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.

BSQ Partner Daniel Godden instructed in high profile HIV GBH criminal trial

BSQ partner Daniel Godden is representing Darryl Rowe who is charged with deliberately infecting a number of gay men he had relationships with HIV in an ongoing trial before the Lewes Crown Court.  

The case is contested. Lead counsel in the case is Felicity Gerry QC of Carmelite Chambers.

Media reporting of the case has been extensive –

http://www.independent.co.uk/news/uk/crime/darryl-rowe-trial-victim-breaks-down-court-case-hairdresser-hiv-aids-text-taunt-a7990791.html

http://www.dailymail.co.uk/news/article-4894662/Hairdresser-deliberately-infected-10-lovers-HIV.html

Daniel Godden has been instructed in a number of similar cases previously.

A further blog on the legal issues raised in this ground breaking case will be published when proceedings conclude.

If you require advice in connection with a criminal allegation please contact our London office. 

Leave Granted to Amicus Team Including BSQ Partner in Radovan Karadzic War Crimes Case

Leave has been granted to a team of academics and practitioners including BSQ partner Roger Sahota who have filed a legal motion challenging the application of JCE (Joint Criminal Enterprise) theory at the International Criminal Tribunal for the Former Yugoslavia and the other ad hoc tribunals.

The Rules of Procedure and Evidence of the Court allow amicus curiae observations where they are deemed desirable for the proper determination of the case. Both the Karadzic defence team and the Office of the Prosecutor have been ordered to file submissions in response within 30 days.

The filing raises questions arising from the judgement of the UK Supreme Court and Judicial Committee of the Privy Council (“UKSC”) in R v Jogee;1 Ruddock v The Queen2 (“Jogee”) concerning the mens rea (subjective element) of the third category of common purpose liability (“JCE-III”) as it exists at customary international law (“CIL”).

The filing is available here.

Mayfair Gambler Rewrites Law on Fraud

Phil Ivey, an American gambler who failed in his attempt to compel a Mayfair casino to pay out £7m in winnings and was branded a cheat by the Supreme Court yesterday is likely to become a familiar name to future generations of criminal lawyers. 

Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent) [2017] UKSC 67 is an important case for lawyers and finance professionals because it revises the law on dishonesty.  Defendants in all fraud, theft and business crime prosecutions will have to adapt to the new Supreme Court ruling. 

One of the most common defences raised in business fraud prosecutions is that a defendant has not acted dishonestly. Proving dishonesty is therefore a key requirement for the Crown in fraud and theft prosecutions. Previously the test for a conviction was that set out in R v Ghosh [1982] EWCA Crim 2 which states that a conviction could only result where a jury was satisfied that;

1.      the conduct complained of was dishonest by the lay objective standards of ordinary reasonable and honest people; and, if yes

2.     the defendant must have realised that ordinary honest people would so regard his behaviour;

It is the second limb of that test that the Supreme Court in a unanimous decision primarily focused their ire on. Their main concern was that the Ghosh test did not require a defendant to show that their genuinely held belief refuting dishonesty was also reasonable. Accordingly, this created “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].

In business crime cases the Court felt that a defendants conduct should be judged against “contemporary standards of honesty” -   “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].

Commenting on the decision BSQ fraud partner Roger Sahota said that ‘most fraud cases revolve around one central issue – did the defendant act dishonestly. The ramifications of the Supreme Court’s decision are not clear yet but it may have raised the bar for anyone who denies acting dishonesty. In complex fraud cases Accused persons may be required to show that their conduct and decision making was consistent with industry norms and would not be seen by their contemporaries as dishonest.”  

The full decision is available here. 

If you require advice in a fraud prosecution or investigation please contact our London office.

Directors Criminal Prosecution Diverted After BSQ Intervention

BSQ Fraud specialists Daniel Godden and Roger Sahota recently advised a company director accused of misappropriating company assets.  

Our client was alerted by a red flag alert from the company’s auditor concerning accounting irregularities.

Fearing that an internal investigation would lead to a criminal and civil complaint from his employers we were instructed to approach his employers.

Following extensive negotiations, the parties agreed to a civil settlement and non-disclosure agreement.

If you require advice and assistance in a financial crime investigation please contact our London offices. 

Government of India Fraud Extradition Request Refused

After two years of litigation the Chief Magistrate has rejected the Government of India’s request to extradite two individuals in an important fraud case. Both clients were represented by BSQ partner Roger Sahota.

Following a four day hearing last week at Westminster Magistrates Court in the case of the Government of India and JA and ARA, Chief MSM Arbuthnot held that extradition was barred due to the passage of time. The allegations made against the Requested Persons dated back between 24 and 27 years.

The Judge held that section 82 of the Extradition Act applied as it would be unjust or oppressive to extradite the requested persons due to the passage of time. In the Judgment the Court highlighted failures and delays ion the part of the CBI, the Indian FBI to make enquiries of the requested persons whereabouts in the UK.

Several expert witnesses were engaged on the part of the requested persons in support of submissions the Court was not required to rule on, including failures on the part of the Government of India to meet internationally recognised detention and fair trial standards.

The full judgment is available here.

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.

BSQ Success in Indecent Images Crown Court Acquittal

Another success for BSQ’s private crime department in an indecent images prosecution. This case also highlights the need for defendants in these cases to seek advice from specialist lawyers who are experienced in this field.  

Our client, a business owner of good character had been charged with various counts of making i.e. downloading indecent images contrary to section 1(1)(a) of the Protection of Children Act 1978.  The client sought alternative legal advice as he was unhappy with the quality of service provided by his previous lawyers and instructed BSQ. The case was listed for a Crown Court trial at this stage.  

Having reviewed the evidence and consulted our defence forensic resident experts, BSQ partner Roger Sahota drafted representations to the Crown submitting that the evidence disclosed did not present a case to answer based on the clients stated explanation that he was engaged in the mass and indiscriminate downloading of large amounts of material from the internet.

The CPS accepted these representations and withdrew all charges, offering no evidence at the Crown Court in relation to all counts on the indictment.

Our private crime team has a niche in representing professionals accused of indecent images offences. If you require advice in connection with a criminal prosecution please contact our London offices.

BSQ instructed in Potential Landmark Police Powers Challenge

BSQ has been instructed in a potentially ground breaking judicial review of police powers on behalf of a media company.

The case concerns police powers to effect the search of premises where a search warrant has not been obtained and the police purport to rely on their powers of arrest pursuant so s32(2)(b) or s18(5) of PACE 1984. Case law in this area is extremely limited.

Proceedings have been issued in the High Court. Counsel instructed is Rupert Bowers QC of Doughty Street Chambers and the BSQ partner presiding is Roger Sahota. BSQ have been involved in a number of judicial review challenging the exercise of police powers.

Our private crime team has extensive experience of advising claimants in cases where we have successfully quashed search warrants and challenged the legality of police arrests, including most notably, Lord Hanningfield (BSQ partner Daniel Godden acting) and R (on the application of F) v Blackfriars Crown Court [2014] EWHC 1541 (Admin) (Roger Sahota and Rupert Bowers QC) in addition to many other cases which have successfully settled prior to a full hearing.

Roger is the author of a Solicitors Guide to Search Warrants published in the Law Society Gazette.

If you require advice in connection with a criminal prosecution please contact our London offices.

 

 

 

 

Amicus Team including BSQ partner files Appeal in Radovan Karadavic Case

BSQ partner Roger Sahota is part of a team of academics and practitioners who have filed a challenge to the law governing the work of the International Criminal Tribunal for the Former Yugoslavia and other ad hocs tribunal.

The filing raises questions arising from the judgement of the UK Supreme Court and Judicial Committee of the Privy Council (“UKSC”) in R v Jogee;1 Ruddock v The Queen2 (“Jogee”) concerning the mens rea (subjective element) of the third category of common purpose liability (“JCE-III”) as it exists at customary international law (“CIL”).

The filing is available here.

BSQ Court of Appeal Quash Conviction and Acquittal on Re-trial

BSQ Serious Crime partner Goran Stojsavljevic has recently secured the quashing of a conviction on appeal and an acquittal on re-trial in an important firearms prosecution.

Following his conviction for firearms offences Goran was approached by BL who was unhappy with the service offered by his former legal aid lawyers having been sentenced to 6 years 8 month imprisonment and wished to instruct lawyers privately to appeal it.

The Court of Appeal held that the court erred in admitting extensive evidence of BL’s bad character and ordered a re-trial.   Represented by James Walker of Carmelite Chambers BL was acquitted on all counts by a jury at Leicester Crown Court.  

If you require representation in connection with a criminal prosecution please contact our London offices.

Roger Sahota Speaks at Cambridge University Economic Symposium

BSQ Partner Roger Sahota was invited to speak at the 35th Cambridge Economic Symposium at Jesus College, Cambridge last Friday.  

Roger’s presentation was well received during a plenary session focussing on “The Whistleblower Revolution and the ‘New Paradigm’ of Corporate Fraud Enforcement” and featured a review of the possible civil and criminal ramifications that may follow a whistleblower disclosure in the UK.  

BSQ Success as Competition Appeal Tribunal Decides Preliminary Issue in UKRS Case

Acting on behalf of UKRS Ltd, BSQ secured a significant judgment for our clients in the CAT. A press release from UKRS Ltd follows below. Roger Sahota was the lead partner acting for UKRS Ltd in the case. 

PRELIMINARY JUDGEMENT AGAINST NSAR IN TRIBUNAL HEARING

One of the UK’s leading training companies for Network Rail’s Sentinel Scheme has won a significant preliminary issue judgement against NSAR at a recent hearing of the Competition Appeal Tribunal.  The case began before the Tribunal last October when UKRS Training Limited sought an interim injunction against NSAR to prevent the implementation of its decision, following a dismissed appeal, to suspend their accreditation for three months under the Rail Training Accreditation Scheme.

This followed initial allegations, all denied by UKRS, of breaches of various different rules, following a series of audit visits by NSAR.

In the competition law proceedings UKRS alleges that NSAR holds a dominant position in the market for accreditation services to Sentinel card training providers as it is the only body with power to grant the relevant accreditation. UKRS contends that there was procedural unfairness and/or erroneous findings as to breach of the various rules, which amount to discrimination by NSAR; and further that the decision to suspend constitutes a refusal to supply. On either or both bases, since its conduct was not objectively justified, NSAR was said to be in breach of the Chapter II prohibition in competition law.

In asking for a hearing on a preliminary issue NSAR sought to prove it was not an undertaking for the purpose of competition law. However, the Competition Appeal Tribunal, presided over by the Hon. Mr Justice Roth, concluded in a 29-page report of the hearing that NSAR were indeed an undertaking for the purpose of competition law. The case is now set to proceed to a full hearing about the substantive complaint made by UKRS.

In a letter, following the publication of its decision of the preliminary issue, the President directed both parties to “seek to agree the terms of an order including directions for the future conduct of the proceedings.”

An agreed form of order, or alternatively any submissions in that regard if the parties are unable to reach agreement, have to be sent to the Registry email address by 4pm on 19 July 2017.

The full report of the preliminary hearing can be found on theCompetition Appeal Tribunal website here                                                     

 

 

Indecent Images Prosecution Discontinued

In another notable result for our private crime department we have been notified that the police have discontinued an indecent images investigation.  Our client, a prominent business figure remains a man of good character. Pre-charge BSQ made a range of enquiries with defence defence forensic experts and leading counsel instructed to advise our client.

If you need advice in an indecent images prosecution please contact our London office.

Court of Appeal Reviews Sentencing Guidelines in Downloading Indecent Images Cases

BSQ partner Roger Sahota comments on a recent important Court of Appeal decision - R v Pinkerton [2017] EWCA Crim 38 - in which the Court reviewed the operation of sentencing guidelines in downloading indecent images cases. In P the Judge had sentenced an offender taking a starting point beyond the Sentencing Guidelines Council (“SGC”) guidelines because of the particularly depraved nature of images found and the harm this type of behaviour caused.  

Background

Amended sentencing guidelines for indecent image offences were introduced on 1 April 2014. They replaced the old guidelines which had been in force since 14 May 2007. The new simplified regime saw a reduction from the five levels of categories introduced in the 2007 guidelines to 3 levels of categories as follows;

Category A (Images involving penetrative sexual activity and images involving sexual activity with an animal or sadism) incorporates the former Levels 4 & 5.

Category B (Images involving non-penetrative sexual activity) incorporates the former Levels 2 & 3. There is accordingly no longer a distinction between non-penetrative sexual activity between adults and children and between children.

Category C images are Indecent Images not falling within A or B.

Decision

The main points arising from the decision are summarised below. It is important to note that the decision is unlikely to change the general sentencing practice in the Crown Court where first time offenders not engaged in distribution remain likely to receive non-custodial sentences. The Court did however criticise the approach that the Judge took both in the procedure adopted during sentencing and the way the sentence was calculated. Notably;

1.     While the Court of Appeal upheld the sentence imposed, it felt it inappropriate for the judge to have strayed beyond the upper range of the sentencing guidelines. The SGC guidelines were created after extensive research and consultation. It was not for police officers and judges to create their own separate categories above and beyond those created by the SGC as the dangers of inconsistency and subjectivity were all too obvious.

2.     The SGC guidelines for downloading cases took into account concerns this behaviour caused harm and in particular indirect harm – downloading played a part in perpetuating a market for this type of material – and Judges should not give undue weight to this factor.

3.     Given the existence of the database, it was unnecessary for judges to view the materials produced in these cases save in exceptional circumstances

Conclusion

BSQ welcomes an end to the worrying trend for prosecutors and police officers to provide their own gloss and commentary on the guidelines and their application when providing detailed descriptions of images found during sentencing. By providing greater clarity in the application of the guidelines this decision will hopefully result in more consistency in the sentences handed down for the most serious cases and enable lawyers to better advise their clients of the possible outcomes.

 

New Corporate Tax Facilitation Offence - Part 2 of our Criminal Finances Act 2017 Summary

Roger Sahota's summary of the new corporate tax facilitation offence as published in this weeks Law Society Gazette. 

Corporate Facilitation of Tax Evasion

In recent times the Government has oft-pronounced its intention to target the facilitators and enablers of tax evasion. This new offence is directed at holding companies to account for the actions of their employees in facilitating tax evasion or assisting customers to evade tax. Only a relevant body i.e. a legal entity such as a company or partnership (wherever incorporated or organised) can commit the offence, not an individual. Two new failure to prevent offences apply – failure to prevent facilitation of domestic tax evasion and failure to prevent facilitation of foreign tax evasion. Where a person “associated with” a relevant body commits a foreign or UK tax facilitation evasion offence the relevant body will be vicariously liable. An “associated person’ is broadly defined to include an employee, agent or any other person performing services on or behalf of the relevant body. Any prosecution requires the consent of the DPP or Director of the SFO. Potential fines are unlimited.

 UK Offence (s.45)

The s.45 facilitation offence is founded on tax evasion crimes such as cheating the revenue or other fraudulent evasion offences.  Strict liability offences are excluded. Dishonest intent for the underlying offence as well as dishonest facilitation must be proved. According to the Explanatory Notes accompanying the Bill, aggressive avoidance falling short of evasion or inadvertent or negligent facilitation is not criminalised. In practice, evidence of dishonesty could include concealment, misrepresentation, non-disclosure or even recklessness in the form of turning a blind eye to wrongdoing.

Foreign Offence (s.46)

The s46 offence criminalises non-UK tax evasion by a UK company. It applies where the relevant body has a nexus with the UK, the conduct concerned amounts to an offence where the tax is levied and a dual criminality test is satisfied. Whether the HMRC should have the power to bring a prosecution in the UK for tax evasion in a foreign jurisdiction is a topic of some debate.

Reasonable Prevention Procedures Defence

Modelled on s.7(2) of the Bribery Act 2010, the Act provides for a defence where at the time of the offence the relevant body has in force “reasonable prevention procedures.” HMRC draft guidance is available and states that “If a relevant body can demonstrate that it has put in place a system of reasonable prevention procedures that identifies and mitigates its tax evasion facilitation risks, then prosecution is unlikely as it will be able to raise a defence.”

Much controversy has arisen over the new tax offences. Traditionally, to hold a company liable for the illegal acts of directors, employees or agents it was necessary to show that the individuals responsible represented it’s ‘directing mind or will.’ This approach was criticised for making it too difficult to prosecute companies, particularly large- or medium-sized ventures where the directors are some distance removed from the day-to-day actions of their employees. In the one words of one academic, this identification doctrine ‘works best in cases where it is needed least (i.e. small businesses) and works least where it is needed most’.

In expanding the scope of criminal liability for companies accused of facilitating tax evasion many observers believe that the Government has swung the pendulum too far the other way. Rather than focusing on attributing the criminal act to the company, the offences focus on and criminalise the company’s failure to prevent those who act for or on its behalf from facilitating tax evasion. Because the Act is broadly drafted it is capable of wide application. It has the potential to criminalise inadvertent facilitation in cases where senior management were unaware of and uninvolved in any criminal conduct by employees. Liability also arises even where no benefit has accrued to the company.

Time will tell if the HMRC has the resources to prosecute such cases successfully. What is clear is that the “failure to prevent” model employed here and in the Bribery Act 2010 appears to the preferred choice of Government in its efforts to reframe the law on corporate criminal liability to meet the political imperative of corporate accountability. In March this year a MOJ consultation on proposals for a new corporate liability offence for economic crime came to a close. It should come as no surprise to practitioners if the legislation proposed for this new offence, expected to be announced in the Autumn, adopts a similar format. If so, companies will have an even greater incentive in future to ensure that their compliance procedures adequately address any risk of exposure to economic crime by their employees.