international criminal

A New EU Frontier In The Criminal Law – The European Supervision Order

The recent debate on Britains exit from the EU – see post – has brought to our attention a little-known but important new measure that came into force in December 2014 when the UK "opted in" to 35 criminal justice and policing measures which are part of EU law.

Much has already been written about the European Arrest Warrant (EAW) arrangements which are part of these measures. Here we focus on another important initiative – the European Supervision Order (ESO).

The ESO framework creates a system where people lawfully remanded on bail in one EU member state (State A) during criminal proceedings can reside in another member state (State B) while they await trial providing they are lawfully and ordinarily resident in State B.

Suspects in this situation can therefore continue leading their normal lives and following their domestic employment, housing and personal and family arrangements.

So far the framework decision has been implemented in France and Spain as well as the UK. The ESO framework may soon therefore be applied in these jurisdictions.

The framework rules also mean that where a person who is released on bail to another country does not voluntarily return for their trial, the European Arrest Warrant process will be triggered to secure their return.

We anticipate some interesting litigation concerning ESOs, which are of particular interest to this practice due to the international nature of our clientele.

Many interesting legal questions may arise from the operation of the ESO framework including the issue of whether suspects on pre-charge bail during a police investigation will be able to rely on the ESO to live abroad.

For lawyers in the UK the ESO framework breaks new ground for another reason. Any dispute concerning the validity and interpretation of the ESO framework may be referred by the UK courts to the Court of Justice of the EU (CJEU – distinct from the European Court of Human Rights, the CJEU rules on matters of EU law). A fast track procedure will apply if a case is referred to the CJEU – known as the PPS – so that a "Preliminary Reference" can be made and dealt with by quickly, often within three months.

However, any decision made by the CJEU will only provide guidance on the disputed issue as the ultimate decision as to how to proceed will remain with national courts.

War Crimes Prosecution Discontinued

Last Summer last year the practice was instructed in an unusual and high profile UK war crimes investigation. The enquiry by S015 of Scotland Yard related to historic serious crimes committed by British troops shortly after the Second World War and was the first of it's kind.

Berkeley Square Solicitors are pleased to announce that, following representations made to the authorities by Roger Sahota, a decision has been reached to discontinue the case.

The only solicitor to have conducted a war crimes trial in the Hague. Roger Sahota is one of the countries leading criminal defence solicitors. If you wish to consult Roger on a domestic or international war crimes case, please contact our offices.

Roger Sahota Lectures Law Society on International Criminal Law and ECHR

Roger Sahota was invited together with prof. William Schabas to lecture the Law Society on the intersection between international criminal law and the work of the European Court of Human rights. 

To view a video of the presentation visit https://www.youtube.com/watch?v=aR_dLQBgMMA&feature=youtu.be

Al-Jazeera Interviews Roger Sahota on Human Rights Situation in Egypt

Following a press conference to announce the findings of the ICFR human rights delegation to Egypt between 11-15 October 2015, Roger Sahota was interviewed on Al-jazeera English and Arabic and Arabic as well as many other media outlets. The Middle East Monitor noted that

"An international legal delegation to Egypt has slammed the government's repression of its political opponents as characteristic of a "police state", at the launch of a new report in London today... Speaking first on the delegation's trip to Egypt 11-15 October, Sahota criticised the authorities' denial of access to ousted Pres. Morsi's trial, despite repeated applications and advance communication with the relevant parties.

Based on testimony from lawyers of other defendants, and drawing on the frequently-cited Human Rights Watch report of August this year, Sahota expressed concern that the trial of Morsi, as well as others, did not meet international standards for fairness.

According to Sahota, the delegation met with a variety of persons, including detainees' relatives, the families of the deceased, students, lawyers, trade unionists, politicians, and also some government officials.

"We heard disturbing accounts of indiscriminate arrests, torture in detention, the targeting of student and political activists – evidence of a deliberate strategy to deny political detainees the basic rudiments of due process."

https://www.middleeastmonitor.com/news/europe/15263-legal-delegation-to-egypt-slams-al-sisis-qpolice-stateq-urges-international-action

Egypt Human Rights Mission 11-15 October 2014

Roger Sahota was invited to attend a Human Rights Mission to Egypt from the 11-15 October 2014. The delegation was organised by the International Coalition for Freedom and Rights (ICFR). Roger wrote about the trip for the Society of Asian Lawyers Blog. The trip attracted a great deal of media attention in Cairo and took place with the knowledge and permission of the Egyptian Ministry of Interior's Human Rights Department. For the SAL blog Roger wrote;

"As part of a 11 strong delegation I was invited to attend a human rights monitoring mission in Egypt between the 11th to 15th October 2014. The 11 strong  delegation of independent lawyers, journalists and human rights activists was organised by the International Coalition for Freedom and Rights (“ICFR”). Our purpose was to observe the trial of Dr. Morsi and to investigate allegations of recent human rights violations.

The delegation heard evidence from lawyers, journalists, politicians, doctors, trade unionists, adult and child detainees and the families and friends of people killed or detained by the authorities following the election of a military dominated government in 2013. We also met representatives of the new military dominated government in Egypt since what has been described as a “military coup” took place on the 30 June 2013.

A common thread that emerged from the witnesses we spoke to is of the targeting of political opponents of the current regime. Those arrested who were identified as political detainees were not subject to the normal provisions of the Egyptian criminal code.

We heard many accounts of political detainees were often kept in custody for months without being produced before a court and denied access to lawyers or sight of the case against them.

Defence lawyers who also specialised in representing student protestors or anti-Government figures complained that they were often arrested and imprisoned for simply trying to perform their professional duties.

Unfortunately we were denied access to any Egyptian courts or prisons so were unable to verify these allegations. We did meet with the Egyptian Minister of Prisons who denied that any detainees were tortured or mistreated in their custody.

Based on the evidence we did hear, corroborated by the findings of a recent Human Rights Watch Egypt Country Report, it has been suggested that the delegation call on the Law Society and other national Bar Associations to consider making representations to the relevant Egyptian authorities concerning reports of the harassment, arbitrary arrest and detention of lawyers and human rights defenders for simply carrying out their professional duties and/or because of their political beliefs and religious affiliations."

Further details on the delegations work can be obtained from the ICFR website.

Roger Sahota Addresses International Advocacy Conference

Roger Sahota was invited to speak at a conference of International Advocacy Trainers organised by the Nottingham Trent Law School. Roger joined a panel of international lawyers including David Josse QC and Dan Arshank to speak about his experience as an advocate practicising before the international tribunals and the core skills needed to succed in this forum.

The two day conference attracted a host of high profile lawyers and on Friday evening was addressed by legal columnist Joshua Rozenberg.

Roger Sahota Instructed in War Crimes Investigation

 

Roger Sahota has been instructed in a groundbreaking high profile historical domestic war crimes investigation conducted by S015. Further details to follow.

Roger Sahota is the only Solicitor Advocate to have conducted a war crimes trial in the Hague and has unparalled expertise as a Solicitor in the area.

Roger now specialises in fraud, financial crime and serious crime.

Roger Sahota Admitted to ICC List of Counsel

Under Regulation 73.1 of the Regulations of the International Criminal Court, the Registrar of the Court maintains a roster of Counsel included in the List of Counsel, who are available at any time to represent any person before the Court, or to represent the interests of the defence. 

Suitable candidates must have requisite experience and expertise in international criminal law.

Roger Sahota was appointed to the list of Counsel authorised to practise before the ICC on the 25th March 2014.

 

In Conversation with Iain Morley QC - Special Tribunal for Lebanon

On the 5th February 2014 I chaired an interesting discussion with Iain Morley QC on the Special Tribunal for the Lebanon. Iain was a former prosecutor at the STL responsible for drafting the Indictment in the prosecution of Ayaash and Others. Iain had some surprisingly critical and very controversial views on the decision to proceed with trials in absentia of a number of co-accused alleged to have been responsible for the murder of the Lebanese President Rafik Hariri in Lebanon in 2005.

A podcast of the event is available here.

Waya – What if the Minority View had Prevailed?

The Supreme Court’s (SC) judgment in Waya ([2013] 1 A.C. 294) has been rightly lauded as a landmark decision in the field of post-conviction confiscation. It concerned a mortgage fraud which is dealt with below. However, the most important part of the ruling was the SC’s application of the principle of proportionality in confiscation proceedings (paragraphs 1-34) and the implications of the stance taken by a minority of the SC justices.

Confiscation Orders Must be Proportionate i.e. Fair

In short, the SC said that a sentencing judge was entitled to refuse to make a confiscation order if it was “disproportionate” because it breached Article 1 of the First Protocol the ECHR (referred to as “A1P1”). A1P1 guarantees the right to “peaceful enjoyment” of one’s possessions which can only be interfered with in limited circumstances in the public interest.

In itself this declaration adds nothing new to the law. Our courts are required to take account of the provisions of the ECHR as it was incorporated into English law with the passing of the Human Rights Act. What has changed as a consequence of the SC’s ruling is the requirement for a proportionality test to be applied to every confiscation order.

The SC was divided on what that test should be. The prevailing majority view has it’s limitations but still merits claims of a significant shift in the judiciary’s approach to confiscation orders.

Lord Philips described the identification of A1P1 as “novel and imaginative.” It is worth noting nonetheless that the SC’s decision echoes the submissions made in R v May by the Defence (Andrew Campbell Tiech QC). May was the leading House of Lords confiscation authority before Waya. Interestingly, Lord Philips and Baroness Hale presided over both appeals;

The submissions attractively advanced by Mr Campbell-Tiech QC for the appellant were in essence simple. Parliament intended to establish a confiscation regime which was effective but fair. It intended to strip wrongdoers of their ill-gotten gains but not to deprive them of that which they had never had, to permit recovery of the same sum against different defendants or to permit recovery of a sum exceeding what the victim had lost. Such results were oppressive and disproportionate, inconsistent with article 1 of the First Protocol to the European Convention on Human Rights

The Limits of Proportionality

No Return to Judicial Discretion

Many practitioners have expressed frustration at the “draconian” confiscation orders that often result from the operation of the mandatory provisions of POCA. To their dismay, the SC was careful to emphasise that it’s decision did not (and could not) confer Judges with any discretion as to the making or quantum of a confiscation order. Under the old law, s.71 of the Criminal Justice Act of 1988 allowed a Judge to make a confiscation order to “pay such sum as the court thinks fit” in certain circumstances. The SC hinted that it considered such a measure to be desirable however;

“The Crown Court has encountered many difficulties in applying POCA ‘s strict regime. Many of the complexities and difficulties of confiscation cases, arising from the extremely involved statutory language, would undoubtedly be avoided if a measure of discretion were restored, but whether to restore it, and if so in which form, is a matter for Parliament and not for the courts.”

Two further important qualifications applied to the Courts decision. First, the SC made it clear that A1P1 will have limited application to S.75 “lifestyle” cases where the assumptions are triggered. Second, the SC also upheld the House of Lords observations in May concerning an offenders benefit.

Proportionality in Lifestyle Cases

In certain cases POCA allows the court to assume that any property transferred to or held by an offender in a six year period prior to the commencement of the proceedings represents the proceeds of criminal conduct. The burden is on the offender to displace the assumption.

S10(6)(a) and (b) of POCA allows the court to disapply the assumptions if they can be shown to be incorrect or if making them would give rise to a serious risk of injustice.

In the SC’s opinion the operation of these “safety valve” provisions made it very unlikely that any order would “court the danger of being disproportionate because the assumptions will only by applied if they can be made without risk of serious injustice.”

R v May Still Rings True

The SC was also at pains to state that the operation of A1P1 would not result in a new definition of an offender’s real benefit. Nor would it allow criminals to set off the expense of committing their crimes as if they were legitimate business costs against the sum they were required to pay to the court. The findings of the House of Lords in May still rang true and a “legitimate, and proportionate, confiscation order may have one or more of three effects:

(a) it may require the defendant to pay the whole of a sum which he has obtained jointly with

others;

(b) similarly it may require several defendants each to pay a sum which has been obtained,

successively, by each of them, as where one defendant pays another for criminal property;

(c) it may require a defendant to pay the whole of a sum which he has obtained by crime

without enabling him to set off expenses of the crime.”

When is an Order Disproportionate?

Unfortunately the SC gave scant guidance as to when it would be unfair to make a confiscation order. References were made to two past cases that the Court felt that should have been decided differently as examples of where in future a confiscation order “ought to be refused” by the Judge as a disproportionate measure.

Confiscation in Excess of the Victims Loss or Offenders Reward

Citing R v Shabir (a pharmacist overcharged the NHS by £464 but the Crown applied for a confiscation order in excess of £400,000) confiscation orders where the victim’s loss or offenders reward is disproportionate to the quantum of the order may be disproportionate.

Full Recovery

An order where the offender had repaid the sole victim the extent of his loss in full may also be disproportionate as in R v May.

While these examples give some clues as to the approach endorsed by the SC, the category of cases amenable to challenge must remain open and is likely to provide fertile ground for argument in the future. According to the editors of the CLR there are many decisions where confiscation orders have been upheld that may now be in question. They provide some pointers to the avenues that could be explored;

Where the Defendant repays an amount equivalent to the sum he receives from the fraud – query if the order should not be based on the sum obtained but the profit made from it – R v Farquhar

VAT evasion cases – where the goods liable to duty are seized and so any pecuniary advantage to the offender is purely notional

Money Laundering – should a launderer receiving a specific fee for allowing monies to wash through his account be liable for the entire sum passing through his hands (Allpress)

R v Neuberg – a business providing value to customers but operating under a name closely associated to another venture now in liquidation, should the order take into account it’s entire turnover

Mortgage Frauds – the Majority View

The SC’s decision on the facts of the case concerned a mortgage fraud and may be confined to similar factual circumstances. Here, the offender purchased an apartment having obtained a mortgage by lying about his income before it was subsequently re-mortgaged. In a rising market the value of the property appreciated considerably, so much so that the original mortgage advance could be repaid from the proceeds of sale. In this type of situation, where the deposit was untainted and the mortgage had been or could be repaid, the SC majority held that the benefit obtained by the offender was limited to the fraction of the appreciation attributable to the original mortgage.

The SC thus rejected the Crowns argument that the value of the benefit obtained should reflect the mortgage advance. It was held that the mortgage advance did not form part of the offender’s benefit as it never came into his control and possession following the dicta in May. Instead the defendant obtained a thing in action (in this case an equity in redemption) with no market value that could only be realised when the flat was sold.

The SC also emphasised that there will be other mortgage frauds with the thing in action may have a value (para.53). In these cases the Crown may be entitled to claim that the offender has benefitted to the value of the mortgage advance obtained. It therefore remains unclear if the formula adopted by the SC in calculating benefit can be applied by analogy in other mortgage frauds.

The Minority View – A True Revolution Averted

Lord Philips and Lord Reed dissented from the Majority view and suggested a completely different approach. When deciding the extent to which the offfender benfitted from his criminal conduct the Court should first ask what the POCA benefit is, then ask what the “real benefit” is (in the ordinary sense) and then decide if the POCA benefit was a proportionate one.

Applying this formula in Waya they believed the offenders benefit should be limited to “the money value of obtaining his financing on better terms than might otherwise have been available” when he obtained his original mortgage rather than any part of the increase in value of the flat.

The minority approach, with it’s emphasis on “real benefit” (a concept that is irrelevant to POCA) should be welcomed. It would give the courts far greater flexibility in determining an offenders benefit, thereby allowing some discretion to mitigate the main criticism levelled against the legislation which is that it often produces excessively harsh outcomes.

Waya has been heralded as the dawn of a new era in confiscation law. This description would have been all the more apposite had the minority, not the majority view prevailed.

Diyabakir Training

Diyabakir Training

I have just returned from organising the International Advocacy Course of the Human Rights Committee of the Law Society from the 3rd to 6th October 2013 in Diyabakir, Turkey.

In response to an approach from the Diyarbakir Bar Association in South East Turkey, the HRC organised an inaugural advocacy course for more than 60 lawyers in Diyarbakir in October 2013. Turkey, like many other European countries, has an “inquisitorial” judicial procedure typical of civil law systems. Judges and lawyers in this system often have limited experience of questioning witnesses as this is not normally regarded as an essential part of their trial procedure.

New rules introduced in Turkey in 2007 giving defence counsel the right to question witnesses prompted the request for assistance from the Diyarbakir bar in 2013. In practice these rules have been little used. Turkish lawyers have generally reported an extreme reluctance on the part of the judiciary to allow them to actively participate in the examination of witnesses. They also felt they lacked the skills necessary to undertake effective examination or cross examination of any witnesses since these skills are not included in their professional training

The IAC is an intensive 3 day training programme that covers trial preparation, examination in chief, and cross examination in contested civil and criminal trials. The advocacy trainers included experienced practising defence and prosecution lawyers Judges from the UK.

 Over three days the delegates were introduced to classical case analysis, involving identification of a case theory, development of a chronology, a cast of characters and an issue analysis (identifying “good facts” and “bad facts”), developing case theories and themes and preparing written outlines of the questions to be put to witnesses.

 The sessions consisted of a mixture of taught theory and practical role play, when delegates practice examination in chief and cross examination of witnesses in the context of a case study prepared to reflect the underlying factual scenarios they may encounter in Turkey.

The 2013 IAC in Diyabakir was very well received and attracted positive local and national media coverage. Plans are afoot to return to Turkey next year with a similar event for the Turkish Bar.

Good Riddance to Abu Qatada but Britain Should Stay in the ECHR

Roger Sahota writes for the Huffington Post

“Good riddance” will be the understandable reaction of many to Abu Qatada’s departure from these shores. But we should be wary of those politicians led by Theresa May and including David Cameron, who seek to make capital of the legal obstacles that prevented Abu Qatada’s forced expulsion or today's ruling on whole life tariffs to justify the UK’s withdrawal from the ECHR. Neither case justifies that proposal. The Strasbourg's Court's decision in both cases must be kept in perspective. Britain is almost unique in Europe in sentencing some serious criminals to whole life terms. The Court is not ordering their release, nor does it's intervention make it likely they will ever be released. It requires the Government to review their detention after they have served 25 years in prison and periodically thereafter. This was the position under the old law before the whole life system was introduced.

In Abu Qatada's case, the European Court blocked efforts to deport him to Jordan, where he faces trial for terrorist offences, in January 2012. The Court found that there was a ‘real risk’ that the Jordanian Courts would rely on evidence obtained by torture, which falls foul of Article 6 of the European Convention guaranteeing the right to a fair trial. That ruling was consistent with other international precedents and the practice of our courts outlawing torture evidence on the basis it is not only immoral but inherently unreliable. Theresa May deserves praise for navigating the UK out of this quagmire. By persuading the Jordanians to amend their law she has achieved not only a political coup but contributed to the spread of internationally recognised human rights standards. It is therefore unfortunate that she and others in the Tory party are using the case as an excuse to tear up the ECHR and replace it with a British Bill of Rights. No one knows what the new Tory Bill of Rights will contain or how, if enacted it would prevent a repetition of the Abu Qatada or Jeremy Bamber saga. To stop a foreign national like Qatada from relying on international human rights conventions would be a radical step. Our courts have always applied our international human rights obligations to all nationals within our jurisdiction, not just UK citizens and we expect the same of all States. What Ms May could be advocating is a watered down version of the European convention. Curiously, this may leave UK citizens in a weaker position than they were previously and in a weaker position than our EU brethren when challenging misconduct by our state agencies. When one remembers that the ECHR was drawn up by conservative British lawyers in aftermath of World War 2 as an effort to promote the rights of the individual against an overweening state, there is some irony in the actions of their present day libertarian counterparts. Withdrawal from the ECHR will have other disastrous wide-ranging legal and political ramifications. Repeal of Labour’s Human Right Act, which requires English Courts “to take account of” ECHR judgments where they conflict with UK law, is the first of these. Next, the UK’s membership of the Council of Europe would be in jeopardy as may be our continued EU membership – new entrants to the EU for instance are required to subscribe to the Act. Further questions arise as to whether a decision by Parliament to withdraw would bind the Welsh, Scottish and Northern Ireland assemblies. These debates could keep government, EU and constitutional lawyers in clover for some time. Politically, pulling out from the ECHR will irreparably damage our international standing. It will leave the UK isolated in Europe, where the only other non-signatory is Belarus. Most worrying is the negative signal withdrawal will send about our commitment to internationally recognised human rights principles. It will give succour to those countries among the new EU entrants who are often criticised by the Strasbourg Court for their poor human rights record, not to mention other international pariah states. Last year David Cameron told an audience in Strasbourg that "Human rights is a cause that runs deep in the British heart and long in British history...We are not and never will be a country that walks on by while human rights are trampled into the dust." Those sentiments are laudable. But Cameron words have a hollow ring in light of the position he and many in his party are now taking.

Waya - What if the Minority View had Prevailed?

 

The Supreme Court’s (SC) judgment in Waya ([2013] 1 A.C. 294) has been rightly lauded as a landmark decision in the field of post-conviction confiscation, writes Roger Sahota in the fourth of a series of articles considering the impact of the case.

The Mortgage Fraud

The SC’s decision on the facts of the case concerned a mortgage fraud and may be confined to similar factual circumstances. Here, the offender purchased an apartment having obtained a mortgage by lying about his income before it was subsequently re-mortgaged.

In a rising market the value of the property appreciated considerably, so much so that the original mortgage advance could be repaid from the proceeds of sale. In this type of situation, where the deposit was untainted and the mortgage had been or could be repaid, the SC majority held that the benefit obtained by the offender was limited to the fraction of the appreciation attributable to the original mortgage.

The SC thus rejected the Crowns argument that the value of the benefit obtained should reflect the mortgage advance.

It was held that the mortgage advance did not form part of the offender’s benefit as it never came into his control and possession following the dicta in May. Instead the defendant obtained a thing in action (in this case an equity in redemption) with no market value that could only be realised when the flat was sold.

The SC also emphasised that there will be other mortgage frauds where the “thing in action” may have a value (para.53). In these cases the Crown may be entitled to claim that the offender has benefitted to the value of the mortgage advance obtained.

It therefore remains unclear if the formula adopted by the SC in calculating benefit can be applied by analogy in other mortgage frauds.

The Minority View – A True Revolution Averted

Lord Philips and Lord Reed dissented from the Majority view and suggested a completely different approach. When deciding the extent to which the offender benefited from his criminal conduct the Court should ask two questions:

Firstly, ascertain what the POCA benefit is, then

Secondly, ascertain what at the “real benefit” is (in the ordinary sense) and then decide if the POCA benefit figure was proportionate.

Applying this formula in Waya they believed the offenders benefit should be limited to “the money value of obtaining his financing on better terms than might otherwise have been available” when he obtained his original mortgage rather than any part of the increase in value of the flat.

The minority approach, with it’s emphasis on “real benefit” (a concept that is irrelevant to POCA) should be welcomed. It could give the courts far greater flexibility in determining an offenders benefit, thereby allowing some discretion to mitigate the main criticism levelled against the legislation which is that it often produces excessively harsh outcomes.

Waya has been heralded as the dawn of a new era in confiscation law. This description would have been all the more apposite had the minority, not the majority view prevailed.

The original article can be found at www.confiscationorder.com