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The Silk Edition St Philips Criminal Law News

James Burbidge QC Andrew Lockhart QC

Kevin Hegarty QC

Chris Millington QC

Stephen Linehan QC Peter Haynes QC

Paul Farrer QC

Timothy Raggatt QC

David Crigman QC

“A leading set on the Midlands Circuit. Home to a number of the region’s leading Criminal practitioners”. (Chambers and Partners) - Winner of the Regional Chambers of The Year 2009 Award

Dear Reader, Welcome to Crime Brief Autumn 2010. As you can see this particular edition is entitled 'The Silk Edition' as it is composed entirely of articles written by a selection of Queen's Counsel from St Philips Chambers. In this way, a number of our most senior practitioners give you their view of things 'from the top,' as it were. Andrew Lockhart QC gives his view on the application and relevance of discretionary life sentences in light of recent decisions relating to imprisonment for public protection. Peter Haynes QC has provided an overview of his long and intriguing journey, which he recently steered through to a successful conclusion, at the War Crimes Tribunal at the Hague. James Burbidge QC offers an analysis of the current legal position, coupled with some practical guidance, for those involved in the negotiation and presentation of plea agreements in complex fraud cases. Kevin Hegarty QC, by reference to two recent authorities, examines how the use of Special Counsel can be employed in cases to ensure that a response can be made to otherwise closed material, without which the fairness of the trial may be questioned or the liberty of the accused at risk. Finally, on behalf of the Criminal team at St Philips can I thank all those who attended our Post Christmas Blues Party at the Orange Studio in January - we hope you all thoroughly enjoyed yourselves as much as we did. You never know - next year we may offer something altogether different.... Happy Reading. Editor, Ben Mills (bmills@st-philips.com)

2010 has been a momentous year so far for the St Philips Criminal Group with the highlight undoubtedly being the elevation of Kevin Hegarty and Andrew Lockhart to the rank of Queen’s Counsel. Those that have instructed them or seen them in action as Senior Juniors will not be surprised by their highly deserved promotions. This combined with the welcome return of Peter Haynes QC from the International Criminal Tribunal at the Hague has significantly enhanced the team of silks at St Philips, which now offers unrivalled experience and quality for all criminal and regulatory matters. Our silks are ably supported by one of the largest criminal groups in the country and a full list of the team can be found at the back of this newsletter along with the contact details for all our criminal clerks. I take this opportunity to thank you all for your continued instructions and would be pleased to hear from you regarding any aspect of our service. I would also welcome your views on the forming of working partnerships or other new initiatives for Chambers. Joe Wilson - Chief Clerk.


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DOES IPP SOUND THE DEATH KNELL FOR DISCRETIONARY LIFE?

(2) If— (a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life or in the case of a person aged at least 18 but under 21, a sentence of custody for life.

Andrew Lockhart QC In the past and before the inception of the Criminal Justice Act 2003, discretionary life terms were passed by the Courts to cater for the situations where a defendant was convicted of qualifying offences of real gravity and where he/she was considered to be an ongoing risk to society. This short article examines the development of the law in this area after the inception of the 2003 Act (as amended by the Criminal Justice and Immigration Act 2008) and points up that the instances where a sentence of discretionary life needs to be passed are now severely delimited; it being the case that a sentence of Imprisonment for Public Protection (IPP: a life sentence in all but name) can adequately protect society and can soak up all the elements of future dangerousness and of risk that the discretionary life term used to cater for. It is within the author’s personal knowledge that this question has exercised the Court of Appeal in the relatively recent past. It is something that all of those who may come to deal with those who may qualify for a discretionary life term should have in mind. Such persons are likely to include the recidivist rapist, firearms importer or producer, attempted murderer, armed robber and the like. The sentence of life imprisonment for a dangerous offender is dealt with under section 225 of the 2003 Act. The relevant parts of the section for the purposes of this article are: (1) This section applies where— (a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and (b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.

Thus a Court considering such an offender will first have to decide if there “is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences”. If the answer to that question is “yes” (and it is assumed that for the purposes of this article it will be) then next the Court must consider what is the crucial question for the purposes of this article namely does the Court “consider that the seriousness of the offence or of the offence and one or more offences associated with it is such as to justify the imposition of a sentence of imprisonment for life”. If it does the Court must impose such a term; it is a mandatory sentence. If it does not consider this to be the case then the Court is in IPP territory and the provisions of section 225 subsections (3), (3A), (3B) and (3C) come into play. It is noteworthy that if the qualifications for life imprisonment are met then the Court must impose such a sentence; this is in stark contrast the use of the “may” for the imposition of IPP. What then are the criteria for the imposition of life as opposed to IPP? What factors mean that a life sentence will be appropriate? Where do the Courts draw the line and say that; notwithstanding the potential removal or abrogation of the risk elements from the sentence discretionary life must be passed? Some recent decisions have given helpful guidance. The following are of note: R v Kehoe [2009] 1 Cr App R (S) (CA) In this case the Court made it plain that considerations of public protection are irrelevant to a decision to impose life imprisonment rather than imprisonment for public protection. The Court made it abundantly clear that life imprisonment should now be reserved for those cases where the culpability of the offender is particularly high or the offence itself particularly grave.


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R v Stanley [2008] 2 Cr App R (S) 107 (CA) Where, (on the facts of that case), the Court held that a life sentence was clearly not appropriate. There the Court set out that the only difference between a sentence of imprisonment for public protection and a life sentence lay in the ability of the parole board to apply to the secretary of state in future. With a sentence of imprisonment for public protection, the aim was to safeguard the public as to the future; therefore, some of the considerations relevant to life sentences under previous law were no longer appropriate. R v Wilkinson [2010] 1 Cr App R (S) 100 In this, the most recent authority on the topic, the Court of Appeal set out that a discretionary life term passed under section 225 of the Criminal Justice Act 2003 should be reserved for cases of the utmost gravity. This reinforced the judgement of the Court in R. v Kehoe. The head note of the case is instructive, paragraph H7: It was well understood that a sentence of imprisonment for public protection had much in common with a life sentence. Both sentences addressed future dangerousness, and public protection from the predictive danger posed by the offender. Two express differences between the sentences were identified in the legislation. In relation to a discretionary life sentence but not a sentence of imprisonment for public protection, the court had jurisdiction to make a whole life order directing that the early release provisions should not apply to the offender. In the case of a sentence of imprisonment for public protection, but not a discretionary life sentence, the Parole Board might give a direction that supervision under licence should cease 10 years after the offender’s release on licence, if the Parole Board was satisfied that post-release licence conditions were no longer necessary. The crucial difference between a discretionary life sentence and a sentence of imprisonment for public protection arising at the time of sentence was the seriousness of the instant offence as assessed in the overall statutory context. The approach of the Court had been illustrated by a number of cases, including R v Stephens [2007] EWCA Crim 3021. These decisions were fact specific, but they gave an indication of the approach of the Court to legislative provisions which provided two forms of indeterminate sentence to deal with the dangerous offender. In the Court’s judgment, it was clear that as a matter of principle the sentence of life imprisonment under s225 should

continue to be reserved for offences of the utmost gravity. The sentence should come into contemplation when the judgment of the court was that the seriousness of the offence or offences was such that the life sentence would have a denunciatory value, reflective of public abhorrence of the offence and where because of its seriousness, the notional determinate sentence would be very long, measured in very many years. The court further stated that where it is plain that a case is so serious that a sentence of life imprisonment is required, it would be unduly lenient to impose any lesser sentence, including a sentence of imprisonment for public protection with an identical minimum term. As can be seen the Court here approved the approach set out in R v Stephens. This is an important case for practitioners because the judgment of the Court does give some guidance as to the “test” for a life sentence that will now be applicable. The Court in that case set out the following as the proper approach to sentencing in such cases. The Court ruled that where the sentencer had decided that the dangerousness criteria were met then; “If the instant offence is one which carries a maximum sentence of life imprisonment, then a sentence of life imprisonment is also open to the judge. A life sentence, however, will only be appropriate if the case is one of those very limited number of cases in which a discretionary life sentence would have been passed before the enactment of the Criminal Justice Act 2003. The most convenient expression of the test is to be found in R v Chapman [2000] 1 Cr App R 77 at 85C in the judgment of Lord Bingham, CJ. In short, a life sentence is appropriate if, but only if, the instant offence is of such gravity as to call for a very long sentence and, additionally, where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future and where the consequences if he does are likely to be specially injurious. As to the first of those conditions, Lord Bingham said this: “It is in our judgment plain, as the Court has on occasion acknowledged, that there is an interrelationship between the gravity of the offence before the Court, the likelihood of further offending, and the gravity of further offending should such occur … There is, however, in our judgment no ground for doubting the

indispensability of the first condition laid down for imposition of an indeterminate life sentence in Hodgson , reaffirmed, as we say, in the more recent Attorney-General's Reference No 32 of 1996 ( Whittaker ). It moreover seems to this Court to be wrong in principle to water down that condition since a sentence of life imprisonment is now the most severe sentence that the Court can impose, and it is not in our judgment one which should ever be imposed unless the circumstances are such as to call for a severe sentence based on the offence which the offender has committed.” In R v Lang [2006] 2 Cr App R (S) 3 at page 13, this court expressly affirmed, post the Criminal Justice Act 2003, that that test for the imposition of a life sentence stands — see the judgment of the Vice President, Rose LJ, at paragraph 8. That approach has been consistently applied since. Both the current and previous editions of Archbold correctly make that clear at paragraph 5–304. The references there to the cases of Shaffi , B (Samuel), Folkes and Costello are but examples of the consistent approach of this court to the question of the imposition of a discretionary life sentence. In the last of those cases, Costello , Keene LJ giving the judgment of the court underlined at paragraph 19 the point that particularly since the enactment of the dangerousness provisions of the Criminal Justice Act 2003 and the availability of a sentence of imprisonment for public protection, there need be no temptation to impose a life sentence because of concern as to risk for the future. That is amply catered for by the imposition of a sentence of imprisonment for public protection.” The effect of this line of authority is to indicate to the Courts that discretionary life sentences should only be passed in a limited category of serious case and that they should only be passed if, but only if, the instant offence is of such gravity as to call for a very long sentence. Whilst the thrust of the authorities is that these are essentially the governing factors it is worth noting that; in approving R v Stephens the Court in R v Wilkinson does seem to acknowledge the existence of two potential other aspects of the “test for discretionary life” namely; where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future and where the consequences if he does are likely to be specially injurious. This seems


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to bring back in to play the criteria relating to future risk that in both this and other authorities the Court are keen to say are “amply catered for” by the passing of IPP. That said here the Court does use the word “such” when describing the offences arguably this must mean offences of the same or comparable level of utmost gravity. In order then to suggest an approach to a sentencing Court the following course could be seen as appropriate. The learned Judge should be asked to consider whether the offending (the offence and one or more offences associated with it) was such that the overall sentencing picture presented to the Court: 1. Was of the utmost gravity so as to call for a very long sentence of imprisonment, one where the notional determinate sentence would be very long, measured in very many years. 2. Required that a life sentence was passed to reflect the public abhorrence of the offence. 3. If the answers to those questions was “Yes” then, notwithstanding the assessment of dangerous under the statutory criteria, the further check

End of an Odyssey

Peter Haynes QC On 10th June, 2010, judgment was pronounced in the case of Prosecutor –vPopovic et al., For Peter Haynes it marked the end of the longest case of his career, and one of the longest in the history of criminal law anywhere in the world. After a trial lasting almost 3 years, 315 live witnesses, 87,392 exhibits and nearly 40,000 pages of transcript, he reports on the historical background to the trial, the proceedings and the outcome of the case. The events surrounding the fall of Srebrenica, in what was Bosnia and Hercegovina in July 1995 amounted to the defining moment of the Yugoslavian Wars of independence of the early 1990’s.

should be applied to make doubly sure that the overall circumstances: a. Showed that the Appellant was a person of such unstable character as likely to commit such very grave offences in the future. b. Showed that he was likely to commit such very grave offences in the future where the consequences of the commission of such offences likely to be specially injurious. It would be argued that, if and only if, the Court was satisfied that all of these stringent criteria were met then could a life sentence be justified. If one was justified then a minimum term (presumably a very long one) would have to be set under section 82As of the Powers of Criminal Courts (Sentencing) Act 2000. (This unless the Court was satisfied under section 82 (4) that, because the offending picture was so serious, that no minimum term should be set.) As to this see Practice Direction (Criminal Proceedings; Consolidation) para IV.47 [2002] 1 WLR 2870 see para IV 47.3.

of discretionary life imprisonment now has a considerable number of hurdles to cross before such a sentence can properly be passed. Plainly the seriousness of the offence is overwhelmingly the driving factor. If such a sentence is justified by the application of these principles then it will be for a very serious offence or series of offences indeed. If an advocate is faced with the task of assessing and advising upon the type of cases where such a sentence can or would be passed then a reading of the authorities referred to above will assist the practitioner. Any analysis of sample sets of facts and circumstances that might or might not qualify an offender for such a sentence is beyond the scope of this article. Perhaps the true message to be drawn from this article is that it will be for the advocate to persuade the Court by focussed submissions that IPP is or it not sufficient. Perhaps once again the Criminal Justice Act 2003 and the jurisprudence of the Court of Appeal on this topic have thrown up an opportunity for the art of the advocate.

A. Lockhart QC

It is the view of the author that a sentencing Court considering a sentence

Not only was the single worst atrocity since the second world war committed in the heart of Europe no more than a couple of hours drive from the Italian and Austrian borders, it was committed at a time when the victims were supposedly under the protection of the United Nations, and at a time when the international community was endeavouring to resolve the parties’ disputes diplomatically. Understanding of the war and its causes in this country was and remains basic – though in fairness, the BBC’s 6 part documentary “The Death of Yugoslavia” remains the benchmark reference text for many, not least for the fact that it involved interviews with those who prosecuted the war on all sides. I will attempt no more than the briefest outline here. Following the Death of Tito, nationalist factions within the former Yugoslavia, sought first to maximise their influence within the Communist party and the Federation, then to secede. The latter course was relatively simple for Slovenia, the small alpine state in the north of the country. For Croatia, it took a year of bloody war, as the Yugoslav army sought to control what its political masters

regarded as its sovereign territory. For Bosnia the process involved as one current politician poignantly put it “passing through the gates of hell”. Unlike the other republics whose populations were substantially composed of a single ethnic faction, Bosnia’s population comprised Serbs, Croats and a muslim majority. Worse still the demography of the country presented as a leopard skin print with villages of one ethnic group juxtaposed to their new found enemies. As each faction sought to carve out maximum territory, the English language found a new phrase, “ethnic cleansing.” In May 1993 the town of Srebrenica became the first United Nations declared safe area as muslim refugees flocked there from the surrounding areas of Eastern Bosnia. The town was also home to a large number of muslim soldiers and, despite Serb complaints that the UN was fostering an army base, the militarisation of the town increased, and it became a strategic base for muslim military operations. Many atrocities were committed by these forces on the surrounding Serb villages.


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convicted of complicity in genocide and sentenced ultimately to 35 years imprisonment. In the second the commander of the Bratunac brigade was convicted of aiding and abetting genocide and sentenced to 18 years’ imprisonment. The trial of Popovic et al. involved Main Staff officers, security officers, the police and the command of the Zvornik brigade. My client, General Vinko Pandurevic, was the commander of the Zvornik brigade, who was both the commander of the tactical unit which took the town of Srebrenica, and the commander of the brigade in whose “zone of responsibility” the majority of the executions took place. His alleged liability was both individual, as part of a Joint Criminal Enterprise (“JCE”), and as a commander of those who had committed the crimes alleged in Zvornik. In July 1995 the Serbs decided to demilitarise the town and launched an action to reduce the size of the enclave to its urban limits (by then the UN perimeter was several miles from the town centre). On 11th July, with military defeat inevitable, the muslim population and the army quit the town. Approximately 40,000 people left in 2 separate directions; the army struck north through Serb held territory towards its own forces; the civilians walked to the nearby village of Potocari, where the UN had a major base. In Potocari men were separated from women and children and bussed to the nearby town of Bratunac where they were executed in a variety of schools and warehouses. Those who were captured or surrendered from the column marching north met a similar fate. After a day of executions, it was decided to move the remaining prisoners further north to the municipality of Zvornik where the bulk of the executions were carried out in an assortment of remote locations. How many people were executed was the subject of much archaeological, and demographic anthropological evidence. It remains a point of contention between the Serbs and the Bosniaks. Suffice to say the Tribunal found that the number was no less than 5,800, and possibly as many as 7,800. Whatever the number, the operation revealed a high degree of centralised planning in the transport, execution and burial of a large number of men. The trial of Popovic and others was the third trial relating to the Srebrenica massacre. In the first, the Drina Corps commander, General Krstic, was

The prosecution sought to prove its case through a series of strands of evidence: firstly, there were those who had survived the ordeal; there were “insiders”, Serb soldiers or policemen who had pleaded guilty or simply been present during the events; there were the records of the Army of the Bosnian Serbs (“VRS”); intercepted radio communications; aerial imagery provided (slightly reluctantly) by the USA, and, given the blanket admissibility of hearsay evidence, a plethora of experts and investigators who were permitted to reconstruct events from documents and information received. There was also a huge volume of evidence seeking to establish the numbers of dead (mentioned above). The defendants, with 2 exceptions were charged with genocide, conspiracy to commit genocide (yes, it is perfectly permissible in international criminal law to have both on the same indictment!), Extermination (mass murder without genocidal intent), Murder as a crime against humanity (civilians), Murder as a war crime (soldiers), forcible transfer, and deportation (some of those who fled went to Serbia, which is another country). One of the central difficulties with the case was the variety of the personnel on trial. There was, as one of my American colleagues put it, no scope for running the “empty chair” defence. The army high command were present, the police were present, the security services were present, and the command of the footsoldiers on the ground were there too. As if things were not hard enough, this was a cut-throat defence! It didn’t really matter to the prosecution because it could rely upon the well-

established doctrine of JCE. The indictment alleged 2 separate JCE’s: the first, the forcible transfer of the muslim population from Eastern Bosnia was based upon the strategic objectives of government and army high command, evidenced by written documents; the second, a JCE to commit mass murder, which could be inferred from the wellplanned and executed murder operation following the fall of the town. The concept of a JCE has been developed through case law. It is a form of commission of an offence, commission being one of the forms of individual liability defined by the Statute of the Tribunal. There are 3 forms of JCE in customary international law; basic, systemic and extended, known judicially as JCE I,II and III. Systemic JCE’s are really only applicable in cases involving camp guards and the like. The other 2 were said to apply in this case. To prove a basic JCE it must be established that (i) a plurality of persons had a common purpose, (ii) that the common purpose was a crime under the relevant statute, and (iii) that the accused participated. Crucially to be convicted of committing an offence as a participant in a JCE, the accused must have the intent to commit the crime, including any requisite specific intent. The exception to the latter proposition is the extended JCE, where the accused does not have to be shown to possess the intention to commit the crime alleged if that crime was a natural and foreseeable consequence of the JCE he was party to. In this case, the prosecution alleged, for example, that sporadic acts of murder were a natural and foreseeable consequence of the plan to force 40,000 people out of the town of Srebrenica. These concepts, simply stated here, may not be entirely alien to British lawyers. The major practical difference in customary international law is that, where they are alleged, they must be pleaded in the indictment. The other ways in which an accused may commit an offence are specifically set out in the Tribunal’s statute (as they are in the statutes of all the other ad hoc tribunals, and the ICC itself). They are planning, instigating, ordering and aiding and abetting. The concept of aiding and abetting has been developed through case law. To be guilty as an aider and abettor the accused does not need to possess the intent for the substantive crime. He must, however, know that his acts assist, encourage or lend moral support to the perpetration of a crime, the essential elements of which


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he is aware. His acts must moreover , have a substantial effect on the commision of the crime.

Bosnian road trips and making serious inroads into the prosecution’s own witnesses in pre-testimony interviews.

Pandurevic was of course the commander of a brigade of 5,000 men, some of whom demonstrably were participants in the crimes alleged in the indictment. As such he was additionally charged under Article 7(3) of the statute with superior (often referred to as command) responsibility. It is often said that the essential difference between individual and superior liability is that the former is a crime of commission, whilst the latter is one of omission. A commander who orders the commission of an offence is guilty as an individual, whereas he is liable as a superior, if he fails to prevent the commission of offences by his subordinates, or alternatively fails to punish them for their actions.

In court there was much to learn too. Legal argument is almost exclusively conducted on paper (filing documents entitled “ sur-reply” certainly took me back a few years!) and proceedings which are entirely conducted through simultaneous translation before professional judges (and over such a long period) demand a different style of oral advocacy. The transcript is king – it has to be created, marked, filed, and used to make your point in closing argument. I am nonetheless of the certain view that the natural instincts of the British court room advocate will serve you well in any criminal trial.

Thus the statute and jurisprudence of the Tribunal equip the prosecutor with a variety of forms of liability with which to catch the accused. As if there were not enough, the prosecutor in this case chose to allege a concurrent conspiracy! One of course has to refect that Article 1 of the Satute does in fact read : “The International Tribunal shall have the power to prosecute persons responsible for serious violations of International Humanitarian Law...” In practical terms the greatest challenge facing lawyers in these fora is case management. As counsel you bear ultimate responsibility, and not just for the presentation of the case in court. In military terms, counsel’s role is strategic, operational and tactical. This means you have to develop the case theory, create the machinery to run the case, and then investigate, select the material and present it. It would be disingenuous to say this was anything other than a wholly enjoyable experience; setting up a legal team and an office in the Hague was of course completely novel to someone who had spent 20 years taking pink ribbon off dog-eared piles of paper! As indeed was marshalling the voluminous material and presenting it to the court electronically (Popovic was the first case to use full eCourt, ie no hard copy documents at all), as well as keeping a weather eye on the developing evidence and making sure that the closing submissions were accurate and properly footnoted. To the astonishment of our Serbian and American colleagues, the AngloSlovenian Pandurevic team became pretty adept at the investigative side too, unearthing good quality witnesses on our

The major strategic decision in the case was to call my client to give evidence. Alone of the 7 accused, Pandurevic gave evidence in his own defence. He gave evidence for 22 days. His evidence was 6 months in the preparation. Giving evidence as an accused is unusual in the International Tribunals. It is unheard of in continental systems and very rare in the US from what I could gather. The prosecution also have an uncanny habit of “finding” evidence to destroy defence witnesses in cross examination. The General was keen to tell his story from the outset, and initially I didn’t feel inclined to dissuade him, especially given the myriad forms of liability he had to avoid. My qualms grew as the day neared but in the end we stuck to the plan. Although he wasn’t believed entirely, it was ultimately a good judgment call. The Judgment of the Tribunal was clear that it was a judgment of the individual criminal responsibility of those on trial. It was not a judgment of who they were or what office they held. Pandurevic was acquitted of all but 2 counts on the indictment. On those 2 counts he was convicted as an aider and abetter. In relation to the count of the murder as a war crime he was convicted in relation to 10 men who had been held at his barracks, and subsequently handed over to the security services; he was convicted of aiding and abetting by omission, with one of the 3 judges dissenting. The basis of his conviction was that he should have known that handing these men to the security services meant they were likely to die. He was additionally convicted of aiding and abetting forcible transfer by reason of his command of the tactical group which led the attack on Srebrenica. Central to his defence was the assertion that the so-called murder operation had

been organised by General Mladic and put into effect through his security service, which although an organ of the army, had a separate professional command chain, and was capable of using men and machinery to its own ends. Although the Tribunal did not accept the separate command chain theory, the overall verdicts reflect the personal involvement of those indicted. Beara, the Main Staff Chief of Security, was convicted of Genocide, conspiracy, and extermination and sentenced to life imprisonment, similarly, Popovic, the Corps Security commander. Nikolic the Brigade Chief of Security, was convicted of aiding and abetting genocide and sentenced to 35 years. Pandurevic, of course, still fell to be sentenced for grave crimes. He received a sentence of 13 years’ imprisonment. His sentence was substantially discounted for 2 reasons. Firstly, because his actions in opening his defence lines to allow the remnants of the muslim column, including armed men, to reach their own forces, saved the lives of up to 10,000 people. Secondly, his written reports, condemning the placement of prisoners in schools in Zvornik, were the only written record of these events by a Serb officer. The Tribunal regarded the writing of these reports as exhibiting bravery and integrity. The dissenting judge felt that he had not been given sufficient credit for these acts. For what it is worth he has served a substantial portion of that sentence on remand. It would be nice to reflect upon a job well done, however, disturbing as it does very many aspects of the Prosecution’s ingrained case theory, and with Karadzic and Tolimir currently standing trial for the same events (not to mention the ever present threat of the arrest of Mladic), I anticipate receiving the Notice of Appeal any day soon.

General Vinko Pandurevic listens as Judgment is pronounced in his case.

P. Haynes QC


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Recent Developments in the Use of Special Counsel

It is to be noted that the complaint did not extend to the mode of trial procedure as whichever way that was decided it could not impact on his liberty. The principles to be employed as to the appointment of Special Counsel were set out in R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin) by Sir Anthony Clarke M.R. “(a) A special advocate should be appointed where it is just, and therefore necessary (to assist a judge) in order for the issues to be determined fairly.

KJ Hegarty QC This year has already seen two cases where Special Counsel and the use thereof has been the subject of argument. This article will consider in the light of the two cases how Special Counsel can be employed in a case and to highlight the necessity of being alive to their uses. Both cases touch upon current issues in the trial procedure: firstly jury tampering followed by trial without a jury and secondly anonymity orders for witnesses. In K S S v Northampton Crown Court [2010] EWHC 723 (Admin) the defendant had been on trial and the jury had been discharged following an allegation of jury tampering. The trial judge had decided that there would be a trial without a jury and that the defendant be remanded in custody whereas before he had been on bail. The first decision was appealed to the Court of Appeal which found there had been jury tampering and remitted the decision as to mode of trial to Flaux J. In determining the question of mode of trial the judge considered the Closed Material. That is to say material that the defendant did not see. Special Counsel had not been appointed and the judge considered that material without hearing any submissions on that material on behalf of the defendant. Flaux J. remanded the defendant in custody following a bail application. The case before the Administrative Court revolved around whether Special Counsel should have been appointed in respect of the bail application. The complaint made was the failure of the court to find any proportionate means of safeguarding and advancing the defendant’s interests where matters, i.e. the closed material, were held against him in respect of his bail of which he had not been informed which led to the consequence that he could not answer those matters and his liberty was in turn at risk.

(b) Where the material is not to be disclosed and/or full reasons are not to be given to the claimant there are only two possibilities: (a) that the judge will determine the issues, which may include or be limited to issues of disclosure, by looking at the documents himself or herself or (b) that he or she will do so with the assistance of a special advocate. (c) The appointment of a special advocate is, for example likely to be just where there may be significant issues and/or a significant number of documents. The position may be different where there are very few documents and the judge can readily resolve the issues simply by reading them. (d) All depends upon the circumstances of the particular case, but it is important to have in mind the importance of the decision from the claimant's point of view, the difficulties facing the claimant

in effectively challenging the case against him in open court and whether the assistance of a special advocate will or might assist the claimant in meeting the Secretary of State's case and the court in arriving at a fair conclusion. (e) These principles should not be diluted on the grounds of administrative convenience. ” Both sides accepted that Article 5 of the European Convention and Common Law and elementary common law principles of fairness applied to bail applications and that the considerations raised by Lord Phillips of Worth Matravers in Home Secretary v AF (Number 3) [2009] UKHL 28 (“AF”) at paragraph 59 applied in principle to applications for bail. In “AF” Lord Phillips was dealing with control orders. He referred to the decision of the Grand Chamber of the European Court in A v UK. [2009] 49 EHRR 29 . Lord Phillips said it “ establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or sources of the evidence forming the basis of the allegations.” A remand in custody causes a loss of liberty. Albeit that the duration is closely


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policed it could result in the equivalent of a not insubstantial sentence of imprisonment. The Court held that to protect the interests of the defendant in respect of the closed material that Special Counsel should have been appointed and the decision in refusing bail was quashed. This did not lead to his immediate release as the earlier decision to remand him in custody still stood.

about the propriety of what happened and the safety of the conviction without any need for special counsel. However, there may be cases where, before deciding whether to grant leave, or on granting leave, the court may consider it necessary in the interests of justice to request that special counsel be appointed. This might be for a number of possible reasons:

The second case is R v John Chisholm [2010] EWCA Crim 258. Anonymity orders were made under the Criminal Evidence (Witness Anonymity) Act 2008 (now overtaken by the Coroners and Justice Act 2009). The rulings were made in closed hearings and Special Counsel took the opportunity to cross examine at least one of the witnesses to whom the applications for anonymity applied for the purpose of exploring whether the criteria for making the orders sought were made out. The conviction was appealed and Special Counsel also appeared in the Court of Appeal. The Court took the opportunity to make some remarks. Toulson LJ stated

the court may consider that help is needed from special counsel to ensure that it has all the material which it ought to have;

“At the appellate stage, it is obviously not the case that whenever the single judge or the full court is considering an application for leave to appeal against conviction on grounds relating to an anonymity order, it will request the appointment of special counsel. In many cases, the court, on reading the closed material, will be able to reach a view

or there might be questions on which the court feels that it needs the assistance of special counsel to do justice. These matters would call for individual consideration in the individual case. “

the court might want to know whether special counsel, having read the grounds of appeal and supporting advice, would wish to present argument in support of any of the grounds of appeal on the basis of material not known to the applicant or appellant's ordinary counsel. the court might also wish to know whether special counsel would want to raise some other point unknown to the appellant's ordinary counsel relating to what happened in the closed proceedings.

It is to be remembered that the role of Special Counsel is to advance submissions on behalf of the appellant which could not be made by ordinary counsel who

does not have knowledge of the closed material or of what happened in closed proceedings. The two cases show ways that Special Counsel can be employed, in a bail application and in a conviction appeal. The essence is to ensure that a response can be made to closed material where otherwise the fairness of the trial may be questioned or where the liberty of the accused is at risk. It is worth reminding oneself that wherever there is closed material the judge may be assisted by the appointment and it should be brought to the judge’s attention so that a decision can be made one way or the other for the involvement of Special Counsel.

K. Hegarty QC Kevin Hegarty QC is on the Attorney General’s list of Special Counsel.


Crime Brief | St Philips Criminal Law

FRAUD TRIAL RESOLUTION: ONE STEP FORWARD TWO STEPS BACK?

James Burbidge QC In this artice I shall consider the recent judgment by Thomas LJ in the case of R v Innospec Limited [2010] EW Misc 7 and the Lord Chief Justice in the very recent case of R v Dougall [2010] EWCA Crim 1048, and their potential effect on the practical use of a plea agreement in fraud cases in accordance with the procedures set out in paragraphs IV.45.16-45.28 as amended, of the Consolidated Criminal Practice Direction and the Attorney General’s Guidelines on Plea Discussions in Cases of Serious or Complex Fraud. (See also section 73 of the Serious Organised Crime and Police Act 2005.) I will also refer to a recent case of R v Owen and Others, in which I appeared at Worcester Crown Court before HHJ Hooper Q.C. instructed by Jonas Roy Bloom, and in which a plea and sentence agreement was formulated in apparent accordance with these provisions. It will be well known that the Attorney General in March 2009 issued guidelines setting out the process by which a prosecutor may discuss allegations of serious or complex fraud with a person whom he is prosecuting (or expecting to prosecute) on or after the 5th May 2009. “Serious or complex” is defined in the Guidelines as being established if at least two of the following list of 7 criteria are present: 1.The amount obtained or intended to be obtained is alleged to exceed £500,000; 2.There is a significant international dimension; 3.The case requires specialised knowledge of financial, commercial, fiscal or regulatory matters such as the operation of markets, banking systems, trusts or tax regimes; 4.The case involves allegations of fraudulent activity against numerous victims;

5.The case involves an allegation of substantial and significant fraud on a public body; 6.The case is likely to be of widespread public concern; 7.The alleged misconduct endangered the economic well-being of the United Kingdom, for example by undermining confidence in financial markets. It can be seen that if the idea of an agreement is attractive to practitioners or rather a lay client, many fraud cases will arguably be caught by the guidelines. The first and fourth criteria will be common in many organised frauds, not just the province of SFO prosecutions or Treasury Counsel. The fifth criterion arguably covers any offences against HMRC or DWP. Defence practitioners used to arguing over the category of a Very High Costs Case will have already sought to apply the LSC’s very similar seriousness/categorisation criteria to the facts of a case by the time that pleas are considered! In its foreword the guidelines set out the potential benefits of such plea discussions. Most are obvious to even the least experienced practitioner. They may result in an early resolution of the case thereby reducing anxiety and uncertainty for victims and witnesses and provide further clarity for accused persons who admit their guilt. The issues in dispute may be narrowed, so that even if the case proceeds to trial the trial can be managed more efficiently in accordance with the CPR. Obviously if pleas are accepted, litigation can be kept to a minimum. This latter point inevitably creates a real saving in the parties’ costs and Court and Judge time. The guidelines envisage that in some cases plea discussions will take place prior to the commencement of proceedings and that thereby the charges brought by the prosecutor will reflect those agreed, rather than those that the prosecutor would necessarily have preferred if no agreement had been reached. Also that any criminal investigation may not be complete when these discussions take place. Procedures have to be put in place to ensure that they command public and judicial confidence; that any agreement reached is reasonable, fair and just; that there are safeguards to ensure that defendants are not under improper pressure to make admissions; and that there are proper records of discussions that have taken place. This will clearly pave the way for Solicitors and Barristers specialising in fraud cases to get involved with the cases of people suspected of

fraud at a much earlier stage than may have hitherto been the case. One firm tells me that this is now becoming a real factor for fraud litigation specialists dealing with all manner of frauds. I am sure it is something all will want to consider and be prepared for. The guidelines deal with the important issues of who with and how plea discussions should be initiated and negotiated, with guidance on the important issues of recording and confidentiality. It is affirmed in the guidelines that they are meant to complement the existing practices through which prosecutors discuss cases with defendants or defence legal representatives after charge, and the traditional interventionist practices of judges at PCMH hearings or indeed Goodyear directions. Paragraph A9 asserts “Where a plea agreement is reached, it remains entirely a matter for the Court how to deal with the case.” What does this mean? Well Thomas LJ in R v Innospec Ltd said it meant that it did not bind the Judge. A subject we will come to later. Every practitioner in criminal law knows, that in reality, especially in serious cases, but also those involved with potentially the estreatment from the offender of a significant amount of his assets; that what really leads to a determination of a ‘plea agreement’ is the assessment of what punishment lies in store. Without the legal representatives considering this aspect with the lay client there will often be no compromise on plea. Often it is the sticking point with any negotiations. SENTENCE The Attorney General’s Guidelines recognise this and purport to encourage an element of agreement over the punishment. Thus in Paragraph D:9: “Where agreement is reached as to pleas, the parties should discuss the appropriate sentence with a view to presenting a joint written submission to the court. The document should list the aggravating and mitigating features arising from the agreed facts, set out any personal mitigation available to the defendant, and refer to any relevant sentencing guidelines or authorities. In the light of all these factors, it should make submissions as to the applicable sentencing range…”. There is clear guidance that such consideration should include asset recovery and POCA powers. There is once again the caveat to prevent anyone suggesting that these are true ‘plea bargaining’ powers: D:12 “In the


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course of the plea discussions the Prosecutor must make it clear to the defence that the joint submission as to sentence (including confiscation) is not binding on the Court.” At paragraph E:5 “[Once the signed formal plea/sentence document has been placed before the Court] it will then be for the Court to decide how to deal with the plea agreement. In particular, the court retains an absolute discretion as to whether or not it sentences in accordance with the joint submission from the parties.” A PRACTICAL EXAMPLE In the case of Owen in January and March of this year this was my first experience of the practical utilisation of the Attorney General’s guidance on plea/sentence arrangements. The case was a prosecution instigated by the Department of Environment, Farming and Rural Affairs (DEFRA). It became known as “the egg case”. (See e.g. The Guardian, 12th March 2010). Keith and Alan Owen are brothers. Along with Keith’s wife Carol they ran companies involved in the production, packaging and distribution of eggs, many of which were to be on sale at High Street supermarkets. DEFRA alleged that all three were involved together and with an Irish national co-accused, Pearse Piggott, in a conspiracy to defraud, essentially by repackaging caged birds’ eggs for onward sale as free range or Organic eggs and also by repackaging/rebranding (lower quality) foreign eggs as British Lion mark eggs. The mark up, per half or full dozen is obvious to all. DEFRA in a case summary suggested by this fraudulent passing-off a multi-million pound fraud was perpetrated. (The Times suggested that the fraud had cost consumers £50 million). A plea agreement and joint submission as to sentence and sentencing considerations was entered into between Keith Owen and the Prosecution. This was a case which fulfilled at least 4 of the qualifying criteria for “serious and complex” fraud. The agreement involved Keith Owen admitting guilt to counts of furnishing false information for an accounting purpose contrary to section 17(1)(b) Theft Act 1968 (“false accounting”), not the conspiracy. The upshot of this agreement was that Keith’s brother (my lay client) and Keith’s wife were not pursued: the Counts against them lying on the file. (More cynical practitioners may recognise a familiar compromise reached by a principal defendant faced with the considerable pressure applied to him by the addition of family members on the same indictment.) They thus faced no trial, nor any risk of

sentence or confiscation of assets. The agreement indicated that if acceptable to a judge it would render a trial estimated to last 3 months as otiose; the avoidance of the costs of that trial; the avoidance of inconvenience of witnesses some travelling from abroad and the avoidance of lengthy, complex and costly confiscation proceedings. HHJ Hooper Q.C. received the submission as to sentence in the following terms: that the appropriate level of sentence was between 2 to 3 and a half years. That the defendant should be disqualified from being a director for between 6 to 10 years. That a confiscation order should be made (benefit and realisable) at £3million. There was a determined figure of Prosecution costs. This submission was made public in Court, and so that is why I mention these terms. It must be said that the Judge had been involved in the case from its inception and had heard all the preliminary and directions hearings, so he had a comprehensive knowledge of the case. He imposed a sentence of 3 years’ imprisonment, so within the band accepted and as frankly had been anticipated by the lawyers in the case. He also made a confiscation order in the sum of £3million. All this of course is and appears appropriate. There can be no appeal and the prosecuting authority cannot be dissatisfied given that it entered into an agreement within which the parameters were observed. So let us turn to Judicial guidance that is now available on cases such as “the egg case”. JUDICIAL GUIDANCE R v Innospec Ltd is reported at [2010] EW Misc 7. The rather unusual citation for this was because the judgement of Thomas LJ was not in his position of the presiding judge in the Court of Appeal (Criminal Division) as he often is, but as the sentencing judge in a case at Southwark Crown Court. The facts are involved and I state them as shortly as relevant. Innospec Ltd (I.L.) are a UK company but a wholly owned subsidiary of the US company, Innospec Inc Delaware (the executive offices were in Cheshire). I.L. manufactured an antiknock fuel additive known as Tetraethyl lead (TEL). Steps to phase out TEL had begun as early as the 1970s because of health and environmental issues. Indeed it is banned as a fuel in the US and Europe. However by 2000 Indonesia remained a customer. Through agents in Indonesia the directing

minds of the company engaged in systematic and large scale corruption of senior Government officials to buy the product. An estimate of the bribes was $8million. The US Government began to investigate Innospec Inc from July 2005. Three US agencies were involved DOJ: Department of Justice; SEC: Securities and Exchange Commission and OFAC: Office of Foreign Asset Control. It discovered that Innospec Inc had entered into five contracts with the Iraqi Ministry of Oil to sell them TEL paying c.10% of the contract price as a bribe. Further bribes were paid with the post-Saddam Ministry to continue supply. In all the total paid or promised as bribes was $5.8m. The US investigation also discovered that Innospec Inc had sold fuel additives to Cuba in violation of US trading with the enemy regulations (although apparently without bribery!). Innospec Inc’s directors assisted with the investigation and they ultimately decided they would wish to cooperate with the


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authorities by admitting criminal offences. They wanted to achieve a global settlement. The Serious Fraud Office joined in the discussions with their transAtlantic counterparts. On investigation the DOJ (i.e. US) and the SFO agreed that the fines and other penalties which might be imposed in the US and UK might exceed $400m in the US and $150m in the UK. Both the SFO and the DOJ agreed that they should not seek to impose a penalty that would drive the company out of business. A ‘global settlement’ was sought in relation to the two countries’ concurrent proceedings, with the aim that the financial settlements would be divided. This was ground-breaking. It was also accepted that this was to be an unusual case in effect because only a fraction of the penalties that properly could be imposed would be sought in the light of Innospec Inc and I.L.’s ability to pay. The discussions took place on the basis that the SFO would have primacy in

respect of the Indonesian corruption and the DOJ in respect of the Iraqi corruption. The SFO suggested a 50/50 split, as the criminality in Indonesia and Iraq had been orchestrated and arranged through the UK. The US authorities would not accept this through their three departments and proposed a US/UK two to one third split. The negotiations and reasoning are interesting but you can glean these from Thomas LJ’s clear exposition. Suffice to say the SFO agreed to a split broadly along these lines. The split to the SFO amounted to $12.7 million. Counsel for the Prosecution and Counsel for I.L. discussed and negotiated how this would be set out. It was agreed that $6.7m would be a fine or confiscation and the balance would be a civil settlement. In the US courts on the 19th February 2010 a global settlement was set out in Court where it was stated a settlement of a sum between $28.8 m and $40.2m should be made. The DOJ would be asking the US Courts to approve a fine of $14.1m. This was followed by an agreement by I.L. to have a summons served upon them for conspiracy on the 24th February 2010 and the case was transferred to Southwark Crown Court. THE PLEA AGREEMENT The SFO and I.L., no doubt conscious of their agreement with the US authorities, sought to ensure the US and UK Courts would deal with the sentence on the same day. The plea agreement included a joint submission (SFO/I.L.) on sentencing in agreed terms. This made clear that of the $12.7m that would be available to the SFO: a.A confiscation penalty of $6.7m would be made in respect of the Indonesian corruption; and b.There would be a civil recovery order of $6m of which $5m would be paid to the UN development fund for Iraq. c.It was accepted that it was for the court to determine the appropriate sentence, but the parties submitted that the approach upon which they were agreed should commend itself to the court as it was compatible with the approach being adopted in the US. A similar plea agreement was entered in the US. It acknowledged that the minimum fine payable under the Federal Sentencing Guidelines in respect of the Iraq corruption was $101.5 m with a range of up to $203m but this would be reduced because of Innospec Inc’s inability to pay this amount. Similarly the

American agreement indicated that the court had to approve the agreement and was not bound by it. In the US the judge of the Federal District Court for the District of Columbia inter alia imposed the fine of $14.1m (i.e followed the agreement). However Thomas LJ was not so compliant at least in words! In paragraphs 26 and 27 of his judgment he stated “It is clear that the SFO cannot enter into an agreement under the laws of England and Wales with an offender as to the penalty of the offence charged. One reading of the joint sentencing submission and plea agreement in the light of the surrounding circumstances would suggest that a penalty had in fact been agreed. [The judge indicated that he accepted from the Director of the SFO and Counsel, that no penalty had in fact been agreed and that it was for the Court to decide.] Although the sentencing submission proceeded to put forward a specific proposal as opposed to the range as set out in the authorities, that must have been because the provisions of the Consolidated Criminal Practice Direction had not been fully appreciated … principles of transparent and open justice require a court sitting in public itself first to determine by a hearing in open court the extent of the criminal conduct on which the offender has entered the plea and then, on the basis of its determination as to the conduct, the appropriate sentence. It is in the public interest, particularly in relation to the crime of corruption, that although, in accordance with the Practice Direction, there may be discussion and agreement as to the basis of plea, a court must rigorously scrutinise in open court in the interests of transparency and good governance the basis of that plea whether it reflects the public interest.” Thomas LJ stated that he believed a fine of $12.7m would have been wholly inadequate to reflect the criminality displayed by I.L. The corruption was substantial of senior government officials, over a long period of time and a major purpose was not merely to procure contracts but to delay the phasing out of TEL and as the judge said “therefore to prolong the damage to the people of Indonesia and its environment.” However because of the agreement and decision in the American Courts Thomas LJ imposed the fine of $12.7m declining to state that which he thought should have been appropriate. Although he did state that unless he had been satisfied that the new management would not engage in similar conduct in the future, he would not have


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been shy in determining a punishment that would have caused the demise of the company. Thomas LJ commended the SFO’s determination to see that those involved in corruption are pursued to court. However he concluded that the SFO had no power to enter into the arrangements made and no such arrangements should be made again: “... a suggested agreed sentence is not only impermissible, it can raise false hopes.” One can entirely see why a Court should retain control of pleas and sentences. It is just and appropriate that they should. So, for example, as in the Innospec case a conflict of interest might arise with a prosecuting authority preferring the imposition of a confiscation order rather than a fine. Or one can envisage where a party might abuse a dominant position. Protection of the public interest is required. However is it possible that Thomas LJ has held back by a significant note of caution the head of steam to successfully compromise cases that might otherwise have been engendered by the bare AG’s Guidelines. Although it has to be conceded that the AG never intended to go as far as the US plea bargaining system: as he warned in his press release to these Guidelines of March 2009 he was “careful to avoid a perception of plea bargaining associated with the US.” On June 1st 2010 in a judgment by the Court of Appeal in R v Dougall the Lord Chief Justice Lord Judge reaffirmed this position in strident terms in paragraphs 18 ff of the judgment, indicating that the defendant had committed a very serious offence involving substantial international corruption for which the maximum available custodial sentence of in prison was seven years disproportionately moderate. Care had to be taken not to allow the issue of guidelines for the prosecution of cases of fraud and corruption to suggest that they were rather more respectable than other forms of crime, or that those who committed fraud or corruption should not be ordered to serve prison sentences because such sentences should be reserved for those they would regard as common criminals. These were not victimless crimes. Equally, there were no special rules which applied when they came to be sentenced. Although the Prosecution should be involved in the process by which the sentencing court was fully informed about any matters arising from the evidence which might reflect on the defendant’s criminality and

culpability including of course matters of mitigation, and of any positive assistance given to the investigating authorities by him, that process did not involve an agreement about the level of sentence. Responsibility for the sentencing decision in cases of fraud or corruption was vested exclusively in the sentencing court, or on appeal from that court in the Court of Appeal Criminal Division. In this case the defendant conspired with a company by whom he was employed to make corrupt payments/inducements to medical professionals working within the public health system of Greece in relation to the award of contracts for the supply of orthopaedic products in favour of the company for which he worked. He entered into a plea agreement with the SFO pursuant to section 73 of SOCPA 2005 and was clearly helpful to the investigation from the outset. His plea agreement, however, may have gone too far: the LCJ described some of the terms of the agreement reached as “advocacy, and would do credit to an accomplished advocate advancing submissions in mitigation on behalf of the defendant. It does not simply and objectively draw the attention of the court to matters of personal mitigation.” The particular offensive agreed term, if I may call it that, between the prosecution and defence was “A court may conclude that whilst the custody threshold is crossed, an immediate custodial sentence is not appropriate. In particular, the court would act wholly within its discretion by imposing a suspended sentence of imprisonment.” As The LCJ said of this at paragraph 29: “That is as near telling the court not only that a suspended sentence should be imposed, but bearing in mind that the Director [of the SFO] must know perfectly well that a suspended sentence involves a sentence of imprisonment of 12 months or less and cannot be applied to a sentence of 13 months’ or longer, it is remote from the range of possible sentences.” CONCLUSIONS So what then does the future hold for the Attorney General’s Guidelines in Complex or Serious Fraud in the light of these judgments? Certainly in the egg case to which I was party they provided a real avenue for compromise between the prosecution and the principle defendant. The parameters of sentence were narrow and the confiscation was essentially determined by the parties. No doubt in many if not in all fraud cases an accused will want to have some realistic understanding of what sentence he will

face and what will be the financial liability. The purpose and intendment of the guidelines was in part at least to encourage the compromising of these cases, given the obvious burdensome nature of lengthy and involved trials within an adversarial system, where decisions are made by jurors who hopefully can stay healthy and motivated for the duration of many weeks if not months. Thus as I suggest in the title they were certainly a step forward in the investigation and determination of fraud cases. The question will be whether Thomas LJ’s judgment and that of the Lord Chief Justice and their strictures are merely an obvious restatement of the Court’s powers or potential for taking two steps back. An accused will now be told by his legal advisers (with more vehemence than before) that whilst the parameters of his sentence will be suggested to the Court in agreed terms and the level of his liability also in a similar way, the reality is no-one knows what will happen. In those circumstances it may be that those of us that conduct fraud litigation will find ourselves back to the situation before the guidelines. A WAY FORWARD? A cynical approach might be to recommend parameters of sentence and confiscation where there is a natural middle-way and anticipating that the Judge will take the middle course. However, perhaps the safest course for a defence team acting for a defendant who wishes to know his fate with a degree of accuracy before tendering his plea would be to present a judge with a ‘prospective’ agreed plea and sentence agreement and in addition requesting a Goodyear indication. The new Bribery Act with its provisions coming into force in October is likely to provide a host of other reasons for looking in depth at the AG guidelines. I feel another article coming on. Watch this space!

J. Burbidge QC


Crime Brief | St Philips Criminal Law

News In addition to Kevin Hegarty and Andrew Lockhart being appointed as Queen’s Counsel we also congratulate Glyn Samuel on his recent appointment as Deputy Chancellor of the Diocese of Coventry. Glyn will be sworn in later this year and will sit as a part time ecclesiastical law judge responsible for applications and legal disputes within the Church of England.

St Philips cricket team managed to secure an honourable draw in their annual match against Victoria College, Jersey, The team which included Jonas Hankin, Tim Green, Shane Crawford from the Criminal Group and Senior Criminal Clerk James Turner travelled to Jersey to delight the locals with a fine display of batting and bowling which unfortunately was not quite enough to secure an unlikely victory.

Congratulations to Andrew Molloy from the Criminal Group, who recently rode 1000 miles in under 24 hours on behalf of the Royal British Legion. Andrew was raising money for the Poppy Appeal which supports veterans, their families and our serving personnel in their time of need. Andrew riding a CBR Fireblade 1000 completed a northern clockwise route from Leeds via the Highlands of Scotland and Edinburgh back to Leeds. If you would like to donate to a very worthwhile cause please visit www.justgiving.com/andrew-molloy


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Crime Brief Autumn 2010  

Welcome to Crime Brief Autumn 2010. As you can see this particular edition is entitled 'The Silk Edition' as it is composed entirely of arti...

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