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.

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.