Criminal Solicitors Londo

BSQ Partner Daniel Godden Writes for Blackstones Criminal Practice 2019

BSQ partner Daniel Gordon has been commissioned to contribute to Blackstone’s Criminal Practice 2019. Blackstones is regarded as one of the authoritative reference sources for criminal lawyers practising in England and Wales. 

Daniel has been instructed to write and update the publications chapter on police powers.

Daniel specialises in defending serious fraud and financial crime cases. He is recognised as one of the leading criminal practitioners in London and is described by the Legal 500 as a ‘fantastic lawyer’ who is ‘first rate’ with ‘encyclopaedic knowledge.’

BSQ Cash Seizure Success

In contested cash seizure proceedings BSQ partner Roger Sahota has successfully secured the return of £10,000 to one of our clients. The cash was detained in the course of a fraud investigation concerning an investment broker in the city. After protracted correspondence, no further action was taken in relation to the underlying criminal investigation and cash seized from our client was returned.

 Roger Sahota has acted in a number of cases recently where he has successfully secured the return of large sums of cash detained in cash seizure proceedings before the Magistrate’s Court bought under Part 5 of the Proceeds of Crime Act 2002 - see here,

Roger is also currently instructed in a number of contested cash seizure and account freezing order proceedings before the Westminster Magistrate’s Court.

 If you require advice and assistance in relation to a cash seizure case please contact our London offices.

BSQ Instructed in Another Indian Extradition Challenge

BSQ partner Roger J Sahota has been instructed in another challenge to an extradition request brought by the Government of India

This follows on from a successful BSQ defence application for an extradition request to be discharged in the recent case of Angurala.

Extradition requests from the GOI are now attracting keen media interest in India, particularly with the Westminster Magistrates Court due to pass judgement on the GOI request made in the case of Vijay Mallya on December 10 2018.

Further details can be found here.

Roger Sahota is an expert in international criminal law and defending extradition cases. If you require advice in relation to an extradition request please call our London office.

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. 
 

Court of Appeal clarifies Meaning of ‘Possession” in Indecent Images Prosecutions

BSQ Partner Roger Sahota considers the recent case of R v Okoro (No 3) [2018] EWCA Crim 1929

 In a significant recent decision the Court of Appeal has clarified the meaning in the criminal law of “possession” as it applies to digital images that are sent electronically and are unsolicited. The ruling takes into account recent developments in technology which mean that firstly, vast volumes of information can now be stored on individual’s phones and secondly, much of that information may be unknown and indeed inaccessible to the ordinary phone user.  

In Okoro (no 3) the Accused was charged with possession of an indecent image of a child contrary to s160(2) of the Criminal Justice Act (“CJA”) 1988. This is one of two potential “possession” offences that apply in regards to digital images. S.63 of the Criminal Justice and Immigration Act 2008 (“CJIA”) further criminalises the possession of extreme pornographic images. The Accused also faced charges under this section. Charges of “possessing” indecent images are often pursued when the CPS are unable to prove the “Making” or Downloading offence contrary to S.1(1) of the Protection of Children Act 1978 (usually where indecent material is found on a device but it cannot be shown who downloaded it and/or how it arrived or they are unsolicited.)

 The main issue the Court considered was whether it was necessary for the Crown to show that a user knew what the contents of a file were to prove “possession.’ There is no statutory definition of the concept of “possession.” Several cases had considered the question but the Court of Appeal clearly felt the time had come to update the law in this area. The Defence claimed the Trial Judge had misdirected the jury on this point. It was their case that the Accused did not know what was in the files that were sent to him via Whatsapp as they were unsolicited and he had not viewed them.

 Taking into account modern technological advances the Court held that it would be unrealistic for the law to require that an Accused should know of the contents of each relevant file on his device to prove possession.  This could however be established;-

 “if the accused can be shown to have been aware of a relevant digital file or package of files which he has the capacity to access, even if he cannot be shown to have opened or scrutinised the material.”

 In other words, an Accused would have possession if he knew that he had received custody or control of a file or package or group of electronic files. He did not have to know what the contents were of each image. Knowledge for example that digital files had been sent by email as attachments or on Whatsapp would suffice i.e.-

 “for these statutory purposes we are clear that possession is established if the accused can be shown to have been aware of a relevant digital file or package of files which he has the capacity to access, even if he cannot be shown to have opened or scrutinised the material.”

 The correct approach in these cases was therefore for the Crown to show, firstly, that the legal definition of possession was made out.

 Thereafter, an Accused who claimed as in Okoro (no 3) that the files were sent unsolicited and had never been viewed could advance one of the statutory defences under s.160(2) of the CJA 1988, limbs (a)-(c)[1] which he had to prove was more likely than not to be true;-  

 (a)  that he had a legitimate reason for having the photograph or pseudo-photograph in his possession; or

 (b)  that he had not himself seen the photograph or pseudo-photograph and did not know, nor had any cause to suspect, it to be indecent; or

 (c)   that the photograph or pseudo-photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.

 Unfortunately for the Accused in Okoro (no 3), the jury decided that he had not made out either of the statutory defences he relied on at limbs (b) and (c). This was always likely to be an uphill struggle for the Accused – while there was no technical evidence to conclusively show he had viewed one indecent image of a child the jury were invited to infer that he had from other technical evidence which showed that he had chosen to save it his personal “vault” and then never deleted it (he claimed that he intended this but had forgotten to do so.)

 Ultimately the Court of Appeal therefore found no error in the Judge’s direction to the jury that the Appellant had admitted possession of the two images, but that he said (relying on the statutory defences under s.160 CJA 1988 and s.65 CJIA 2008) that he did not know the content of them. In setting out the way in which the law should be applied in “possession” of digital images cases this decision provides some welcome precision in a highly technical area of the criminal law.

 If you require any advice or assistance in an indecent images prosecution contact our London offices


[1] The same defences apply to the extreme pornography charge under s.63 of the CJIA 2008 (see s.65 CJIA statutory defences.)

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. 

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.

Client Guide to Financial Statements During the Confiscation Process

Confiscation law is one of the most complicated areas of criminal law. Roger Sahota is one of the leading criminal solicitors in this narrow field. We have prepared this guide for clients who are concerned at what will happen if they are involved in confiscation proceedings after their conviction.

This guide has been prepared in response to many frequently asked questions from of our confiscation clients we have prepared an overview of the confiscation process under POCA 2002.Itr predates the Serious Crime bill 2015. It is a general gude to the law and procedure - for specific advice on your individual case please contact a lawyer.

Below we set out the procedure for defendants who are asked to provide a financial statement after their conviction.

POCA Confiscation Procedure

Which Court?

The Confiscation procedure begins in the Crown Court after an Defendant has been sentenced.

Who Brings the Confiscation Proceedings?

The confiscation process begins as soon as a prosecutor requests it or the court believes it to be appropriate.  If the Prosecution requests it the Court must proceed.

The process begins in a case where the Prosecution brings proceedings when the Crown serves a notice on the Court under s 16 of POCA. This notice confirms their intention to apply for confiscation.

What is the Standard of Proof?

Unlike ordinary criminal cases, the standard of proof in any POCA case, for all parties is the balance of probabilities, a lower threshold than beyond reasonable doubt.

Ordinary rules of criminal evidence also do not apply so, for example, hearsay evidence is admissible.

What Information Must the Defendants Provide?

The Defendant will receive a statement from the Court issued under Section 18 (3) of the Proceeds of Crime Act.

The notice requires an Defendant to provide a statement detailing all of their assets and liabilities by a certain deadline. The Defendant must set out details of all assets including

•    property,
•    bank and building society accounts,
•    savings, investments, premium bonds,
•    stocks and shares,
•    cash deposits,
•    traveller cheques, postal orders and other financial instruments

In lifestyle cases, the defendant must provide details of any gifts of transfers received of property from the relevant date i.e. six years before the present case began.

Supporting documentation must also be provided including receipts, invoices, statements and proof of purchase and ownership.

The Court will provide a timetable for the Prosecution to reply to the statement from the Defence and the date for a final hearing.

What are the Prosecutor’s Powers?

A Section 16 POCA Notice, known as a Statement of Information will be prepared by the Crown’s Financial Investigator early in the proceedings and normally once the Defence statement has been received.

The statement contains all the matters that the Prosecutor believes are relevant for the court to consider when deciding the case.

The statement will indicate if the Crown claim that the Defendant has a criminal lifestyle.

During this process the Prosecution can use their investigative powers under POCA to make further enquiries to determine what assets a Defendant has.

The s 16 statement will set out the
•    relevant facts of the underlying conviction
•    summarise the defendant’s financial circumstances
•    what is believed to be is the defendants benefit, the recoverable and  available amount
•    the amount of the confiscation order requested
•    It will clearly state if the Prosecution believes that the defendant has hidden assets or has made tainted gifts.

What are the Court’s Powers?

The Court has various investigative powers it can exercise at the request of the Financial Investigator and the Crown. Generally the Court also has a wide power to order an Defendant to provide further information to help it carry out its functions. If the Defendant does not co-operate, the court can draw an inference.

What Must the Defence Show?

If the Defence disagree with any of the facts that the Prosecution rely on or the conclusions arrived at they must say why. Failing to object could be seen as acceptance of the Crown’s submissions.

The Defence must serve a formal reply to the prosecutors notice setting out the information requested supported by a statement of truth from the defendant.

Documents should be provided by the Defence to prove any of the points they rely on.   The court will not accept or vague or generalised assertions made by the Defence.

In some cases it may be possible for the Defence and Prosecution to agree on the amount owed and the quantum of the confiscation order.  However, the Court is not bound by any agreement made by the parties.

What Happens At The Final Hearing?

Both parties are entitled to file replies and counter replies to the statements of information they rely on. After the parties have filed the documents, evidence and additional skeleton arguments they rely on a final date will be set for the confiscation hearing.

At this hearing witnesses and experts can be called to give evidence. The Defence have every opportunity to challenge evidence against them and to call witnesses.   Both parties will present their closing arguments before a decision on the Confiscation Order is made.

Client Guide to the Confiscation Order Process

Client Guide to the Confiscation Order Process

Confiscation law is one of the most complicated areas of criminal law. Roger Sahota is one of the leading criminal solicitors in this narrow field. We have prepared this guide for clients who are concerned at what will happen if they are involved in confiscation proceedings after their conviction

Expert Evidence Must Be “Sufficiently Reliable” To Be Used In Criminal Proceedings

Expert Evidence Must Be “Sufficiently Reliable” To Be Used In Criminal Proceedings

New criminal procedure rules came into effect in October 2014 which set out best practice for the use of expert evidence in criminal proceedings. Experts are used extensively in a large proportion of our cases and can often make the difference between a conviction and a successful outcome. Clients should beware of the new procedures, which plays a far greater emphasis on the courts than before in assessing the reliability of expert evidence and the credentials of those claiming to be experts.

Client Guide to Cannabis Cultivation Cases Part 1 – Challenging the Police Experts Report

Client Guide to Cannabis Cultivation Cases Part 1 – Challenging the Police Experts Report

 

This client guide has been prepared in response to numerous queries from our criminal defence clients who have approached us having been dissatisfied with the advice that they have received from other sources when they have been prosecuted for cannabis cultivation offences.

Unlike many other lawyers practising in this area, we always instruct forensic experts to comment on the conclusions relied on by the Prosecution when presenting their case to the court. 

Client Bulletin – Election Promises on the Human Rights Act

The Labour Party and the Conservatives have now published their Election manifestos. It will come as no surprise to anybody with an interest in the law that the parties have diametrically opposed views on whether Britain should continue to subscribe to the European Convention of Human Rights.

The HRA is one issue where no one can claim that there is no significant difference between the positions adopted by the main parties.

Labour’s manifesto celebrates the Human Rights Act as one of New Labour's main achievements. It advocates reform of the European Court of Human Rights without providing any further details as to what that would mean in practice.

“Thanks to the Human Rights Act, some of our most vulnerable citizens, including disabled people and victims of crime, have been given a powerful means of redress. The Conservatives want to leave the European Convention of Human Rights, and abolish the Human Rights Act. A Labour Government will stand up for citizens’ individual rights, protecting the Human Rights Act and reforming, rather than walking away from, the European Court of Human Rights. And we will make sure that access to legal representation, a cornerstone of our democracy, is not determined by personal wealth, but remains available to those that need it.

The Conservatives are unequivocally clear on their desire to scrap the HRA and introduce a British Bill of Rights. They will

“scrap the Human Rights Act and curtail the role of the European Court of Human Rights, so  that foreign criminals can be more easily deported from Britain.  We have stopped prisoners from having the vote, and have deported suspected terrorists such as Abu Qatada, despite all the problems created by Labour’s human rights laws. The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our  own Supreme Court the ultimate arbiter of human rights matters in the UK. We will continue the £375 million modernisation of our courts system, reducing delay and frustration for the public. And we will continue to review our legal aid systems, so they can continue to provide access to justice in an efficient way.”

You can read Roger Sahota’s article for the Huffington Post in defence of the HRA here.   

Are The Police Cracking Down On Home Cannabis Cultivators?

Are The Police Cracking Down On Home Cannabis Cultivators?

Very little data is available on the numbers of prosecutions in this area and we are undertaking research at the moment on this topic.  However we have noticed that whereas traditionally, importers brought in large quantities of herbal cannabis from Europe and in particular the Netherlands there is a growing trend now for domestic cultivation in the UK.

Client Bulletin – Changes to the Law on Pre-charge Bail

One of the most frequently raised concerns we are asked to address is the inordinate length of time many of our clients in more serious cases are kept on bail whilst the police conduct their enquiries.

 At present in law there is no limit to the length of time a person can spend on pre-charge bail. It is not unusual for suspects in criminal investigations to find themselves on bail for many months, if not years. In 2014 it was estimated that more than 5000 members of the public were languishing on pre-charge bail for more than six months during a police investigation.

It is a fundamental principle of criminal law that every suspect in a criminal investigation has the right to be presumed innocent. Flowing from this is the right for their case to be tried and dealt with as quickly as possible. The stress and anxiety experienced by suspects on pre-charge bail means that it can be tantamount to punishment without a trial and offends these important principles.

In response to concern from legal professionals and academics the Home Secretary, Theresa May,  asked the College of Policing to look into how police manage precharge bail earlier this year. In their responses to the consultation that followed both the Law Society and the Crown Prosecution Service argued that a statutory time limit on precharge bail was not in the public interest.

On 23 March this year the Conservatives announced their policy stance on pre-charge bail. If elected to office after 7 May 2015, they intend  

·       to give police the power to bail suspects for up to 28 days

·       to allow senior police officers to extend bail in certain circumstances up to a period of two months

·       applications for bail to be extended beyond three months must be heard by a magistrate

·       there will be regular scrutiny by the courts of any extension beyond the initial three months

In our view, these proposals should be welcomed.  Too many innocent members of the public remain under suspicion for serious crimes for prolonged periods when they can do little to defend themselves. Giving Judges the power to monitor and review periods of precharge bail and the progress of an investigation will ensure that police bail periods are “necessary and proportionate” in the circumstances of an investigation.

There has been cross party support for a review of the law on pre-charge bail. We hope that reform of the law in this area, which is long overdue, follows whoever wins the next General Election.

SFIS takes over Benefit Fraud Investigations

Continuing our series on thr latest Benefit Fraud Law updates we report on the work of the SFIS, the Government agency that has taken over conduct of all Benefit Fraud investigations.

Until last year, the HM Revenue and Customs (HMRC) were responsible for investigating and prosecuting fraudulent tax credit claims credits while the Department for Work and Pensions (DWP) and local authorities are responsible for fraudulent social security benefit claim cases.

Under new Government proposals since 2015 all these cases are to be handled by a new agency, the Single Fraud Investigation Service (SFIS).

The SFIS is a partnership between DWP Fraud Investigation Service, HMRC and local authorities. All three organisations will work closely together to deliver a service where a single investigation covers all welfare benefit fraud allowing SFIS to make more efficient use of its resources at its disposal.

It has taken quite a while for the SFIS to come to life. In 2011 it was agreed that there would be a first pilot. In 2013, 4 pilots were launched in order to find the best delivery model in Corby Borough Council, Glasgow City Council, London Borough of Hillingdon and Wrexham Council.

The objectives of the new SFIS are:

·      To ensure all fraudulent claims of social security and tax credits are be investigated according to a single set of guidelines and priorities.

·      To create a more coherent investigation service that is joined up, efficient and operates in a more consistent fair manner.

·      To conduct single investigations.

·      To fuse together expertise.

There are concerns as to whether SFIS would be able to achieve its main aim to address multiple frauds together in single investigations and prosecutions, especially if it is rolled out before the Universal Credit scheme is.

SFIS was rolled out from October 2014 through to March 2016. Prosecutions arising from SFIS will be conducted by the Crown Prosecution Service in England and Wales.

For more information read our dedicated Benefits Fraud page.  

Confiscation Orders Blog – Section 22 of POCA

Confiscation Orders Blog – Section 22 of POCA

Anecdotal evidence suggests that there has been an significant increase recently in the number of applications recently made under Section 22 of POCA 2002.

This provision allows the Crown to apply to the court for a reconsideration of a defendant’s available amount after the confiscation order has been made. 

 Many recent clients have fallen foul of these provisions.  In one case, Client A, a defendant who had served his default sentence having been made subject to a confiscation order in excess of £1 million had recently found himself subject to a potential Section 22 Application. 

Client Guide to Benefit Fraud Interviews

Client Guide to Benefit Fraud Interviews

Our guide has been prepared  in response to concerns raised by many of our clients at advice they have been given not to attend this process - we would urge potential clients to be wary if they are given such instructions.

What Happens During An Investigation?

The first time you will be aware of the investigation is when the DWP, local authority or other agency write to you asking you to attend an interview.

How Will EU Exit Impact on White Collar Crime Enforcement - Global Investigations Review

Global Investigations Review is a magazine which focuses on white-collar crime. A feature in their October edition concerned the possible impact of the UK exiting the EU on white-collar crime enforcement, legislation and regulation.

"Many UK lawyers believe the effects of an exit would in fact be minimal. Roger Sahota in London is typical.

“While there may be great changes in Britain, the impact on white-collar crime would be negligible,” he said. “The UK has decided to repatriate crime and policing laws from the EU well before any referendum takes place.”

Sahota said the net effect of the UK’s block opt-out is that: “The UK will be largely free to determine, regulate and enforce its own white-collar crime laws, regardless of whether it decides to leave the EU or not.”