Rasib Ghaffar v R

MRS JUSTICE JEFFORD: The appeal proceedings

1. On 14 February 2024, following a trial lasting 24 days before HHJ Bartle KC in the Crown Court at Southwark, the applicant was convicted by a majority of 10 to 1 of conspiracy to commit fraud by false representation. He was subsequently sentenced to 3 years’ imprisonment. He appealed unsuccessfully against sentence.

2. The applicant subsequently sought leave to appeal against conviction and to rely on fresh evidence which was before this court in the form of 3 witness statements of Farhad Hussain, Mohammed Tahir Khan and Tina David. The application to rely on fresh evidence is made under Section 23 of the Criminal Appeal Act 1968 and CPR Part 39.3. The single judge referred the application for leave and to rely on fresh evidence to the full court. In the circumstances set out below, we heard the oral evidence of Mr Hussain and Mr Khan but not Ms David. The applicant’s solicitor, Mohammed Afzal Mahfooz, also made five witness statements addressing the circumstances in which these witnesses came to be identified or located and interviewed for the purposes of preparing their statements. Mr Mahfooz also gave oral evidence. The Miah case

3. The background facts are set out in the judgment of the Court of Appeal Criminal Division on the appeal against sentence with neutral citation [2024] EWCA Crim 1277. We repeat them to some extent to give the context of the application which is now before us.

4. The applicant, Rasib Ghaffar, was a barrister. It was not in dispute that he was involved, in his professional capacity, in the defence of criminal proceedings brought against a number of defendants in respect of offences, connected to two restaurants, and involving money laundering and unlawfully employing persons subject to immigration control. Those proceedings were referred as “the Miah case”.

5. On 9 September 2011, two of the defendants pleaded guilty and the Crown offered no evidence against the remaining four defendants.

6. The defendants and their representation at the time of the disposal of the cases against them was as follows: (i) Mortuja Miah was represented by Arora Lodhi Heath Solicitors (“ALH”) and pleaded guilty. (ii) Sahid Miah was represented by Harrow Law Solicitors and pleaded guilty. (iii) Faruk Miah was represented by City Law Solicitors and no evidence was offered against him. (iv) Chunu Miah was represented by Joseph & Co Solicitors and Shahid Rashid, barrister, and no evidence was offered against him. (v) Taj Mahal 2 (Poole) Ltd was represented by Ainsley Harris Solicitors and Kareena Maciel, solicitor advocate. No evidence was offered against the company. (vi) The Miah Partnership was represented by Appleby Shaw Solicitors and the applicant and no evidence was offered. The applicant and Ms Maciel are husband and wife.

7. At the conclusion of the Miah case, defendants’ costs orders were made in favour of the four defendants who had been acquitted. The case against the applicant and others

8. The Crown’s case in summary was that between 11 September 2011 and 3 October 2012, the defendants originally named on the indictment in the present case had conspired to submit claims for defendants’ costs to the National Taxing Team (“the NTT”) containing items of work which they knew had not been done. Claims were made in excess of £1.8 million. Approximately £470,000 was paid out of central funds. The Crown’s case was that the applicant received about £147,000 of those payments which was the single largest amount obtained by any defendant.

9. The defendants on that indictment were as follows: (i) Gazi Khan who was employed as practice manager for ALH based at their Acton office. He was also Shahid Rashid’s billing clerk. (ii) Shahid Rashid, a sole practitioner barrister, practising from Middlesex Chambers, and also a director of Ainsley Harris Solicitors. (iii) Razi Shah, a solicitor who was the principal of both Ainsley Harris Solicitors and Appleby Shaw Solicitors. (iv) Azhar Khan, the principal solicitor at City Law Solicitors. (v) Kareena Maciel, a solicitor with higher court advocacy rights, practising from ALH Solicitors. (vi) Joseph Kyeremeh, the principal solicitor of Joseph & Co Solicitors. (vii) Rasib Ghaffar, the applicant.

10. A trial of all defendants commenced in January 2020 but was stopped on 23 March 2020 as a result of the Covid pandemic. The trial was stopped during the evidence of Kareena Maciel and before the applicant’s case was reached.

11. A second trial took place between September and December 2021. Ms Maciel became ill during her evidence, and her case and that of the applicant were severed. The trial continued against the remaining defendants, all of whom, except for Shahid Rashid and Razi Shah, were convicted. Shahid Rashid was found not guilty and there was a hung jury in respect of Mr Shah. The retrial of Mr Shah also resulted in a hung jury and the prosecution decided not to proceed further. In December 2023, the CPS also accepted that Ms Maciel was medically unfit to stand trial and the indictment against her was stayed.

12. The applicant was then tried alone between 9 January 2024 and 14 February 2024. The Crown’s case

13. The Crown’s case in the round was that City Law solicitors, Joseph and Co, Ainsley Harris and Appleby Shaw had claimed for work from February/ March 2011 whereas they had, at the earliest, only started to represent the defendants in the Miah case from late June 2011. Up until that point all these defendants had been represented by ALH; there was no conflict of interest; and ALH could properly have continued to represent them. The involvement of further firms was, therefore, unnecessary and a mechanism to generate more costs claims. In the case of Ainsley Harris and Appleby Shaw, the first clear evidence of the firms being instructed was on or about 2 September 2011 when they filed two brief and almost identical defence statements on behalf of the Miah Partnership and Taj Mahal 2 (Poole) Ltd. At that time, it was already known that, if two of the defendants pleaded guilty, the case would not be pursued against the others.

14. In relation to the applicant, the Crown’s case was that (i) he had received payments from Appleby Shaw and Ainsley Harris made either to him personally or to his chambers, Equitas Chambers, and (ii) he had received payments from both firms through an account in the name of “Kandi Consulting”. All these payments were part of or the product of the fraudulent conspiracy to obtain payments for work that had not been done.

15. There were three material payments to the applicant and his Chambers: (i) A sum of £42,930 from Appleby Shaw received on 4 September 2012 with the reference ‘counsel fee’. Mr Ghaffar’s defence was that he earned this sum and more following a substantial amount of work on the case over a number of months. (ii) A sum of £21,825, transferred from Appleby Shaw to Equitas Chambers on 28 September 2012. This was for work done by Mr Ghaffar’s junior, Lloyd Moody. His defence was that Mr Moody owed Mr Ghaffar money for another case and agreed for this sum to be paid to Equitas Chambers rather than to him. (iii) A payment of £22,500 from Ainsley Harris to Equitas Chambers on 1 October 2012. Mr Ghaffar’s explanation of this payment was that the money was owed to him from City Law Solicitors and City Law had agreed that the monies be released to Mr Ghaffar.

16. In answer to the Crown’s case that Appleby Shaw and Ainsley Harris had only been instructed at the last minute, or at best a few months before the Crown decided not to offer any evidence against their clients, the applicant’s evidence was that he had worked on the case for months before, and indeed from April 2010, instructed by ALH and that the costs claims or payments to him had been rolled up together.

17. As we set out below, there was no issue that the bank account of “Kandi Consulting” had been opened by Mr Ghaffar in September 2012 in his name “trading as Kandi Consulting”.

18. In relation to the payments to Kandi Consulting, the Crown relied on: (i) A payment of £24,999 to Kandi Consulting from Ainsley Harris on 9 October 2012. (ii) A payment to Kandi Consulting from Ainsley Harris in the sum of £6,104 on 10 October 2012. (iii) A payment from Appleby Shaw to Kandi Consulting on 19 October 2012 for in the sum of £15,000. (iv) A payment on 7 May 2013 from Appleby Shaw to Kandi Consulting in the sum of £13,374.37.

19. The Crown’s case was that these payments were payments to the applicant for referring the Miah case to Appleby Shaw and Ainsley Harris. As we have said, it was not, and is not, in dispute that the applicant had opened a bank account, to which these sums were paid, in the name of Kandi Consulting and that he had, for some time, been the only person named on the account. The applicant’s defence was, in essence, that the payments had nothing to do with him and were payments to a legitimate business run by Farhad Hussain which provided litigation support services. He had opened the account on behalf of Mr Hussain, the applicant’s understanding being that Mr Hussain was unable to open his own business account. Mr Hussain later became a named signatory on the account. The law

20. Section 23 of the Criminal Appeal Act 1968 which gives this court power to hear evidence not given at trial if it thinks it “necessary and expedient in the interests of justice”. Sub-paragraph (2) provides: “The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to – (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”

21. As to whether the evidence affords a ground of appeal, and the overarching question of whether it is necessary and expedient in the interests of justice to receive it, the court will give consideration to what impact the fresh evidence would have had on the mind of the jury and whether the court considers that that would render the conviction unsafe – see R v Pendleton [2011] UKHL 66 and R v Barry George [2007] EWCA Crim 2722 at [52]: “… we have to decide whether, had the evidence that we have heard been adduced at trial, this might reasonably have affected the decision of the jury to convict, for this is a good test of whether, in the light of the fresh evidence, the conviction is unsafe.”

22. Counsel also referred us to the decision in Sales [2000] 2 Cr.App.R 431 for guidance as to the hearing of oral evidence on the application. In that case, the court confirmed both that it was open to the Court of Appeal to receive fresh evidence even if the factors in sub-section (2) were not satisfied and open to the Court of Appeal to hear oral evidence in reaching its decision. At 438B-D, the Vice President, Rose LJ, said this: “Proffered fresh evidence in written form is likely to be in one of three categories: plainly capable of belief; plainly incapable of belief; and possibly capable of belief. Without hearing the witness, evidence in the first category will usually be received and evidence in the second category will usually not be received. In relation to evidence in the third category, it may be necessary for this Court to hear the witness de bene esse in order to determine whether the evidence was capable of belief. That course is frequently followed in this Court. …”

23. In short, we considered the evidence in written form to fall within the third category and would have heard the evidence of all three witnesses to determine whether it was capable of belief. In the event, Ms David did not attend court. An explanation was given by counsel and Mr Mahfooz for her non-attendance which involved distressing personal circumstances. No further evidence was offered to support that explanation. Mr Mahfooz said that he had spoken to her the day before the hearing and she was willing to attend court but, when he had called her on the day of the hearing, her phone went unanswered. In any case, for the reasons we set out below, we considered Ms David’s evidence to be of little relevance. We were not invited to adjourn the hearing to enable her to give evidence and we would not have done so.

24. Both Mr Hussain and Mr Khan then gave oral evidence as did Mr Mahfooz. At the start of their evidence, each of these witnesses confirmed their statement(s) that they had given in writing and that they wished those statements to be treated as their evidence to the court. Evidence was thereafter led in chief; they were cross-examined; and there was brief re-examination. For the purposes of this judgment, we take their written and oral evidence as a whole and only identify the distinction where it seems to us of some relevance. Farhad Hussain

25. It is plain from what we have said already about the nature of the case that Farhad Hussain was an obvious witness to be called by the defence in relation to the Kandi Consulting bank account and the payments to it. There were two potentially material aspects of this evidence: firstly, whether Kandi Consulting was a genuine business run by and for the benefit of Mr Hussain and, secondly, how the bank account had come to be opened in Mr Ghaffar’s name and whether it was truly being operated as Mr Hussain’s account.

26. Leading counsel instructed for Mr Ghaffar at both the second and third trials was David Spens KC. For the second trial, his junior was Polly Dyer. Mr Mahfooz exhibited an email from Ms Dyer sent well before the trial to Rohan Singh at UK Law, Mr Mahfooz’s firm, stating that counsel had asked Mr Ghaffar to make all the efforts he could to get Mr Hussain to assist as a witness and expressing their concern to explain the payment to the Kandi account. This was followed by an email on 1 October 2021 setting out the particular issues for Mr Hussain to address. This evidences the importance attached to Mr Hussain’s evidence and also formed the basis of a draft witness statement which we refer to below. Kandi Consulting: the evidence relating to the business

27. Mr Hussain’s evidence, taken at face value, supports the case that Kandi Consulting was a genuine business and his business. Mr Hussain’s evidence was that he set the business up in 2009 as a litigation support business while his brother, Rashid, was working for a firm of solicitors. His brother introduced him to lawyers who became clients and he provided services, namely photocopying case papers, making translations and providing interpreting services. He said that his brother introduced him to Mr Ghaffar in about 2010 as someone who could support his business and assist its development because Mr Ghaffar’s wife, Ms Maciel, had just become a solicitor and could provide work. Mr Hussain’s evidence was that his brother had instructed Mr Ghaffar for a number of years in high profile cases at the Old Bailey and had a good relationship with him.

28. Mr Hussain said that his brother convinced him to take a serviced office in the same building as Mr Ghaffar’s Chambers, that is, at Winchester House in Marylebone. Mr Hussain had just a small office which was next door to Mr Ghaffar and opposite was ALH where Ms Maciel also worked. He took the trading name Kandi Consulting.

29. Mr Hussain told us that the business had one permanent member of staff, Sara Sallam, who was his sister-in-law at the time. There were a couple of people working freelance for the business.

30. Mr Hussain said that he met another barrister, Shahid Rashid, at a party on the floor. In about 2011 Mr Rashid came to him and asked him to do work for Razi Shah’s firms in Windsor. He did not name these firms but we take them to be Appleby Shaw and Ainsley Harris. Mr Shah told him that he was taking on two cases and expected £125,000 for each case. They agreed that Mr Hussain would receive 50% of the profit cost, that is about £125,000. That was more than Mr Shah originally offered because Ms Sallam argued that there was too much work for Kandi Consulting to do for the original split offered.

31. Mr Hussain then says that he did supply workers for these cases. In cross-examination, he said that Mr Shah’s firms required caseworkers, interpreters and translations. These people had to be paid. He rejected the suggestion that his firm had not done £125,000 worth of work on the cases. Ms Sallam, he said, invoiced Mr Shah’s firms for the work but no money came in. Ms Sallam sent numerous chasing emails and about a year later some money arrived but not the agreed amount.

32. That money was the payments made to the Kandi Consulting account. Mr Hussain said in his oral evidence that he had other monies being paid into this business account as he had numerous cases for other solicitors. However, he also said that, having waited so long for the money from the Miah case, he decided that he could not carry on with the business, instead opening a coffee shop. In cross-examination, he told us that the litigation support business continued until 2014.

33. Before we turn to the bank account, we make the following observations about this evidence: (i) On Mr Hussain’s own evidence, his firm was operating as a business providing litigation support from about 2009 (or he later said 2010) until 2014. (ii) Apart from the invoice to which we refer below, he has not a single document to support this. His evidence was that he had no documents. (iii) He has no accounts or evidence of tax returns. He has not a single piece of paper relating to the hire of the serviced office; no document showing the purchase of office equipment or supplies; no documentation relating to Ms Sallam’s employment; no documents showing payments made to “caseworkers”, interpreters or translators; no invoices to the firms Mr Hussain claims he was providing services to over this period. (iv) He has no emails relating to the business. He seemed to say that Ms Sallam, who is deceased, dealt with everything, and, impliedly, that he therefore had no records. (v) There is no evidence from any firm of solicitors not involved in this matter to the effect that he provided any litigation support services to them.

34. We recognise that Mr Hussain’s evidence is concerned with a period now a considerable number of years ago but this complete absence of any business records and any independent evidence of the business in operation is remarkable and all the more so because he was first expected to give evidence nearly 5 years ago.

35. In relation specifically to the Miah case, there was a complete absence of detail in his evidence about the agreement with Mr Shah and that is despite its apparent importance to Mr Hussain’s firm. Taking it at face value, there was an oral agreement to pay Kandi Consulting £125,000 for services. There is no identification at all of what services were agreed to be provided for that substantial payment. There is no detail at all of what services were then provided.

36. The only invoice that the investigation was able to obtain was from Kandi Consulting to Ainsley Harris dated 23 October 2012 (that is over a year after the Miah case had concluded). The invoice was for a sum of £31,104 which had been calculated by taking 50% of the amount allowed to date by the NTT in respect of the solicitors’ costs and deducting 10% for the costs draftsman. The Crown points out that it was a feature of the fraudulent conspiracy that all fee notes were for the amount allowed by the NTT and not the work supposedly done. Other than the evidence he has now given, there is no evidence of Mr Hussain chasing payment of the allegedly agreed £125,000 when, at most, about £59,000 was paid to Kandi Consulting. It was pointed out to him in cross-examination that the invoice did not reflect any monies being outstanding. His explanation was that Mr Shah had said that he needed to resubmit the invoice in that amount – implying that there was a previous invoice for a greater amount – and that Mr Shah dictated what to do. No other invoice has ever been found.

37. Mr Sharkey submits that Mr Hussain’s evidence is simply not credible. On the basis of the matters we have set out above, we agree. Even it were credible evidence of some sort of business being conducted by Mr Hussain, it is of very little weight in supporting any case that the payments in issue were for services provided by this business. Kandi Consulting: the evidence relating to the bank account

38. At trial, Mr Ghaffar gave evidence about the opening of the bank account in his name trading as Kandi Consulting. Mr Sharkey rightly described the answers given in cross-examination as evasive and it was never really clear what Mr Ghaffar said had happened at the bank.

39. Mr Ghaffar’s case was that he had opened the account on Mr Hussain’s behalf because Mr Hussain was unable to do so. As it was summed up to the jury, that was because Mr Hussain was in dispute with his wife and did not want to disclose his income to her, although we were also told that it was because Mr Hussain had a bad credit record. Mr Ghaffar accepted that the account was opened in September 2012 – the first recorded transaction being on 11 September – very shortly after he first received any payments relating to the Miah case. He said that was a coincidence and it could have been opened earlier. He said that the account was opened at the request of Mr Hussain who was with him at the bank. A cash deposit was made which was handed to him and he handed it to the bank manager. His evidence was that he did not tell the bank manager that the account was not his own but that Mr Hussain was sitting next to him. When pressed on his answer, he never said that he had told the bank that the account was not his. He seemed to imply that that should have been obvious from Mr Hussain’s presence.

40. Mr Hussain account was somewhat different. He said that he had been running his business using his personal account and the accounts of others, including Sara Sallam and a cousin. There was no explanation for this curious approach. Mr Hussain said that this was, however, becoming unmanageable and that he really wanted a business account.

41. In his written statement, he then said this: “I asked Rasib for help and he said that he would open a business account for me with HSBC which he did. I asked for online banking which he requested and I managed the account via online transfers. I accompanied him to the bank on the day he opened the account. The bank, at the time, was based not too far from his home. I believe this was in 2012. Rasib said that I should add my name to the account and then he could remove his name. However, at the time I was having issues with my wife and wanted to keep this income away from my wife. When this issue calmed down, I did add my name to the account and Rasib was to attend to remove his name from the account. I think that Rasib just forgot about it and in any event, I was running the account. I had the card and online access.”

42. In his oral evidence, Mr Hussain gave a more detailed account of the opening. He said that he had tried to open an account but could not because of his credit history. He spoke to his brother who did not want to get involved so he asked his brother whether Mr Ghaffar would help him open an account. Mr Hussain then spoke to Mr Ghaffar and Mr Ghaffar was happy to do so because they were in the same building. Mr Hussain said that he and Mr Ghaffar went to the bank together; the account was opened; and he, Mr Hussain, deposited money. He said expressly that the bank employee whom they saw said that there was no issue with Mr Ghaffar opening the account for Mr Hussain because he had banked with them for some time and was well known to them.

43. Mr Hussain also gave a further version of events in which he said that he went to the bank intending to open an account. His credit history was checked and he was told that he could not open an account. While this was happening, Mr Ghaffar’s phone rang and he had to step out for about 10 minutes. When he returned, Mr Hussain and Mr Ghaffar said that Mr Ghaffar would open the account for Mr Hussain and the bank employee said that was not a problem if the account was run properly.

44. These accounts are inherently incredible and involve a bank having no difficulty with an account being opened in the name of one person (whose account it is not) but with the intention that it is run by someone else who is unnamed and has a sufficiently poor credit history that they could not open the account in their own name. That may explain why Mr Ghaffar’s evidence fell short of stating that that was what the bank had been told but that raises a significant inconsistency with Mr Hussain’s evidence. This is not a point of detail, as was submitted on Mr Ghaffar’s behalf, and we regard the inconsistencies in this evidence as adding to the lack of credibility of this evidence.

45. In his statement and oral evidence, Mr Hussain gave no further evidence about the operation of the account. However, his draft statement contained a table of payments into and out of the account. It appears that this had been compiled from the bank statements and these bank statements were before the jury at trial. All except one of the payments in were from Appleby Shaw and Ainsley Harris. One payment from Ainsley Harris in August 2013 was described as being for “translation work – no Miah”. One payment (dated 7 February 2013) from ALH was said, in the draft statement, to be for translation work. In both cases there is no corresponding payment out to any translator.

46. The payments out (and the explanations for them in the draft statement) were as follows: (i) 30 May 2013: £41,500 to Kalra Solicitors for “Property Lease – East London” (ii) 10 July 2013: £7,000 to SAA Hussain described as “Transfer to a relative’s account” (iii) 13 July 2013: £3,000 to Rashid Malik a “worker paid on Miah case” (iv) 16 July 2013: £5,000 to SAA Hussain described as “Transfer to a relative’s account” (v) 22 July 2013: £10,000 to SAA Hussain with the same description (vi) 1 August 2013: £10,000 to SAA Hussain with the description “Relative of F Hussain” (vii) 11 September 2013: £5,000 to F Hussain

47. Although these payments are apparent from the bank statements, Mr Hussain gave no explanation for them beyond saying that they were payments to friends and relatives and no evidence from any one of these recipients was before the court at trial or on this application. The failure to call Mr Hussain at trial

48. Mr Mahfooz acknowledged that he was aware from the outset that Mr Hussain was an important witness and that that was also the view of the applicant, himself a barrister, and counsel instructed. Despite that Mr Hussain was not called to give evidence.

49. Mr Mahfooz’s evidence, which was supported by Mr Hussain’s, was that Mr Hussain had agreed to be a witness at the 2020 trial. He attended court during the first week of the trial, met Mr Mahfooz and intended to give a statement. There was no explanation offered for why a statement had not been obtained before trial from this important witness. In this second statement, Mr Mahfooz made some reference to expecting the police to have contacted Mr Hussian but there was clearly no statement taken from him and disclosed. There is no explanation for why a statement was not obtained during the trial despite the fact that the trial continued until late March 2020. There is no explanation for why a statement was not obtained after the trial had been abandoned. The trial was abandoned solely because of the pandemic and there was no reason to think that there would not be a further trial at which Mr Hussain’s evidence would be similarly important. Mr Mahfooz accepted in cross-examination that it was obvious that there would be a re-trial.

50. Mr Mahfooz said that Mr Hussain was still willing to give evidence in 2021 and was waiting to be contacted, but was then told in November 2021 that the trial had collapsed and the applicant’s case had been severed. On Mr Mahfooz’s evidence, a draft statement was prepared in October 2021, apparently following Ms Dyer’s email. It was, Mr Mahfooz said, based on a telephone conversation with Mr Hussain on 1 October 2021. It was never signed. There is no satisfactory explanation for why the statement was not signed before the trial or during the trial or after it. The relevance of the absence of a signed statement is, as the Crown submits, that, if one had been obtained and Mr Hussain was then unavailable to give evidence at trial, an application to admit his evidence as hearsay could have been made.

51. By the time the applicant stood trial in 2024, we were told that Mr Mahfooz had lost contact with Mr Hussain. As Mr Hussain also said, his mobile phone number had changed and he had moved.

52. Mr Mahfooz gave evidence as to the steps taken to contact Mr Hussain after he became aware that Mr Hussain’s mobile phone number had changed. In his 3rd statement, Mr Mahfooz said this: “In October 2023, I attended Mr Hussain’s home address twice, on 20th and 26th October 2023. The address I attended was 3 Browning Cottages IG7 3DQ. I also attended on 19th December 2023 and again on 6th January 2024. On all these occasions, there was no answer despite my attending at different times I also waited outside in my car to see if anyone would turn up given that I knew that it was important for Mr Ghaffar to have this witness. On the final day that I attended this address, 23rd January 2024, a lady answered the door and I was informed that he no longer lived there and that she did not have a forwarding address for him. She was rather short with me and not keen to answer any questions …..”

53. These efforts to contact Mr Hussain were perfunctory. Between the time of taking instructions for the draft statement and the imminent trial in 2024, no steps at all were taken to maintain contact with Mr Hussain. When Mr Mahfooz failed to contact Mr Hussain by telephone in 2023, Mr Mahfooz did not undertake even the most basic online searches or any more sophisticated online research; he did not engage an inquiry agent; once he had found out that Mr Hussain had moved, that was that. The draft statement from October 2021 makes a number of references to Mr Huassain’s brother and includes the statement that Mr Hussain’s brother had provided a lot of high profile work to Mr Ghaffar. Mr Ghaffar similarly gave evidence at trial that he knew Mr Hussain through Mr Hussain’s brother. Yet no steps were taken to contact Mr Hussain’s brother as a means to get in contact with him.

54. We have set out above the importance that trial counsel for Mr Ghaffar attached to Mr Hussain’s evidence. Despite this Mr Mahfooz did not tell counsel at the second or third trial that he had a draft statement and, in advance of the third trial, did not ask counsel for advice. When questioned about this, his response was that his understanding was that, as a draft statement, it had no legal weight. Apparently on that basis, he saw no purpose in showing it to counsel or even telling counsel that it existed. That is an extraordinary view for an experienced solicitor to have taken and we consider that it casts doubt on the seriousness of the efforts being made to contact Mr Hussain and adds weight to our view that the efforts were perfunctory. Conclusions on the evidence of Farhad Hussain

55. Having regard to the factors in section 23(2), we have no doubt that the court should not receive this evidence. For the reasons we have given, we do not consider either the evidence that Kandi Consulting was a genuine business run by Mr Hussain or the explanation of the bank account in Mr Ghaffar’s name to be capable of belief.

56. Even if we were wrong about that, we do not consider that this evidence would afford a ground for allowing the appeal in the sense that it could have reasonably have affected the decision of the jury to convict.

57. Firstly, it is submitted for the applicant that the evidence of Mr Hussain confirms the defence case that payments to Kandi Consulting were for services rendered by Mr Hussain and were not payments to the applicant. In our judgment, that submission very much overstates the nature of the evidence and the vagueness and paucity of the evidence about Kandi Consulting operating as a business, if anything, exposes further the flaws and weaknesses in the applicant’s account of events.

58. Secondly, it is submitted that the Kandi payments were very important, or even of central importance, to the Crown’s case. There is no question that they were a substantial part of the case and the evidence but they were unrelated to the other payments which formed the majority of the monies received by Mr Ghaffar, and there is no reason to think that, if the jury had thought that the applicant’s case on these payments was or might be true, they would not have convicted. As the Crown emphasises, by the time of Mr Ghaffar’s trial, the convictions of his former co-defendants evidenced the conspiracy to commit fraud and there was no dispute that the claims submitted to the NTT contained false information. The issue at trial was whether Mr Ghaffar was a knowing and dishonest participant in the fraud. That is how the jury was directed, the judge’s direction being: “What is in dispute is whether the defendant was a knowing and willing party to the agreement and, at the time of agreeing, he intended that the agreement be carried out and that the crime of fraud be committed.”

59. Mr Fitzgerald submits that the balance is the other way round. There were legitimate explanations offered by the defendant for the monies paid directly to him and it was not disputed that he had done some work on the Miah case. It was, therefore, entirely possible that the jury had concluded that they could not be sure that the applicant was not party to any fraudulent conspiracy in relation to these payments but only those made to Kandi Consulting. We do not see the logic of this position. As we have said, at trial, the jury had the bank statements for Kandi Consulting which showed all of the payments we have referred to above including the payments out none of which were, on their face, to Mr Ghaffar. The evidence in relation to these payments was before the jury. In relation to the payments out, Mr Ghaffar said that the payment out of £41,500 was because Mr Hussain was buying a property and the other payments were either to Mr Hussain, his relatives or someone working for Kandi Consulting. This evidence was summed up in detail by the judge together with a concise reminder to the jury of the prosecution and defence’s respective arguments.

60. If anything, we might have expected the prosecution to submit that the more probable inference was that the jury was not sure that these monies formed part of the fraudulent conspiracy, since they were all paid to Mr Hussain or his relatives, and that they convicted on the basis of the payments which were clearly made directly to Mr Ghaffar. If, as the applicant now submits, the position was the other way round and these payments through the Kandi Consulting account were central to the jury’s assessment of the evidence, the only difference, if Mr Hussain had given the evidence that he gave to us at trial, would have been that the jury heard from him that it was, in reality, his bank account and that the payments out were for him or his relatives rather than simply having the evidence of the bank statements. We repeat that this further evidence from Mr Hussain was vague and unsupported by any documentation or other evidence and we cannot see that Mr Hussain’s oral evidence to the jury would have made any difference.

61. Thirdly, it is submitted that the evidence about the opening of the bank account was a central element of the Crown’s attack on Mr Ghaffar’s credibility and that Mr Hussain’s evidence would have undermined that attack and/or bolstered Mr Ghaffar’s credibility. For the reasons we have given we do not consider that this evidence adds anything to the account given by Mr Ghaffar; it was materially inconsistent; and it still offered no plausible explanation for the opening of the account in Mr Ghaffar’s name. It is not arguable that hearing this evidence from Mr Hussain would have had any impact on the jury’s assessment of the evidence rendering the conviction unsafe.

62. Lastly, and for the reasons we have given, we do not consider that there is a reasonable explanation for the failure to adduce the evidence at trial.

63. Taking all these factors into account, it is patently neither in the interests of justice nor expedient for the court to receive this evidence. Mohammed Tahir Khan

64. Mr Khan’s evidence was that in 2010 he worked for ALH, based in Winchester House, where, as we have said, the applicant had his chambers. He was not qualified to practise but was doing what he described as case work and he met Mr Ghaffar who was counsel on 2 or 3 cases that he was involved with.

65. One of those cases was the Miah case which, Mr Khan said, he and colleagues worked on for over a year. In his statement, his evidence was that the legal team working on the case was Ms Maciel, Mr Ghaffar, Zaher Sheikh as a consultant, himself as a legal assistant, and Pretty Barber as a paralegal. He described Ms Maciel as, effectively, his boss. He knew that the applicant had worked on the case for many months both before and after the Miah defendants were charged. Mr Khan was at a number of conferences with Mr Ghaffar and knew he was working on the case.

66. Mr Khan was asked about the Miah brothers and said that they spoke some English but preferred to speak Bengali. So the legal team had a translator called Sheikh who Mr Khan thought was an employee of ALH.

67. Mr Mahfooz provided a 5th witness statement dated 3 July 2025. In that statement, he said that he had failed to ask Mr Hussain who had worked for him on the Miah case which was why that evidence was not in Mr Hussain’s statement. Mr Mahfooz said that he had since asked Mr Hussain that question and been told that there was Sara, Sara’s assistant, Rashid Hussain, another Rashid, “the Bengali”, Tina and Zaheer. Mr Ghaffar thought that “the Bengali” might be Zaher Shaikh. This list of persons was never confirmed by Mr Hussain. However, taking this evidence at face value, it might appear that one or two people from Kandi Consulting, called Zaher or Zaheer or Sheikh, were working on the case. Mr Khan’s evidence, however, was that he thought the translator was employed by ALH and, when he was asked about work being given to a legal support firm, his response was that he did not have that information. Although Mr Khan had no kind of managerial role, it is highly unlikely that he would not know who was an employee of ALH and who was being brought in from outside the firm or that he would have had no kind of conversation with them about how they came to be working on the case.

68. Mr Khan said that the case was privately funded and he had seen large cash payments being made to the firm. There was talk of changing lawyers and his best estimate was that some of the Miah defendants went to other firms in mid-June 2011. This, we note, was consistent with the prosecution case that Appleby Shaw and Ainsley Harris had done no work earlier than this, despite in due course claiming to have done so.

69. Mr Khan said that he was unaware of the trial and came forward to give evidence after he read a press report that said Mr Ghaffar had only worked on the case for 7 days which he knew to be wrong.

70. We regarded Mr Khan as a credible witness but, in our view, the evidence that he could give is inherently unlikely to have had any impact on the mind of the jury. So far as Kandi Consulting is concerned, Mr Khan’s evidence provided no support for the case that it was a genuine business. Mr Khan simply did not know anything about it. As far as his evidence went, it was inconsistent with anyone working on the case who was not employed or engaged directly by ALH. The press reports that Mr Ghaffar had undertaken only 7 days’ work are a red herring. It was part of the prosecution’s case that the firms of solicitors had done no more than a week’s work (although the fall back position was that they had been instructed in about June 2011) but that was never the prosecution’s case so far as Mr Ghaffar was concerned. Evidence to the general effect that he had worked on the case for longer was uncontroversial and would have added nothing to the defence case.

71. It was always part of the applicant’s defence that he had provided services instructed by ALH as well as Appleby Shaw. It follows that evidence from those he had worked with at ALH was patently relevant to his defence. On Mr Khan’s evidence, he worked in close proximity to both the applicant and his wife; he was at the same firm as Ms Maciel whom he regarded as his boss; and they were all part of the same small team on the Miah case. The failure to adduce Mr Khan’s evidence at trial is then extraordinary.

72. Mr Mahfooz says that before the 2024 trial, he attempted to find Mr Khan. His evidence says nothing about when he first did so and offers no explanation for why no attempt to contact Mr Khan had been made before the first two trials. In cross-examination, Mr Mahfooz agreed that by the time of the second trial, he had decided that evidence of Mr Ghaffar’s work from Mr Khan was not needed because there was independent evidence of the work done. It was put to him that it was, therefore, decided not to call Mr Khan and Mr Mahfooz responded that they could not get hold of Mr Khan. But he still gave no evidence of any attempt to contact him then or earlier. In the event, Mr Mahfooz appears to have taken a different view before the third trial. His efforts then were limited to establishing that Mr Khan was not a solicitor and that he could not find any paralegal with that name online.

73. We are left with the unavoidable impression that no real consideration was given to calling others with whom Mr Ghaffar had worked. This potential evidence was either not addressed or was thought to be unnecessary or unhelpful. No efforts were made to contact such people. Before the third trial, any efforts to contact Mr Khan we would again describe as perfunctory. We do not consider that there is a reasonable explanation for the failure to call Mr Khan’s evidence at trial.

74. In short, this is not evidence which it is necessary or expedient in the interests of justice for the court to receive. Tina David

75. Ms David is a witness who, in her statement, said that she had come forward after a chance meeting that caused her to be aware of the applicant’s conviction.

76. In short, her evidence was that between 2009 and 2012 she worked for Kandi Consulting as a caseworker and for most of that time she was working from Winchester House, in the office next door to the applicant’s chambers. Ms David said that she was supplied as a case worker for a couple of months to one of Razi Shah’s firms (that is Appleby Shaw and Ainsley Harris) and attended their Windsor offices 8 or 10 times and travelled twice to Bournemouth. Beyond that, she gave no detail of her terms of engagement; on what basis she was paid; how she was paid; and what work she did. She said she knew that Mr Ghaffar had worked on the same case and had done so for more than 7 days as reported in the press.

77. Ms David did not attend court to give her evidence. We were invited by the applicant to place some weight on her evidence nonetheless because it was credible and she had no reason to lie. The 7 days point is irrelevant but we accept that Ms David’s evidence does provide some support for the case that Kandi Consulting was a genuine business. However, in circumstances where we could not hear from her and form any view about her, the significance we attach to this must be limited.

78. Again there is no reasonable explanation for the failure to adduce this evidence at trial. Mr Mahfooz gave no evidence about this at all. In the skeleton argument on behalf of the applicant it was said that the witness was not well-known to the applicant. She had been a junior member of the litigation support team. The applicant had not known her full name and he was not aware that she could have provided supportive evidence.

79. This is nonsensical. It was always relevant and important to the applicant’s case to adduce evidence that Kandi Consulting was a genuine business carrying out work on the Miah case. Anyone engaged by Kandi Consulting and working on the case was a potentially helpful witness. Even if the applicant did not know the names of those working on the case, he could and should have asked Mr Hussain to provide details. Alternatively, had any evidence been obtained from Mr Hussain as to what work was being done and by whom, the defence would have been led to Ms David as a potential witness. In fact, nothing was done.

80. Taking this factor into account alongside the very limited weight that could be attached to her evidence, we see no reason to conclude that the court should receive this evidence. Conclusion

81. It follows that we decline to receive any of the fresh evidence which the applicant seeks to put before the court and we refuse leave to appeal.