Appeal judges reject criminals’ “cynical” attempt to blame barrister

Court of Appeal: False allegations

The Court of Appeal has rejected what it described as a “cynical” attempt by two men convicted of money laundering to blame their barrister for confiscation orders made against them.

Lord Justice Holroyde said that, although there were respects in which Nadeem Aullybocus could be criticised, the complaints were “concocted” in important respects.

Holroyde LJ said brothers Yazdani and Rabani Ghulam were initially “content” with the confiscation orders, but ceased to be content when they were unable to mortgage commercial properties.

“They thereupon embarked upon a cynical exercise of seeking to blame Mr Aullybocus, with a view to persuading this court to quash the orders and to direct a rehearing at which the applicants would be in no danger of any more severe order.

“Because there were respects in which Mr Aullybocus could legitimately be criticised, the applicants were able to establish a plausible foothold for their attempt to present an argument.

“But in the important respects which might have been capable of amounting to exceptional circumstances, we are satisfied that the applicants’ criticisms were concocted.”

The court heard in Ghulam & Others v R [2018] EWCA 1691 that the brothers were arrested on suspicion of laundering the proceeds of drug dealing in 2012.

Yazdani and Rabani pleaded guilty in 2013 to conspiracy to conceal, disguise, convert, transfer or remove criminal property, contrary to section 1(1) of the Criminal Law Act 1977.

Yazdani was jailed for seven years and six months and Rabani for five years and three months.

Although their father was not charged with any offence, their uncle, Mohammed Habib, was convicted of drugs and/or money laundering offences.

The Court of Appeal rejected applications from the three convicted men for leave to appeal against their sentences in 2014, noting that “cash sums seized from the accused came to over £900,000” and concluded that the trial judge had been “fully entitled to find as he did that the minimum amount of money which had been laundered exceeded £3m”.

Confiscation orders were imposed on the brothers in November 2015. An order of £180,000 was imposed on Yazdani and a further order depriving him of his BMW. An order of £150,000 was imposed on Rabani.

The brothers were represented in the confiscation proceedings by leading counsel and by Mr Aullybocus, deputy head of Invictus Chambers in Bristol, as junior counsel.

Holroyde LJ said no complaint was made by either brother about the terms of the order.

However, Rabani sent Mr Aullybocus an email in March 2016 in which he said a bank that had previously agreed to a mortgage against some commercial properties, had now refused due to his “credibility”.

Holroyde LJ said that it was after this that the brothers, who did not pay their confiscation orders, began to criticise Mr Aullybocus.

He concluded: “We reject the unseemly attempt by the applicants to create grounds of appeal by making false allegations against their former counsel.

“We refuse the applications to adduce fresh evidence because the evidence on which the applicants wished to rely was in important respects not capable of belief, and in any event could not afford any ground for allowing the appeal.

“In short, the applicants gave their informed consent to the confiscation orders, thereby successfully ‘buying off risk’, and there is no ground on which it could be argued that the orders should be quashed.”

Holroyde LJ refused the brothers’ applications for extensions of time to apply for leave to appeal against the confiscation orders and made it clear that “we would in any event have refused the applications for leave to appeal”.

Among the criticisms the court made of Mr Aullybocus were his inability to produce contemporaneous notes, especially as there was “a clear potential for conflicts of interest to arise in his professional relationships with those for whom he was acting, and he should have taken more care to give and record advice as to that possibility and to take and record instructions about it”.

The court added: “Moreover, quite apart from the potential for conflicts of interest, he was in our view over-ambitious in agreeing to act for so many persons at the confiscation hearing, thereby taking on a very considerable burden of work and creating a clear risk that he would cause delay to the proceedings.”

Mr Justice Julian Knowles and His Honour Judge Pegden QC contributed to the judgment.

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