JANUARY 2016
In praise of an anachronism
Criminal behaviour orders
Consent in child rape
allegations
Inquests: locus of the next
of kin is relative
Proceeds of Crime Act:
Update
Welcome to the first edition of the Drystone
Chambers Newsletter. Most of our readers
will know that in the summer of 2015,
Dyers Chambers and One Paper Buildings
completed a successful merger after months
of careful planning. We moved into the newly
refurbished premises at 35 Bedford Row
where we have fantastic facilities for hosting
conferences and mediation meetings. Many
of our members will be trained Mediators
by the end of January.
JUDICIAL UPDATE
KARIM KHALIL QC
We are proud to announce that Christopher Morgan and Maria Lamb
both succeeded in the recent judicial competition. HHJ CHRISTOPHER
MORGAN was sworn in on 2nd November, taking up his post on 4th
November at Basildon Crown Court (recently moving to Chelmsford).
HHJ MARIA LAMB was sworn in on 18th January and has taken up her
post at Aylesbury Crown Court. Congratulations also to ANDREW SHAW
for succeeding in the recent Recorder competition. This is a well-deserved
and popular appointment on Circuit.
Those who visited or
phoned in during the
latter part of 2015 will
know that it was an
unremitting whirlwind
of activity in the clerks’
room, as they were hard
at work getting to know
many new solicitors.
All have returned from
the festive break with
a healthy dose of festive
cheer to continue into
2016 with the vigour and
ambition that brought us
all together.
CARIBBEAN CONNECTIONS
In the early autumn, my co-head of chambers, ANDREW CAMPBELLTIECH QC, was delighted to accept an invitation to Chair a training course
on POCA related issues for members of the judiciary and law enforcement
officers in Jamaica. This arose from the interest generated by our
secondment of BARNABY HONE to the CPS in the Caribbean.
DRYSTON E .COM
1
PUBLICATION NEWS
Congratulations to DANIEL JONES, who has co-authored the new
CRIMINAL APPEALS HANDBOOK published by Bloomsbury. There is a
short introduction to the book within this Newsletter. REBECCA PENFOLD
is a contributing author.
CONTENTS
P.4
IN PRAISE OF AN ANACHRONISM
ANDREW CAMPBELL-TIECH QC
A commentary upon the essential nature of being
a barrister and the purpose of a set of chambers
P.6
C
RIMINAL BEHAVIOUR ORDERS
REBECCA PENFOLD
A concise guide to the new regime surrounding
Criminal Behaviour Orders pursuant to
The Anti-Social Behaviour, Crime and Policing
Act 2014
P.8
C
ONSENT IN CHILD RAPE ALLEGATIONS
NICOLA DEVAS
A critique of the approach of the Court of Appeal
to vulnerable witnesses whose acquiescence in the face
of grooming by mature males may not be equated with
true consent – leaving such cases to juries to determine
P.11
I NQUESTS: LOCUS OF THE NEXT OF KIN IS RELATIVE
PETER CALDWELL
An analysis of the complications of seeking and obtaining
public funding for the representation of the “next of kin”
at an Inquest – including a salutary lesson to all, that
success may come to the first who asks rather than the
most deserving
P.14
P
ROCEEDS OF CRIME ACT: UPDATE
GAVIN IRWIN
A review of recent changes to the Proceeds of
Crime Act 2002 and an update on recent cases
DRYSTON E .COM
Within this Newsletter,
ANDREW CAMPBELLTIECH QC comments
upon the essential nature
of being a barrister and
the purpose of a set of
chambers. These topics
informed our joint
approach to the formation
of Drystone Chambers
and provide the core
principles by which we
hope to maintain our
collective standards at
the top of the profession.
My thanks to
BRETT CARVER, our
MARKETING DIRECTOR,
for liaising with members
of chambers and collating
articles of interest.
Best wishes to all for
a happy and prosperous
2016.
2
3
IN PRAISE OF AN ANACHRONISM
One meaning of the word ‘set’ derives from the Latin ‘secta’,
from which no end of trouble has ensued. ‘Chambers’ comes to
us, via the French ‘chambre’, from the Latin ‘camera’: a room1.
Together of course they describe the traditional place of work
of the traditional barrister.
In medieval London, barristers
both lived in and practised from
their Inn. There were many, of which
the four Inns of Court together
with Serjeant’s Inn were only the
most prominent. Today, Staple Inn,
Clement’s Inn and Barnard’s Inn
are just place names. Others such as
Strand Inn and Furnival’s Inn have
left no echo. Is the chambers model
similarly doomed?
Recent omens are hardly
propitious. Starting with the
market-based obsession of the
Thatcher era2 and accelerating
through the dirigiste years of New
Labour, successive governments
have denigrated anything the value
of which cannot easily be assessed,
quantified, measured, regulated,
improved or terminated. Unhappily,
this drear and ignorant ideology
has, from time to time, received the
support of the pro tem leadership
of the profession. Sets of chambers
were to give way to, or at least
accommodate, alternative business
structures. The Bar was, apparently,
Open for Business3.
NO IT WASN’T. NOR SHOULD
IT HAVE BEEN. WHY?
Amidst the raucous clamour that
characterises the debate surrounding
the future of the legal profession as a
whole and its legally-aided sector in
particular, one artless but profoundly
significant question remains unasked.
What is a barrister for?
The clear but unstated operating
assumption of the Ministry of Justice
is that a barrister is engaged in the
DRYSTON E .COM
business of law. Accordingly,
the barrister pursues private profit
under the guise of professionalism,
itself an empty term denoting,
if anything at all, a deception
practised upon an ill-informed
public. Therefore the role of the
State is to regulate the barrister,
that is, to curb the excesses flowing
from her disguised self-interest.
Having rejected all claims that the
lawyers’ calling serves the greater
good, the Ministry busies itself by
advancing models and structures
that are intended to align the
provision of legal services with
the cupidity of legal practitioners,
the better to exploit the latter
and achieve the Holy Grail of
government policy: more for less.
This, of course, is bunkum
writ large. The essence of
professionalism is the conscious
and deliberate suppression of
self-interest. The client comes first.
The barrister who forgets this
not only traduces his vocation.
He also betrays and diminishes
all barristers, past and present.
Barristers exist for their clients,
not the other way around.
Politicians and senior civil
servants do not believe this. Such
incredulity probably derives from
their experience of each other.
Yet there is a small but relatively
prominent minority of barristers for
whom the above paragraph is but an
expression of naivety. Success is selfvalidating. The brief, and the fee, are
sufficient of themselves. How the first
is obtained and the second earned is
neither here nor there.
AUTHOR: ANDREW
CAMPBELL-TIECH QC
4
A truly successful career is
defined as much by what is not done
to advance it as by the instructions
received and the cases fought and
won4. The question is: what structure
will best preserve the barrister
qua professional and constrain the
barrister qua businessman?
Every ‘for profit’ organisation
that professes to act in the public
interest must wrestle with the
conflicts of interest that will
obviously arise. A public service
ethos does not sit easily with a
target-driven work force, unless
those targets themselves solely
benefit the public. Only charities
can make such a claim.
A set of chambers will have
collective goals and aspirations. It
will have the internal mechanisms of
delivery and accountability familiar
to any company. It will have its
own identity, perhaps ‘radical’ or
‘traditional’, or simply defined by
the nature of its work. It may lean
more towards the collective than the
individual or vice versa. Its traditions
will inform the behaviour of its
members, each of whose clients will
doubtless benefit from the repository
of knowledge and experience that
distinguishes the set from its
competitors.
But crucially, a barrister
who has obtained a tenancy
in a set of chambers is an
autonomous creature, neither
subject nor beholden to the
dictates of management, however
well intentioned or fashionable.
In short, the barrister has an
extraordinary freedom. She
can say ‘no’.
Herein lies the real value of
the chambers model. The barrister
is independent not only in theory
but in practice. At her place of
work or at court, no one can tell
her how to think, what to do or
when to do it. Or rather, those
that attempt to do so usually make
themselves faintly ridiculous in
their effort to exert an authority
they do not possess. Such freedom
is anathema to the bureaucratic
mind, which may explain the
Ministry’s clear distaste for the
profession as a whole.
But it is a priceless resource
that is cherished and encouraged
only within the chambers system.
We must not lose it.
FOOTNOTES
DRYSTON E .COM
1
not alas ‘bedroom’.
2
arket folly: in 1987,
m
Loreen Fleischman,
a barrister at 2 Pump
Court, in a wonderful
letter to the Times,
pointed out that if the
then current proposal to
pay barristers according
to their ranking in a
‘success table’ were
realised, no criminal
clients would be
represented at all.
3
motif of the annual Bar
Conference 2010
4
and sometimes lost.
CRIMINAL
BEHAVIOUR
ORDERS
The Criminal Behaviour Order (‘CBO’) came
into force on 20th October 2014 by way of Part
2 Anti-Social Behaviour, Crime and Policing
Act 2014 (‘the Act’). The CBO is intended to
replace the post-conviction ASBO. As well as a
name change, there are significant differences
to the old ASBO regime, as set out in section
1C Crime and Disorder Act 1998.
A CBO is available upon conviction
at the Youth, Magistrates’ and
Crown courts for any criminal
offence. Of note, the Order can
now include requirements as well
as prohibitions. A court can
no longer make an Order of its
own initiative: it must be on the
application of the prosecution.
However, the key change is found
in the new statutory test that must
be applied before a court can make
a CBO. The test is found at section
22 of the Act. It stipulates:
AUTHOR:
REBECCA PENFOLD
(2) T
he court may make a criminal
behaviour order against the
offender if two conditions are met.
(3) T
he first condition is that the
court is satisfied, beyond reasonable
doubt, that the offender has engaged
in behaviour that caused or was
likely to cause harassment, alarm
or distress to any person.
(4) T
he second condition is that
the court considers that making
the order will help in preventing
the offender from engaging in
such behaviour.
The test is, therefore, two-fold:
1. Has the defendant engaged
in behaviour that either caused,
or was likely to cause, harassment,
alarm or distress to any
person; and,
2. Will such an order help to prevent
the recurrence of such behaviour.
DRYSTON E .COM
It will be noted that this test
broadens the scope of the
anti-social behaviour from that
of the old-style ASBO, which
had the restriction ‘to one or
more persons not of the same
household’. Furthermore, the
‘necessity’ test has reduced to
a test of ‘helpfulness’.
Even though a CBO can
only be made upon conviction,
the offence for which the offender
falls to be sentenced is immaterial
for the CBO application. There
is no longer a requirement that
the offender be convicted of a
‘relevant offence’, as had been the
test under the ASBO legislation.
In other words, the offender could
face a sentence for an offence
that is not typically ‘anti-social’
and the prosecution would still
be able to make an application
for a CBO. There does not need
to be a link between the criminal
offence due for sentence and the
anti-social behaviour relied upon
in a CBO application. A CBO
cannot be ordered if the offender
is sentenced to an absolute
discharge or is bound-over
to keep the peace.
Considering the changes
made, the new legislation appears
particularly draconian as the
punishment for breach of a CBO
is identical to that of the ASBO
regime: a maximum of 5 years’
custody for an adult and 2 years’
DTO for a youth.
6
“The old ASBO regime was
notoriously unsuccessful.
However well-intended,
the new legislation appears
to be entirely misguided
and ill-conceived.”
DRYSTON E .COM
Practitioners should be alert to
the prosecution’s intention to apply
for a CBO, as this decision is usually
made at the point of charge. It is
often noted on the MG5 under the
heading “any other orders”.
As was the case for an ASBO
application, the proceedings for
a CBO are civil in nature. Both
the prosecution and defence can
rely on civil hearsay evidence.
The prosecution can also rely on
evidence not adduced during the
substantive criminal proceedings.
However, the prosecution can
only adduce evidence of behaviour
post-dating 20th October 2013.
Notwithstanding the civil nature
of the application, the statutory test
retains the criminal burden of proof
(s.22 (3)).
Should the court make a
CBO, the minimum term for an
adult’s order is two years. There is
no maximum term: a CBO can last
an indefinite period.
For youth offenders, the
minimum term is one year and
the maximum term is three years.
Prosecutors must seek the view
of the Youth Offending Team
before making a CBO application.
Practitioners should ensure that
a statement from a YOT worker is
included in the application bundle.
It is particularly helpful to consider
the view of the YOT in seeking to
persuade the court that a CBO
should not be ordered, particularly
when considering the wealth of
helpful programmes a youth can
be subject to as part of a tailored
youth rehabilitation order. If a
court does order a CBO in the
case of a youth, section 28 of the
Act requires that the Order be
reviewed annually.
It is clear that the intention
of Parliament is to provide
better methods of intervention
to try to address the underlying
causes of anti-social behaviour
that is prevalent throughout our
society. The old ASBO regime
was notoriously unsuccessful.
However well-intended, the new
legislation appears to be entirely
misguided and ill-conceived. The
new statutory test is broader and
encompasses a lower threshold
test. This may have the effect of
more offenders being subject
to such Orders, as opposed to
targeting the most anti-social
behaviour. Moreover, it is not
clear whether Parliament’s
intentions will be properly met by
allowing an Order to have both
prohibitions and requirements.
It may be that in reality the
imposition of more terms will
simply make a CBO harder to
follow. In turn, the legislation may
prove to have the opposite effect
to that which Parliament intended.
7
WHEN YES
MEANS NO:
CONSENT IN
CHILD RAPE
ALLEGATIONS
The Indictment included counts of
rape, trafficking within the UK for
sexual exploitation, sexual assault,
making indecent photographs of
a child, engaging in sexual activity
in the presence of a child and
intimidation.
The Crown’s case was that
young girls were selected for sex.
They were targeted because of
their circumstances including age,
troubled backgrounds and mundane
existence and were susceptible to
grooming by an older male, offering
an escape from reality and treating
them as adults, plying them with
alcohol, transporting them in cars
and offering “parties” in hotels.
In such circumstances of
exploitation, the Crown argued the
girls became sexually compliant.
Apparent consent was not therefore
genuine consent.
DRYSTON E .COM
The Case of R v. Ali and Ashraf 1 presented
a number of challenges both in the initial
content of the prosecution evidence and
the drafting of the Indictment, specifically
as to the issue of consent in the Rape
counts. I was involved in its prosecution
from a very early stage, ultimately being
led by Miss Patricia Lynch QC (now HHJ
Lynch) at trial and Mr Alistair Malcolm
QC on appeal.
The Crown’s case on the issue
of consent was that:
a) Methods of exploitation in
cases involving children have
changed and evolve in the
same way society evolves;
b) Well established, older
authorities on freedom and
capacity are not necessarily
helpful:
c) It is the context of the
complainant’s circumstances,
coupled with the behaviour
of the defendant, which must
be considered.
“In its judgement, the
Court of Appeal [...] noted
that factual situations
are often complex, with
competing submissions
for a jury to consider.
It is important that the
evidence is considered in
the round. The judgement
makes it clear that in
situations such as those
in this particular trial
the prosecution is not
obliged to call overt
evidence from victims to
the effect that they did
not consent, given that
the circumstances may
have removed or distorted
the victim’s appreciation /
understanding of their role
in the sexual relationship
and the true nature of
what occurred.”
AUTHOR: NICOLA DEVAS
In brief, the allegations
included young females, in two
separate groups, being taken
to an hotel room for “parties”
by the Defendants where they
were subjected to the abuse
8
indicated above. All were under 16.
The common theme initially was
that most seemed to have gone to
the room willingly, thought they
were “in love” with a particular
Defendant and appeared to like
their company. Other females were
befriended individually. The plying
with alcohol was a common theme.
In short, the Defendants formed
relationships and groomed them
for sexual purposes.
The case initially came to the
attention of the police when contact
was noted on the laptop of one of
the girls, followed by the discovery
of CCTV from hotel reception areas
which provided confirmation of
dates and those involved.
None of the girls were
initially willing to provide accounts
about the sexual abuse, although
complaint was made about the
later intimidation. The case thus
began life as an allegation of witness
intimidation, alleging threats made
to some of the girls should they give
evidence on the substantive matters.
The process of obtaining
evidence from the complainants was
a slow and gradual one. Together
with a liaison police officer, I visited
the individual girls in order to
explain court procedure from the
perspective of a witness. Taking time
to explain the procedure carefully
led to some of the girls deciding they
would give evidence in court.
CONSENT IN RAPE ALLEGATIONS:
The central issue and challenge in
the drafting of the Indictment was
that of consent.
THE LAW:
“... a person consents if he agrees
by choice, and has the freedom and
capacity to make that choice”.
The relevant time for consent
is at the time of penetration. The
prosecution must prove they did not
consent2. Capacity is not defined in
the Act.
DRYSTON E .COM
The prosecution case was
that because of the attention they
received in this way from older
males, in the context of this case,
they became sexually compliant,
but that their consent was not real
or genuine3. In its judgement the
Court of Appeal stated, “One
of the consequences when vulnerable
people are groomed for sexual
exploitation, is that compliance
can mask the lack of true consent
on the part of the victim.”
THE COURT HELD:
It is only in clear cases that a judge
should conclude that there is no
evidence on which the jury could
properly convict in a case of this
kind and accede to a submission
of no case.
In circumstances in which a
vulnerable or immature individual
has allegedly been subjected
to grooming on the part of the
defendant, the question of whether
real or proper consent was given
will usually be for the jury unless
the evidence clearly indicates that
proper consent was given.
It was noted that in R v.
Robinson4 the term grooming
was described as “cynical and
manipulative behaviour designed to
achieve a particular sexual objective.”
Whilst grooming does not vitiate
consent, it raises the possibility
that those who are vulnerable can
find themselves in the position
where they merely acquiesce
rather than give real consent;
“One of the consequences of grooming
is that it has a tendency to limit or
subvert the alleged victim’s capacity
to make free decisions”.
As part of his summing
up, the Trial Judge in R v. Ali
directed the jury that where there
is evidence of exploitation of
a young and immature person
who may not understand the full
significance of what he or she is
doing, that was a factor they could
take into account when deciding
FOOTNOTES
1
( 2015) EWCA Crim
1279
2
.74 Sexual Offences
S
Act 2003
For details of the precise
allegation in each Count
see R v. Ali (2015)
EWCA Crim 1279
3
2011 EWCA 916
4
9
whether there was genuine consent.
In its judgement, the Court of
Appeal rehearsed the specific factual
circumstances in which each of the
complainants found themselves in the
counts of rape. It noted that factual
situations are often complex, with
competing submissions for a jury
to consider. It is important that the
evidence is considered in the round.
The judgement makes it clear that
in situations such as those in this
particular trial the prosecution is not
obliged to call overt evidence from
victims to the effect that they did not
consent, given that the circumstances
may have removed or distorted the
victim’s appreciation/understanding
of their role in the sexual relationship
and the true nature of what occurred.
In other words, it is now
recognised that where there is evidence
of exploitation of a young and immature
person who may not understand the full
significance of what they are doing, that
is a factor the jury can take into account
in deciding whether or not there was
genuine consent, but the question of
consent in such circumstances will be
a matter for the jury to decide on.
THE ‘CRIMINAL APPEALS HANDBOOK’ IS NOW AVAILABLE
Together with Gregory Stewart (GT Stewart Solicitors) and Joel Bennathan
QC (Doughty Street Chambers) DANIEL JONES has co-authored a book
entitled ‘Criminal Appeals Handbook’. REBECCA PENFOLD also acted
as contributing author. This book is part of the Bloomsbury Professional
criminal practice series and is available to purchase.
The handbook provides practical assistance in relation to challenging
both convictions and sentences. It covers key practical points such as:
funding for advice and assistance (legal aid), grounds of appeal and
the lodging of forms. The process of appealing at the Court of Appeal is
considered in detail and the less frequent practice areas of: appeals to the
Supreme Court, applications to the Criminal Cases Review Commission
and appeals beyond the domestic realm to the international courts are
also examined.
Reviewed in the September 2015 issue of Counsel magazine by
Jeremy Dein QC of 25 Bedford Row as providing ‘excellent theoretical and
practical assistance’, this lightweight, affordable book does not withhold
on engaging yet constructive content.
DRYSTON E .COM
10
INQUESTS: LOCUS OF THE NEXT OF KIN
IS RELATIVE
Casenote: R. (on the application of Joseph)
v Director of Legal Aid Casework [2015]
EWHC 2749 (Admin) – Public Law: Inquests
– Article 2, Funding, “next of kin”,
effective investigation
This case concerns the approach
that should be taken by the
Legal Aid Agency on considering
applications under LASPO
for civil legal aid based on an
“exceptional case” determination
for representation before Inquests in
section 2 cases. The Court examined
the scope of the “next of kin”
qualification and the purposes for
which representation is granted.
The claimant, Susan Joseph,
was the half-sister of Dean Joseph,
who died on 5 September 2014
having been shot by an officer
of the Metropolitan Police. An
inquest into the death of Mr Dean
Joseph was heard in July 2015. Two
close relatives of the deceased had
publicly funded legal representation
at the inquest. The claimant also
applied for publicly funded legal
representation but was refused on
the grounds that she had the benefit
of their grant of representation.
The Claimant brought a claim for
judicial review which came before
Holroyde J for a rolled up hearing.
The deceased had no wife or
partner at the time of his death. His
mother had died and the deceased
had not had contact with his father
for several years. The deceased had
no full siblings, but he did have a
number of half siblings. The claimant
was very close to the deceased with
whom she had lived for more than
one substantial period of time.
The court noted that there has been
discord between members of the
DRYSTON E .COM
family, and that there were very
serious and deep-rooted divisions
between the claimant and the
other half-siblings.
Section 10 of the Legal Aid,
Sentencing and Punishment of
Offenders Act 2012 permits a
grant of civil legal aid where the
Director makes an exceptional
case determination. That is a
determination that it is necessary
because failure to do so would
be a breach of the individual’s
Convention rights (within the
meaning of the Human Rights
Act 1998).
The Director’s decision had
accepted that in the circumstances
of the deceased having been
shot by a police officer, Article
2 was plainly engaged. The
defendant also accepted that in the
circumstances of the case the duty
of the state to conduct a thorough
and effective investigation of the
death extended to funding legal
representation for the deceased’s
next of kin. But, having granted
funding to two other half-siblings,
the Director had concluded that
that duty had been discharged, and
that there were no circumstances
which made it necessary to provide
separate funding for another close
relative of the deceased, namely
the claimant; the claimant could
benefit from their representation.
The Director was not convinced
that the allegations against the state
were sufficiently disparate as to be
AUTHOR:
PETER CALDWELL
“Having reviewed the
circumstances of the
claimant’s case Holroyde
J found that the defendant
was entitled to conclude
that the legitimate
interests of the next
of kin were effectively
safeguarded by the grant
of representation by
one legal team and that
the duty under Article
2 was discharged by
a single grant of legal
representation. In the
absence of consensus
between family members
the lesson would appear
to be that the decision
making process favours
those who ask first;
a common experience
among siblings.”
11
a legal conflict of interest between
the family members.
The claimant argued that
it was necessary for her to have
separate legal representation, and
therefore separate public funding,
having regard to the conflict of
interest and the claimant’s limited
capacity to act on her own behalf.
The main legal challenge, relying
heavily on R (oao Humberstone) v
Legal Services Commission [2011]
1 WLR 1460, was that the Director
should have considered whether
separate representation was
necessary in order to enable the
family of the deceased to participate
effectively in the inquest.
The defendant responded
that the Legal Aid Agency meets
the state’s obligations under Article
2 by funding a family member (or,
if appropriate, a group of family
members acting collectively) to
discharge the role of acting as next
of kin of the deceased. That here
was no duty on the state to provide
legal aid funding for different family
members who, for a variety of
reasons, are unwilling or unable
to instruct a single firm of solicitors.
The primary duty on the state
is encapsulated in the opening words
of Article 2.1: “Everyone’s right to
life shall be protected by law.” The
state is under substantive duties not
to take life, and to take appropriate
steps to protect life. In addition,
the state is under an obligation in
respect of the investigation of deaths.
The court referred to the
obligation on the state (derived
from Article 2) to conduct an open
and independent investigation into
a death for which the state might
be responsible. From that is
derived the further duty to permit
the next of kin of the deceased to
be involved in the proceedings to
the extent necessary to safeguard
their legitimate interests.
In this regard, Holroyde J recalled
the words of Lord Bingham in
R (Amin) v Secretary of State for
the Home Department:
“The state’s duty to investigate
is secondary to the duties not to
take life unlawfully and to protect
life, in the sense that it only arises
where a death has occurred or
life-threatening injuries have
occurred ... The purposes of
such an investigation are clear:
to ensure so far as possible that
the full facts are brought to light;
that culpable and discreditable
conduct is exposed and brought
to public notice; that suspicion
of deliberate wrongdoing
(if unjustified) is allayed;
that dangerous practices and
procedures are rectified; and
that those who have lost their
relative may at least have the
satisfaction of knowing that
lessons learned from his death
may save the lives of others.”
The case of Humberstone had been
the touchstone of the claimant’s
argument, in which Smith LJ
referred to the principle that an
inquest could only be an effective
investigation if the close family
members could play an effective
part in it. She noted, “Such
representation would not be
necessary in the great majority
of cases but, in what were there
described as ‘exceptional’ cases,
it would be.” Smith LJ emphasised
however, that “the decision must
focus on the effective participation
of the family and not on the needs
of the coroner.”
From this discussion Holroyde
J held that the meaning of the
phrase “next of kin” cannot be
confined to a dictionary definition
of “the single nearest living relative”.
It is also capable of meaning one
or more persons who (a) were
closely related to the deceased;
(b) qualify as properly interested
parties for the purposes of the
inquest: and (c) were sufficiently
close to the deceased around the
time of his death to be treated for
these purposes as his next of kin.
Identifying the person or persons
12
who fall within this category will
necessarily be a fact-specific decision
in each case. In the instant case the
claimant was to be considered as
next of kin.
With that locus then, the
claimant argued she must have
separate legal representation
because her interests could not be
represented by the same lawyers as
act for other members of the family.
The response of the defendant
was that the Article 2 rights which
were under consideration were the
Article 2 rights of the deceased. Thus
the duty under Article 2 was limited
to enabling effective involvement in
the inquest by one or more persons
acting as next of kin to advance the
deceased’s Convention rights. The
LAA drew a distinction between that
role and the individual members of
a deceased’s family advancing their
own rights.
Holroyde J found two flaws
in those submissions. First, whilst
it was correct that it is the Article
2 rights of the deceased which give
rise to the state’s duty to conduct an
effective investigation; the deceased’s
next of kin had a right to participate
in the investigation to the extent
which is necessary to protect
their own legitimate interests.
Secondly, the defendant’s
submission was in danger of
presuming that it will always be
possible to identify a single collective
legitimate interest on the part of
all persons who might properly be
identified as the next of kin. There
might be circumstances where the
legitimate interests of all persons
properly regarded as next
of kin could not be protected by
the engaging of a single team of
legal representatives.
The Court ultimately returned
to what Smith LJ said at paragraph
77 of Humberstone: “The
requirement is that the next of kin
must be involved in the procedure
to the extent necessary to safeguard
their legitimate interests.” Having
reviewed the circumstances of the
claimant’s case Holroyde J found
that the defendant was entitled
to conclude that the legitimate
interests of the next of kin were
effectively safeguarded by the grant
of representation by one legal team
and that the duty under Article 2
was discharged by a single grant
of legal representation.
In the absence of consensus
between family members the lesson
would appear to be that the decision
making process favours those who
ask first; a common experience
among siblings.
“The common law lawyers
amongst us will no doubt
be shaking heads at such a
thought. ‘Judicial authority’
surely means a body that is
independent and impartial,
free from the executive and
the parties involved?”
DRYSTON E .COM
13
PROCEEDS OF CRIME ACT: UPDATE
In the first part of this article, Gavin Irwin explores recent changes
to the Proceeds of Crime Act 2002. In the second, he reviews the case
law over the last months.
A. THE SERIOUS CRIME ACT 2015
On 1st June 2015 the Serious
Crime Act 2015 (‘SCA’) came into
force. It brought significant changes
to the Proceeds of Crime Act
2002 (‘PoCA’), perhaps the most
extraordinary of which is contained
in section 10, ‘Default Sentences’.
1. DEFAULT SENTENCES
The SCA section 10(1)
provides fresh maximum terms
of imprisonment in default for
non-payment of a confiscation
order, as follows:
— £10,000 or less – 6 months
— More than £10,000 but no
more than £500,000 – 5 years
— More than £500,000 but no
more than £1 million – 7 years
— More than £1 million – 14 years
The maximum for non-payment
of £1,000,000+ was thereby
increased from 10 years to 14.
A significant change.
DRYSTON E .COM
The extraordinary factor, however,
is contained in section 10(3),
which provides that non-payment
of £10,000,000+ will not attract
early release. That is, after service
of half the sentence imposed (as
had previously been the case,
and as is the case for almost all
sentences of imprisonment) the
defendant will not be released,
he must serve the whole term.
Remission no longer applies.
One can readily imagine
circumstances where, as a result
of the unpaid part of an order
slightly exceeding £10 million,
even by one penny, or by reason
of a fluctuation in currency
exchange rates, an individual
might be required to spend an
additional 7 years in custody. Such
orders may be relatively few in
number but a provision with such
apparently arbitrary consequences
must be amenable to challenge
under ECHR Article 5.
In addition, there are
no transitional provisions.
Consequently, the new heavier
terms in default apply to
defendants whose orders are made
after 1st June 2015, whether or not
the offence for which they have
been convicted was committed
before that date. Can a court
properly impose the new terms
in such a case? Such a retroactive
penalty must be amenable to
challenge under ECHR Article 7.
There are other significant
changes. They may be summarised
as follows:
AUTHOR: GAVIN IRWIN
14
2. CHANGE IN THE TEST
FOR MAKING OF A RESTRAINT
ORDER
Section 41 of PoCA provides for
the making of restraint orders
“prohibiting any specified person
from dealing with any realisable
property held by him”. Section 40
of PoCA sets out the conditions
that must be satisfied before a
restraint order may be made. The
SCA imports a new test for the
making of a restraint order. The new
test is “reasonable cause to believe
[replacing “reasonable grounds
to suspect”] that the offender
has benefited from his criminal
conduct.”
3. CHANGE TO TIME TO PAY
A confiscation order must now be
paid within 3 months. That limit is
capable of extension to six months
(replacing the old 6 months and 12
months limits respectively).
4. POWER TO MAKE A
‘COMPLIANCE ORDER’
The court has been granted the
power to make a ‘Compliance
Order’ when a con scation order is
made, provided that “it believes [it]
is appropriate for the purpose of
ensuring that the con scation order
is effective”.
“Effective” is not defined.
It remains to be seen whether, and
if so to what extent, any limits may
be placed on the court when making
such an order.
It is unlikely that a Compliance
Order is designed to replicate
the courts powers in relation to:
the appointment of receivers: the
consideration of third party interests;
and/or restricting travel, all of which
have distinct statutory footing within
PoCA. Could a compliance order
empower a police officer to take
possession of a defendant’s assets
and sell them or could require a
defendant’s spouse to sell the family
DRYSTON E .COM
home? That may seem unlikely until
seen in the context of one of the
court’s other new powers, that is,
the power to determine third party
interests (of which, more below).
Financial Reporting Orders
and Serious Crime Prevention
Orders also have a distinct
statutory footing but may only
be passed on conviction. It is
possible that some or all of those
powers may be replicated upon
the imposition of con scation and
compliance orders where no FRO
or SCPO was made on conviction.
5. ‘WAYA’ PROPORTIONALITY
GIVEN A STATUTORY FOOTING
The Supreme Court in Waya
explained that a confiscation order
must be proportionate to the aim
of deprivation of proceeds of crime.
The SCA expressly imports Waya
proportionality and provides that
an order should only be made if
“it would not be disproportionate
to require the defendant to pay the
recoverable amount.”
6. POWER TO DETERMINE
THIRD PARTY CLAIMS TO
THE DEFENDANT’S ASSETS
A new section 10A is inserted into
PoCA by SCA section 1. Section
10(1) provides that:
“Where it appears to a court making
a con scation order that: (a) there is
property held by the defendant that is
likely to be realised or otherwise used
to satisfy the order, and (b) a person
other than the defendant holds, or may
hold, an interest in the property. The
court may, if it thinks it appropriate to
do so, determine the extent (at the time
the con scation order is made) of the
defendant’s interest in the property.”
Section 10A(2) provides that:
“The court must not exercise the
power conferred by subsection
(1) unless it gives to anyone who
A.
Default Sentences
Change in the Test for
Making of a Restraint Order
Change to Time to Pay
Power to Make a
‘Compliance Order’
‘Waya’ Proportionality
Given a Statutory Footing
Power to Determine
Third Party Claims to
the Defendant’s Assets
B.
Evans & Others v Serious
Fraud Office
Cooper v Birmingham
Magistrates Court
Martin v HMRC
O’Shea
R v Chahal; R v Singh
R v GH
the court thinks is or may be a
person holding an interest in the
property a reasonable opportunity
to make representations to it.”
(The rules relating to property
and as to whether a defendant
‘holds an interest’ are set out at
PoCA section 84.)
‘Third Parties’ are referred to
as ‘Interested Persons’ and will have
ordinary litigation rights, including
the capacity to cross-examine
witnesses and to call evidence.
The section 10A power is
therefore confined to cases where
a third party has an interest in
property held by the defendant,
that is, property in which the
defendant also has a proprietary
interest. It does not apply where the
issue is whether a disposition by the
defendant of his interest in a piece
of property amounts to a tainted gift.
The prosecution are required
to include in its financial statements,
made pursuant to PoCA section
16, material that is relevant to the
consideration of a section 10A
determination. In addition, there
is a power to require an interested
person to provide information to
the court. If the interested person
fails to comply with such an order,
the court may draw inferences from
such a failure. Further, the order
can be enforced by committal to
prison for contempt.
The court’s determination
of the defendant’s interest in
property is conclusive for the
purpose of any question as to the
realisation or transfer of property
to enforce a confiscation order (but
not in relation to the appointment
of a receiver).
Any person (whether or not a
party who was given an opportunity
to make representations) can
appeal to the Court of Appeal
against the determination provided
that the Court of Appeal regards
it arguable that giving effect to
the determination would cause
a “serious risk of injustice”.
DRYSTON E .COM
B. CASELAW UPDATE
EVANS & OTHERS V SERIOUS FRAUD OFFICE
[2015] EWHC 1525
Useful guidance in relation to the principles to be applied by
the court when assessing costs. Although the judgment concerns
costs orders made against the prosecution under section 19 of
the Prosecution of Offences Act 1985, the principles will apply
when costs assessments are made under the Criminal Procedure
Rules.
COOPER V BIRMINGHAM MAGISTRATES COURT [2015]
EWHC 2341 (ADMIN)
An appeal against the imposition of a default sentence at
enforcement. The defendant’s only asset had been a house
in which his late parents had resided. Enforcement proceedings
were commenced and there were several hearings and
adjournments until a psychiatric report was obtained stating that
the defendant was in the early stages of dementia. That fact was
relevant to the defendant’s inability to adduce evidence, in the
absence of documents, relating to the transfer of the property
between the siblings after the death of their parents. The District
Judge committed the defendant to prison. The High Court
found that, whilst needing to be careful not to undermine the
confiscation order, the District Judge had erred in finding he had
no discretion not to commit the defendant on health grounds.
16
MARTIN V HMRC [2015] UKUT 0161 (TCC)
The defendant was convicted in relation to trademark offences
and a con scation order was made. Tax assessments were
raised against the defendant who failed to engage with HMRC
enquiries other than to assert that as his con scation order had
included consideration of the criminal lifestyle provisions and
that his tax liability had therefore been dealt with.
The Upper Tribunal considered the impact of the
confiscation order on the tax assessment. It confirmed HMRC’s
policy of not taking court proceedings to recover the unpaid
duty – to ensure that there was no ‘double recovery’ – where
the amount of the confiscation order matches the amount of
the unpaid duty. However, the Upper Tribunal did not agree
that the making of a con scation order prevented HMRC from
conducting its own investigation into tax affairs for the period
concerned. The provisions of PoCA in relation to confiscation
orders should not be construed in a way which would result in
preventing the collection of the proper amount of tax.
O’SHEA [2015] EWCA CRIM 1395
The defendant was a builder with limited ability to read and
write. The defence argued that it would be unjust to hold
against him the fact that he could not produce written records
for sums under £500 and asserted that the Judge should have
found that the assumption should be disapplied in light of a
serious risk of injustice. The Court of Appeal disagreed – it
was the defendant’s responsibility to keep records – his desire
to avoid tax encouraged him not to do so. The Judge was fully
entitled to include these sums, and by including only 50% he
may have erred in favour of the defendant.
R V CHAHAL; R V SINGH [2015] EWCA CRIM 816
In calculating the benefit figure for the purpose of making con
scation orders in relation to participants in a VAT carousel
fraud, it was irrelevant that the total amount of the inputs
claimed from HMRC did not produce an actual gain for those
offenders, since there was no injustice for the purposes of the
PoCA section 10(6)(b) in treating the fruits of their fraudulent
claims as part of the benefit where they had chosen to pass them
onto the next link in the carousel chain.
17
R V GH [2015] UKSC 24
A fraudster, B, established four “ghost” websites falsely
claiming to offer cut-price motor insurance. In order to carry
out this plan he recruited associates to open bank accounts for
channelling the proceeds. H was one such associate. In total,
members of the public were duped into paying £417,709 into
one bank account and £176,434 into another for non-existent
insurance cover.
B pleaded guilty to a number of offences. H stood trial for
entering into or becoming concerned in an arrangement which
he knew or suspected would facilitate the retention, use or
control of criminal property, namely the money received into
the accounts, by or on behalf of B, contrary
to PoCA section 328.
The trial judge upheld the submission that H had no
case to answer, finding that at the time H entered into the
arrangement no criminal property existed. The Court of Appeal
dismissed the prosecution’s appeal on the basis that, although it
was not necessary for criminal property
to exist when B and H came to the prohibited arrangement,
the arrangement must relate to property which was criminal
property when the arrangement begun to operate on it. In
this case, the money was not criminal property when the
arrangement began to operate on it,
in other words at the moment the money was paid into
the accounts. The prosecution appealed.
The Supreme Court unanimously allowed the appeal on
the following basis. Criminal property in sections 327-329
of PoCA refers to property which already has the quality of
being “criminal property” by reason of prior criminal conduct
distinct from the conduct alleged to constitute the commission
of the money laundering offence itself. The Court of Appeal
was correct to hold that it does not matter whether criminal
property existed when the arrangement was first made. What
matters is that the property should be criminal when the
arrangement operates on it.
The character of the money – although lawful at
the moment of payment – changed on being paid into the bank
accounts. The money became criminal property in the hands
of B by reason of the fraud perpetrated on the victims. As
such, it is legitimate to regard H as entering into or becoming
concerned in an arrangement to retain criminal property for the
benefit of another. Consequently, the ruling that H had no case
to answer was erroneous.
The legal content of this
newsletter was accurate
at the time of writing.
18