Following a pre-charge intervention from BSQ partner Roger Sahota, a police investigation into allegations of sexual assault have resulted in no further action
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’s private client department has secured an acquittal for our professional client, a consultant medical physician. Our client was charged with offences contrary to the public order act and was acquitted following a unanimous jury verdict after a trial in the Crown Court. Roger Sahota was the conducting solicitor. Counsel instructed was Michael McGarian QC of Drystone Chambers.
“I cannot thank you both enough for the efforts and services you have provided me since being notified by the police regarding the charges that were brought against me.
It has been a very difficult time for me and almost consumed a year of my life thinking about all the ways that this could have gone wrong and ruined my career, as well as other repercussions of criminal charges. Thankfully together as a team you put a stop to that happening.
Roger you have always kept a calm, organised and positive outlook from day one which helped me do the same during this lengthy wait for trial as well as everything preceding.
Michael your flair and passion really showed from our first meeting and kept consistent until the end. You inspired both myself and S.. to rise to the occasion of speaking in the courtroom as well as giving us all the best hope when we watched how rigorously you fought for my case.
My family and I all feel extremely well represented by you both and it's been a pleasure to have met you. I wish you both very well in the future.”
BSQ’s private client department has a formidable reputation for securing successful outcomes on behalf of our professional clients in a criminal and regulatory proceedings.We are pleased to report a number of outstanding results in recent contested criminal trials - see our recent blog entries – here, here and here.
If you are a professional charged with a serious criminal offence and require legal advice, please contact our London offices.
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 J Sahota has been instructed in another challenge to an extradition request brought by the Government of India
This follows on from a successful BSQ defence application for an extradition request to be discharged in the recent case of Angurala.
Extradition requests from the GOI are now attracting keen media interest in India, particularly with the Westminster Magistrates Court due to pass judgement on the GOI request made in the case of Vijay Mallya on December 10 2018.
Further details can be found here.
Roger Sahota is an expert in international criminal law and defending extradition cases. If you require advice in relation to an extradition request please call our London office.
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.
BSQ partner Roger Sahota has been instructed in and will be attending a press conference organised on behalf of the former Georgian Prime Minister Mikheil Saakashvili in the Hague on Tuesday focussing on human rights violations following his expulsion from the Ukraine earlier this year.
The text of the press release follows:
Professor Geoffrey Robertson, QC and Mikheil Saakashvili will hold a joint press conference
on Tuesday May 29, 2018 starting at 13:30at the Nieuwspoort Press Center in Amsterdam
(Lange Poten 10, 2511 CL Den Haag).
Geoffrey Robertson QC, renowned international human rights lawyer and former UN Appeal Judge has provided a legal opinion regarding the deprivation of citizenship as well as the forced expulsion from the Ukraine of Georgia’s third president Mikheil Saakashvili. The Ukraine is culpable, in Mr Robertson’s view, for violating his civil and political rights
Press Conference to be held on May 29:th Professor Robertson will summarise his legal opinion. Mr Saakashvili, recognised as a top performer and anti-corruption campaigner in the first soviet region, will explain the background and motivations of the Ukrainian government in politically persecuting him as well as his supporters in Ukraine.
A question and answer period will follow.
The press conference is open to all accredited members of the press as well as interested NGO representatives and attorneys.
For additional information contact:
Ivan Lozowy, Esq.
Chargé for International Affairs
Movement of New Forces of Mikheil Saakashvili
BSQ partner Roger Sahota specialises in international and domestic criminal law with a political dimension.
BSQ partner Roger Sahota examines TL EWCA Crim 1821 the most important decision on the abuse of process doctrine handed down by the Court of Appeal in many years.
Every criminal court has the inherent power to stop a prosecution (or 'stay' an indictment in the Crown Court) if the court is of the opinion that to allow the prosecution to continue would amount to an abuse of the process of the court. This power is an important bedrock of the rule of law. It allows the courts to act independently of the state by striking down a prosecution where there is a risk that a defendant may not receive a fair trial.
This power arises because, as famously stated by the House of Lords in the landmark case of Bennett  AC1
“the judiciary accept(..) responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.”
It is a power that is most commonly used in cases where there has been improper or even unlawful conduct by an agent of the state such as a police or customs officer in the course of an investigation leading up to the prosecution of an individual. However, it can in principle apply to any complaint of impropriety as the recent case of TL EWCA Crim 1821 demonstrates.
The decision in TL is interesting because it lays down guidelines for when the criminal courts should stop prosecutions where “non-state actors” – specifically citizen vigilantes known as “paedophile hunters” – are said to have behaved improperly when investigating criminal conduct that is later brought to the attention of the authorities and results in criminal prosecutions.
As over 50% of contested trials in the crown court now feature allegations of sexual misconduct, there are now many cases where the conduct of unregulated organised groups of so-called “paedophile hunters” come under the spotlight. A common defence strategy in these cases is to apply for a prosecution to be stopped under the “abuse of process” doctrine based on complaints that the “paedophile hunters” involved have acted improperly in “entrapping” the accused by inciting that individual to commit an offence they would otherwise not have contemplated.
Such was the position in TL. TL faced charges of attempting to meet a child following sexual grooming. Online he had met someone he believed to be a 14 year old female and via Whatsapp arranged for them to meet at his flat for a sexual encounter with his girlfriend. Unbeknownst to him TL was actually communicating with Mr U, the organiser of a group called “Predator Hunters,” posing as the child. Police were tipped off and arrested TL when he attended the meeting they had arranged.
At trial the Defence said the Accused had been unfairly enticed into a trap. The Trial Judge agreed and ordered a “stay” or dismissal of the prosecution as an abuse of process. He found that ‘Predator Hunters” had acted improperly because they conducted themselves “like an internet police force, and … behave(d) in a proactive way, in order to obtain evidence on which to mount a prosecution”.
On appeal the Court of Appeal reversed that decision. It said that theoretically the abuse of process doctrine could be applied where “non-state actors” had acted improperly. But, the Court held it would be very rare to find a case where the facts justified stopping a prosecution. The Court did not speculate about what those unusual circumstances might be. However, it considered the actions of the Predator Hunters group in this case, and by extension other groups of a similar ilk, fell far short of the type of misconduct they had in mind;-
"the zeal of some "vigilantes" may lead them to seriously improper conduct. It would be much better for those in Mr U's position immediately they have suspicions about the conduct of an identifiable individual to involve the police and leave them to investigate. But the question before us is whether the judge was right to stay the proceedings as an abuse of process. Our conclusion is that he was not." (para.39.)
Those involved in “paedophile vigilante” activities will no doubt feel vindicated by this decision. For Defence lawyers TL does not quite spell the death knell for applications that a case should be stayed where paedophile hunters are involved. Cases where a stay will be justified will require proof of “seriously improper conduct’ so as to bring the administration of justice into disrepute.” They will be few and far between.
 In the case of Wilson (CA, 9 May 1996) the same was said in a case concerning the activities of private informants.
Extracted below is BSQ Partner Roger Sahota’s article on Account Freezing Orders for the International Bar Association’s Criminal Law Bulletin.
New UK legislation paves the way for increased non-conviction-based asset seizures.
On 17 April 2018, new provisions came into force, which allowed state investigative agencies to apply for an account freezing order (AFO) under paragraph 303Z3(2) of Part 5 of the Proceeds of Crime Act 2002 (POCA 2002). An AFO may be granted in the lower courts, that is, where a magistrates’ court is satisfied that reasonable grounds exist for suspecting that money held with a bank or building society of a value over £1,000 is ‘recoverable property’, or that it is intended to be used in unlawful conduct. ‘Recoverable property’ is defined in POCA 2002 as ‘property obtained through unlawful conduct’. These provisions mirror those for the seizure, forfeiture and detention of cash under Part 5 of POCA 2002.
The threshold test (ie, reasonable suspicion that the property represents the proceeds of criminal conduct) for the granting of an AFO under the first limb is extremely low. In the case of the National Crime Agency (NCA) v AB, an AFO was granted by the magistrates’ court on the basis of two-year-old BBC news reports taken from the internet, which documented the conviction of a close relative of the account holder in another country on corruption charges. There was no suggestion in that case that the account holder was involved in serious crime or corruption.
NCA officials have indicated that a ‘significant’ number of AFO applications are being prepared. AFOs are therefore likely to be widely used in financial investigations as political pressure grows for law enforcement agencies to be seen to be taking steps to tackle financial crime. In particular, it is now relatively straightforward for the authorities to obtain an AFO after a bank or financial institution makes a ‘suspicious activity report’ regarding a credit balance in a bank account.
Against this context, it is no accident that the new AFO regime has been designed to dispense with many of the safeguards or pre-conditions that had to be met before a bank account restraint order could be obtained under the old POCA regime. These included: requirements for a criminal investigation or prosecution to be underway; and proof of a risk of dissipation of assets before an application was made to the Crown Court rather than a court of summary jurisdiction. Moreover, a deliberate decision was taken to invoke the POCA 2002 Part 5 definition of ‘recoverable property’ rather than the Part 7 concept of ‘criminal property’, which applies to money-laundering offending (ie, a person’s benefit from criminal conduct)and is much harder to prove.
The effect of an AFO is that funds held in a bank account can be frozen for an initial period of up to six months, which can then be extended on a six-monthly basis up to a maximum of two years. At the end of the two-year period, there will be a hearing where the court can consider if the monies held should be recovered by the state at a forfeiture hearing. Forfeiture will be ordered where, on the balance of probabilities, the court is satisfied that the money held in the account is derived from criminal conduct.
On a related note, similar provisions are now also in effect allowing for the seizure and forfeiture of listed assets, that is, personal or moveable property, defined in POCA 2002, 303B(1) as precious metals, precious stones, watches, artistic works, face-value vouchers and postage stamps, which are said to be the proceeds of unlawful conduct or intended for use in such conduct.
Freezing orders are highly invasive measures. Given the enormous sums that could conceivably feature in an AFO, it is anticipated that applications for forfeiture under the new regime will provide fertile ground for vigorous legal challenges by way of a judicial review.
Unexplained wealth orders
Practitioners will be familiar with unexplained wealth orders (UWOs), which are deployed in many other jurisdictions. The Criminal Finances Act 2017 (CFA 2017) has introduced these provisions in England and Wales by way of amending POCA 2002. The new legislation requires individuals suspected of involvement or association in serious criminality who hold property valued over £50,000, which appears to be disproportionate to their known income, to explain the origin of their assets to the High Court. If the enforcement authority is not satisfied that the property was acquired through lawful conduct, litigation in the High Court can commence to recover the property further to the civil recovery provisions of Part 5 of POCA 2002. The test for recovery requires showing that the respondent's property represents ‘recoverable property’ and the applicable standard is the ‘balance of probabilities’.
This new Act specifically targets respondents who fall under one of these categories: politically exposed persons; individuals for whom there are reasonable grounds to suspect that they have been involved in serious crime (either in the United Kingdom or elsewhere); or anyone connected to such individuals.
To obtain a UWO, the authorities must show reasonable grounds for suspecting that the known sources of the respondents’ lawfully obtained income would have been insufficient for the purposes of enabling the respondents to obtain the property.
The UWO regime has international reach – it can apply to individuals and companies that are not resident in the UK and that hold property outside the jurisdiction. Pursuant to section 362J of POCA 2002, if a UWO is granted, the property can be frozen and the respondent must provide information and documents specified by the court within a set period. Moreover, section 362E of POCA 2002 stipulates that providing a statement that is false or misleading in a material way, either knowingly or recklessly, is an offence.
At the time of writing, despite the fanfare, only two applications for a UWO have been reported and both have been brought by the NCA. The UK government has estimated, in an impact assessment appended to the legislation, that they anticipate 20 UWO applications on an annual basis. Experience suggests that the limited usage and complexities inherent in making applications under the POCA 2002 Part 5 civil recovery regime means that a far lower number of UWOs may transpire in reality. In the meantime, lawyers advising high net-worth individuals and companies holding property in the UK who may have cause for concern about these new provisions should keep a close eye on developments in the field.
 Proceeds of Crime Act (POCA) 2002, s 304.
 The term ‘suspicion’ denotes ‘a degree of satisfaction, not amounting to belief, but at least extending beyond speculation’. UK’s Joint Money Laundering Steering Group Guidance Notes 2006.
 Unreported, Westminster Magistrates Court, May 2018. The author acts for AB.
 Ibid, statement made in the course of submissions in open court by counsel for the NCA.
 POCA 2002, s 340(3).
 POCA 2002, ss 241 and 241A.
 Section 1 of the Criminal Finances Act 2017 inserts new provisions to the Proceeds of Crime Act 2002 at sections 362A to 362I.
 POCA 2002, s 362B(2)(a)-(b).
 POCA 2002, s 362B(3).
 POCA 2002, s 362C(4).
 The orders relate to two properties, one in London and one in the southeast of England and both are thought to be owned by a PEP. Director for Economic Crime at the National Crime Agency Donald Toon commented that: ‘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.’ See www.nationalcrimeagency.gov.uk/news/1297-nca-secures-first-unexplained-wealth-orders.
 Former Director of the UK Serious Fraud Office David Green told Reuters that UWOs were an ‘extremely useful tool’ but the SFO would not use them until it had the right case. See www.reuters.com/article/uk-britain-fraud/uk-fraud-prosecutor-combs-through-cases-for-signs-of-unexplained-wealth-idUKKBN1FK2QI.
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.
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.
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.