Following a lengthy 15-month investigation, BSQ have been informed that the police will not be pursuing charges against one of our private clients in an indecent images enquiry
BSQ private client partner Roger Sahota has secured a settlement from a state investigating agency in respect to our latest search-warrant challenge.
BSQ’s client, was said to have been a major figure in an international people smuggling operation. BSQ was approached pre-charge to provide a second opinion in the case. Judicial review proceedings were on review initiated against the state agency, who conceded that the warrants executed were unlawful. A settlement figure in compensation has been agreed. An application to exclude all the material found in the search under s.59 of the CJA is ongoing. No charges have been laid against our client.
Roger Sahota is one of the countries leading experts in challenging search warrants and has been instructed in a number of cases where we have successfully quashed warrants unlawfully obtained by state agencies.
BSQ has a niche specialisation in representing individuals accused in serious and organised crime police investigations. Should you require any advice in relation to a criminal investigation please do not hesitate to contact our Mayfair offices.
BSQ partner Daniel Godden has been instructed in an ongoing SFO investigation into allegations of bribery and corruption at Amec Foster Wheeler.
BSQ is presently instructed in a number of ongoing criminal investigations and prosecutions conducted by the SFO.
Read more about the case here.
Daniel 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’.
If you require advice in a SFO investigation or prosecution please contact our London offices.
BSQ partner Daniel Godden has successfully advised a Company Director in a private prosecution alleging serious fraud. Our client CX faced charges of conspiracy to commit fraud in the Crown Court.
The case concerned an allegation that a UK subsidiary company had defrauded it’s European parent supplier. The prosecution was stayed following an application before a Crown Court judge as an abuse of process. Daniel’s client was the only Director of three accused to have the charges against him stayed.
BSQ is currently instructed in a number of cases where we act for private individuals and companies in defending private prosecutions.
Daniel is recognised as one of the leading criminal practitioners in London. Daniel is described by the Legal 500 as a ‘fantastic lawyer’ who is ‘first rate’ with ‘encyclopaedic knowledge’.
If you require advice and assistance in defending a private prosecution please contact our London offices
In an important precedent the Court of Appeal have strongly defended the principle that companies facing a possible criminal investigation can rely on legal professional privilege to preserve the confidentiality of their communications with the professional advisers.
SFO v ENRC concerned the application of the principle of “litigation privilege’ which applies to communications between a client and a third party who is not the clients lawyer.
ENRC began an internal investigation after they became aware of the allegations of corruption made by a whistleblower. The company asked external lawyers and forensic accountants to carry out an internal enquiry. During the course of the enquiry, their external advisers interviewed a large number of employees and collated a large body of material interview notes as a result of their enquiries.
In 2011 the SFO approached ENRC asking to inspect this material. ENRC declined the SFO’s request. The SFO then applied to the High Court for a declaration that the documents they wished to examine were not covered by litigation privilege and should therefore be disclosed.
The Court of Appeal reversed a previous High Court decision to grant the declaration. It held that litigation privilege did apply to ENRC’s communications with the accountants and lawyers they had instructed to conduct an internal enquiry.
The Appeal Judges held that “both criminal and civil proceedings (could)…reasonably be said to be in contemplation” at the time ENRC instructed their professional advisers to assist them in an internal investigation.
In support of this the Court referred to the fact that the SFO had contacted the company raising their concerns by the time the external advisers had begun their interviews and enquiries. The Court also said that a company could contemplate litigation in theory even before the authorities contacted an organisation. In this scenario, once contact had been made by the SFO, there were clear grounds to suggest that ENRC acted in contemplation of a criminal prosecution.
Secondly, the Court held that litigation privilege did extend to communications with the purpose of heading off, avoiding or settling contemplated proceedings. These matters were covered by litigation privilege in the same way that advice on resisting or defending proceedings were.
Taking what it described as a realistic and commercial view of the flats, the Court found that there was a clear public interest in companies relying on LPP when investigating allegations of wrongdoing before approaching prosecutors. This was especially the case for large and medium-sized companies where a company board or legal officers may not know the full extent of the underlying facts.
The approach taken by the Court of Appeal will provide some assurance for companies thinking of undertaking internal investigations using external advisers. These normally arise when allegations of unlawful conduct are made – normally concerning allegations of bribery and corruption – by contractors or staff. Following the SFO v ENRC decision companies taking legal advice will be protected by the cloak of privilege that applies to the product of these enquiries.
If you require advice and assistance in relation to a company or corporate fraud investigation please contact our London offices.
BSQ is presently acting in two search warrant challenges arising from complex and high profile for police investigations.
In both cases, BSQ are currently engaged in pre-action litigation correspondence with the police and state investigation teams. Both claims relate to submissions advanced on behalf of BSQ client’s that the police acted unlawfully when applying ex parte – without notifying the respondents– for warrants to search our clients premises from a Magistrate’s Court.
Our submissions in one of these cases arose after our clients sought a second opinion having been advised by their original solicitors that there were no grounds to challenge the conduct of the police who had obtained warrants to search premises in the course of a long-running investigation.
BSQ partner Roger Sahota acts in both cases. Roger has considerable expertise in challenging search warrants and is one of the leading solicitor practitioners in this area. Learn more about Roger’s practice here and recent cases here and here and here.
If you require advice and assistance to challenge a search warrant or in the course of a police investigation please contact our London offices.
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.’
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 Partner Roger Sahota attended a press conference in the Hague, Netherlands on 29 May 2018 held by BSQ client Mikheil Saakashvili, the Former Georgian President and Governor of Odessa.
Advised by Leading Counsel, Geoffrey Robertson QC and Susie Alegre of Doughty Street Chambers and BSQ Solicitors Mr Saakashvili is considering bringing a claim before the European Court of Human Rights following the cancellation of his Ukrainian citizenship and abduction and expulsion from that country.
Mr Saakashvili is best known for leading the “Rose Revolution” in his native Georgia against that country’s corrupt post-communist regime. After losing office in 2013 criminal proceedings were brought against him in absentia in Georgia although many human rights groups consider these to be politically motivated reprisals.
In 2015 he was invited by Petro Poroshenko, the President of Ukraine to take up Ukrainian citizenship and become the Governor of Odessa. As Ukrainian law does not permit dual citizenship, Mr Saakashvili renounced his Georgian nationality in 2015 to do so. On 26th July 2017, his Ukrainian citizenship was arbitrarily revoked by Presidential Decree, leaving him stateless.
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 major political party. He was deported from Ukraine to Poland without a court warrant in what is believed to be a politically motivated measure after organizing protests against President Poroshenko.
During the press conference Mr Robertson QC highlighted a “number of serious breaches in international law” in Mr Saakashvili’s treatment to which Germany, Britain and France “had turned a blind eye.” Primarily, these included:
Arbitrarily revoking Mr Saakashvili’s citizenship. In doing so Ukraine has acted in breach of Article 8 of the European Court of Human Rights (an individual’s right to respect for family and private life) and its international obligations to prevent statelessness.
The detention and deportation of Mr Saakashvili in circumstances where he was violently and forcibly abducted amount to a violation of the right to liberty and security of the person (contrary to ECHR Article 5(1)(f) ECHR which allows for the lawful arrest or detention of a person against whom action is being taken with a view to deportation or extradition) and further to degrading treatment (contrary to Article 3 ECHR, prohibition on inhuman and degrading treatment). In addition, the speed at which these events had taken place did not allow him to challenge the lawfulness of his detention before a court amounted to a further breach of ECHR, Article 5.
In denying his right to return to Ukraine the Government was also in breach of Article 12(4) of the ICCPR (International Covenant of Civil and Political Rights) by arbitrarily depriving him of the right to enter his own country. This, in turn also constituted a violation of his right to private and family life protected under Article 8 ECHR and his right to freedom of association as protected under Article 11 of the ECHR, freedom of expression (Article 10, ECHR) in further breach of Article 14 ECHR (discrimination on the grounds of his political opinion.)
BSQ continue to monitor the progression of claims brought on Mr Saakashvili’s behalf in the courts of Ukraine. Before any human rights claim can be submitted either pursuant to the ICCPR or ECHR, both conventions require an exhaustion of domestic remedies.
In the meantime, Mr Saakashvili has called upon the international community to consider taking diplomatic action including cutting diplomatic ties with Ukraine in an effort to persuade the Ukrainian authorities to allow him to return to that country to take part in the elections scheduled for later this year.
Roger Sahota specialises in international criminal and human rights litigation and particularly in sensitive cases with a political dimension.
A recent decision by the Court of Appeal provides welcome clarity to defendants and participants in indecent images cases.
SHOPOS – Sexual Harm Prevention Orders are routinely imposed in cases where individuals are convicted of indecent image offences. The terms of the orders normally place restrictions on an individual’s internet usage and contact with children under 18.
Previously the leading case on SHOPOS is (and remains) R v Smith  EWCA Crim 1772;  1 WLR 1316.
In R v Parsons  EWCA Crim 2163 the Court revised the Smith guidelines on SHOPO’s in the light of developments in technology and everyday life. In summary it held;
1. SHOPOS should not include a blanket ban on Internet Usage – this was “unrealistic, oppressive and disproportionate.”
2. Where an individual can show that his employers have risk monitoring software at work there is no requirement for additional software to be implemented on work equipment by the Police. The Court formulated a model direction to be imposed in such cases:-
"The Defendant is prohibited from:
(1) Using any computer or device capable of accessing the internet unless:
(a) He has notified the police VISOR team within 3 days of the acquisition of any such device;
(b) It has the capacity to retain and display the history of internet use, and he does not delete such history;
(c) He makes the device immediately available on request for inspection by a Police officer, or police staff employee, and he allows such person to install risk management monitoring software if they so choose.
This prohibition shall not apply to a computer at his place of work, Job Centre Plus, Public Library, educational establishment or other such place, provided that in relation to his place of work, within 3 days of him commencing use of such a computer, he notifies the police VISOR team of this use.
3. SHOPOs often include a clause restricting contact between the person convicted and children under 18. In Smith it was held that is "not legitimate to impose multiple prohibitions on a defendant just in case he commits a different kind of offence". There must be "an identifiable risk of contact offences" before prohibitions on contact can be justified. In Parsons the Court considered a case that was,
“close to the borderline. The appellant's relevant offending comprised making indecent photographs of children. That said, the facts (set out above) disclosed his browsing or searching for websites which could be used for online chats with young children. Such searches could have been a first step towards the commission of predatory offending, seeking out children for sexual purposes. In the circumstances, we are persuaded that the inclusion of some contact prohibitions in the SHPO was necessary and proportionate.”
As the appellant's offending related to female children it held that that the SHOPO prohibitions should be confined to female children.
If you require advice in an indecent images case please contact our London office.
On the 17th April 2018 the police were given new powers which are now being used to freeze the bank accounts of wealthy London based foreign nationals.
Since then, we have represented a number of HNW’s who have had their bank accounts frozen on the application of the National Crime Agency, who can take up to 2 years to complete their enquiries. These new laws are in our opinion draconian and subvert the normal rules of due process because the orders can be obtained even where the person concerned is not accused of, let alone convicted, of any criminal offence.
And more are to come. Last week we were told by NCA lawyers that they were adopting an aggressive policy to apply for these orders which is “gaining significant momentum.”
Freezing someone’s bank account freezing order is an invasive and onerous measure. With no access to funds for everyday expenses these orders can make life very difficult for those concerned.
And there is no guarantee that the authorities will ultimately be successful in persuading an English Court that any money seized should be forfeited. Judges in this jurisdiction have traditionally been reluctant to order the forfeiture of property save where there is clear evidence that indicates a link with criminal conduct.
Time will tell how successful these measures will be and whether their use as with UWO's will be widespread or restricted to cases where for good reason a criminal investigation is not appropriate.
Read Roger Sahota's guide for the Law Society Gazette on the Criminal Finances Act 2017.
If you require advice in relation to an Account Freezing Order or Unexplained Wealth Order investigation please call our London Office.
Following service of a defence case statement setting out the basis of client's defence to sexual assault charges the CPS have discontinued the prosecution of a BSQ client. The matter had previously been set down for a trial in the Crown Court.
Our client retains their good character.
The decision vindicates BSQ's view that the names of suspects accused in sexual offence cases should remain anonymous.
Goran Stojsavljevic was the BSQ partner instructed.
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  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
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  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  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  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  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.
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.
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 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  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.