WHITE AND GANGAR v. THE UNITED KINGDOM
Inadmissible
George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev
1. The applicant in the first case, Mr Alan White, is a British national, who was born in 1958. His current address has not been notified to the Court. He was represented before the Court by Mr Mark Davies of Frisby & Co., a firm of solicitors practising in Stafford. The second applicant, Mr Shinder Singh Gangar, is a British national who was born in 1961. His current address has not been notified to the Court. He was represented before the Court by Janes Solicitors, a firm of solicitors practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Ruth Tomlinson, of the Foreign and Commonwealth Office. 2. On 22 October 2012 the applicants’ complaint concerning the length of criminal proceedings only was communicated to the Government. 3. The applicants, who were both accountants, were partners in the firm Dobbs White. In October 1998 the Financial Services Authority (“FSA”) began investigating the firm. This investigation found that there had been no violation of the Banking Act 1987. In January 2000 the FSA began a second investigation which was subsequently transferred to the Serious Fraud Office (“SFO”) and which formed the basis for criminal charges that followed in 2005. 4. In January 2001 the SFO and the Money Laundering Investigation Team (“MLIT”) raided the offices of Dobbs White, as well as the second applicant’s home, and seized documents. The applicants were subsequently arrested on suspicion of money laundering and granted bail. In October 2002 the SFO carried out a second raid, following which they arrested both applicants on suspicion of conspiracy to defraud. Both applicants were granted bail. 5. In November 2002 the MLIT charged the applicants with money laundering. 6. In March 2003 the SFO carried out a third raid, following which both applicants were arrested on suspicion of conspiracy to corrupt. They were again granted bail. 7. The applicants’ trial in relation to the 2002 money laundering charge was due to commence in September 2003. However, following an application by the MLIT an adjournment was granted and the trial was postponed until September 2004. On 17 September 2004 Her Honour Judge Faber, sitting in Wood Green Crown Court, stayed the prosecution on grounds of abuse of process by reason of a disbelief that the prosecution would honour their disclosure obligations and a violation of the reasonable time guarantee contained within Article 6 § 1. 8. On 13 October 2005 the SFO charged both applicants with conspiracy to defraud and conspiracy to corrupt in connection with an alleged bribe. It was the prosecution’s case that after 2002 the applicants had developed in the United Kingdom a Ponzi scheme referred to as the “Dobbs White” scheme. The value of the alleged fraud was put at over USD 200 million. Both applicants were granted bail. 9. In February 2006 the prosecution provided a case summary to the applicants and on 31 March 2006 His Honour Judge Stokes fixed a trial window for Easter 2007. At the same time the second applicant was remanded in custody and later sentenced to five months’ imprisonment for breaching his bail conditions. He was released in November 2006 as the SFO had failed to extend the custody time limits. 10. On 21 November 2006 Mr Justice Langstaff (Langstaff J) set a firm trial date for 8 May 2007. However, at the same time nearly all defence counsel withdrew citing other professional commitments. A new defence team was subsequently appointed. 11. In December 2006 and March 2007 the prosecution made two late and substantial disclosures of further evidence, consisting of thousands of pages. 12. On 19 March 2007, an application was made jointly by the prosecution and the new defence team to postpone the trial as neither side considered that the case could be made ready in time for the original trial date. The defence sought an adjournment until October 2007. A limited postponement of eight weeks was granted until 3 July 2007. 13. In early June 2007 the applicants dismissed their legal representatives, alleging certain deficiencies in the quality of the service they provided. The applicants then sought to transfer their representation orders. This was required to enable the applicants to instruct new representation whilst continuing to benefit from publicly funded legal advice and assistance. On 12 June 2007 the judge refused. Later, following a written application and oral submissions, for which the applicants were assisted by counsel, the judge indicated that he might transfer the representation order. However, one of the requirements of new leading counsel was that the trial be pushed back again to January 2008. The judge again refused as he considered that the applicants had not given a good reason for dismissing their previous representation. 14. The applicants’ trial began on 3 July 2007 and lasted for more than seven months. At the beginning of the trial, the applicants made an outoftime application to Langstaff J to stay the proceedings as an abuse of process arguing a breach of the Article 6 § 1 reasonable-time requirement. In a decision dated 12 July 2007 Langstaff J found that the period of unexplained delay between the beginning of proceedings, deemed to be summer 2004, and the date of the formal charge on 13 October 2005, had amounted to a breach of the reasonable-time requirement. 15. In determining the start date of proceedings, Langstaff J had noted that in October 2003, the SFO investigation was on-going and that no decision had been made whether to bring charges against the applicants; that at some time between late 2003 and 2004 a decision had however been made; that in summer 2004 it had been “indicated” and notified to the applicants that they would probably face charges; and that summer 2004 was therefore, the relevant date for Article 6 § 1 purposes. He explicitly rejected the applicants’ assertion that the relevant time period for the purposes of Article 6 had commenced any earlier. In particular, Langstaff J found that the charges on which the applicants faced trial were sufficiently different to the earlier money-laundering charges, so that the relevant time period did not extend to incorporate those charges; that if the reasonabletime period necessarily began running the moment there had been an arrest, an investigation or a seizure of documents, such might incline the authorities to take precipitant haste in deciding whether or not to bring charges; that the authorities should take care not to hastily charge an individual where such would be unjustified; and that a proper distinction should be drawn between an investigation and a decision to prosecute, at which time the individual concerned would be duly informed. Langstaff J also concluded that there was no other period of unreasonable delay in the applicants’ case, having regard to the complexity of the case and the conduct of the parties. He determined that the appropriate remedy for the identified breach was not a stay of the indictment: rather that it should be taken into account when deciding the question of costs in the event of acquittal, or by taking it into account at the time of sentence in the event of a conviction. 16. At the close of the prosecution case, the applicants renewed their Article 6 § 1 abuse-of-process submissions to Langstaff J. In a decision promulgated on 19 December 2007, he upheld his previous decision of 12 July 2007. 17. On 22 February 2008 the applicants were convicted by a jury, on a majority verdict, of conspiracy to defraud and conspiracy to corrupt. 18. On 11 April 2008 both applicants were sentenced to sevenandahalf years’ imprisonment. Langstaff J noted that the maximum sentence available for a conviction of conspiracy to defraud was ten years’ imprisonment and that the offence committed by the applicants fell towards the top of that tariff. The maximum sentence available on the conspiracytocorrupt conviction was seven years’ imprisonment. Although Langstaff J found that the corruption offence had a close relationship to the defraud offence, it was not “part and parcel” of it. Therefore, a separate penalty was required. Considering however the period of some fifteen months’ unreasonable delay in the course of the case (during which time the applicants had been at liberty), the period of “effective custody” to which the applicants had been subjected during the length of the trial, and the fact that there was no previous involvement in like offending, a sentence of six years in respect of the conspiracy to defraud and one and a half years consecutive in respect of the conspiracy to corrupt was imposed. 19. The applicants sought leave to appeal their conviction to the Court of Appeal. They argued that their conviction was unsafe because, inter alia, the trial judge had refused to transfer the representation order. The applicants’ grounds of appeal did not contain any Article 6 § 1 abuseofprocess submissions and did not seek to challenge the trial judge’s finding with regard to the commencement of proceedings for the purposes of the reasonable-time requirement. The application for permission to appeal was refused on 7 July 2009 following an oral hearing, on the ground that the request for a change of representation order was not reasonable and that the judge had been entitled to find same. 20. Meanwhile, on 22 February 2008, following conviction, confiscation proceedings were brought against both applicants. On 1 April 2009 all parties to the proceedings agreed that the applicants had each benefited by over GBP 60 million. Contested hearings took place in October 2009 and June 2010. Provisional judgment was given on 2 July 2010 and an amended and finalised judgment was handed down on 28 July 2010. In respect of the first applicant, a confiscation order was made in the sum of GBP 1,166,339 to be paid within eighteen months, with a sentence in default of five years’ imprisonment. In respect of the second applicant, a confiscation order was made in the sum of GBP 2,758,416 to be paid within an unknown period of time, with a sentence in default of six years’ imprisonment. 21. Both applicants sought leave to appeal those orders. Permission to appeal was granted to argue the specific point of the realisable value of jointly held assets and refused on all other grounds. The applicants pursued an application for leave to appeal on unparticularised additional grounds. That application and the appeal on the ground for which leave had been granted were considered at one hearing held on 22 and 23 May 2012. 22. On 21 June 2012 the Court of Appeal refused leave to appeal on the additional grounds argued. Furthermore, in considering the appeal before it, the court concluded that the orders made were wrong insofar as they were based upon treating the jointly held assets as one hundred percent available to each of the applicants. The appeals were allowed to the limited extent of repairing the identified error. The previous orders were quashed and substitute orders made. In respect of the first applicant, a confiscation order was made in the sum of GBP 686,996.81 to be paid within eighteen months, with a sentence in default of three and a half years’ imprisonment. In respect of the second applicant, a confiscation order was made in the sum of GBP 2,289,074.03 to be paid within an unknown period of time, with a sentence in default of six years’ imprisonment. 23. In Attorney General’s Reference (No 2 of 2001) [2004] 2 A.C. 72, HL, the majority in the House of Lords considered the implications of Article 6 on the question whether a prosecution should be stayed by reason of delay alone. Lord Bingham, delivering the majority judgment, stated: “24. If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant’s Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant’s Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant’s Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time. 25. The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor’s breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant’s Convention right.” 24. Lord Bingham concluded that: “(1) Criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in article 6(1) of the Convention only if (a) a fair hearing is no longer possible, or (b) it is for any compelling reason unfair to try the defendant.” 25. That approach was followed by the Court of Appeal in Altaf v The Crown Prosecution Service, West Midlands [2007] EWCA Crim. 691, in which Moses LJ said: “A breach of the defendant’s right to have a criminal charge determined within a reasonable time, contrary to Article 6(1) of the Convention, will not necessarily require criminal proceedings to be stayed. It will only be appropriate to stay or dismiss proceedings if there can no longer be a fair hearing or it will otherwise be unfair to try the defendant ... Once there has been a conviction, this court should only quash that conviction if the hearing has proved to be unfair, or it was unfair to try the defendant at all.” 26. Where an abuse of process is alleged, the burden of establishing that the bringing or the continuation of criminal proceedings amounts to an abuse of the court’s process is on the accused: R v Telford Justices ex parte Badhan [1991] 2 Q.B. 78; R v Great Yarmouth Magistrates ex parte Thomas [1992] Crim. L.R. 116. As a general principle of domestic United Kingdom law, it will normally be necessary to prove not only that an abuse has taken place but that the accused has been prejudiced in the presentation of his or her case as a result, so that a fair trial is no longer possible. As Lord Woolf LCJ said in the Court of Appeal hearing in Attorney General’s Reference (No 2 of 2001) [2004] 2 A.C. 72, HL: “... if there has been prejudice caused to a defendant which interferes with his right to a fair trial in a way which cannot otherwise be remedied, then of course a stay is an appropriate remedy. But in the absence of prejudice of that sort, there is normally no justification for granting a stay.” 27. In the context of confiscation proceedings, in R v Shabir [2008] EWCA Crim 1809 the Court of Appeal held that: “22. Once the Crown decides to invoke the confiscation process, the making of an order is mandatory, and its amount is arithmetically determined but can be moderated by judicial decision. [...] 23. The court retains the jurisdiction to stay an application for confiscation, as any other criminal process, where it amounts to an abuse of the court’s process. In the present context, that power exists where it would be oppressive to seek confiscation, or to do so on a particular basis. [...] 24. This jurisdiction must be exercised with considerable caution, indeed sparingly. It must be confined to cases of true oppression. In particular, it cannot be exercised simply on the grounds that the Judge disagrees with the decision of the Crown to pursue confiscation, or with the way it puts its case on that topic.” 28. In the case of R v P [2008] EW Misc 2 (EWCC) the applicant, having been convicted of criminal offending, had confiscation proceedings initiated against him. Moreover, he was subject to a restraint order which related to funds the Crown Prosecution Service believed could constitute the proceeds of criminal activity. Until a judicial determination had been made as to the source of those funds, the applicant was unable to employ them for the purposes of securing legal representation. The alternative was to rely upon state legal aid funding. HHJ Mole QC however accepted that, not least owing to the complexity of the case, if the applicant were to rely on the State legal aid fund, there was no prospect of him being able to engage properly qualified and competent counsel so as to ensure a fair trial. HHJ Mole QC therefore stayed the confiscation proceedings as an abuse of process.