Criminal Law Defences

BSQ Partner Daniel Godden Writes for Blackstones Criminal Practice 2019

BSQ partner Daniel Godden 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 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.

City Professional Cleared of Assault

Following an intervention and pre-charge representations by BSQ’s private client department partner Roger Sahota a police investigation into an allegation of assault against our client, a senior city finance professional has been discontinued.

Counsel instructed was Alexander Cameron QC of 3 Raymond Buildings.

Call our Mayfair offices on 0203 858 0851 if you require advice in connection with a criminal, regulatory or fraud prosecution.  

Immigration Adviser Cleared in Regulatory Prosecution

BSQ’s private client department reports another success. Our client, a legal professional was cleared of all charges in the Crown Court following a criminal prosecution brought by the Office of Immigration Services Commissioner (‘OISC’).

Counsel instructed was Siobhan Grey QC of Doughty Street Chambers together with BSQ partner Goran Stojsavljevic.  

Call our Mayfair offices on 0203 858 0851 if you require advice in connection with a criminal, regulatory or fraud prosecution.  

 

Private Client Success - CPS Discontinue Case Against Professional Client

BSQ can report another successful outcome for our private client department. A decision was taken by the CPS this week to discontinue proceedings against our client, a qualified and regulated legal professional following an intervention by BSQ partner Goran Stojsvlejvic.

Counsel instructed was Siobhan Grey QC of Doughty Street Chambers.  Consequently, our client is free to continue in practice without a stain on their reputation.  

BSQ Briefing - New pre- charge police bail rules are "flawed" says expert

New rules dictating the length of time that suspects in a police investigation can remain on bail pending a decision on charge are due to take effect in April 2017. Helpfully, the Home Office has issued guidance in advance of their introduction from the College of Policing on how the new scheme will work. While the changes are to be welcomed, defence lawyers advising individuals waiting for months or in some cases years for a CPS charging decision will find little to cheer about.

The proposals address some of the criticism raised in the media (see earlier blogs) particularly after the collapse of several recent Operation Yewtree investigations (including that concerning the DJ Paul Gambaccini, who has written a book (“Love Paul Gambaccini”) about his experience).

But the new rules are flawed because they place no limit on the length of time that a suspect can remain on bail while the CPS consider whether or not to charge. This was one of the main issues highlighted by Gambaccini who remained on bail for over a year pending a decision to proceed with the allegations of sexual misconduct made against him.

Nor will there be any opportunity for defendants to ask magistrates to review the length of time the CPS takes over a decision to charge. In our experience charging decisions can take months, if not years in some cases, a situation which is clearly unacceptable and arguably in breach of ECHR guarantees that criminal investigations should be carried out within a reasonable time.

However, there is much to be welcomed in the proposals which bite in the context of police bail investigations where enquiries are still being carried out before a file is passed to the CPS for a charging decision. The proposals include provisions that;

-       Police bail during an investigation must be reviewed at regular intervals i.e. at 28 days, 3 months and 6 months by an authorising officer of the rank of inspector or above (although the clock will stop whenever a file is with the CPS for a charging review);

-       Defence Lawyers will be allowed to make representations to the police re e.g. conditions imposed on bail and the length of time an investigation is taking;

-       There is an onus on the police to keep suspects informed of the progress of an investigation;

-       Suspects will be able to ask a Magistrate to review the grant of bail in certain circumstances after an internal police review;

-       Bail can only be extended beyond a period of 6 months if a case is deemed to be “exceptionally complex” with the approval of an authorised prosecutor;

Importantly, the police will be able to opt out entirely of the regime if they deem that a suspect can be released without granting bail – there is no barrier to an investigation continuing in this situation.

Practitioners can also expect some interesting litigation concerning the interpretation of when it is “necessary and proportionate” for bail to be granted by senior police officers and the courts.

Finally, perhaps the most useful aspect of the new regime from a defence lawyers point of view will be the ability to appeal to a magistrates to review a decision to extend police investigative bail. From disclosure requests and by cross-examining the officer in the case in the course of this application clients will have a tactical opportunity to obtain far more information about the progress of an investigation than the police currently disclose or may necessarily wish to disclose.

 

 

Daniel Godden represents Darryl Rowe in HIV GBH Allegation

Berkeley Square Solicitors partner has been instructed to represent Darryl Rowe. Mr Rowe has now been charged with eight counts of causing grievous bodily harm and one count of attempting to cause grievous bodily harm.

The case will be heard at Lewes Crown Court.  

Sussex Police have said the allegations against Mr Rowe are that he deliberately infected men he met with HIV.

Daniel Godden has previously acted in number of similar cases, none of which have resulted in convictions.

The case has generated substantial media coverage. Read more here

Berkeley Square Partner Instructed in Murder Investigation

Berkeley Square partner Goran Stojsavljevic has been instructed to represent one of the Accused in a multi-handed murder prosecution. Proceedings are at a early stage.

Goran's practice focuses on representing both individuals and corporate bodies investigated and prosecuted for serious and financial crime.

If you require advice in an ongoing criminal investigation please contact our London offices. 

Crown Court Acquittal for Private Crime Department

Berkeley Square Solicitors can report a third successive acquittal in recent weeks for our private client crime department.

Our client, a company director was acquitted after a 5 day trial in the Crown Court. Charges related to an allegation of assault.

Berkeley Square's private crime department specialises in defending professionals of good character in criminal proceedings. We are pleased to report a number of outstanding results in recent contested criminal trials - see our recent blog entries here and here. 

Counsel instructed was Michael McGarian of Drystone Chambers. The instructing solicitor was Roger J Sahota. 

Acquittal in Assault Trial For Private Client Defence Department – Professional Defendant of Good Character Vindicated

Berkeley Square Solicitors private client defence department can report the acquittal of two young professionals cleared of common assault. Both our clients, city professionals retain their unblemished good character.

Counsel instructed was Michael McGarian QC of Drystone chambers.

Voluntary Attendance at Police Interviews – Client Briefing

A core part of our practice involves representing individuals, normally professionals of good character, who have been asked by the police to attend voluntary interviews under caution.

 This briefing note analyses why the number of voluntary interviews conducted by the police in recent years has increased dramatically.

For those asked to submit themselves to police questioning, a voluntary interview is the best of the options available. Where the police believe they have sufficient grounds to question a suspect they can proceed in one of two ways i.e. either by arresting the suspect and conducting an interview under PACE 1984 or inviting a suspect to attend a voluntary interview.

 A voluntary attendance is always our preferred option because it will mean that no formal record of an individual's arrest will be created. Where an individual is arrested, and even if no criminal proceedings or disposal follows, problems can arise in the future. Details of an arrest often have to be disclosed on certain visa application forms for example. The Financial Conduct Authority (FCA) also requires applicants for a financial services licence to disclose if they have ever been arrested. A volunteer who has been asked to attend a police station to be interviewed can properly answer any such enquiry in the negative.

The number of voluntary interviews has been rising in recent years as they are viewed by the police as cost effective alternatives to taking suspects into custody. The police are likely to make even greater use of this procedure if planned changes to the law take effect.

Proposals to limit the time suspects can spend on bail in police investigations – see our earlier post here – are currently before Parliament in the form of the Policing and Criminal Justice Bill. It proposes limiting the length of time a suspect can remain on bail before charge to 28 days. This can be extended to 3 months on application by a senior police officer.

We have previously expressed our concerns at the possible impact of such legislation. To get around these time limits, it is anticipated that the police will interview suspects and then release them without bail whilst an investigation continues. There will be no formal obligation on them to return at a specific time to a police station.

Not knowing when the investigation will end, but aware that an enquiry is ongoing, will place suspects in a deeply unsatisfactory position. The law reform group Justice has commented that these proposals, may cause

"significant worry and uncertainty for both suspects and victims, which can be unfair, unreasonable and very hard to bear. Suspects may be treated as "guilty by association" by the public.”

Justice has made recommendations which we in this practice support.

First, Justice has suggested a 12 month limit on the time span of any police investigation, extendable further only after an internal review by an independent officer of at least the rank of a Detective Superintendent.

Furthermore, after the 12 month time period has expired, Justice has called for suspects to have the right to apply to a court for the investigation to be discontinued.

 We shall report further on the progress of this legislation in due course.

 

Client Briefing: Local Authority Prosecutions of HMO Landlords

Local Authority prosecutions of landlords who run unlicensed HMO’s are on the rise. At Berkeley Square Sahota we have extensive experience of defending landlords who have received a summonsed to attend a Magistrates Court and face criminal charges including:  

·         Being a person with control or management of a Unlicensed HMO (s.61 and s.72(1) of the Housing Act 2004

·         Breaching HMO Management Regulations e.g, failing to ensure that firefighting equipment and fire alarms were maintained in good working order (Reg 4 (2) of The Management of HMOs (England) Regulations 2006 and Section 234 (3) of the Housing Act 2004.)

·         Statutory Overcrowding

·         Illegal Evictions

Berkeley Square Solicitors have recently been instructed in a number of cases defending landlords accused of running unlicensed HMP's and related management breaches. Read our briefing note here.

Berkeley Square Solicitors maintains a database of recent prosecutions - the most recent are outlined below.

Recent HMO Prosecutions

Welwyn Hatfield Council v Adeyemi Fasogbon - 23 November 2015

Private Landlord of a HMO. On inspection council officers discovered failures to check fire safety equipment, maintain fire alarms and communal areas not to be in good and clean decorative repair. Having pleaded guilty to breaches of HMO’s Regulations 2006 fines imposed of £2,000 x 6 charges with costs to pay £10,000 costs and £120 surcharge (total £22,120)

Boston Borough Council v Dr Kola Akindele and Vanessa Akindele - 20 November 2015

Unlicensed HMO. Landlords were married couple facing 26 charges including failure to licence and breaches of HMO Regulations. After trial at Skegness Magistrates' Court, both fined £3,250 for not having a HMO licence and £500 for failing to have an adequate fire detection system. In addition, they were ordered to pay £12,702 costs and £120 victim surcharge.

If your require representation in connection with a HMO summons please contact our London office.

 

Acquittal for Berkeley Square Solicitors Private Client Department

Berkeley Square Solicitors can report another acquittal for our private client criminal defence practice.

Our client, a businessman of good character was accused of common assault. After a contested trial in the Magistrates Court the case against our client collapsed after the Justices deemed there was no case to answer at the close of the prosecution’s case.

Instructed counsel was Michael Mcgarian QC of Drystone chambers.   

How Long Before Lie Detector Evidence is Deemed Admissible in Criminal Trials?

In a recent police investigation concerning the possession of indecent images, Berkeley Square Solicitors have become aware that Hertfordshire Police force are asking suspects to take part in polygraph tests.

Interestingly, the results of these "lie detector" tests help the police decide how thoroughly they should examine the computer equipment of a suspect. As a full forensic examination can take up to a year, the police are using these tests to help them to decide if and how they should allocate resources in these investigations.

It is important to note that as a well-known principle of criminal law, evidence from a lie detectors test is not admissible as evidence as proof of a crime in this jurisdiction.

Increasingly however, these lie detector tests are being used in other areas of the criminal justice system.

For example, convicted sex offenders are regularly tested once they are released on licence.

And in appeal cases, and occasionally when mitigating after a conviction, defendants will tell the court that they have volunteered to take a lie detector test. The results, they say, establish their innocence.

In our practice we have come across cases where our clients have expressed a wish to submit to a polygraph tests. We believe that the results can be useful when trying to persuade the Crown to review a decision to prosecute.

The jury is still out on whether the results of these tests will ever be allowed in evidence in a criminal trial in the UK. There would need to be a lengthy consultation and legislation to follow for this to become reality and in the United States, there is no consensus on the issue. While some states deem that polygraph tests should be allowed, others do not as polygraph tests are often criticised for their inaccuracy.

At present however, there seems little prospect of any change in our criminal procedure along these lines.

 

Client Update - Corporate Manslaughter, Health and Safety and Food Safety – New Sentencing Guidelines Introduced

Last week the Sentencing Council announced new guidelines in corporate manslaughter, health and safety and food safety prosecutions. These will come into force on the 1st of February 2016. The  changes take place against a background where there have been an increasing number of prosecutions for health and safety violations.

The guidelines have been produced after a lengthy consultation which concluded earlier this year.

They will apply to individuals and companies prosecuted for corporate manslaughter and health and safety offences. Examples provided by the Sentencing Council for cases that the guidelines could apply to include incidents such as failing to provide the proper equipment at work causing the death of an employee, failing to provide proper training for operating machinery or a restaurant causing an outbreak of E. coli poisoning through unsafe food preparation.

In summary, the new guidelines introduce changes which mean that:

·         Custody thresholds are explicitly set out for individual offences. Where there is a deliberate breach – the highest degree of culpability – the guidelines recommend an immediate custodial sentence. For company directors, this could mean, in practice, a greater likelihood of prison should they be convicted of a relevant offence.

·         In cases said to be in the high harm category, negligent conduct could be enough to trigger a custodial sentence.

·         Higher fines for companies convicted of manslaughter and health and safety offences. Fines are now linked to the turnover of a defendant company and there is a significant increase in expected penalties. Larger companies, with a turnover in excess of £50 million, could face fines in a range between £1.5 million-£6 million, with a starting point of £2.4 million if convicted of serious health and safety breaches leading to a fatality.

Berkeley Sahota principal, Roger Sahota, in commenting on the new guidelines, said that

“With a harsh new sentencing regime now in place, those acting for companies and individual directors convicted of these offences will have to be vigilant in ensuring that the guidelines are correctly applied to their clients. I expect in future more cases will be contested and there will be lengthy arguments at the post- conviction stage as to where a corporate defendant falls within them.”

According to Sentencing Council member Michael Caplan QC:

“These guidelines will introduce a consistent approach to sentencing, ensuring fair and proportionate sentences for those who cause death or injury to their employees and the public or put them at risk. These offences can have very serious consequences and it is important that sentences reflect these.”

The guidelines can be found here.

Companies and individuals facing prosecution for regulatory offences should contact our London offices.

Prosecution Drop Charges After Berkeley Square Solicitors Intervention

Dishonesty convictions can have a devastating effect on the career prospects of professional clients. Our practice specialises in diverting cases away from prosecution. Berkeley Square Solicitors are therefore pleased to announce another success following a post charge intervention by Roger Sahota.

Having approached several other firms our client retained us after fraud charges were brought by the police. On examining the case we advised that in our opinion the prosecution amounted to an abuse of process and should be contested at trial. Having initially refused our representations, a decision was taken on review by the CPS to discontinue charges in the Crown Court, bringing to an end the proceedings.

if you require assistance after being accused of criminal offences please contact our offices on 0208 411 0221.

Roger Sahota Attends Madrid Legal Conference

Roger Sahota attended the annual London Criminal Courts Solicitors Association legal conference in Madrid in October 2015.

Delegates were provided with updates on the latest developments in the criminal law from Professor David Ormerod QC while Professor Rudy Fortson QC lectured on the pending Psychoactive Substances Bill currently in its second reading before the House of Commons.

On Sunday Jeremy Dein QC summarised the provisions of the new Criminal Procedure Rules 2015.


 

Drink-Driving Client Guide

Drink-Driving Client Guide

Drink-Driving Client Guide

This guide is prepared to provide our clients with answers to FAQs about drinking and driving offence. This guide constitutes general advice. For advice specific to your case you should consult a lawyer.

The Roadside Test – When Can You Be Asked To Take One?

You can be stopped by a plainclothes officer but the test must be administered by a uniformed constable unless there has been an accident.

A police officer can only ask you to take a test if