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Crime Brief | St Philips Criminal Law

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St Philips Criminal Law News

ST PHILIPS CHAMBERS - CRIMINAL TEAM

“A leading set on the Midlands Circuit. Home to a number of the region’s leading Criminal practitioners”. (Chambers and Partners) - shortlisted for Chambers Bar Awards 2009

Mr James Burbidge QC *

Mr Nicholas Cartwright *●

Miss Lucianne Allen

Mr David Crigman QC *

Mr Simon Ward *

Miss Raj Punia

Mr Stephen Linehan QC *

Miss Blondel Thompson

Miss Jane Sarginson

Mr Timothy Raggatt QC *

Mr Jonathan Salmon ●

Miss Jennifer Josephs

Mr Christopher Millington QC *

Mr Richard Atkins *

Miss Kate Iliffe

Welcome

Mr Paul Farrer QC *

Mr Simon Davis

Mr Ben Mills

Mr Peter Haynes QC

Mr James Puzey

Mr Zaheer Afzal

Ms Anesta Weekes QC *♦

Mr Andrew Lockhart *

Miss Sharon Bahia

Mr Daniel Janner QC *♦

Mr Glyn Samuel

Mr Ian Speed

Mr Timothy Mousely QC ♦

Mr Matthew Barnes

Mr David Munro

Welcome to the Autumn 2009 Edition of Crime Brief. As the Summer quietly fades away, and all those seasonal essentials, beach towel, raincoat, flip-flops and wellies, are now neatly packed away, how better to reinvigorate your professional drive than by sharing the latest thoughts from the St Philips Criminal Group? This edition concerns itself with issues relating to non-jury trials, people trafficking, cross examining police officers and sentencing in money laundering cases, out of which we hope you will find something that either assists, inspires, interests or gently amuses you. As you can see from the other side of this page, we are very pleased to introduce you all to our new CEO and we are equally delighted to announce that Andrew Molloy, formerly of St Ives Chambers, has now joined our group. Happy reading. Ben Mills Editor

Mr Michael Garrett

Miss Kristina Montgomery

Mr Tom Walkling

Mr Malcolm Morse *

Mr Lee Marklew

Mr Andrew Molloy

Mr Robert Hodgkinson

Miss Heidi Kubik

Miss Victoria Edmonds

Mr Patrick Darby

Mr Stefan Kolodynski

Mr Ben Williams

Mr Stephen Thomas *

Mr Anthony Johnston

Mr Jonathan Barker

Mr Bernard Linnemann

Mr Jonas Hankin

Miss Clare Dillon

Mr Makhan Shoker

Mr Brian Dean

Miss Alice Winstanley

Mr Paul Mytton

Mr Nicholas Smith

Miss Hannah Bush

Mr Kevin Hegarty *

Mr Darron Whitehead

Mr Chris Milsom

Mr John Evans

Mr James Dunstan

Mr John Edwards *

Miss Naomi Gilchrist

Mr Neil Williams

Mr Simon Phillips

Mr Mohammed Latif

Mr Tim Green

Mr Francis Laird

Mr Shane Crawford

Mr Andrew Jackson

Mr Andrew Smith *

* Denotes Recorder of the Crown Court ● Denotes Deputy District Judge ♦ Denotes Door Tenant

POCLA Seminar St Philips Chambers recently hosted a conference entitled “Tackling Major Commercial Fraud – A Unified Approach”, in partnership with the Proceeds of Crime Lawyers Association (POCLA). The conference included speakers from St Philips, Smith and Williamson’s Forensic Services Team and West Midlands Police Economic Crime Unit. The conference covered a whole range of fraud related topics including “Asset Recovery in the Civil Courts”, “the Criminal Liability of Company Directors” and “Compensation, Confiscation and Money Laundering". Organising this event in conjunction with POCLA and a member of the speaker panel, Tim Green, barrister at St Philips,

said ‘As a POCLA member I am delighted that the organisation invited St Philips Chambers to join with them on their first venture to the Midlands. St Philips are in a unique position of having a dedicated Major Commercial Fraud Group which encompasses members from across our commercial, regulatory and criminal groups. This group provides advocacy and advice covering the full spectrum of white collar crime and asset recovery work.' ‘POCLA’s expansion into the Midlands provides the region’s lawyers and investigators with an unprecedented opportunity to develop best practice in dealing with proceeds of crime litigation.'

event held outside of the Capital. We have been extremely pleased with the interest from the Birmingham and nationwide law communities and have welcomed over 50 new members. We hope soon to be holding similar events in other cities around the country.’ ‘Since our formation a year ago we have worked as an organisation to advance, foster and encourage the exchange of information, education and training in the law relating to proceeds of crime. We welcome new members from all professionals concerned with asset recovery and financial crime.’ Further information on POCLA can be found at www.pocla.com

Secretary of POCLA, Warren Foot added that ‘This is the association’s first official

St Philips Chambers 55 Temple Row Birmingham B2 5LS THE CRIMINAL CLERKING TEAM Joe Wilson (Director of Crime & Regulatory) – 0121 246 2052 (jwilson@st-philips.com)

DX 723240 Birmingham 56 T: +44 (0) 121 246 7000 F: +44 (0) 121 246 7001 www.st-philips.com

James Turner (Senior Clerk - Crime) – 0121 246 2175 (jturner@st-philips.com) Carl Streeting – 0121 246 7069 (cstreeting@st-philips.com) Phil Jones – 0121 246 2163 (pjones@st-philips.com) Su Turner-Gilbert – 0121 246 2164 (sturner@st-philips.com)

St Philips are the only Regional Chambers to be awarded "Chambers of the Year" in both the Legal 500 and Chambers National Awards. Winner of Regional Chambers of the Year 2005 at the Chambers UK Bar Awards. St Philips is a Equal opportunities organisation.

Natalie Hill – 0121 246 7056 (nhill@st-philips.com) Duty Clerk (after 6pm) – 07967 975448 Dedicated Criminal Fax: 0121 246 7060 Messages can also be sent to counsel or the clerks via the Chambers e-mail system using the following address – clerks@st-philips.com

No part of this Newsletter may be reproduced or transmitted in any form or by any means without the prior permission of St Philips Chambers. The articles in this Newsletter represent the general opinion of the stated author. Whilst every care has been taken in its preparation, this Newsletter is intended for general guidance only and does not constitute legal advice. No duty of care is hereby assumed to any person and no liability is accepted for the content. No reliance should be placed on any of the content of this Newsletter for any purpose, which may give rise to any liability or obligation without seeking independent advice from a qualified legal practitioner and/or checking the original text of any relevant legislation or court decision. No liability whatsoever and howsoever arising will be accepted for any liability, loss or damage arising from the use of this Newsletter or the content of any of its pages.

I am delighted to have been asked to introduce myself to you. I am very proud to have been invited to become the CEO to such a terrific set of chambers with, as you will know, a superb array of barrister talent and a very dedicated and professional clerking and administration team. My background may surprise and interest a few of you. I started my legal career as the articled clerk to the senior partner at Headleys Solicitors in Leicester. Whilst there I ran the higher courts department, spending most days instructing and attending behind Counsel in the Crown Court. Most weeks I would also appear at the local County Court in front of the Registrars (District Judges these days) dealing with simple pre trial hearings. It proved to be an excellent training for my next career as a senior barristers’ clerk, first at King Street Chambers in Leicester where I spent 12 very happy years and secondly for another 13 years at 2 Crown Office/ 9 Bedford Row/ 7 Bedford Row (Sir Desmond Fennell, Lord Judge the Lord Chief Justice and Goldring LJ as they now are). After that followed spells as the CEO at a Bristol and London law firm and the Commercial Director of ADR Group. I have also given many years of consultancy advice to chambers and law firms in London. My career has also provided me with a chance to give something back to society by getting involved as the Vice Chairman of the Bar Pro Bono Unit for many years. I have chaired and lectured at numerous National conferences on best practice and the fair distribution of work to junior tenants and pupils. I have also assisted Middle Temple by lecturing at their pupil supervisor induction course and sat on several Bar Council Committees. I understand both sides of the legal profession and believe that knowledge puts me in a unique position to assist and support the relationship between the Bar and its clients. I look forward to meeting many of you in due course. I also invite you to contact me if you have any suggestions as to how we can improve our service to you.

Chris Owen, CEO


Crime Brief | St Philips Criminal Law

Jury tampering and non-jury trials Patrick Darby

Over his 30 years at the Bar Patrick has built up a wide ranging criminal law practice with a focus on business and financial crime. R. v. Twomey & Others [2009] EWCA Crim 1035, The Times 25th June 2009 was the first consideration by the Court of Appeal of the provisions in ss.44-46 of the Criminal Justice Act 2009 that permit trial by judge alone in a case where there is evidence of jury tampering, or where there is evidence of a “real and present danger” that jury tampering will take place. The decision attracted much attention in the news media by reason of the fact that the resulting trial will be the first trial on indictment in England without a jury in modern times. Of more interest and concern to lawyers, and especially those concerned in conducting the defence case, is the court’s ruling that the evidence on which the decision to conduct the case without a jury is founded may be placed before the judge using the PII procedure and never revealed to the defence. The Crown appealed to the Court of Appeal against the decision of CalvertSmith J at a preparatory hearing under s.45 of the CJA 2003 to refuse its application for the trial of the defendants to be conducted without a jury. In allowing the appeal the court (Lord Judge LCJ, Goldring LJ and McCombe J) explained how judges should approach applications for trials without juries and the procedure to be adopted in such cases. The defendants were accused of a number of offences arising from an armed robbery at Heathrow Airport and there had already been two trials. During the sixth month of the third trial the prosecution informed the trial judge, Judge Roberts QC, that there was evidence that approaches had been made to two jurors as a result of which, having considered material that was not disclosed to the defence, he discharged

Crime Brief | St Philips Criminal Law

Crime Brief | St Philips Criminal Law

the jury. Although he was satisfied that there had been jury tampering, he declined to continue the trial without a jury under s.46(3) because he had seen a substantial volume of highly prejudicial material that was inadmissible in the trial and he decided to terminate the trial in the interests of justice under s.46(4). Judge Roberts decided that as the issues raised by the Crown’s application to hold the re-trial without a jury raised important matters of public policy they were best considered by one of the Presiding Judges of the South Eastern Circuit. It was in those circumstances that the Crown’s application came before Calvert-Smith J at a preliminary hearing. Calvert-Smith J considered the material placed before him by the Crown in chambers using the PII procedure and then heard submissions from all parties in open court. In his ruling in open court he held that the material placed before him in chambers should be withheld from the defence in the public interest, notwithstanding that this inhibited the making of representations in opposition to the application. He was satisfied that there was a real and present danger that jury tampering would take place and that the risk would remain present throughout the trial so the s.44(4) condition was satisfied. However, he decided that the condition in s.44(5) was not satisfied because a package of measures costing £1.5m in police time could be taken that would reduce the likelihood of jury tampering to a level that was not so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury. It was against that decision that the Crown appealed. At the hearing of the appeal the court read the “closed” judgments of Judge Roberts and Calvert-Smith J that were not made public (save for a short passage of Calvert-Smith J’s judgment) or disclosed to the defence. The Court also heard evidence from an assistant commissioner and a detective superintendent of the Metropolitan Police in the absence of the defendants and their counsel. The court recognised that trial by jury is a hallowed principle of the administration of criminal justice and that it is properly characterised as a right available to a defendant. But any attempt to interfere with the jury is an abuse or misuse of process to which the solution was to dispense with the jury altogether and permit a judge to try the case alone. The court dealt summarily with the idea that a trial by a judge alone is unfair or that it does not comply with art.6 of the

European Convention on Human Rights. Lord Judge said that where is established that a jury trial is likely to be abused or subverted the end result under ss.44 and 46 is not an unfair trial but a trial by a judge where the necessary procedural safeguards available in a jury trial are available to an accused. A trial by judge alone is not unfair or prejudicial to the defendant and complies with art.6 because it is a trial before an independent tribunal. The court observed that in most cases the provisions of s.46 would apply rather than those of s.44 because it was likely that jury tampering would occur in the course of a trial. If the judge decided under s.46(3) that jury tampering has taken place and that to continue the trial without a jury would be fair to the defendant, the court was firmly of the view that the judge should discharge the jury and continue the trial sitting alone, save in unusual circumstances, because: (i) one of the purposes of the legislation was to discourage jury tampering; (ii) huge inconvenience and expense would be involved in a re-trial; (iii) any possible advantage accruing to those engaged in jury tampering or for whose perceived benefit it had been arranged would be negated; and (iv) trials should proceed to a verdict rather than result in the discharge of the jury. The fact that the judge had considered material covered by PII principles (as had Judge Roberts) should not normally lead to selfdisqualification. The latter point is perhaps self-evident; a professional judge should be relied upon to disregard material that is inadmissible in the trial and has not been the subject of crossexamination. In cases where the Crown applies for a trial by judge alone under s.44 the court was concerned to achieve consistency of approach. For the time being, the court held that all applications should be referred to the Presiding Judge of the relevant circuit for a listing decision in the expectation that the application would be heard and determined by a Presiding Judge. If the application succeeded, the Presiding Judge should identify a senior and experienced judge to conduct the trial. Whilst there is much sense in the idea that a decision to deprive a defendant of his right to trial by jury should be taken at a senior level, that only applies where an application is made by the Crown before the trial under s.44. The court envisaged that in most cases the decision that has to be made is whether or not to continue on a trial without a jury under s.46. In almost all

People Trafficking Shane Crawford

within a number of statutes in one form or another. There is some overlap with the people smuggling offences which have been discussed in Part 1 of this article. For ease of reference they are as follows: i. Immigration Act 1971; – assisting unlawful a. s.25 immigration to a member State (EU); b. s.25A – helping an asylum seeker to enter the UK;

Shane's criminal practice covers the full spectrum of criminal law. He has represented Defendants in firearms cases, large scale public disorders, sexual offences and frauds. The trade in human beings is still very prevalent. It exists not just in developing countries but sovereign states where the notion of buying and selling people was thought to have been consigned to history generations ago. The victims of this offence are largely hidden from pubic view. The surreptitious nature of traffickers means that the crimes they commit do not readily come under the spot light of public scrutiny. However trafficking is ranked just behind the arms trade and drugs trade as one of the most lucrative forms of international crime: US State Department – Trafficking in Persons report (2007). This area of criminal law has been codified at international level as well as within domestic jurisdictions. The Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children 2000 (the Palermo Protocol), supplements the UN Convention Against Transnational Organized Crime, and now the Convention on Action Against Trafficking in Human Beings 2005 from the Council of Europe has been ratified by the UK on 17th December 2008. What is it? Trafficking victims have either never consented or such consent is meaningless by the threats or deception used by traffickers. It is perhaps best defined by the distinction to be drawn between “smuggling” people and people trafficking. Those who are smuggled consent to it. People smuggling frequently becomes trafficking: the victim is promised a legitimate job but on arrival finds that she is forced to work to pay off an alleged “debt” of the person who paid for their passage to the UK. Domestic Law The Offences The offence of trafficking is contained

c. s.25B – assisting entry to UK in breach of deportation or exclusion order ii. Sexual Offences Act 2003 [Archbold 20 – 179]; a. s.57 – Trafficking into the UK for sexual exploitation; b. s.58 – Trafficking within the UK for sexual exploitation; c. s.59 – Trafficking out of the UK for sexual exploitation. iii. Asylum and Immigration (Treatment of Claimants etc) Act 2004 s.4 iv. Nationality Immigration and Asylum Act 2002 s.145 – facilitating the arrival, travel or departure of a person in the UK for the purpose of control of prostitution. This was repealed by the Sexual Offences Act 2003 on 1st May 2004. Drafting the Indictment For the purpose of prosecuting people trafficking it is not uncommon for there to be a number of different charges to reflect the different roles that individuals play within the process of the offence. The offences under Immigration Act 1971 will be used against couriers for whom there is insufficient evidence to show that they knew for what purpose the complainant was being brought to the UK. Trafficking as defined by the Sexual Offences Act 2003 requires proof of intent by the offender to either commit a relevant offence or a belief that another would commit a relevant offence when he facilitates the entry, travel or departure of the victim. A “relevant offence” encompasses any offence under the Sexual Offences Act 2003 or taking indecent images of children under Protection of Children Act 1978 s.1(1)(a). Obviously these sections target traffickers who are moving people to work within the sex trade. Asylum and Immigration (Treatment of Claimants etc) Act 2004 s.4 encompasses all aspects of people trafficking for both

sexual and non-sexual purposes for example for human organ donation. The key difference between offences under this statute and the offences under Sexual Offences Act 2003 is requirement to prove the intention to “exploit” the victim by the offender. “Exploitation” is defined by s.4(4) by reference to particular situations where a person is considered to be exploited: i. he is the victim of slavery or forced labour as defined by Article 4 of the Human Rights Convention; ii. he is encouraged to commit an offence as defined by the Human Tissue Act 2004 ss 32 and 33 – illegal trade in human organs or tissue; iii. he is subjected to force, threats or deception designed to induce him – a. to provide services of any kind, or b. to provide another person with benefit of any kind, or c. to enable another person to acquire benefits of any kind iv. he is induced to undertake any activity, having been chosen as the subject of the inducement due to a. the fact that he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and b. A person without disability, youth relationship would refuse the request inducement.

the illness, or family be likely to or resist the

These are very broadly defined situations particularly where the provision of services of any kind induced by threats or deception amount to exploitation. The charging decision should however be carefully considered. The breadth of the definition under Asylum and Immigration (Treatment of Claimants etc) Act 2004 s.4 would include trafficking for the purposes of prostitution. It may seem at first attractive to draft a charge alleging trafficking under this statute particularly when there is evidence of a broad range of acts amounting to exploitation. However under the Sexual Offences Act 2003 ss57 - 59 there is no requirement to prove the use or threat of force or deception for the offence to be made out. For such reasons the prosecution of trafficking offences under Sexual Offences Act 2003 presents a more straightforward option where the exploitation is of a sexual nature. In addition and significantly under Sexual Offences Act 2003 the consent of the

individual to be trafficked is not a consideration and therefore cannot represent a defence. In contrast such a defence may be sustainable under the Asylum and Immigration (Treatment of Claimants etc) Act 2004. Lastly the only purpose that the Nationality Immigration and Asylum Act 2002 s.145 now serves is a historical case of trafficking for sexual exploitation which occurred between 10th February 2003 (commencement date) and 1st May 2004 (commencement date for Sexual Offences Act 2003 and date of repeal of s.145). The dates of the offences can be crucial and care should be taken when considering how to charge an offence when looking at the evidence in the round. Prevention As well as convicting the traffickers legislation is now in place to attempt to dissuade employers from turning a blind eye to the origins of their workforce. The Immigration, Asylum and Nationality Act 2006 s.15 provides for a fixed penalty notice for an employer who employs an individual who has not been granted leave to remain in the UK or such leave is invalid. The maximum penalty is £10, 000. For an employer who knowingly employs staff who do not have the legal right to work a criminal conviction will follow. Immigration, Asylum and Nationality Act 2006 s.21 outlines the offence the maximum penalty for which is 2 years custody. Gangmasters are now subject to licensing conditions. Any gangmaster operating without a valid licence commits an offence for which the maximum sentence on indictment is 10 years imprisonment. Equally anyone entering into an arrangement with an unlicensed gangmaster commits an offence for which the maximum sentence is also 10 years imprisonment. This does not directly protect the subjects of trafficking but the vigilance by the Gangmasters Licensing Authority provides some safeguard against the exploitation of people smuggled into the UK to work of life of servitude. Witness protection A significant difficulty in bringing a case to trial is the fact that the victims of trafficking are very vulnerable and reluctant to stay to give evidence necessary to mount a prima facie case. The Convention on Action Against Trafficking in Human Beings 2005 (found at http://www.coe.int/t/dghl/monitoring/ trafficking/Source/PDF_Conv_197_Traffic

king_E.pdf) from the Council of Europe, ratified by the UK on 17th December 2008, seeks to redress this situation. The Home Office circular: “Impact Assessment of ratification of the convention against human trafficking” (found at http://www.homeoffice.gov.uk/ documents/ia-human trafficking?view =Binary) out lines the extent of the support for the victims of trafficking to fulfill the UK’s obligations under the Convention. The provisions are as follows: i. A 45-day minimum recovery-andreflection period. Where the Competent Authority has identified that there are reasonable grounds to believe that an individual has been trafficked (with exploitation occurring in the United Kingdom) individuals will be eligible for a reflection period of 45 days this will be extendable in some circumstances. In essence this should provide a set period of time for such a person to remain in the UK with the financial support of the state. The Home Office speaks of “Convention compliant support through funding of Non Government Organisations and other third parties”. Such a time may prove crucial for investigations into trafficking. ii. A one-year temporary residence permit. “The Government has Decided that where an individual is conclusively accepted as a victim of trafficking and qualifies for a residence permit it should be granted for a minimum of one year”. The UK Border Agency will grant the permit after consideration of the individual case. The grant is a form of discretionary leave. iii. Access to a national support service. The Convention stipulates a certain minimum level of support during the recovery and reflection period which includes accommodation, access to emergency health, counseling and access to education for children. When a potential victim is identified a referral should be made to the UK Human Trafficking Centre to activate these provisions. Such measures will assist in the retention of witnesses needed to sustain the prosecution of cases of this nature. Sentence Sentencing Guidelines Council Sentencing Guidelines on Sexual Offences (p131) provides the first point of reference. Where coercion was used the starting point is 6 years with a band range of 4 to 9 years, but where no coercion is present 2 years is the starting point with a

range of 1 to 4 years. Recent cases also give a flavour of the type of sentence that might be anticipated. AG Ref. Nos 129 and 132 of 2006 (Elisabeth Degado Fernadez and Godwin Zammit) [2007] 2 Cr. App. R. (S.) 85. The offenders were convicted of conspiracy to traffic into the UK for sexual exploitation, conspiracy to control prostitution for gain, and conspiracy to facilitate illegal immigration. The activity involved advertising on a website seeking to recruit women to work as prostitutes from Spain, South America and Eastern Europe. The offenders undertook the administration of the activity like a business arrangement by which they took 60% of the women’s earnings out of which substantial expenses were paid. The offenders had their sentences reduced from 7 to 5 years and from 5 to 4 years imprisonment respectively. The second of the two cases referred by the Attorney General (Thanh Hue Thi), involved conspiracy to traffic into the UK for sexual exploitation of Malaysian women. One of the women was deceived into taking a holiday to London paid for by a boyfriend. On arrival she was taken to an address where she was prevented from leaving and told she would work as a prostitute. Other women worked as prostitutes in the brothel but these women indicated that they knew that this was the purpose for coming to the UK. The aggravating feature was that their return tickets were removed from them and the offender told them they had to pay of their debt. The revenue generated by this offending was approximately £2 million. The offender received only 5 years imprisonment. The Court of Appeal took the view that the starting point should have been 10 years from which reduction could be made for a guilty plea and personal mitigation. However the court concluded that the sentence was lenient but not unduly lenient and did not alter the sentence. In the case of Atilla Makai [2008] 1 Cr. App. R. (S.) 73 the appellant pleaded guilty to conspiracy to traffic for sexual exploitation. The appellant was involved with another in recruiting Hungarian girls to come to the United Kingdom to work as prostitutes. The women were from Hungary who knew that they entering the UK to work as prostitutes. The appellant was paid a fee each time. He passed on the women to men who ran brothels. The sentence of 40 months imprisonment was reduced to 30 months.


Crime Brief | St Philips Criminal Law

Crime Brief | St Philips Criminal Law

Seeing is believing Sharon Bahia

identification can be tested. Although a police officer asked to view CCTV is not in the same shoes as a witness asked to identify someone he has seen committing a crime the Court of Appeal have stressed that the mischief of the code should still be applied as otherwise an officer can merely assert he recognised someone without any objective means of testing the accuracy. In R v Smith and others [2008] EWCA Crim 1342 the following guidance was set out by Moses LJ:

Sharon Bahia was called in 2000. She is a grade 3 prosecutor and an experienced criminal practitioner, prosecuting and defending in equal measure. She also undertakes police displinary work. One of the first points of law that I ever had to argue in the crown court related to purported identification of a Defendant by a police officer from CCTV footage. The Defendant in that case lived in Cardiff and was alleged to have taken part in a football related violent disorder in Stoke, between two opposing sets of fans. The police had circulated stills from the disorder nationwide and had asked the public to call in if they recognised anybody. An anonymous individual had called and named the Defendant which had led to him being arrested. He was interviewed by a police officer and during interview he maintained that he had never been to watch live football in his life and was not the man on the CCTV. He had no other football connections in terms of previous convictions or otherwise. He further indicated that he had never visited Stoke and on the day in question would’ve been in Barry in South Wales. The evidence which the prosecution sought to have admitted came from the interviewing officer. Following the interview he watched the CCTV and then in a statement purported to identify the man in the footage as the defendant whom he had earlier interviewed. Fortunately, the prosecution, eventually, conceded that the evidence was inadmissible and the case was dropped. Since then, various cases have gone before the Court of Appeal as to when this type of evidence should be admitted. This article seeks to examine the recent observations of the Court of Appeal in this area and assist advocates when arguing for and against such admissibility. Code D PACE provides the procedures to be followed in identification cases and imposes safeguards to ensure that the

• The police officers initial reactions to a recording are set out and available for scrutiny • The words the officer uses by way of recognition could also be of importance • If an officer failed to pick anybody out that also should be recorded as should any words of doubt • If recognition takes place, a record is made of what it is about the image that is said to have triggered the recognition

Without these records the Court indicated that it would not be possible to assess the reliability of the recognition and urged that a protocol be prepared which provided the safeguard for measuring the recognition against an objective standard of assessment. More recently the position has been reconsidered by the Court of Appeal in two cases R v Chaney [2009] EWCA Crim 21 and R v Tucker [2009] Crim LR 441. The former related to an officer forwarding some CCTV still images to another officer informing him that officers in Kent believed the man in the stills to be Chaney and they would be interested in his thoughts. The identifying officer was also informed the car on the footage had

also been checked and was found to be registered to Mr Chaney. A recognition was then made by the identifying officer and his response was sent through on email. Looking at Smith and others, as the court did, it may be thought the difficulties with this identification going before the jury were obvious. It could not be objectively determined whether the positive recognition by the officer was his initial reaction or what words he used by way of recognition. However, the Court of Appeal indicated that as the officers’ response was not drafted for the purposes of being given in evidence there was no reason to question that the e-mail signified a spontaneous and genuine response. Furthermore, despite the fact that at the time the email was sent no mention was made of the features that had triggered the recognition, the officer had given evidence of those matters at trial and the jury were able to assess whether those features were visible in the still photographs. Similarly in Tucker, where Moses LJ again delivered judgement, the Court of Appeal appeared to be back tracking on the structured guidance given in Smith and others. Again an officer was shown CCTV, having been told that it was thought that the appellant was on the recording and a positive identification was made. The officer had last seen the Defendant 24 – 30 months previously and in evidence was unable to say what it was about the image that had triggered the recognition. The Court again stated that the jury were entitled to look at the footage and make their own assessment as to whether the image was clear enough to allow a person to identify them as the appellant. Again reference was made as to the officer not, at the time of viewing, being proposed as a potential witness. The above decisions clearly referred to the guidance in Smith and others and neither case sought to disagree with the principles set out in the judgement but instead sought to distinguish the application in the two appeals. Although, the two above decisions reflect a worrying change in favour of admitting this type of evidence without the need for the necessary procedural safeguards it is still hoped that a protocol is developed, as stressed by the Court of Appeal in all three cases. The Smith guidance is a useful starting point in any case when cross-examining a police officer in such circumstances. Furthermore where it is the only evidence it is likely that a submission may succeed at half time.

cases in the Crown Court that decision will be made by a circuit judge or recorder. Since the consequence of a decision to order a trial without a jury under s.44 and to continue a trial without a jury under s.46 is the same in that the judge alone will decide whether the defendant is guilty or not, there is no guarantee that in all cases the verdict of the judge sitting alone will be that of a senior and experienced judge. Further, although consistency of approach may be achieved in applications under s.44, the decisions of trial judges to continue trials without a jury under s.46 may vary widely and potentially may generate more appellate work. It was common ground between the Crown and the defendants that it was for the Crown to prove its case on the

application beyond reasonable doubt but the defendants contended that the judge had a discretion as to whether to order a trial without a jury. The purpose of this contention was to support a submission that Calvert-Smith J’s decision not to order trial by a judge alone could only be overturned on appeal if it was unreasonable in the Wednesbury sense. The court referred to s.44(3) which provides that if the judge finds that the two conditions for trial by judge alone are satisfied the judge must order a trial without a jury. The decision did not involve the exercise of a discretion. The judge had to decide whether the statutory conditions in s.44(4) and (5) were satisfied to the criminal standard of proof. If they were, he must order a trial without a jury. Any appeal against the

judge’s decision must be directed to whether his decision on the statutory conditions was wrong and not whether it was Wednesbury unreasonable. Counsel for the defendants concentrated heavily on ss.45(3) and 46(2)(c). Where an application for a trial by judge alone under s.44 is made at a preliminary hearing, s.45(3) requires that the parties must be given the opportunity to make representations with respect to the application. Where an issue about jury tampering arises during the trial, s.46(2)(c) requires the judge to allow the parties to make representations before he can discharge the jury on the ground that jury tampering has taken place. The defendants complained that they had not been shown the evidence that was considered by Judge Roberts and Calvert-

Smith J in deciding that there was a real and present danger that jury tampering would take place and that there was little disclosure of evidence to demonstrate that the likelihood of jury tampering could not be satisfactorily minimised. The defendants submitted that if they could not see at least some of the evidence they were deprived of the opportunity of making meaningful representations. That would contravene the statute and undermine their art.6 rights, which extended to a procedural matters. The Court of Appeal rejected the submission that the evidence, or the bulk of it, relied on by the Crown under s.44 or s.46 must always be disclosed. There would be cases in which the evidence to demonstrate the risk of jury tampering

would be so sensitive that it could only be adduced under PII principles. The disclosure of such evidence might imperil life or health, or involve the disclosure of police operational evidence or methodology that would be of advantage to criminals and damaging to the public interest. In those cases, if forced to disclose the evidence, the Crown would be faced with no alternative but to discontinue the prosecution and the objective of jury tampering would have succeeded. The court stated that the evidence should be disclosed to the fullest extent possible but it would be contrary to the legislative purpose to order disclosure when the effect of the order would be to bring the prosecution to an end. The court’s decision is liable to present

anyone facing an application for trial by judge alone, or to discharge the jury and continue a trial without a jury, with the difficulty of contesting the application with one (or even both) hands tied behind his back. The allegation that the disclosure of the information to the defence would present a danger to life or health, or reveal police operational methods, or is otherwise contrary to the public interest is easy for the prosecution to make and difficult for the defence to rebut without sight of the evidence in question. Ultimately, the defendant is reliant upon judicial robustness to examine carefully assertions of public interest and to ensure that the evidence in support of an application is disclosed to the fullest extent possible. The court was lukewarm about the use of special


Crime Brief | St Philips Criminal Law

counsel to protect the defendant’s interest. It was possible in an appropriate case for the court to seek assistance from special counsel but the court did not identify what might constitute an appropriate case. Instead, it questioned what assistance special counsel could give the court over and above that of prosecuting counsel in accordance with his responsibilities, and observed that the only issue was the method of trial and not the consideration of evidence relating to the defence of the charges or to the fairness of the trial. The court upheld the Crown’s submission that Calvert-Smith J was wrong to hold that a package of measures devised by the police as the lower cost option to prevent jury tampering would reduce the risk of jury tampering to a level that was not so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury. In the court’s judgment those measures did not sufficiently address the extent of the risk. The court went on to consider the alternative package of measures that would cost about £6m and require the deployment of 82 police officers for the duration of the trial, and decided that it too failed to deal with the dangers posed to the integrity of the jury, principally because it failed to address the problem of jurors being “got at” through their families. Applying the decision of the Court of Appeal of Northern Ireland in R. v. Mackle [2008] NI 183, the court held that even if the second package had been adequate, account had to be taken of the cost of the measures and of their effect on the jurors. In the court’s view it was unreasonable to impose the package on the police with its drain on their resources and manpower. Equally, it would be unfair to impose the additional burdens consequent on the deployment of the package on individual jurors and the fact that such measures were being deployed with the jurors’ knowledge ran the risk of prejudicing them against the defendants. It remains to be seen whether Twomey is the thin end of the wedge and that applications for trial by judge alone on the ground of apprehended jury tampering become more frequent, particularly in serious cases involving professional criminals. What is certain is that when jury tampering is found to have taken place during a trial the judge will discharge the jury and continue the trial sitting alone. In the meantime we await the outcome of the first trial on indictment in England to be held without a jury for nearly 400 years.

News

Crime Brief | St Philips Criminal Law

Any time for money laundering?

in the case of R v Scott Linegar [2009] EWCA Crim 648.

Ben Mills

The appeal was heard by Lord Justice Aikens, Mr Justice Tugendhat and Mr Justice Nicol. The appellant had pleaded guilty to two counts of converting criminal property contrary to section 327 of the Proceeds of Crime Act 2002 which related to his purchase of a Mercedes and a house. He also pleaded guilty to three counts of possession of criminal property contrary to section 329 of the same Act, offences which related to 3 parcels of cash recovered from various properties connected to him. He was also convicted of one count of unlicensed money lending contrary to section 39(1) of the Consumer Credit Act 1974. He entered an agreeable basis of plea stating that all of the sums of money were the proceeds of his unlicensed/illegal money lending only.

Ben specialises in serious crime and regulatory offences. Current instructions include rape, GBH, fraud and a £3 million pound money laundering prosecution.

The Criminal Group are delighted to announce that three of its members were recently appointed as Recorders. Nicholas Cartwright, Simon Ward and Andrew Smith will all be sworn in during the summer. Nicholas Cartwright's appointment will complement his role as Deputy District Judge, an appointment he has held since 2004. Simon Ward's appointment is commensurate with his serious criminal practice and at only 34 years old Andrew Smith will become one of the youngest appointments to be made. St Philips is also pleased to announce that Ben Mills has been appointed to the Attorney General's list of prosecutors. Ben has been appointed to the 'C' list after a very competitive process. For up to date news on St Philips Chambers and its members please visit our website at www.st-philips.com

Forthcoming Events: 15th September 2009 – Criminal Law Update for Defence Practitioners St Philips Chambers, 55 Temple Row, Birmingham, B2 5LS 5:00pm – 7:00pm (registration 4:45pm), 2CPD, COST: FREE Speakers: Ben Williams “Criminal Procedure – A Practical Approach” Ben Mills “Alcohol Dependency Syndrome – An update” Blondel Thompson “An Introduction to Football Disciplinary Proceedings” 10th November 2009 – Criminal Law Update Please contact Liz Dziergas (seminars@st-philips.com) for further details.

Where a defendant has been convicted not only of doing something criminal but also with having made lots of money from that enterprise, the sentencing exercise which follows can often be a difficult one. Ever since the Proceeds of Crime Act 2002 (POCA) came into force and probably even before that, Judges have been tantalised with attractive mitigation based upon the following beguiling argument: a. That the real gravity of the offending lay in what might be described as the ‘anchor offence’ or the underlying offence. For example, if the case involved an illegal money lender, the anchor offence would be section 39 Consumer Credit Act 1974 which carries a maximum sentence of 2 years. b. That, in a sense, the POCA offences are subordinate to that ‘anchor offence’. The justification for that proposition being that the large house and shiny car the defendant was able to buy with the proceeds were no more than the fruits of his having criminally engaged in the underlying offence. c. Therefore the POCA offences were, ‘in reality’, part and parcel of the anchor offence. d. Accordingly, as a matter of principle, the sentences for the POCA offences should be concurrent and should not exceed the sentence imposed for the anchor offence. It was an attractive argument and, perhaps if delivered with the appropriate degree of imploring eyebrow action and gentle tilt of the head, one which might have been thought to carry with it some degree of merit. But, actually, it hasn’t any and that view was confirmed by the Court of Appeal on the 12th March 2009

R v Linegar

The appellant was sentenced to 15 months' imprisonment for the Consumer Credit Act offence and to 2 years imprisonment for each of the five Proceeds of Crime Act offences, those latter sentences to be served concurrently to each other but consecutively to the Consumer Credit Act offence sentence. The total sentence was therefore 3 years and 3 months' imprisonment. The issue on appeal The issue on appeal was whether the Judge had been wrong to make the POCA sentences consecutive to the ‘anchor offence’ and, further, whether he was wrong to sentence the appellant to a longer term of imprisonment for the POCA offences than he had imposed for the ‘anchor offence’. The decision The Court of Appeal found the arguments to be attractive but entirely fallacious. In their judgment the POCA offences were ‘entirely independent of the Consumer Credit Act offence’. They expressed that firm view in this way: “By section 329 of the Proceeds of Crime Act 2002, the simple possession of criminal property is, by itself, a crime. That is quite independent of any anterior offence. The mischief in possessing criminal property is that it enables the criminal to engage further in his criminal activities, whatever they might be. As Cooke J put it in the case of Basra [2002] EWCA Crim 541, it “encourages and nourishes crime in general”. “By section 327 of the Proceeds of Crime Act 2002, the converting of criminal property is itself a crime. That again is

quite independent of any anterior offence, in this case that of engaging in unlicensed provision of personal criminal agreement. “Converting” involves some kind of action: doing something to something else. Here the appellant converted the cash that he had obtained from his victims into a car and property. These actions were, in common language, laundering the money which was the proceeds of his criminal activity. That process hides those criminal activities. It enables the criminal more easily to escape detection. It provides an apparently innocent cover for the criminal activity. In our view, the acts of possessing and converting criminal property are pernicious. That is why those crimes have a maximum sentence of 14 years.” The effect of the decision The effect of this decision is to make it plain that any involvement with the fruits of any criminal activity should attract separate and distinct punishment. They are to be regarded as separate crimes requiring separate disposal. It is perhaps a little surprising that the Court drew the line quite so firmly in the sand, particularly in relation to offences under section 329 POCA (acquisition). Whilst it might be right that in the majority of cases the acquisition and possession of criminal property enables the defendant to engage further in his criminal activities, it might be thought that there are some offences where the overlap is so obvious, that proper consideration and weight should be given to that fact in mitigation. For example, where someone steals £10,000 from his employer and the next day is arrested in possession of that same criminal property, should he really have a consecutive sentence for possessing or acquiring that criminal property? Even if that same afternoon he uses it to buy a hot tub for his garden – does that really justify a sentence entirely independent of the anterior offence? What else would he be expected to do with what he had stolen other than spend it on something? Whilst the decision has helpfully clarified the clear and proper distinction that should be drawn in most cases, there may well be some where to apply the principle as strictly as the Court of Appeal suggest will result in a real sense of injustice. It might be right that the proceeds of crime nourish the criminal, but, in some cases, the proceeds might be nothing other than the loaf which was stolen in the first place.


Crime Brief | St Philips Criminal Law

Crime Brief | St Philips Criminal Law

Seeing is believing Sharon Bahia

identification can be tested. Although a police officer asked to view CCTV is not in the same shoes as a witness asked to identify someone he has seen committing a crime the Court of Appeal have stressed that the mischief of the code should still be applied as otherwise an officer can merely assert he recognised someone without any objective means of testing the accuracy. In R v Smith and others [2008] EWCA Crim 1342 the following guidance was set out by Moses LJ:

Sharon Bahia was called in 2000. She is a grade 3 prosecutor and an experienced criminal practitioner, prosecuting and defending in equal measure. She also undertakes police displinary work. One of the first points of law that I ever had to argue in the crown court related to purported identification of a Defendant by a police officer from CCTV footage. The Defendant in that case lived in Cardiff and was alleged to have taken part in a football related violent disorder in Stoke, between two opposing sets of fans. The police had circulated stills from the disorder nationwide and had asked the public to call in if they recognised anybody. An anonymous individual had called and named the Defendant which had led to him being arrested. He was interviewed by a police officer and during interview he maintained that he had never been to watch live football in his life and was not the man on the CCTV. He had no other football connections in terms of previous convictions or otherwise. He further indicated that he had never visited Stoke and on the day in question would’ve been in Barry in South Wales. The evidence which the prosecution sought to have admitted came from the interviewing officer. Following the interview he watched the CCTV and then in a statement purported to identify the man in the footage as the defendant whom he had earlier interviewed. Fortunately, the prosecution, eventually, conceded that the evidence was inadmissible and the case was dropped. Since then, various cases have gone before the Court of Appeal as to when this type of evidence should be admitted. This article seeks to examine the recent observations of the Court of Appeal in this area and assist advocates when arguing for and against such admissibility. Code D PACE provides the procedures to be followed in identification cases and imposes safeguards to ensure that the

• The police officers initial reactions to a recording are set out and available for scrutiny • The words the officer uses by way of recognition could also be of importance • If an officer failed to pick anybody out that also should be recorded as should any words of doubt • If recognition takes place, a record is made of what it is about the image that is said to have triggered the recognition

Without these records the Court indicated that it would not be possible to assess the reliability of the recognition and urged that a protocol be prepared which provided the safeguard for measuring the recognition against an objective standard of assessment. More recently the position has been reconsidered by the Court of Appeal in two cases R v Chaney [2009] EWCA Crim 21 and R v Tucker [2009] Crim LR 441. The former related to an officer forwarding some CCTV still images to another officer informing him that officers in Kent believed the man in the stills to be Chaney and they would be interested in his thoughts. The identifying officer was also informed the car on the footage had

also been checked and was found to be registered to Mr Chaney. A recognition was then made by the identifying officer and his response was sent through on email. Looking at Smith and others, as the court did, it may be thought the difficulties with this identification going before the jury were obvious. It could not be objectively determined whether the positive recognition by the officer was his initial reaction or what words he used by way of recognition. However, the Court of Appeal indicated that as the officers’ response was not drafted for the purposes of being given in evidence there was no reason to question that the e-mail signified a spontaneous and genuine response. Furthermore, despite the fact that at the time the email was sent no mention was made of the features that had triggered the recognition, the officer had given evidence of those matters at trial and the jury were able to assess whether those features were visible in the still photographs. Similarly in Tucker, where Moses LJ again delivered judgement, the Court of Appeal appeared to be back tracking on the structured guidance given in Smith and others. Again an officer was shown CCTV, having been told that it was thought that the appellant was on the recording and a positive identification was made. The officer had last seen the Defendant 24 – 30 months previously and in evidence was unable to say what it was about the image that had triggered the recognition. The Court again stated that the jury were entitled to look at the footage and make their own assessment as to whether the image was clear enough to allow a person to identify them as the appellant. Again reference was made as to the officer not, at the time of viewing, being proposed as a potential witness. The above decisions clearly referred to the guidance in Smith and others and neither case sought to disagree with the principles set out in the judgement but instead sought to distinguish the application in the two appeals. Although, the two above decisions reflect a worrying change in favour of admitting this type of evidence without the need for the necessary procedural safeguards it is still hoped that a protocol is developed, as stressed by the Court of Appeal in all three cases. The Smith guidance is a useful starting point in any case when cross-examining a police officer in such circumstances. Furthermore where it is the only evidence it is likely that a submission may succeed at half time.

cases in the Crown Court that decision will be made by a circuit judge or recorder. Since the consequence of a decision to order a trial without a jury under s.44 and to continue a trial without a jury under s.46 is the same in that the judge alone will decide whether the defendant is guilty or not, there is no guarantee that in all cases the verdict of the judge sitting alone will be that of a senior and experienced judge. Further, although consistency of approach may be achieved in applications under s.44, the decisions of trial judges to continue trials without a jury under s.46 may vary widely and potentially may generate more appellate work. It was common ground between the Crown and the defendants that it was for the Crown to prove its case on the

application beyond reasonable doubt but the defendants contended that the judge had a discretion as to whether to order a trial without a jury. The purpose of this contention was to support a submission that Calvert-Smith J’s decision not to order trial by a judge alone could only be overturned on appeal if it was unreasonable in the Wednesbury sense. The court referred to s.44(3) which provides that if the judge finds that the two conditions for trial by judge alone are satisfied the judge must order a trial without a jury. The decision did not involve the exercise of a discretion. The judge had to decide whether the statutory conditions in s.44(4) and (5) were satisfied to the criminal standard of proof. If they were, he must order a trial without a jury. Any appeal against the

judge’s decision must be directed to whether his decision on the statutory conditions was wrong and not whether it was Wednesbury unreasonable. Counsel for the defendants concentrated heavily on ss.45(3) and 46(2)(c). Where an application for a trial by judge alone under s.44 is made at a preliminary hearing, s.45(3) requires that the parties must be given the opportunity to make representations with respect to the application. Where an issue about jury tampering arises during the trial, s.46(2)(c) requires the judge to allow the parties to make representations before he can discharge the jury on the ground that jury tampering has taken place. The defendants complained that they had not been shown the evidence that was considered by Judge Roberts and Calvert-

Smith J in deciding that there was a real and present danger that jury tampering would take place and that there was little disclosure of evidence to demonstrate that the likelihood of jury tampering could not be satisfactorily minimised. The defendants submitted that if they could not see at least some of the evidence they were deprived of the opportunity of making meaningful representations. That would contravene the statute and undermine their art.6 rights, which extended to a procedural matters. The Court of Appeal rejected the submission that the evidence, or the bulk of it, relied on by the Crown under s.44 or s.46 must always be disclosed. There would be cases in which the evidence to demonstrate the risk of jury tampering

would be so sensitive that it could only be adduced under PII principles. The disclosure of such evidence might imperil life or health, or involve the disclosure of police operational evidence or methodology that would be of advantage to criminals and damaging to the public interest. In those cases, if forced to disclose the evidence, the Crown would be faced with no alternative but to discontinue the prosecution and the objective of jury tampering would have succeeded. The court stated that the evidence should be disclosed to the fullest extent possible but it would be contrary to the legislative purpose to order disclosure when the effect of the order would be to bring the prosecution to an end. The court’s decision is liable to present

anyone facing an application for trial by judge alone, or to discharge the jury and continue a trial without a jury, with the difficulty of contesting the application with one (or even both) hands tied behind his back. The allegation that the disclosure of the information to the defence would present a danger to life or health, or reveal police operational methods, or is otherwise contrary to the public interest is easy for the prosecution to make and difficult for the defence to rebut without sight of the evidence in question. Ultimately, the defendant is reliant upon judicial robustness to examine carefully assertions of public interest and to ensure that the evidence in support of an application is disclosed to the fullest extent possible. The court was lukewarm about the use of special


Crime Brief | St Philips Criminal Law

counsel to protect the defendant’s interest. It was possible in an appropriate case for the court to seek assistance from special counsel but the court did not identify what might constitute an appropriate case. Instead, it questioned what assistance special counsel could give the court over and above that of prosecuting counsel in accordance with his responsibilities, and observed that the only issue was the method of trial and not the consideration of evidence relating to the defence of the charges or to the fairness of the trial. The court upheld the Crown’s submission that Calvert-Smith J was wrong to hold that a package of measures devised by the police as the lower cost option to prevent jury tampering would reduce the risk of jury tampering to a level that was not so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury. In the court’s judgment those measures did not sufficiently address the extent of the risk. The court went on to consider the alternative package of measures that would cost about £6m and require the deployment of 82 police officers for the duration of the trial, and decided that it too failed to deal with the dangers posed to the integrity of the jury, principally because it failed to address the problem of jurors being “got at” through their families. Applying the decision of the Court of Appeal of Northern Ireland in R. v. Mackle [2008] NI 183, the court held that even if the second package had been adequate, account had to be taken of the cost of the measures and of their effect on the jurors. In the court’s view it was unreasonable to impose the package on the police with its drain on their resources and manpower. Equally, it would be unfair to impose the additional burdens consequent on the deployment of the package on individual jurors and the fact that such measures were being deployed with the jurors’ knowledge ran the risk of prejudicing them against the defendants. It remains to be seen whether Twomey is the thin end of the wedge and that applications for trial by judge alone on the ground of apprehended jury tampering become more frequent, particularly in serious cases involving professional criminals. What is certain is that when jury tampering is found to have taken place during a trial the judge will discharge the jury and continue the trial sitting alone. In the meantime we await the outcome of the first trial on indictment in England to be held without a jury for nearly 400 years.

News

Crime Brief | St Philips Criminal Law

Any time for money laundering?

in the case of R v Scott Linegar [2009] EWCA Crim 648.

Ben Mills

The appeal was heard by Lord Justice Aikens, Mr Justice Tugendhat and Mr Justice Nicol. The appellant had pleaded guilty to two counts of converting criminal property contrary to section 327 of the Proceeds of Crime Act 2002 which related to his purchase of a Mercedes and a house. He also pleaded guilty to three counts of possession of criminal property contrary to section 329 of the same Act, offences which related to 3 parcels of cash recovered from various properties connected to him. He was also convicted of one count of unlicensed money lending contrary to section 39(1) of the Consumer Credit Act 1974. He entered an agreeable basis of plea stating that all of the sums of money were the proceeds of his unlicensed/illegal money lending only.

Ben specialises in serious crime and regulatory offences. Current instructions include rape, GBH, fraud and a £3 million pound money laundering prosecution.

The Criminal Group are delighted to announce that three of its members were recently appointed as Recorders. Nicholas Cartwright, Simon Ward and Andrew Smith will all be sworn in during the summer. Nicholas Cartwright's appointment will complement his role as Deputy District Judge, an appointment he has held since 2004. Simon Ward's appointment is commensurate with his serious criminal practice and at only 34 years old Andrew Smith will become one of the youngest appointments to be made. St Philips is also pleased to announce that Ben Mills has been appointed to the Attorney General's list of prosecutors. Ben has been appointed to the 'C' list after a very competitive process. For up to date news on St Philips Chambers and its members please visit our website at www.st-philips.com

Forthcoming Events: 15th September 2009 – Criminal Law Update for Defence Practitioners St Philips Chambers, 55 Temple Row, Birmingham, B2 5LS 5:00pm – 7:00pm (registration 4:45pm), 2CPD, COST: FREE Speakers: Ben Williams “Criminal Procedure – A Practical Approach” Ben Mills “Alcohol Dependency Syndrome – An update” Blondel Thompson “An Introduction to Football Disciplinary Proceedings” 10th November 2009 – Criminal Law Update Please contact Liz Dziergas (seminars@st-philips.com) for further details.

Where a defendant has been convicted not only of doing something criminal but also with having made lots of money from that enterprise, the sentencing exercise which follows can often be a difficult one. Ever since the Proceeds of Crime Act 2002 (POCA) came into force and probably even before that, Judges have been tantalised with attractive mitigation based upon the following beguiling argument: a. That the real gravity of the offending lay in what might be described as the ‘anchor offence’ or the underlying offence. For example, if the case involved an illegal money lender, the anchor offence would be section 39 Consumer Credit Act 1974 which carries a maximum sentence of 2 years. b. That, in a sense, the POCA offences are subordinate to that ‘anchor offence’. The justification for that proposition being that the large house and shiny car the defendant was able to buy with the proceeds were no more than the fruits of his having criminally engaged in the underlying offence. c. Therefore the POCA offences were, ‘in reality’, part and parcel of the anchor offence. d. Accordingly, as a matter of principle, the sentences for the POCA offences should be concurrent and should not exceed the sentence imposed for the anchor offence. It was an attractive argument and, perhaps if delivered with the appropriate degree of imploring eyebrow action and gentle tilt of the head, one which might have been thought to carry with it some degree of merit. But, actually, it hasn’t any and that view was confirmed by the Court of Appeal on the 12th March 2009

R v Linegar

The appellant was sentenced to 15 months' imprisonment for the Consumer Credit Act offence and to 2 years imprisonment for each of the five Proceeds of Crime Act offences, those latter sentences to be served concurrently to each other but consecutively to the Consumer Credit Act offence sentence. The total sentence was therefore 3 years and 3 months' imprisonment. The issue on appeal The issue on appeal was whether the Judge had been wrong to make the POCA sentences consecutive to the ‘anchor offence’ and, further, whether he was wrong to sentence the appellant to a longer term of imprisonment for the POCA offences than he had imposed for the ‘anchor offence’. The decision The Court of Appeal found the arguments to be attractive but entirely fallacious. In their judgment the POCA offences were ‘entirely independent of the Consumer Credit Act offence’. They expressed that firm view in this way: “By section 329 of the Proceeds of Crime Act 2002, the simple possession of criminal property is, by itself, a crime. That is quite independent of any anterior offence. The mischief in possessing criminal property is that it enables the criminal to engage further in his criminal activities, whatever they might be. As Cooke J put it in the case of Basra [2002] EWCA Crim 541, it “encourages and nourishes crime in general”. “By section 327 of the Proceeds of Crime Act 2002, the converting of criminal property is itself a crime. That again is

quite independent of any anterior offence, in this case that of engaging in unlicensed provision of personal criminal agreement. “Converting” involves some kind of action: doing something to something else. Here the appellant converted the cash that he had obtained from his victims into a car and property. These actions were, in common language, laundering the money which was the proceeds of his criminal activity. That process hides those criminal activities. It enables the criminal more easily to escape detection. It provides an apparently innocent cover for the criminal activity. In our view, the acts of possessing and converting criminal property are pernicious. That is why those crimes have a maximum sentence of 14 years.” The effect of the decision The effect of this decision is to make it plain that any involvement with the fruits of any criminal activity should attract separate and distinct punishment. They are to be regarded as separate crimes requiring separate disposal. It is perhaps a little surprising that the Court drew the line quite so firmly in the sand, particularly in relation to offences under section 329 POCA (acquisition). Whilst it might be right that in the majority of cases the acquisition and possession of criminal property enables the defendant to engage further in his criminal activities, it might be thought that there are some offences where the overlap is so obvious, that proper consideration and weight should be given to that fact in mitigation. For example, where someone steals £10,000 from his employer and the next day is arrested in possession of that same criminal property, should he really have a consecutive sentence for possessing or acquiring that criminal property? Even if that same afternoon he uses it to buy a hot tub for his garden – does that really justify a sentence entirely independent of the anterior offence? What else would he be expected to do with what he had stolen other than spend it on something? Whilst the decision has helpfully clarified the clear and proper distinction that should be drawn in most cases, there may well be some where to apply the principle as strictly as the Court of Appeal suggest will result in a real sense of injustice. It might be right that the proceeds of crime nourish the criminal, but, in some cases, the proceeds might be nothing other than the loaf which was stolen in the first place.


Crime Brief | St Philips Criminal Law

Jury tampering and non-jury trials Patrick Darby

Over his 30 years at the Bar Patrick has built up a wide ranging criminal law practice with a focus on business and financial crime. R. v. Twomey & Others [2009] EWCA Crim 1035, The Times 25th June 2009 was the first consideration by the Court of Appeal of the provisions in ss.44-46 of the Criminal Justice Act 2009 that permit trial by judge alone in a case where there is evidence of jury tampering, or where there is evidence of a “real and present danger” that jury tampering will take place. The decision attracted much attention in the news media by reason of the fact that the resulting trial will be the first trial on indictment in England without a jury in modern times. Of more interest and concern to lawyers, and especially those concerned in conducting the defence case, is the court’s ruling that the evidence on which the decision to conduct the case without a jury is founded may be placed before the judge using the PII procedure and never revealed to the defence. The Crown appealed to the Court of Appeal against the decision of CalvertSmith J at a preparatory hearing under s.45 of the CJA 2003 to refuse its application for the trial of the defendants to be conducted without a jury. In allowing the appeal the court (Lord Judge LCJ, Goldring LJ and McCombe J) explained how judges should approach applications for trials without juries and the procedure to be adopted in such cases. The defendants were accused of a number of offences arising from an armed robbery at Heathrow Airport and there had already been two trials. During the sixth month of the third trial the prosecution informed the trial judge, Judge Roberts QC, that there was evidence that approaches had been made to two jurors as a result of which, having considered material that was not disclosed to the defence, he discharged

Crime Brief | St Philips Criminal Law

Crime Brief | St Philips Criminal Law

the jury. Although he was satisfied that there had been jury tampering, he declined to continue the trial without a jury under s.46(3) because he had seen a substantial volume of highly prejudicial material that was inadmissible in the trial and he decided to terminate the trial in the interests of justice under s.46(4). Judge Roberts decided that as the issues raised by the Crown’s application to hold the re-trial without a jury raised important matters of public policy they were best considered by one of the Presiding Judges of the South Eastern Circuit. It was in those circumstances that the Crown’s application came before Calvert-Smith J at a preliminary hearing. Calvert-Smith J considered the material placed before him by the Crown in chambers using the PII procedure and then heard submissions from all parties in open court. In his ruling in open court he held that the material placed before him in chambers should be withheld from the defence in the public interest, notwithstanding that this inhibited the making of representations in opposition to the application. He was satisfied that there was a real and present danger that jury tampering would take place and that the risk would remain present throughout the trial so the s.44(4) condition was satisfied. However, he decided that the condition in s.44(5) was not satisfied because a package of measures costing £1.5m in police time could be taken that would reduce the likelihood of jury tampering to a level that was not so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury. It was against that decision that the Crown appealed. At the hearing of the appeal the court read the “closed” judgments of Judge Roberts and Calvert-Smith J that were not made public (save for a short passage of Calvert-Smith J’s judgment) or disclosed to the defence. The Court also heard evidence from an assistant commissioner and a detective superintendent of the Metropolitan Police in the absence of the defendants and their counsel. The court recognised that trial by jury is a hallowed principle of the administration of criminal justice and that it is properly characterised as a right available to a defendant. But any attempt to interfere with the jury is an abuse or misuse of process to which the solution was to dispense with the jury altogether and permit a judge to try the case alone. The court dealt summarily with the idea that a trial by a judge alone is unfair or that it does not comply with art.6 of the

European Convention on Human Rights. Lord Judge said that where is established that a jury trial is likely to be abused or subverted the end result under ss.44 and 46 is not an unfair trial but a trial by a judge where the necessary procedural safeguards available in a jury trial are available to an accused. A trial by judge alone is not unfair or prejudicial to the defendant and complies with art.6 because it is a trial before an independent tribunal. The court observed that in most cases the provisions of s.46 would apply rather than those of s.44 because it was likely that jury tampering would occur in the course of a trial. If the judge decided under s.46(3) that jury tampering has taken place and that to continue the trial without a jury would be fair to the defendant, the court was firmly of the view that the judge should discharge the jury and continue the trial sitting alone, save in unusual circumstances, because: (i) one of the purposes of the legislation was to discourage jury tampering; (ii) huge inconvenience and expense would be involved in a re-trial; (iii) any possible advantage accruing to those engaged in jury tampering or for whose perceived benefit it had been arranged would be negated; and (iv) trials should proceed to a verdict rather than result in the discharge of the jury. The fact that the judge had considered material covered by PII principles (as had Judge Roberts) should not normally lead to selfdisqualification. The latter point is perhaps self-evident; a professional judge should be relied upon to disregard material that is inadmissible in the trial and has not been the subject of crossexamination. In cases where the Crown applies for a trial by judge alone under s.44 the court was concerned to achieve consistency of approach. For the time being, the court held that all applications should be referred to the Presiding Judge of the relevant circuit for a listing decision in the expectation that the application would be heard and determined by a Presiding Judge. If the application succeeded, the Presiding Judge should identify a senior and experienced judge to conduct the trial. Whilst there is much sense in the idea that a decision to deprive a defendant of his right to trial by jury should be taken at a senior level, that only applies where an application is made by the Crown before the trial under s.44. The court envisaged that in most cases the decision that has to be made is whether or not to continue on a trial without a jury under s.46. In almost all

People Trafficking Shane Crawford

within a number of statutes in one form or another. There is some overlap with the people smuggling offences which have been discussed in Part 1 of this article. For ease of reference they are as follows: i. Immigration Act 1971; – assisting unlawful a. s.25 immigration to a member State (EU); b. s.25A – helping an asylum seeker to enter the UK;

Shane's criminal practice covers the full spectrum of criminal law. He has represented Defendants in firearms cases, large scale public disorders, sexual offences and frauds. The trade in human beings is still very prevalent. It exists not just in developing countries but sovereign states where the notion of buying and selling people was thought to have been consigned to history generations ago. The victims of this offence are largely hidden from pubic view. The surreptitious nature of traffickers means that the crimes they commit do not readily come under the spot light of public scrutiny. However trafficking is ranked just behind the arms trade and drugs trade as one of the most lucrative forms of international crime: US State Department – Trafficking in Persons report (2007). This area of criminal law has been codified at international level as well as within domestic jurisdictions. The Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children 2000 (the Palermo Protocol), supplements the UN Convention Against Transnational Organized Crime, and now the Convention on Action Against Trafficking in Human Beings 2005 from the Council of Europe has been ratified by the UK on 17th December 2008. What is it? Trafficking victims have either never consented or such consent is meaningless by the threats or deception used by traffickers. It is perhaps best defined by the distinction to be drawn between “smuggling” people and people trafficking. Those who are smuggled consent to it. People smuggling frequently becomes trafficking: the victim is promised a legitimate job but on arrival finds that she is forced to work to pay off an alleged “debt” of the person who paid for their passage to the UK. Domestic Law The Offences The offence of trafficking is contained

c. s.25B – assisting entry to UK in breach of deportation or exclusion order ii. Sexual Offences Act 2003 [Archbold 20 – 179]; a. s.57 – Trafficking into the UK for sexual exploitation; b. s.58 – Trafficking within the UK for sexual exploitation; c. s.59 – Trafficking out of the UK for sexual exploitation. iii. Asylum and Immigration (Treatment of Claimants etc) Act 2004 s.4 iv. Nationality Immigration and Asylum Act 2002 s.145 – facilitating the arrival, travel or departure of a person in the UK for the purpose of control of prostitution. This was repealed by the Sexual Offences Act 2003 on 1st May 2004. Drafting the Indictment For the purpose of prosecuting people trafficking it is not uncommon for there to be a number of different charges to reflect the different roles that individuals play within the process of the offence. The offences under Immigration Act 1971 will be used against couriers for whom there is insufficient evidence to show that they knew for what purpose the complainant was being brought to the UK. Trafficking as defined by the Sexual Offences Act 2003 requires proof of intent by the offender to either commit a relevant offence or a belief that another would commit a relevant offence when he facilitates the entry, travel or departure of the victim. A “relevant offence” encompasses any offence under the Sexual Offences Act 2003 or taking indecent images of children under Protection of Children Act 1978 s.1(1)(a). Obviously these sections target traffickers who are moving people to work within the sex trade. Asylum and Immigration (Treatment of Claimants etc) Act 2004 s.4 encompasses all aspects of people trafficking for both

sexual and non-sexual purposes for example for human organ donation. The key difference between offences under this statute and the offences under Sexual Offences Act 2003 is requirement to prove the intention to “exploit” the victim by the offender. “Exploitation” is defined by s.4(4) by reference to particular situations where a person is considered to be exploited: i. he is the victim of slavery or forced labour as defined by Article 4 of the Human Rights Convention; ii. he is encouraged to commit an offence as defined by the Human Tissue Act 2004 ss 32 and 33 – illegal trade in human organs or tissue; iii. he is subjected to force, threats or deception designed to induce him – a. to provide services of any kind, or b. to provide another person with benefit of any kind, or c. to enable another person to acquire benefits of any kind iv. he is induced to undertake any activity, having been chosen as the subject of the inducement due to a. the fact that he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and b. A person without disability, youth relationship would refuse the request inducement.

the illness, or family be likely to or resist the

These are very broadly defined situations particularly where the provision of services of any kind induced by threats or deception amount to exploitation. The charging decision should however be carefully considered. The breadth of the definition under Asylum and Immigration (Treatment of Claimants etc) Act 2004 s.4 would include trafficking for the purposes of prostitution. It may seem at first attractive to draft a charge alleging trafficking under this statute particularly when there is evidence of a broad range of acts amounting to exploitation. However under the Sexual Offences Act 2003 ss57 - 59 there is no requirement to prove the use or threat of force or deception for the offence to be made out. For such reasons the prosecution of trafficking offences under Sexual Offences Act 2003 presents a more straightforward option where the exploitation is of a sexual nature. In addition and significantly under Sexual Offences Act 2003 the consent of the

individual to be trafficked is not a consideration and therefore cannot represent a defence. In contrast such a defence may be sustainable under the Asylum and Immigration (Treatment of Claimants etc) Act 2004. Lastly the only purpose that the Nationality Immigration and Asylum Act 2002 s.145 now serves is a historical case of trafficking for sexual exploitation which occurred between 10th February 2003 (commencement date) and 1st May 2004 (commencement date for Sexual Offences Act 2003 and date of repeal of s.145). The dates of the offences can be crucial and care should be taken when considering how to charge an offence when looking at the evidence in the round. Prevention As well as convicting the traffickers legislation is now in place to attempt to dissuade employers from turning a blind eye to the origins of their workforce. The Immigration, Asylum and Nationality Act 2006 s.15 provides for a fixed penalty notice for an employer who employs an individual who has not been granted leave to remain in the UK or such leave is invalid. The maximum penalty is £10, 000. For an employer who knowingly employs staff who do not have the legal right to work a criminal conviction will follow. Immigration, Asylum and Nationality Act 2006 s.21 outlines the offence the maximum penalty for which is 2 years custody. Gangmasters are now subject to licensing conditions. Any gangmaster operating without a valid licence commits an offence for which the maximum sentence on indictment is 10 years imprisonment. Equally anyone entering into an arrangement with an unlicensed gangmaster commits an offence for which the maximum sentence is also 10 years imprisonment. This does not directly protect the subjects of trafficking but the vigilance by the Gangmasters Licensing Authority provides some safeguard against the exploitation of people smuggled into the UK to work of life of servitude. Witness protection A significant difficulty in bringing a case to trial is the fact that the victims of trafficking are very vulnerable and reluctant to stay to give evidence necessary to mount a prima facie case. The Convention on Action Against Trafficking in Human Beings 2005 (found at http://www.coe.int/t/dghl/monitoring/ trafficking/Source/PDF_Conv_197_Traffic

king_E.pdf) from the Council of Europe, ratified by the UK on 17th December 2008, seeks to redress this situation. The Home Office circular: “Impact Assessment of ratification of the convention against human trafficking” (found at http://www.homeoffice.gov.uk/ documents/ia-human trafficking?view =Binary) out lines the extent of the support for the victims of trafficking to fulfill the UK’s obligations under the Convention. The provisions are as follows: i. A 45-day minimum recovery-andreflection period. Where the Competent Authority has identified that there are reasonable grounds to believe that an individual has been trafficked (with exploitation occurring in the United Kingdom) individuals will be eligible for a reflection period of 45 days this will be extendable in some circumstances. In essence this should provide a set period of time for such a person to remain in the UK with the financial support of the state. The Home Office speaks of “Convention compliant support through funding of Non Government Organisations and other third parties”. Such a time may prove crucial for investigations into trafficking. ii. A one-year temporary residence permit. “The Government has Decided that where an individual is conclusively accepted as a victim of trafficking and qualifies for a residence permit it should be granted for a minimum of one year”. The UK Border Agency will grant the permit after consideration of the individual case. The grant is a form of discretionary leave. iii. Access to a national support service. The Convention stipulates a certain minimum level of support during the recovery and reflection period which includes accommodation, access to emergency health, counseling and access to education for children. When a potential victim is identified a referral should be made to the UK Human Trafficking Centre to activate these provisions. Such measures will assist in the retention of witnesses needed to sustain the prosecution of cases of this nature. Sentence Sentencing Guidelines Council Sentencing Guidelines on Sexual Offences (p131) provides the first point of reference. Where coercion was used the starting point is 6 years with a band range of 4 to 9 years, but where no coercion is present 2 years is the starting point with a

range of 1 to 4 years. Recent cases also give a flavour of the type of sentence that might be anticipated. AG Ref. Nos 129 and 132 of 2006 (Elisabeth Degado Fernadez and Godwin Zammit) [2007] 2 Cr. App. R. (S.) 85. The offenders were convicted of conspiracy to traffic into the UK for sexual exploitation, conspiracy to control prostitution for gain, and conspiracy to facilitate illegal immigration. The activity involved advertising on a website seeking to recruit women to work as prostitutes from Spain, South America and Eastern Europe. The offenders undertook the administration of the activity like a business arrangement by which they took 60% of the women’s earnings out of which substantial expenses were paid. The offenders had their sentences reduced from 7 to 5 years and from 5 to 4 years imprisonment respectively. The second of the two cases referred by the Attorney General (Thanh Hue Thi), involved conspiracy to traffic into the UK for sexual exploitation of Malaysian women. One of the women was deceived into taking a holiday to London paid for by a boyfriend. On arrival she was taken to an address where she was prevented from leaving and told she would work as a prostitute. Other women worked as prostitutes in the brothel but these women indicated that they knew that this was the purpose for coming to the UK. The aggravating feature was that their return tickets were removed from them and the offender told them they had to pay of their debt. The revenue generated by this offending was approximately £2 million. The offender received only 5 years imprisonment. The Court of Appeal took the view that the starting point should have been 10 years from which reduction could be made for a guilty plea and personal mitigation. However the court concluded that the sentence was lenient but not unduly lenient and did not alter the sentence. In the case of Atilla Makai [2008] 1 Cr. App. R. (S.) 73 the appellant pleaded guilty to conspiracy to traffic for sexual exploitation. The appellant was involved with another in recruiting Hungarian girls to come to the United Kingdom to work as prostitutes. The women were from Hungary who knew that they entering the UK to work as prostitutes. The appellant was paid a fee each time. He passed on the women to men who ran brothels. The sentence of 40 months imprisonment was reduced to 30 months.


Crime Brief | St Philips Criminal Law

Jury tampering and non-jury trials Patrick Darby

Over his 30 years at the Bar Patrick has built up a wide ranging criminal law practice with a focus on business and financial crime. R. v. Twomey & Others [2009] EWCA Crim 1035, The Times 25th June 2009 was the first consideration by the Court of Appeal of the provisions in ss.44-46 of the Criminal Justice Act 2009 that permit trial by judge alone in a case where there is evidence of jury tampering, or where there is evidence of a “real and present danger” that jury tampering will take place. The decision attracted much attention in the news media by reason of the fact that the resulting trial will be the first trial on indictment in England without a jury in modern times. Of more interest and concern to lawyers, and especially those concerned in conducting the defence case, is the court’s ruling that the evidence on which the decision to conduct the case without a jury is founded may be placed before the judge using the PII procedure and never revealed to the defence. The Crown appealed to the Court of Appeal against the decision of CalvertSmith J at a preparatory hearing under s.45 of the CJA 2003 to refuse its application for the trial of the defendants to be conducted without a jury. In allowing the appeal the court (Lord Judge LCJ, Goldring LJ and McCombe J) explained how judges should approach applications for trials without juries and the procedure to be adopted in such cases. The defendants were accused of a number of offences arising from an armed robbery at Heathrow Airport and there had already been two trials. During the sixth month of the third trial the prosecution informed the trial judge, Judge Roberts QC, that there was evidence that approaches had been made to two jurors as a result of which, having considered material that was not disclosed to the defence, he discharged

Crime Brief | St Philips Criminal Law

Crime Brief | St Philips Criminal Law

the jury. Although he was satisfied that there had been jury tampering, he declined to continue the trial without a jury under s.46(3) because he had seen a substantial volume of highly prejudicial material that was inadmissible in the trial and he decided to terminate the trial in the interests of justice under s.46(4). Judge Roberts decided that as the issues raised by the Crown’s application to hold the re-trial without a jury raised important matters of public policy they were best considered by one of the Presiding Judges of the South Eastern Circuit. It was in those circumstances that the Crown’s application came before Calvert-Smith J at a preliminary hearing. Calvert-Smith J considered the material placed before him by the Crown in chambers using the PII procedure and then heard submissions from all parties in open court. In his ruling in open court he held that the material placed before him in chambers should be withheld from the defence in the public interest, notwithstanding that this inhibited the making of representations in opposition to the application. He was satisfied that there was a real and present danger that jury tampering would take place and that the risk would remain present throughout the trial so the s.44(4) condition was satisfied. However, he decided that the condition in s.44(5) was not satisfied because a package of measures costing £1.5m in police time could be taken that would reduce the likelihood of jury tampering to a level that was not so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury. It was against that decision that the Crown appealed. At the hearing of the appeal the court read the “closed” judgments of Judge Roberts and Calvert-Smith J that were not made public (save for a short passage of Calvert-Smith J’s judgment) or disclosed to the defence. The Court also heard evidence from an assistant commissioner and a detective superintendent of the Metropolitan Police in the absence of the defendants and their counsel. The court recognised that trial by jury is a hallowed principle of the administration of criminal justice and that it is properly characterised as a right available to a defendant. But any attempt to interfere with the jury is an abuse or misuse of process to which the solution was to dispense with the jury altogether and permit a judge to try the case alone. The court dealt summarily with the idea that a trial by a judge alone is unfair or that it does not comply with art.6 of the

European Convention on Human Rights. Lord Judge said that where is established that a jury trial is likely to be abused or subverted the end result under ss.44 and 46 is not an unfair trial but a trial by a judge where the necessary procedural safeguards available in a jury trial are available to an accused. A trial by judge alone is not unfair or prejudicial to the defendant and complies with art.6 because it is a trial before an independent tribunal. The court observed that in most cases the provisions of s.46 would apply rather than those of s.44 because it was likely that jury tampering would occur in the course of a trial. If the judge decided under s.46(3) that jury tampering has taken place and that to continue the trial without a jury would be fair to the defendant, the court was firmly of the view that the judge should discharge the jury and continue the trial sitting alone, save in unusual circumstances, because: (i) one of the purposes of the legislation was to discourage jury tampering; (ii) huge inconvenience and expense would be involved in a re-trial; (iii) any possible advantage accruing to those engaged in jury tampering or for whose perceived benefit it had been arranged would be negated; and (iv) trials should proceed to a verdict rather than result in the discharge of the jury. The fact that the judge had considered material covered by PII principles (as had Judge Roberts) should not normally lead to selfdisqualification. The latter point is perhaps self-evident; a professional judge should be relied upon to disregard material that is inadmissible in the trial and has not been the subject of crossexamination. In cases where the Crown applies for a trial by judge alone under s.44 the court was concerned to achieve consistency of approach. For the time being, the court held that all applications should be referred to the Presiding Judge of the relevant circuit for a listing decision in the expectation that the application would be heard and determined by a Presiding Judge. If the application succeeded, the Presiding Judge should identify a senior and experienced judge to conduct the trial. Whilst there is much sense in the idea that a decision to deprive a defendant of his right to trial by jury should be taken at a senior level, that only applies where an application is made by the Crown before the trial under s.44. The court envisaged that in most cases the decision that has to be made is whether or not to continue on a trial without a jury under s.46. In almost all

People Trafficking Shane Crawford

within a number of statutes in one form or another. There is some overlap with the people smuggling offences which have been discussed in Part 1 of this article. For ease of reference they are as follows: i. Immigration Act 1971; – assisting unlawful a. s.25 immigration to a member State (EU); b. s.25A – helping an asylum seeker to enter the UK;

Shane's criminal practice covers the full spectrum of criminal law. He has represented Defendants in firearms cases, large scale public disorders, sexual offences and frauds. The trade in human beings is still very prevalent. It exists not just in developing countries but sovereign states where the notion of buying and selling people was thought to have been consigned to history generations ago. The victims of this offence are largely hidden from pubic view. The surreptitious nature of traffickers means that the crimes they commit do not readily come under the spot light of public scrutiny. However trafficking is ranked just behind the arms trade and drugs trade as one of the most lucrative forms of international crime: US State Department – Trafficking in Persons report (2007). This area of criminal law has been codified at international level as well as within domestic jurisdictions. The Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children 2000 (the Palermo Protocol), supplements the UN Convention Against Transnational Organized Crime, and now the Convention on Action Against Trafficking in Human Beings 2005 from the Council of Europe has been ratified by the UK on 17th December 2008. What is it? Trafficking victims have either never consented or such consent is meaningless by the threats or deception used by traffickers. It is perhaps best defined by the distinction to be drawn between “smuggling” people and people trafficking. Those who are smuggled consent to it. People smuggling frequently becomes trafficking: the victim is promised a legitimate job but on arrival finds that she is forced to work to pay off an alleged “debt” of the person who paid for their passage to the UK. Domestic Law The Offences The offence of trafficking is contained

c. s.25B – assisting entry to UK in breach of deportation or exclusion order ii. Sexual Offences Act 2003 [Archbold 20 – 179]; a. s.57 – Trafficking into the UK for sexual exploitation; b. s.58 – Trafficking within the UK for sexual exploitation; c. s.59 – Trafficking out of the UK for sexual exploitation. iii. Asylum and Immigration (Treatment of Claimants etc) Act 2004 s.4 iv. Nationality Immigration and Asylum Act 2002 s.145 – facilitating the arrival, travel or departure of a person in the UK for the purpose of control of prostitution. This was repealed by the Sexual Offences Act 2003 on 1st May 2004. Drafting the Indictment For the purpose of prosecuting people trafficking it is not uncommon for there to be a number of different charges to reflect the different roles that individuals play within the process of the offence. The offences under Immigration Act 1971 will be used against couriers for whom there is insufficient evidence to show that they knew for what purpose the complainant was being brought to the UK. Trafficking as defined by the Sexual Offences Act 2003 requires proof of intent by the offender to either commit a relevant offence or a belief that another would commit a relevant offence when he facilitates the entry, travel or departure of the victim. A “relevant offence” encompasses any offence under the Sexual Offences Act 2003 or taking indecent images of children under Protection of Children Act 1978 s.1(1)(a). Obviously these sections target traffickers who are moving people to work within the sex trade. Asylum and Immigration (Treatment of Claimants etc) Act 2004 s.4 encompasses all aspects of people trafficking for both

sexual and non-sexual purposes for example for human organ donation. The key difference between offences under this statute and the offences under Sexual Offences Act 2003 is requirement to prove the intention to “exploit” the victim by the offender. “Exploitation” is defined by s.4(4) by reference to particular situations where a person is considered to be exploited: i. he is the victim of slavery or forced labour as defined by Article 4 of the Human Rights Convention; ii. he is encouraged to commit an offence as defined by the Human Tissue Act 2004 ss 32 and 33 – illegal trade in human organs or tissue; iii. he is subjected to force, threats or deception designed to induce him – a. to provide services of any kind, or b. to provide another person with benefit of any kind, or c. to enable another person to acquire benefits of any kind iv. he is induced to undertake any activity, having been chosen as the subject of the inducement due to a. the fact that he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and b. A person without disability, youth relationship would refuse the request inducement.

the illness, or family be likely to or resist the

These are very broadly defined situations particularly where the provision of services of any kind induced by threats or deception amount to exploitation. The charging decision should however be carefully considered. The breadth of the definition under Asylum and Immigration (Treatment of Claimants etc) Act 2004 s.4 would include trafficking for the purposes of prostitution. It may seem at first attractive to draft a charge alleging trafficking under this statute particularly when there is evidence of a broad range of acts amounting to exploitation. However under the Sexual Offences Act 2003 ss57 - 59 there is no requirement to prove the use or threat of force or deception for the offence to be made out. For such reasons the prosecution of trafficking offences under Sexual Offences Act 2003 presents a more straightforward option where the exploitation is of a sexual nature. In addition and significantly under Sexual Offences Act 2003 the consent of the

individual to be trafficked is not a consideration and therefore cannot represent a defence. In contrast such a defence may be sustainable under the Asylum and Immigration (Treatment of Claimants etc) Act 2004. Lastly the only purpose that the Nationality Immigration and Asylum Act 2002 s.145 now serves is a historical case of trafficking for sexual exploitation which occurred between 10th February 2003 (commencement date) and 1st May 2004 (commencement date for Sexual Offences Act 2003 and date of repeal of s.145). The dates of the offences can be crucial and care should be taken when considering how to charge an offence when looking at the evidence in the round. Prevention As well as convicting the traffickers legislation is now in place to attempt to dissuade employers from turning a blind eye to the origins of their workforce. The Immigration, Asylum and Nationality Act 2006 s.15 provides for a fixed penalty notice for an employer who employs an individual who has not been granted leave to remain in the UK or such leave is invalid. The maximum penalty is £10, 000. For an employer who knowingly employs staff who do not have the legal right to work a criminal conviction will follow. Immigration, Asylum and Nationality Act 2006 s.21 outlines the offence the maximum penalty for which is 2 years custody. Gangmasters are now subject to licensing conditions. Any gangmaster operating without a valid licence commits an offence for which the maximum sentence on indictment is 10 years imprisonment. Equally anyone entering into an arrangement with an unlicensed gangmaster commits an offence for which the maximum sentence is also 10 years imprisonment. This does not directly protect the subjects of trafficking but the vigilance by the Gangmasters Licensing Authority provides some safeguard against the exploitation of people smuggled into the UK to work of life of servitude. Witness protection A significant difficulty in bringing a case to trial is the fact that the victims of trafficking are very vulnerable and reluctant to stay to give evidence necessary to mount a prima facie case. The Convention on Action Against Trafficking in Human Beings 2005 (found at http://www.coe.int/t/dghl/monitoring/ trafficking/Source/PDF_Conv_197_Traffic

king_E.pdf) from the Council of Europe, ratified by the UK on 17th December 2008, seeks to redress this situation. The Home Office circular: “Impact Assessment of ratification of the convention against human trafficking” (found at http://www.homeoffice.gov.uk/ documents/ia-human trafficking?view =Binary) out lines the extent of the support for the victims of trafficking to fulfill the UK’s obligations under the Convention. The provisions are as follows: i. A 45-day minimum recovery-andreflection period. Where the Competent Authority has identified that there are reasonable grounds to believe that an individual has been trafficked (with exploitation occurring in the United Kingdom) individuals will be eligible for a reflection period of 45 days this will be extendable in some circumstances. In essence this should provide a set period of time for such a person to remain in the UK with the financial support of the state. The Home Office speaks of “Convention compliant support through funding of Non Government Organisations and other third parties”. Such a time may prove crucial for investigations into trafficking. ii. A one-year temporary residence permit. “The Government has Decided that where an individual is conclusively accepted as a victim of trafficking and qualifies for a residence permit it should be granted for a minimum of one year”. The UK Border Agency will grant the permit after consideration of the individual case. The grant is a form of discretionary leave. iii. Access to a national support service. The Convention stipulates a certain minimum level of support during the recovery and reflection period which includes accommodation, access to emergency health, counseling and access to education for children. When a potential victim is identified a referral should be made to the UK Human Trafficking Centre to activate these provisions. Such measures will assist in the retention of witnesses needed to sustain the prosecution of cases of this nature. Sentence Sentencing Guidelines Council Sentencing Guidelines on Sexual Offences (p131) provides the first point of reference. Where coercion was used the starting point is 6 years with a band range of 4 to 9 years, but where no coercion is present 2 years is the starting point with a

range of 1 to 4 years. Recent cases also give a flavour of the type of sentence that might be anticipated. AG Ref. Nos 129 and 132 of 2006 (Elisabeth Degado Fernadez and Godwin Zammit) [2007] 2 Cr. App. R. (S.) 85. The offenders were convicted of conspiracy to traffic into the UK for sexual exploitation, conspiracy to control prostitution for gain, and conspiracy to facilitate illegal immigration. The activity involved advertising on a website seeking to recruit women to work as prostitutes from Spain, South America and Eastern Europe. The offenders undertook the administration of the activity like a business arrangement by which they took 60% of the women’s earnings out of which substantial expenses were paid. The offenders had their sentences reduced from 7 to 5 years and from 5 to 4 years imprisonment respectively. The second of the two cases referred by the Attorney General (Thanh Hue Thi), involved conspiracy to traffic into the UK for sexual exploitation of Malaysian women. One of the women was deceived into taking a holiday to London paid for by a boyfriend. On arrival she was taken to an address where she was prevented from leaving and told she would work as a prostitute. Other women worked as prostitutes in the brothel but these women indicated that they knew that this was the purpose for coming to the UK. The aggravating feature was that their return tickets were removed from them and the offender told them they had to pay of their debt. The revenue generated by this offending was approximately £2 million. The offender received only 5 years imprisonment. The Court of Appeal took the view that the starting point should have been 10 years from which reduction could be made for a guilty plea and personal mitigation. However the court concluded that the sentence was lenient but not unduly lenient and did not alter the sentence. In the case of Atilla Makai [2008] 1 Cr. App. R. (S.) 73 the appellant pleaded guilty to conspiracy to traffic for sexual exploitation. The appellant was involved with another in recruiting Hungarian girls to come to the United Kingdom to work as prostitutes. The women were from Hungary who knew that they entering the UK to work as prostitutes. The appellant was paid a fee each time. He passed on the women to men who ran brothels. The sentence of 40 months imprisonment was reduced to 30 months.


Crime Brief | St Philips Criminal Law

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Mr David Munro

Welcome to the Autumn 2009 Edition of Crime Brief. As the Summer quietly fades away, and all those seasonal essentials, beach towel, raincoat, flip-flops and wellies, are now neatly packed away, how better to reinvigorate your professional drive than by sharing the latest thoughts from the St Philips Criminal Group? This edition concerns itself with issues relating to non-jury trials, people trafficking, cross examining police officers and sentencing in money laundering cases, out of which we hope you will find something that either assists, inspires, interests or gently amuses you. As you can see from the other side of this page, we are very pleased to introduce you all to our new CEO and we are equally delighted to announce that Andrew Molloy, formerly of St Ives Chambers, has now joined our group. Happy reading. Ben Mills Editor

Mr Michael Garrett

Miss Kristina Montgomery

Mr Tom Walkling

Mr Malcolm Morse *

Mr Lee Marklew

Mr Andrew Molloy

Mr Robert Hodgkinson

Miss Heidi Kubik

Miss Victoria Edmonds

Mr Patrick Darby

Mr Stefan Kolodynski

Mr Ben Williams

Mr Stephen Thomas *

Mr Anthony Johnston

Mr Jonathan Barker

Mr Bernard Linnemann

Mr Jonas Hankin

Miss Clare Dillon

Mr Makhan Shoker

Mr Brian Dean

Miss Alice Winstanley

Mr Paul Mytton

Mr Nicholas Smith

Miss Hannah Bush

Mr Kevin Hegarty *

Mr Darron Whitehead

Mr Chris Milsom

Mr John Evans

Mr James Dunstan

Mr John Edwards *

Miss Naomi Gilchrist

Mr Neil Williams

Mr Simon Phillips

Mr Mohammed Latif

Mr Tim Green

Mr Francis Laird

Mr Shane Crawford

Mr Andrew Jackson

Mr Andrew Smith *

* Denotes Recorder of the Crown Court ● Denotes Deputy District Judge ♦ Denotes Door Tenant

POCLA Seminar St Philips Chambers recently hosted a conference entitled “Tackling Major Commercial Fraud – A Unified Approach”, in partnership with the Proceeds of Crime Lawyers Association (POCLA). The conference included speakers from St Philips, Smith and Williamson’s Forensic Services Team and West Midlands Police Economic Crime Unit. The conference covered a whole range of fraud related topics including “Asset Recovery in the Civil Courts”, “the Criminal Liability of Company Directors” and “Compensation, Confiscation and Money Laundering". Organising this event in conjunction with POCLA and a member of the speaker panel, Tim Green, barrister at St Philips,

said ‘As a POCLA member I am delighted that the organisation invited St Philips Chambers to join with them on their first venture to the Midlands. St Philips are in a unique position of having a dedicated Major Commercial Fraud Group which encompasses members from across our commercial, regulatory and criminal groups. This group provides advocacy and advice covering the full spectrum of white collar crime and asset recovery work.' ‘POCLA’s expansion into the Midlands provides the region’s lawyers and investigators with an unprecedented opportunity to develop best practice in dealing with proceeds of crime litigation.'

event held outside of the Capital. We have been extremely pleased with the interest from the Birmingham and nationwide law communities and have welcomed over 50 new members. We hope soon to be holding similar events in other cities around the country.’ ‘Since our formation a year ago we have worked as an organisation to advance, foster and encourage the exchange of information, education and training in the law relating to proceeds of crime. We welcome new members from all professionals concerned with asset recovery and financial crime.’ Further information on POCLA can be found at www.pocla.com

Secretary of POCLA, Warren Foot added that ‘This is the association’s first official

St Philips Chambers 55 Temple Row Birmingham B2 5LS THE CRIMINAL CLERKING TEAM Joe Wilson (Director of Crime & Regulatory) – 0121 246 2052 (jwilson@st-philips.com)

DX 723240 Birmingham 56 T: +44 (0) 121 246 7000 F: +44 (0) 121 246 7001 www.st-philips.com

James Turner (Senior Clerk - Crime) – 0121 246 2175 (jturner@st-philips.com) Carl Streeting – 0121 246 7069 (cstreeting@st-philips.com) Phil Jones – 0121 246 2163 (pjones@st-philips.com) Su Turner-Gilbert – 0121 246 2164 (sturner@st-philips.com)

St Philips are the only Regional Chambers to be awarded "Chambers of the Year" in both the Legal 500 and Chambers National Awards. Winner of Regional Chambers of the Year 2005 at the Chambers UK Bar Awards. St Philips is a Equal opportunities organisation.

Natalie Hill – 0121 246 7056 (nhill@st-philips.com) Duty Clerk (after 6pm) – 07967 975448 Dedicated Criminal Fax: 0121 246 7060 Messages can also be sent to counsel or the clerks via the Chambers e-mail system using the following address – clerks@st-philips.com

No part of this Newsletter may be reproduced or transmitted in any form or by any means without the prior permission of St Philips Chambers. The articles in this Newsletter represent the general opinion of the stated author. Whilst every care has been taken in its preparation, this Newsletter is intended for general guidance only and does not constitute legal advice. No duty of care is hereby assumed to any person and no liability is accepted for the content. No reliance should be placed on any of the content of this Newsletter for any purpose, which may give rise to any liability or obligation without seeking independent advice from a qualified legal practitioner and/or checking the original text of any relevant legislation or court decision. No liability whatsoever and howsoever arising will be accepted for any liability, loss or damage arising from the use of this Newsletter or the content of any of its pages.

I am delighted to have been asked to introduce myself to you. I am very proud to have been invited to become the CEO to such a terrific set of chambers with, as you will know, a superb array of barrister talent and a very dedicated and professional clerking and administration team. My background may surprise and interest a few of you. I started my legal career as the articled clerk to the senior partner at Headleys Solicitors in Leicester. Whilst there I ran the higher courts department, spending most days instructing and attending behind Counsel in the Crown Court. Most weeks I would also appear at the local County Court in front of the Registrars (District Judges these days) dealing with simple pre trial hearings. It proved to be an excellent training for my next career as a senior barristers’ clerk, first at King Street Chambers in Leicester where I spent 12 very happy years and secondly for another 13 years at 2 Crown Office/ 9 Bedford Row/ 7 Bedford Row (Sir Desmond Fennell, Lord Judge the Lord Chief Justice and Goldring LJ as they now are). After that followed spells as the CEO at a Bristol and London law firm and the Commercial Director of ADR Group. I have also given many years of consultancy advice to chambers and law firms in London. My career has also provided me with a chance to give something back to society by getting involved as the Vice Chairman of the Bar Pro Bono Unit for many years. I have chaired and lectured at numerous National conferences on best practice and the fair distribution of work to junior tenants and pupils. I have also assisted Middle Temple by lecturing at their pupil supervisor induction course and sat on several Bar Council Committees. I understand both sides of the legal profession and believe that knowledge puts me in a unique position to assist and support the relationship between the Bar and its clients. I look forward to meeting many of you in due course. I also invite you to contact me if you have any suggestions as to how we can improve our service to you.

Chris Owen, CEO


Crime Brief | St Philips Criminal Law

n m tu Au 09 20 ue Iss 5

St Philips Criminal Law News

ST PHILIPS CHAMBERS - CRIMINAL TEAM

“A leading set on the Midlands Circuit. Home to a number of the region’s leading Criminal practitioners”. (Chambers and Partners) - shortlisted for Chambers Bar Awards 2009

Mr James Burbidge QC *

Mr Nicholas Cartwright *●

Miss Lucianne Allen

Mr David Crigman QC *

Mr Simon Ward *

Miss Raj Punia

Mr Stephen Linehan QC *

Miss Blondel Thompson

Miss Jane Sarginson

Mr Timothy Raggatt QC *

Mr Jonathan Salmon ●

Miss Jennifer Josephs

Mr Christopher Millington QC *

Mr Richard Atkins *

Miss Kate Iliffe

Welcome

Mr Paul Farrer QC *

Mr Simon Davis

Mr Ben Mills

Mr Peter Haynes QC

Mr James Puzey

Mr Zaheer Afzal

Ms Anesta Weekes QC *♦

Mr Andrew Lockhart *

Miss Sharon Bahia

Mr Daniel Janner QC *♦

Mr Glyn Samuel

Mr Ian Speed

Mr Timothy Mousely QC ♦

Mr Matthew Barnes

Mr David Munro

Welcome to the Autumn 2009 Edition of Crime Brief. As the Summer quietly fades away, and all those seasonal essentials, beach towel, raincoat, flip-flops and wellies, are now neatly packed away, how better to reinvigorate your professional drive than by sharing the latest thoughts from the St Philips Criminal Group? This edition concerns itself with issues relating to non-jury trials, people trafficking, cross examining police officers and sentencing in money laundering cases, out of which we hope you will find something that either assists, inspires, interests or gently amuses you. As you can see from the other side of this page, we are very pleased to introduce you all to our new CEO and we are equally delighted to announce that Andrew Molloy, formerly of St Ives Chambers, has now joined our group. Happy reading. Ben Mills Editor

Mr Michael Garrett

Miss Kristina Montgomery

Mr Tom Walkling

Mr Malcolm Morse *

Mr Lee Marklew

Mr Andrew Molloy

Mr Robert Hodgkinson

Miss Heidi Kubik

Miss Victoria Edmonds

Mr Patrick Darby

Mr Stefan Kolodynski

Mr Ben Williams

Mr Stephen Thomas *

Mr Anthony Johnston

Mr Jonathan Barker

Mr Bernard Linnemann

Mr Jonas Hankin

Miss Clare Dillon

Mr Makhan Shoker

Mr Brian Dean

Miss Alice Winstanley

Mr Paul Mytton

Mr Nicholas Smith

Miss Hannah Bush

Mr Kevin Hegarty *

Mr Darron Whitehead

Mr Chris Milsom

Mr John Evans

Mr James Dunstan

Mr John Edwards *

Miss Naomi Gilchrist

Mr Neil Williams

Mr Simon Phillips

Mr Mohammed Latif

Mr Tim Green

Mr Francis Laird

Mr Shane Crawford

Mr Andrew Jackson

Mr Andrew Smith *

* Denotes Recorder of the Crown Court ● Denotes Deputy District Judge ♦ Denotes Door Tenant

POCLA Seminar St Philips Chambers recently hosted a conference entitled “Tackling Major Commercial Fraud – A Unified Approach”, in partnership with the Proceeds of Crime Lawyers Association (POCLA). The conference included speakers from St Philips, Smith and Williamson’s Forensic Services Team and West Midlands Police Economic Crime Unit. The conference covered a whole range of fraud related topics including “Asset Recovery in the Civil Courts”, “the Criminal Liability of Company Directors” and “Compensation, Confiscation and Money Laundering". Organising this event in conjunction with POCLA and a member of the speaker panel, Tim Green, barrister at St Philips,

said ‘As a POCLA member I am delighted that the organisation invited St Philips Chambers to join with them on their first venture to the Midlands. St Philips are in a unique position of having a dedicated Major Commercial Fraud Group which encompasses members from across our commercial, regulatory and criminal groups. This group provides advocacy and advice covering the full spectrum of white collar crime and asset recovery work.' ‘POCLA’s expansion into the Midlands provides the region’s lawyers and investigators with an unprecedented opportunity to develop best practice in dealing with proceeds of crime litigation.'

event held outside of the Capital. We have been extremely pleased with the interest from the Birmingham and nationwide law communities and have welcomed over 50 new members. We hope soon to be holding similar events in other cities around the country.’ ‘Since our formation a year ago we have worked as an organisation to advance, foster and encourage the exchange of information, education and training in the law relating to proceeds of crime. We welcome new members from all professionals concerned with asset recovery and financial crime.’ Further information on POCLA can be found at www.pocla.com

Secretary of POCLA, Warren Foot added that ‘This is the association’s first official

St Philips Chambers 55 Temple Row Birmingham B2 5LS THE CRIMINAL CLERKING TEAM Joe Wilson (Director of Crime & Regulatory) – 0121 246 2052 (jwilson@st-philips.com)

DX 723240 Birmingham 56 T: +44 (0) 121 246 7000 F: +44 (0) 121 246 7001 www.st-philips.com

James Turner (Senior Clerk - Crime) – 0121 246 2175 (jturner@st-philips.com) Carl Streeting – 0121 246 7069 (cstreeting@st-philips.com) Phil Jones – 0121 246 2163 (pjones@st-philips.com) Su Turner-Gilbert – 0121 246 2164 (sturner@st-philips.com)

St Philips are the only Regional Chambers to be awarded "Chambers of the Year" in both the Legal 500 and Chambers National Awards. Winner of Regional Chambers of the Year 2005 at the Chambers UK Bar Awards. St Philips is a Equal opportunities organisation.

Natalie Hill – 0121 246 7056 (nhill@st-philips.com) Duty Clerk (after 6pm) – 07967 975448 Dedicated Criminal Fax: 0121 246 7060 Messages can also be sent to counsel or the clerks via the Chambers e-mail system using the following address – clerks@st-philips.com

No part of this Newsletter may be reproduced or transmitted in any form or by any means without the prior permission of St Philips Chambers. The articles in this Newsletter represent the general opinion of the stated author. Whilst every care has been taken in its preparation, this Newsletter is intended for general guidance only and does not constitute legal advice. No duty of care is hereby assumed to any person and no liability is accepted for the content. No reliance should be placed on any of the content of this Newsletter for any purpose, which may give rise to any liability or obligation without seeking independent advice from a qualified legal practitioner and/or checking the original text of any relevant legislation or court decision. No liability whatsoever and howsoever arising will be accepted for any liability, loss or damage arising from the use of this Newsletter or the content of any of its pages.

I am delighted to have been asked to introduce myself to you. I am very proud to have been invited to become the CEO to such a terrific set of chambers with, as you will know, a superb array of barrister talent and a very dedicated and professional clerking and administration team. My background may surprise and interest a few of you. I started my legal career as the articled clerk to the senior partner at Headleys Solicitors in Leicester. Whilst there I ran the higher courts department, spending most days instructing and attending behind Counsel in the Crown Court. Most weeks I would also appear at the local County Court in front of the Registrars (District Judges these days) dealing with simple pre trial hearings. It proved to be an excellent training for my next career as a senior barristers’ clerk, first at King Street Chambers in Leicester where I spent 12 very happy years and secondly for another 13 years at 2 Crown Office/ 9 Bedford Row/ 7 Bedford Row (Sir Desmond Fennell, Lord Judge the Lord Chief Justice and Goldring LJ as they now are). After that followed spells as the CEO at a Bristol and London law firm and the Commercial Director of ADR Group. I have also given many years of consultancy advice to chambers and law firms in London. My career has also provided me with a chance to give something back to society by getting involved as the Vice Chairman of the Bar Pro Bono Unit for many years. I have chaired and lectured at numerous National conferences on best practice and the fair distribution of work to junior tenants and pupils. I have also assisted Middle Temple by lecturing at their pupil supervisor induction course and sat on several Bar Council Committees. I understand both sides of the legal profession and believe that knowledge puts me in a unique position to assist and support the relationship between the Bar and its clients. I look forward to meeting many of you in due course. I also invite you to contact me if you have any suggestions as to how we can improve our service to you.

Chris Owen, CEO


Crime Newsletter Autumn 2010  

This edition concerns itself with issues relating to non-jury trials, people trafficking, cross examining police officers and sentencing in...

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