Kamran Malik [2019] EWCA Crim 1079

**R v Kamran Malik** [2019] EWCA Crim 1079 concerned an appeal by Mr Malik against a compensation order made by the Crown Court, and a renewed application for leave to appeal against conviction, which the Court of Appeal (Lord Justice Coulson, Mr Justice Picken and His Honour Judge Dickinson QC) heard on 16 May 2019. The court refused the renewed application for leave to appeal against conviction but allowed the appeal against sentence, quashing both the compensation and costs orders and remitting those issues to the Crown Court.

On 5 March 2018 at Southwark Crown Court before His Honour Judge Robbins, Mr Malik pleaded guilty on the day of trial to four offences of providing immigration advice and services when not qualified to do so, contrary to section 91(1) of the Immigration and Asylum Act 1999. His wife, who faced similar charges, had those counts ordered to lie on the file following Mr Malik’s guilty pleas. Mr Malik subsequently dispensed with his legal representatives and applied to vacate his guilty pleas. The judge refused that application, finding that Mr Malik knew very well what he was doing when he entered his pleas and was seeking to manipulate the process to his own ends. On 25 June 2018 Judge Robbins sentenced Mr Malik to twelve months’ imprisonment concurrent on each count, ordered him to pay costs of £48,000, and ordered him to pay compensation of £16,700 representing the amounts paid to him by the various individuals to whom he had provided immigration advice.

The offences were committed between 2 November 2014 and 29 October 2016 whilst Mr Malik was operating a business called KM Legal, trading as KM Legal Advisory, which provided immigration advice and services on a large scale. Mr Malik had two previous convictions from 5 June 2014 for identical offences committed in 2012, for which he received two consecutive twelve-week sentences of imprisonment. The offences for which he was sentenced in 2018 were committed only months after his release from prison following those earlier convictions.

On the application for leave to appeal against conviction, the single judge observed that despite the numerous grounds advanced and lengthy further submissions, the essential complaint was that Mr Malik had been misled by his counsel when she discussed with him whether he should enter guilty pleas and if so on what basis. Mr Malik claimed he had been so let down by his counsel that he had no clue as to what the basis of plea document was that his counsel presented to him to sign. The court read in detail everything that had been put before it by Mr Malik, as well as what his counsel had said concerning the criticisms levelled against her, including her detailed description of her interactions with her former client. The court found it quite apparent that whatever Mr Malik might now say, he received appropriate advice concerning the issue of plea. His decision to change his pleas to guilty on a basis which the prosecution were prepared to accept was a decision that he made knowing full well what he was doing. This was the view taken by the judge below and was underlined by the fact that Mr Malik expressly stated in response to each count when it was put to him that he pleaded guilty on a basis. The document which he signed made it clear that he was prepared to plead guilty on the basis there set out and on the understanding that his wife would not be pursued further and that the perverting the course of justice count which he was also facing would be dropped. The court could not accept in these circumstances that Mr Malik would have been in any doubt as to what he was doing by changing his pleas in the way that he did. Nor could the court accept that there was any ambiguity to the pleas which he was then entering, whether to Mr Malik himself or more generally. Furthermore, as the single judge had observed, the evidence against Mr Malik was overwhelming, the more so since the judge had ruled that Mr Malik’s previous convictions for identical offences were admissible. In these circumstances the court had no hesitation in refusing the renewed application for leave to appeal against conviction.

On the appeal against sentence, the focus was not the twelve-month sentence of imprisonment but the compensation order in the sum of £16,700. Mr Malik contended that in making that order the judge erred because he did not consider his ability to comply with it, specifically section 130(11) of the Powers of Criminal Courts (Sentencing) Act 2000, which requires the court to have regard to a defendant’s means so far as they appear or are known to the court when determining whether to make a compensation order and in what amount. The only evidence before the judge as to Mr Malik’s means was that provided by counsel who acted for him at the sentencing hearing. Counsel told the judge that he had taken instructions from Mr Malik concerning his means and that a costs order obtained against him in certain civil proceedings had been secured by way of a charging order in respect of Mr Malik’s home which realistically was not going to be paid off, so that he stood to lose his home in any event. Counsel said he had various documents from HMRC, the Job Centre Plus and the Department for Work and Pensions confirming the tax code, Disability Living Allowance and Employment and Support Allowance, which he offered to show the judge but which it did not seem the judge actually looked at. Counsel explained that since Mr Malik had stopped working through KM Legal Limited, all the income he and his family had came from social security benefits, and that he had no savings and credit card debts amounting to some £7,000.

The judge in his sentencing remarks did not refer to these matters when telling Mr Malik that in addition to costs in the sum of £48,000 and the twelve-month sentence of imprisonment he would have to pay compensation amounting to £16,700. He said nothing about Mr Malik’s means and so his ability to pay any particular level of compensation, or for that matter costs. Although the court considered it unlikely that the judge can have failed to have regard to the topic of means altogether, it was not possible to discern what his view was concerning Mr Malik’s ability to pay compensation, or indeed costs. The court felt unable to conclude merely based on the fact that a compensation order in the sum of £16,700 was made, or that a costs order was made, that it was the judge’s assessment that Mr Malik had the means to pay that amount or the amount provided for by way of costs. In these circumstances the court was driven to the conclusion that the judge failed to do as section 130(11) requires him to do as regards the making of a compensation order and so the compensation order which the judge made should not be permitted to stand for that reason. The compensation order was accordingly quashed and the appeal against sentence was allowed.

The court considered, however, that it would be inappropriate without further and proper inquiry to order that there should be no compensation awarded at all. The court bore in mind in this respect that any compensation is payable not to the state but to individuals who have lost money as a result of Mr Malik’s criminal activities. It was only right, therefore, that compensation should be paid provided that section 130(11) had been complied with and it had been ascertained accordingly that Mr Malik had the means to pay. The court therefore considered it right that the question of whether a compensation order should be made and if so in what sum should be remitted to the Crown Court to be decided by a different judge. The court added that although Mr Malik had not sought expressly to challenge the making of the costs order in the sum of £48,000 which was also made against him, it seemed to the court logically to follow that his ability to meet that order or any costs order in a lesser amount should also be considered by the Crown Court. The court had in mind in this regard that section 18 of the Prosecution of Offences Act 1985 requires a costs order which the court considers just and reasonable. Accordingly, as acknowledged in Archbold, means are relevant not only for the purposes of compensation but also for the purposes of any costs order also. As a result, the court considered it appropriate to quash the costs order in addition to the compensation order and to remit the costs issue also. In the circumstances, the court considered it appropriate, in addition, to make a financial circumstances order pursuant to section 162 of the Criminal Justice Act 2003 requiring Mr Malik to give the court within twenty-eight days a statement of his assets and liabilities together with a statement setting out his income and outgoings.

In short, the Court of Appeal refused leave to appeal against conviction but allowed the appeal against sentence, quashing the compensation and costs orders and remitting both issues to the Crown Court for fresh consideration with proper inquiry into Mr Malik’s means.