BSQ Court of Appeal Success in Drug Trafficking Case

A BSQ client has had his sentence significantly reduced by the Court of Appeal. The Appeal Judges reduced the sentence imposed for drugs charges for BSQ client SK from 16 years to 10 years at London's Criminal Appeal Court yesterday, accepting our submissions that there was no evidence SK was a major player in a drugs gang.

33lb of cocaine had been found at our clients address. The Prosecution claimed he had a "leading role" in importation and distribution.

The Defence disputed their assertion his business was a cover for the drugs, stating that it was "an ordinary and genuine business run by his family for generations" and claimed SK did not have a lead role. He stood only to make a modest return from the drugs he was storing.

Lord Justice Leggatt said: "These submissions have some force. The sentencing judge was not justified in attributing to him a leading role."

"There are, in this case, exceptional circumstances which justify a reduction in the sentence that would otherwise be appropriate," he said.

"We quash the sentence of 16 years and substitute one of 10 years. To that extent, this appeal is allowed."

The decision is significant as although not a binding precedent it does demonstrate that the Appeal Courts will scrutinise prosecution assertions that those involved in drugs offending hold “leading roles’ within criminal organisations.

If a defendant’s role is wrongly defined, the mechanistic application of proscribed tariffs in the SGC guidelines can lead to manifestly excessive sentences such as that of SK. Applying the sentencing guidelines for serious drugs cases anyone said to be in a leading role and convicted of importing or supplying over 5kg of cocaine faces a starting point of sentence of 14 years within a range of 12- 16 years.

SK was represented by BSQ partner Goran Stojsavljevic who specialises in representing individuals in serious drugs and organised crime cases. Counsel was Richard Furlong of Carmelite Chambers.

Read more at https://www.bbc.co.uk/news/uk-england-beds-bucks-herts-45501775

If you have been accused in a serious drugs case and require assistance please call our London offices.

BSQ Partner Attends Saakashvili Press Conference in the Hague

BSQ Partner Roger Sahota attended a press conference in the Hague, Netherlands on 29 May 2018 held by BSQ client Mikheil Saakashvili, the Former Georgian President and Governor of Odessa.  

Advised by Leading Counsel, Geoffrey Robertson QC and Susie Alegre of Doughty Street Chambers and BSQ Solicitors Mr Saakashvili is considering bringing a claim before the European Court of Human Rights following the cancellation of his Ukrainian citizenship and abduction and expulsion from that country. 

Background

Mr Saakashvili is best known for leading the “Rose Revolution” in his native Georgia against that country’s corrupt post-communist regime. After losing office in 2013 criminal proceedings were brought against him in absentia in Georgia although many human rights groups consider these to be politically motivated reprisals. 

In 2015 he was invited by Petro Poroshenko, the President of Ukraine to take up Ukrainian citizenship and become the Governor of Odessa. As Ukrainian law does not permit dual citizenship, Mr Saakashvili renounced his Georgian nationality in 2015 to do so. On 26th July 2017, his Ukrainian citizenship was arbitrarily revoked by Presidential Decree, leaving him stateless.

On February 12th 2018 he was forcibly detained and expelled to Warsaw, and has been denied re-entry to the country of which he was a permanent resident and leader of a major political party. He was deported from Ukraine to Poland without a court warrant in what is believed to be a politically motivated measure after organizing protests against President Poroshenko. 

Legal Claim

During the press conference Mr Robertson QC highlighted a “number of serious breaches in international law” in Mr Saakashvili’s treatment to which Germany, Britain and France “had turned a blind eye.” Primarily, these included: 

  • Arbitrarily revoking Mr Saakashvili’s citizenship. In doing so Ukraine has acted in breach of Article 8 of the European Court of Human Rights (an individual’s right to respect for family and private life) and its international obligations to prevent statelessness. 
  • The detention and deportation of Mr Saakashvili in circumstances where he was violently and forcibly abducted amount to a violation of the right to liberty and security of the person (contrary to ECHR Article 5(1)(f) ECHR which allows for the lawful arrest or detention of a person against whom action is being taken with a view to deportation or extradition) and further to degrading treatment (contrary to Article 3 ECHR, prohibition on inhuman and degrading treatment).  In addition, the speed at which these events had taken place did not allow him to challenge the lawfulness of his detention before a court amounted to a further breach of ECHR, Article 5. 
  • In denying his right to return to Ukraine the Government was also in breach of Article 12(4) of the ICCPR (International Covenant of Civil and Political Rights) by arbitrarily depriving him of the right to enter his own country.  This, in turn also constituted a violation of his right to private and family life protected under Article 8 ECHR and his right to freedom of association as protected under Article 11 of the ECHR, freedom of expression (Article 10, ECHR) in further breach of Article 14 ECHR (discrimination on the grounds of his political opinion.) 

BSQ continue to monitor the progression of claims brought on Mr Saakashvili’s behalf in the courts of Ukraine.  Before any human rights claim can be submitted either pursuant to the ICCPR or ECHR, both conventions require an exhaustion of domestic remedies. 

In the meantime, Mr Saakashvili has called upon the international community to consider taking diplomatic action including cutting diplomatic ties with Ukraine in an effort to persuade the Ukrainian authorities to allow him to return to that country to take part in the elections scheduled for later this year. 

Roger Sahota specialises in international criminal and human rights litigation and particularly in sensitive cases with a political dimension. 

Saakashvili Press Conference Scheduled in Hague

BSQ partner Roger Sahota has been instructed in and will be attending a press conference organised on behalf of the former Georgian Prime Minister Mikheil Saakashvili in the Hague on Tuesday focussing on human rights violations following his expulsion from the Ukraine earlier this year.

The text of the press release follows:    

Professor Geoffrey Robertson, QC and Mikheil Saakashvili will hold a joint press conference
on Tuesday May 29, 2018 starting at 13:30at the Nieuwspoort Press Center in Amsterdam
(Lange Poten 10, 2511 CL Den Haag). 

Geoffrey Robertson QC, renowned international human rights lawyer and former UN Appeal Judge has provided a legal opinion regarding the deprivation of citizenship as well as the forced expulsion from the Ukraine of Georgia’s third president Mikheil Saakashvili. The Ukraine is culpable, in Mr Robertson’s view, for violating his civil and political rights
 
Press Conference to be held on May 29:th Professor Robertson will summarise his legal opinion. Mr Saakashvili, recognised as a top performer and anti-corruption campaigner in the first soviet region, will explain the background and motivations of the Ukrainian government in politically persecuting him as well as his supporters in Ukraine.

A question and answer period will follow.


The press conference is open to all accredited members of the press as well as interested NGO representatives and attorneys.


For additional information contact:
Ivan Lozowy, Esq.
Chargé for International Affairs
Movement of New Forces of Mikheil Saakashvili

BSQ partner Roger Sahota specialises in international and domestic criminal law with a political dimension. 
 

Indecent Images Update - Court of Appeal Revises Guidelines in SHOPO Cases

A recent decision by the Court of Appeal provides welcome clarity to defendants and participants in indecent images cases.

SHOPOS – Sexual Harm Prevention Orders are routinely imposed in cases where individuals are convicted of indecent image offences. The terms of the orders normally place restrictions on an individual’s internet usage and contact with children under 18.

Previously the leading case on SHOPOS is (and remains) R v Smith [2011] EWCA Crim 1772; [2012] 1 WLR 1316.

 In R v Parsons [2017] EWCA Crim 2163 the Court revised the Smith guidelines on SHOPO’s in the light of developments in technology and everyday life.  In summary it held;

1.     SHOPOS should not include a blanket ban on Internet Usage – this was unrealistic, oppressive and disproportionate.”

2.     Where an individual can show that his employers have risk monitoring software at work there is no requirement for additional software to be implemented on work equipment by the Police. The Court formulated a model direction to be imposed in such cases:-  

"The Defendant is prohibited from:

(1) Using any computer or device capable of accessing the internet unless:

 (a) He has notified the police VISOR team within 3 days of the acquisition of any such device;

 (b) It has the capacity to retain and display the history of internet use, and he does not delete such history;

 (c) He makes the device immediately available on request for inspection by a Police officer, or police staff employee, and he allows such person to install risk management monitoring software if they so choose.

 This prohibition shall not apply to a computer at his place of work, Job Centre Plus, Public Library, educational establishment or other such place, provided that in relation to his place of work, within 3 days of him commencing use of such a computer, he notifies the police VISOR team of this use.

3.     SHOPOs often include a clause restricting contact between the person convicted and children under 18. In Smith it was held that is "not legitimate to impose multiple prohibitions on a defendant just in case he commits a different kind of offence". There must be "an identifiable risk of contact offences" before prohibitions on contact can be justified. In Parsons the Court considered a case that was,

 “close to the borderline. The appellant's relevant offending comprised making indecent photographs of children. That said, the facts (set out above) disclosed his browsing or searching for websites which could be used for online chats with young children. Such searches could have been a first step towards the commission of predatory offending, seeking out children for sexual purposes. In the circumstances, we are persuaded that the inclusion of some contact prohibitions in the SHPO was necessary and proportionate.”

As the appellant's offending related to female children it held that that the SHOPO prohibitions should be confined to female children.

“The most important practical aspect of this decision to our clients will be that it leaves open the possibility that after a conviction individuals can continue in their previous occupations without having specialist police monitoring software installed on their work computers.”
— Roger Sahota

If you require advice in an indecent images case please contact our London office.

BSQ Instructed in “Diet Pills” Business Manslaughter Case 

BSQ have been instructed in a high profile and unusual business manslaughter prosecution. The case concerns allegations that slimming pills which were said to be unsafe were sold to a vulnerable student who died after becoming addicted to them and overdosing.

The case is contested and has attracted substantial media attention. 

The lead BSQ partner is Goran Stojsavljevic. 

Read more about the case here. 


 

Sexual Assault Prosecution Discontinued Pre-Charge

Following service of a defence case statement setting out the basis of client's defence to sexual assault charges the CPS have discontinued the prosecution of a BSQ client. The matter had previously been set down for a trial in the Crown Court. 

Our client retains their good character.

The decision vindicates BSQ's view that the names of suspects accused in sexual offence cases should remain anonymous.

Goran Stojsavljevic was the BSQ partner instructed. 

 

Tax Fraud Prosecution Fails - BSQ Acquittal Features in Taxation Magazine

BSQ partners Daniel Godden and Roger Sahota have co-authored an article together that features in this weeks Taxation magazine.

The article concerns the recent decision of the CPS to discontinue criminal proceedings in R v C, a potentially groundbreaking prosecution of an individual investor subscriber (rather than professional advisors who were not targeted) to what the HMRC believed to be a tax avoidance scheme. 

You can read about the case here

Charles Bott QC and Richard Furlong of Carmelite Chambers were instructed in the case.  

Health and Safety Prosecution Discontinued After BSQ Intervention 

A large scale health and safety prosecution by Westminster Council has been discontinued following an intervention by BSQ solicitors.

BSQ were asked to intervene at a late stage in proceedings by our clients after assuming conduct of the case from a large City practice. After filing our legal argument with the City of London Magistrates Court challenging the legality of the Council’s conduct in commencing proceedings the case was discontinued.  

The BSQ partner instructed was Roger Sahota. 

If you require advice and assistance in relation to a health and safety or regulatory prosecution please contact our London office. 
 

Former President of Georgia Saakashvili Challenges Ukrainian Expulsion – BSQ Instructed 

BSQ partner Roger Sahota is part of the legal team advising the former Georgian President Mikheil Saakashvilli on an appeal against his expulsion from Ukraine. 

Mr Saakashvili first came to international attention when he led the “Rose Revolution” in his native Georgia against a particularly corrupt post-communist but nonetheless authoritarian government. Under his presidency the country made great improvements in reducing corruption and abusive behaviour by police and state officials. 

On 26th July 2017, his citizenship was arbitrarily revoked by Presidential Decree in Ukraine , leaving him stateless. He went to Poland but returned to Ukraine in the autumn to lead his registered political party there. Although the government said he was the subject of an ongoing criminal investigation, on February 12th 2018 he was forcibly detained and expelled to Warsaw, and has been denied re-entry to the country of which he was a permanent resident and leader of a political party.

BSQ is part of a legal team including Geoffrey Robertson QC of Doughty Street Chambers advising Mr Saakashvili on human rights challenges to his removal from Ukraine.  
 

CPS Decide to Abandon Prosecution of Investors to Tax Avoidance Scheme After BSQ Test Case Collapses

Following the collapse of a test case prosecution of an individual investor in a tax avoidance scheme the CPS have announced that they will not be bringing any further charges against other investors in a landmark case.

In R v C charges of Fraud by False Representation i.e. of attempting to dishonestly obtain a tax advantage contrary to s.16A of the Taxation of Chargeable Gains Act 1992 were brought against a BSQ client.  

The case is novel as the accused was an  individual tax payer subscriber and not the professional advisers who were the architects of the scheme.

BSQ partner Daniel Godden was instructed. 

More details of the case will be revealed in the BSQ website next week

BSQ Fraud Team instructed to Challenge £64m Confiscation Order

BSQ’s Fraud defence team has been appointed to represent Dr Gerald Smith in enforcement proceedings concerning one of the highest confiscation orders ever made – now standing in excess of £64m including interest - ever made in the UK.

Mr Smith features in proceedings brought by the SFO in one of the largest cases under the CJA 1988 to be ever heard, presided over by Mr Justice Popplewell before the Commercial Court. The complex litigation involves more than 12 different parties and concerns assets worth in excess of £200 million.    

The BSQ partners instructed are Daniel Godden and Roger Sahota.   

The case has been widely reported in the media including the Evening Standard.  

Another Search Warrant Success for BSQ

BSQ have settled a claim for judicial review in relation to the conduct of a state investigative agency and their search of our client’s premises.

Rather than obtaining a search warrant, in a pre-planned operation the state agency purported to rely on Section 32 of the Police and Criminal Evidence Act 1984 to justify the search. Our application for judicial review challenged the legality of their conduct on the basis this was not a proper use of these statutory powers. Section 32 allows for the search of any premises where the suspect was found or was present at immediately before their arrest, not a pre-planned operation. .

BSQ have been involved in a number of landmark search warrant cases in recent years including many that have settled outside court.

In relation to the misuse of section 32 PACE powers this remains an area of some controversy in our view and we continue to look for a test case precedent to examine the law in this area. In our view many state agencies are circumventing applications for search warrants by employing section 32 PACE when its use cannot be justified.

BSQ partner Roger Sahota was instructed – Roger has been involved in a number of successful search warrant judicial reviews including R (on the application of F) v Blackfriars Crown Court [2014] EWHC 1541 (Admin).

BSQ Partner Daniel Godden also featured in the notable case of Lord Hanningfield.

Rupert Bowers QC of Doughty Street Chambers was leading counsel

NCA secures first Unexplained Wealth Orders

The NCA has recently announced that it has secured the first UWO's since the introduction of the new legislation. 

The orders relate to two properties, one in London and one in the South East of England and mean that the assets cannot be sold, transferred or dissipated while subject to the order (IFO).

Donald Toon, Director for Economic Crime at the NCA, said: “Unexplained wealth orders have the potential to significantly reduce the appeal of the UK as a destination for illicit income. They enable the UK to more effectively target the problem of money laundering through prime real estate in London and elsewhere. We are determined to use all of the powers available to us to combat the flow of illicit monies into, or through, the UK.”

Read More here.

If you require advice in relation to a UWO application or are worried that you may become the subject of such an application contact our London offices. 

Cards on the Table - Roger Sahota writes for Law Society Gazette on Ivey v Genting

BSQ Partner has written for the Law Society Gazette on the recent landmark Supreme Court decision in Ivey v Genting. You can read the article here or below.   

Phil Ivey, the professional gambler who failed in his attempt to compel a Mayfair casino to pay out £7.7m in winnings and was branded a cheat by the Supreme Court is likely to become a familiar name to future generations of criminal lawyers.

The facts of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 concern an ingenious effort by Ivey to find ’a legal way to beat the house’ whilst playing Punto Banco, a variant of Baccarat, using a technique known as ‘edge-sorting’ which relied on him spotting tiny differences in the cards. Crockfords casino refused to pay out his winnings because they believed that by using ’edge-sorting’ and hoodwinking the croupier on the table he had cheated.

At first instance, Mitting J sitting in the High Court rejected Ivey’s civil claim that Crockford’s should be ordered to pay him what he had won. The Court held that the gaming contract Ivey had entered into with Crockfords was subject to an implied term that he would not cheat. Mitting J found that the evidence suggested he had, noting that Ivey had duped the croupier into rotating the cards differentially to give him an advantage. The casino and the croupier would not have agreed to this if they had known what he was up to.

The Court of Appeal (Sharp LJ dissenting) later affirmed this decision but on different grounds. The case then came before the Supreme Court. In reaching a unanimous decision the Supreme Court Justices (Lord Neuberger, Lady Hale, Lord Kerr, Lord Thomas, Lord Hughes) dismissed Ivey’s appeal. In doing so the Court also delivered a landmark judgment revising the law on dishonesty in criminal proceedings.

A wide range of theft and fraud offences require a finding of dishonesty. And, more often than not, the main issue at trial is whether a defendant has acted dishonestly. Proving dishonesty is therefore a key requirement for the Crown. Previously the test for dishonesty was that set out in R v Ghosh [1982] EWCA Crim 2 which stated that a conviction could only result where a jury was satisfied that;

- the conduct complained of was dishonest by the lay objective standards of ordinary reasonable and honest people; and, if yes
- the defendant must have realised that ordinary honest people would so regard his behaviour.

Following Ivey it is clear that the Ghosh test is no longer good law (para.74). What replaces it is a test similar to the first limb of Ghosh and identical to the civil definition of dishonesty as per Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37. The second limb of Ghosh, known as the subjective test, is discarded. The new post Ivey definition of dishonesty retains a subjective element - a jury must firstly decide what a defendant’s subjective mental state and belief as to their knowledge of the facts are. Having done so the jury must then apply an objective test to the defendant’s state of mind – deciding whether by the ’standards of ordinary decent people’ (para.74) his intent was dishonest. This objective test is ’not a matter of law but a jury question of fact and standards’ (para.48) that did not require any further elaboration from the Court as ’Dishonesty is something which laymen can easily recognise when they see it’ (para.64).

This sea change in the law greatly simplifies the directions juries must be given by Judges in criminal trials on the meaning of dishonesty. It also addresses the Supreme Court’s main concern about the Ghosh test, namely that it did not require a defendant to show that their genuinely held belief refuting dishonesty was also a reasonably held one. Relying on the second limb of the Ghosh test, the Supreme Court justices noted that defendants were entitled to plead as a defence ’I did not know that anybody would regard what I was doing was dishonest’ and to cite a myriad of cultural or other creative explanations in support of their mistake. The Court felt this had ’the unintended effect that the more warped the defendant’s standards of honesty are, the less likely it is that he will be convicted of dishonest behaviour’ [para. 58].

By removing the second limb of the Ghosh test the decision in Ivey has raised the bar for anyone who denies acting dishonestly. In complex fraud and business crime cases in particular the effect will be dramatic. No longer will individuals be able to rely on Ghosh to say in their defence that they mistakenly but genuinely believed that their decision-making and conduct was consistent with industry norms and would not be seen by their contemporaries as dishonest. Closing this window of opportunity was an important objective for the Court, which commented that ’there is no reason why the law should excuse those who make a mistake about what contemporary standards of honesty are, whether in the context of insurance claims, high finance, market manipulation or tax evasion’ [para. 59].

Ivey will therefore be a welcome development for prosecution lawyers involved in fraud cases where establishing dishonesty is an essential ingredient. Anecdotal evidence suggests that proving dishonest intent to the Ghosh standard has often been seen by prosecutors as an obstacle to conviction – the recent acquittal of six accused in the second inter dealer/broker LIBOR criminal trial being one possible example. All six accused relied on the second limb of Ghosh in their defence, claiming that they did not regard their conduct as dishonest in the context of widespread market malpractice in the setting of LIBOR prevalent at the time.

Interestingly, were the same six accused tried today applying this new interpretation of the law they may have been prohibited, as a matter of law, from even raising this type of explanation as a defence addressing the objective test set out in Ivey. In the first LIBOR case - R v Tom Hayes [2015] EWCA Crim 1944 - the Court ruled (Cooke J, upheld by the Court of Appeal) that evidence of a similar nature of ’market ethos’ raised by Hayes was ’iirrelevant to the determination of the objective standards of honesty’ (para. 33) and had the effect of ’diluting the standard’ that a reasonable person would otherwise apply. In the second LIBOR trial Hamblen J treated himself as bound by this decision. Consequently, the six accused in that trial could not rely on the first limb of Ghosh in their defence. Their options post Ivey, with the second limb of Ghosh also removed, would be far more limited.

The latest decision in Ivey may therefore encourage the Crown and other prosecuting agencies to continue pursuing such complex cases. Whether it results in more convictions however remains to be seen.

Historical Sexual Assault Investigation Discontinued Pre-Charge

In another positive outcome for our private client crime department, a BSQ client has been advised that an police investigation into allegations of historical sexual abuse has been discontinued. The decision not to proceed with this matter followed a BSQ intervention at the pre-charge stage and robust police station advice.

Our client, a professional remains a person of good character as a consequence.

The BSQ partner instructed was Roger Sahota.

If you require advice in connection with any allegation of sexual misconduct please call our London offices.

 

 

 

BSQ instructed in Business Manslaughter Prosecution

BSQ instructed in Business Manslaughter Prosecution

BSQ partner Goran Goran Stojsavljevic has been instructed to represent a businessman accused in a high profile case concerning an allegation that his company sold toxic slimming pills that contributed to the death of one of their customers.

BSQ Briefing – Sexting, Children and the Law

BSQ Briefing – Sexting, Children and the Law

In January 2016 the Home Office introduced a new type of disposal for cases where young people were accused of sexting i.e. distributing sexual imagery by social media or some other form of electronic communication. This article examines how the new disposal - known as outcome 21 has worked in practice - and what the law holds for young people who engage in sexting.

BSQ Extradition Success Causes Controversy in Indian Media

A recent BSQ case concerning a failed attempt to extradite two Indian citizens by the Government of India has caused significant media controversy.

The Times of India in a report published on the 5th November 2017 comments that this is the second decision in recent weeks where the Westminster Magistrates Court has refused a GOI extradition request. Interestingly, the decision in Chawla (DJ Crane presiding) was based on different legal grounds to the BSQ case of Angurala. In the case of the Angurala's, senior district judge Emma Arbuthnot ruled that it would be unjust to extradite BSQ's clients due to the passage of time - nearly  after a quarter of a century - since the fraud was alleged to have taken place - read the decision here. In the case of Chawla, DJ Crane based her decision on likely breach of Article 3 of the European Convention of Human Rights "ECHR" (which prohibits "torture, or inhuman or degrading treatment") if the Requested Person was returned to India:

"(There are) strong grounds for believing that the RP (Requested Person: Chawla) would be subjected to torture or inhuman or degrading treatment or punishment in the Tihar prison complex, due to the overcrowding, lack of medical provision, risk of being subjected to torture and violence either from other inmates or prison staff which is endemic in Tihar," Judge Crane noted in her judgment."
There has been a recent uptick in the number of GOI extradition requests before the UK Courts with six pending in the moment, the most high profile being the case of Vijay Mallya due to be heard in December. 

BSQ partner Roger Sahota represented the Anguralas together with Ben Keith of 5 St Andrews Hill Chambers. If you require legal advice in connection with a business crime matter please contact our London offices. 

CPS Decline to Appeal BSQ Indian Extradition Success

The CPS acting on behalf of the Government of India (GOI) have declined to appeal the decision of the Chief Magistrate to reject the GOI's request to extradite two individuals in an important fraud case. Both clients were represented by BSQ partner Roger Sahota.

Details of the original decision can be found here. 

Indian extradition cases are rare and the decision is a notable victory for our private crime team. 

Roger Sahota is an acknowledged expert in international criminal law. Counsel instructed was Ben Keith of 5 St Andrews Hill and Ben Cooper of Doughty Street Chambers.

If you require representation in relation to a pending business extradition case contact our London offices.