicant's renewed application for leave to appeal was dismissed as not demonstrating arguable grounds, and the application for an extension of time (1,666 days) was refused for lack of satisfactory explanation for delay and on account of the Applicant's absconsion. The decision was limited to the facts of this case; the Court applied existing authorities but did not purport to establish new precedent.
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