Crime Brief Autumn 2010

St Philips Criminal Law News

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

Autumn 2010 Issue 7

Welcome to Crime Brief Autumn 2010.

As you can see this particular edition is entitled 'The Silk Edition' as it is composedentirely 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 discretionarylife sentences in light of recent decisions relating to imprisonment for publicprotection.

Peter Haynes QC has provided an overview of his long and intriguing journey, which herecently steered through to a successful conclusion, at the War Crimes Tribunal at theHague.

James Burbidge QC offers an analysis of the current legal position, coupled with somepractical guidance, for those involved in the negotiation and presentation of pleaagreements in complex fraud cases.

Kevin Hegarty QC, by reference to two recent authorities, examines how the use ofSpecial Counsel can be employed in cases to ensure that a response can be made tootherwise closed material, without which the fairness of the trial may be questionedor the liberty of the accused at risk.

Finally, on behalf of the Criminal team at St Philips can I thank all those who attendedour Post Christmas Blues Party at the Orange Studio in January - we hope you allthoroughly enjoyed yourselves as much as we did.

You never know - next year we may offer something altogether different....

Happy Reading.

Editor, Ben Mills ([email protected])

Dear Reader,

2010 has been a momentous year sofar for the St Philips Criminal Groupwith the highlight undoubtedly beingthe elevation of Kevin Hegarty andAndrew Lockhart to the rank ofQueen’s Counsel. Those that haveinstructed them or seen them in actionas Senior Juniors will not be surprisedby their highly deserved promotions.This combined with the welcomereturn of Peter Haynes QC from theInternational Criminal Tribunal at theHague has significantly enhanced theteam of silks at St Philips, which nowoffers unrivalled experience andquality for all criminal and regulatorymatters. Our silks are ably supported byone of the largest criminal groups inthe country and a full list of the teamcan be found at the back of thisnewsletter along with the contactdetails for all our criminal clerks.

I take this opportunity to thank you allfor your continued instructions andwould be pleased to hear from youregarding any aspect of our service. Iwould also welcome your views on theforming of working partnerships orother new initiatives for Chambers.

Joe Wilson - Chief Clerk.

The Silk Edition

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Tim

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Crime Brief | St Philips Criminal Law

DOES IPP SOUND THEDEATH KNELL FORDISCRETIONARY LIFE?

Andrew Lockhart QC

In the past and before the inception ofthe Criminal Justice Act 2003,discretionary life terms were passed bythe Courts to cater for the situationswhere a defendant was convicted ofqualifying offences of real gravity andwhere he/she was considered to be anongoing risk to society. This short articleexamines the development of the law inthis area after the inception of the 2003Act (as amended by the Criminal Justiceand Immigration Act 2008) and points upthat the instances where a sentence ofdiscretionary life needs to be passed arenow severely delimited; it being the casethat a sentence of Imprisonment forPublic Protection (IPP: a life sentence inall but name) can adequately protectsociety and can soak up all the elementsof future dangerousness and of risk thatthe discretionary life term used to caterfor. It is within the author’s personalknowledge that this question hasexercised the Court of Appeal in therelatively recent past. It is something thatall of those who may come to deal withthose who may qualify for a discretionarylife term should have in mind. Suchpersons are likely to include the recidivistrapist, firearms importer or producer,attempted murderer, armed robber andthe like.

The sentence of life imprisonment for adangerous offender is dealt with undersection 225 of the 2003 Act. The relevantparts of the section for the purposes ofthis article are:

(1) This section applies where—

(a) a person aged 18 or over is convictedof a serious offence committed after thecommencement of this section, and

(b) the court is of the opinion that thereis a significant risk to members of thepublic of serious harm occasioned by thecommission by him of further specifiedoffences.

(2) If—

(a) the offence is one in respect of whichthe offender would apart from thissection be liable to imprisonment for life,and

b) the court considers that theseriousness of the offence, or of theoffence and one or more offencesassociated with it, is such as to justify theimposition of a sentence of imprisonmentfor life, the court must impose a sentenceof imprisonment for life or in the case ofa person aged at least 18 but under 21, asentence of custody for life.

Thus a Court considering such anoffender will first have to decide if there“is a significant risk to members of thepublic of serious harm occasioned by thecommission by him of further specifiedoffences”. If the answer to that questionis “yes” (and it is assumed that for thepurposes of this article it will be) thennext the Court must consider what is thecrucial question for the purposes of thisarticle namely does the Court “considerthat the seriousness of the offence or ofthe offence and one or more offencesassociated with it is such as to justify theimposition of a sentence of imprisonmentfor life”. If it does the Court must imposesuch a term; it is a mandatory sentence.

If it does not consider this to be the casethen the Court is in IPP territory and theprovisions of section 225 subsections (3),(3A), (3B) and (3C) come into play. It isnoteworthy that if the qualifications forlife imprisonment are met then the Courtmust impose such a sentence; this is instark contrast the use of the “may” forthe imposition of IPP.

What then are the criteria for theimposition of life as opposed to IPP?What factors mean that a life sentencewill be appropriate? Where do the Courtsdraw the line and say that;notwithstanding the potential removal orabrogation of the risk elements from thesentence discretionary life must bepassed?

Some recent decisions have given helpfulguidance. The following are of note:

R v Kehoe [2009] 1 Cr App R (S) (CA)

In this case the Court made it plain thatconsiderations of public protection areirrelevant to a decision to impose lifeimprisonment rather than imprisonmentfor public protection. The Court made itabundantly clear that life imprisonmentshould now be reserved for those caseswhere the culpability of the offender isparticularly high or the offence itselfparticularly grave.


R v Stanley [2008] 2 Cr App R (S) 107 (CA)Where, (on the facts of that case), theCourt held that a life sentence was clearlynot appropriate. There the Court set outthat the only difference between asentence of imprisonment for publicprotection and a life sentence lay in theability of the parole board to apply to thesecretary of state in future. With asentence of imprisonment for publicprotection, the aim was to safeguard thepublic as to the future; therefore, some ofthe considerations relevant to lifesentences under previous law were nolonger appropriate.

R v Wilkinson [2010] 1 Cr App R (S) 100 Inthis, the most recent authority on thetopic, the Court of Appeal set out that adiscretionary life term passed undersection 225 of the Criminal Justice Act2003 should be reserved for cases of theutmost gravity. This reinforced thejudgement of the Court in R. v Kehoe. Thehead note of the case is instructive,paragraph H7:

It was well understood that a sentence ofimprisonment for public protection hadmuch in common with a life sentence.Both sentences addressed futuredangerousness, and public protectionfrom the predictive danger posed by theoffender. Two express differencesbetween the sentences were identified inthe legislation. In relation to adiscretionary life sentence but not asentence of imprisonment for publicprotection, the court had jurisdiction tomake a whole life order directing that theearly release provisions should not applyto the offender. In the case of a sentenceof imprisonment for public protection,but not a discretionary life sentence, theParole Board might give a direction thatsupervision under licence should cease 10years after the offender’s release onlicence, if the Parole Board was satisfiedthat post-release licence conditions wereno longer necessary. The crucialdifference between a discretionary lifesentence and a sentence of imprisonmentfor public protection arising at the timeof sentence was the seriousness of theinstant offence as assessed in the overallstatutory context. The approach of theCourt had been illustrated by a number ofcases, including R v Stephens [2007]EWCA Crim 3021. These decisions werefact specific, but they gave an indicationof the approach of the Court tolegislative provisions which provided twoforms of indeterminate sentence to dealwith the dangerous offender. In theCourt’s judgment, it was clear that as amatter of principle the sentence of lifeimprisonment under s225 should

continue to be reserved for offences ofthe utmost gravity. The sentence shouldcome into contemplation when thejudgment of the court was that theseriousness of the offence or offenceswas such that the life sentence wouldhave a denunciatory value, reflective ofpublic abhorrence of the offence andwhere because of its seriousness, thenotional determinate sentence would bevery long, measured in very many years.The court further stated that where it isplain that a case is so serious that asentence of life imprisonment is required,it would be unduly lenient to impose anylesser sentence, including a sentence ofimprisonment for public protection withan identical minimum term.

As can be seen the Court here approvedthe approach set out in R v Stephens. Thisis an important case for practitionersbecause the judgment of the Court doesgive some guidance as to the “test” for alife sentence that will now be applicable.

The Court in that case set out thefollowing as the proper approach tosentencing in such cases. The Court ruledthat where the sentencer had decidedthat the dangerousness criteria were metthen;

“If the instant offence is one whichcarries a maximum sentence of lifeimprisonment, then a sentence of lifeimprisonment is also open to the judge. Alife sentence, however, will only beappropriate if the case is one of thosevery limited number of cases in which adiscretionary life sentence would havebeen passed before the enactment of theCriminal Justice Act 2003. The mostconvenient expression of the test is to befound in R v Chapman [2000] 1 Cr App R77 at 85C in the judgment of LordBingham, CJ. In short, a life sentence isappropriate if, but only if, the instantoffence is of such gravity as to call for avery long sentence and, additionally,where it appears from the nature of theoffences or from the defendant's historythat he is a person of unstable characterlikely to commit such offences in thefuture and where the consequences if hedoes are likely to be specially injurious. Asto the first of those conditions, LordBingham 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 atpage 13, this court expressly affirmed,post the Criminal Justice Act 2003, thatthat test for the imposition of a lifesentence stands — see the judgment ofthe Vice President, Rose LJ, at paragraph8. That approach has been consistentlyapplied since. Both the current andprevious editions of Archbold correctlymake that clear at paragraph 5–304. Thereferences there to the cases of Shaffi , B(Samuel), Folkes and Costello are butexamples of the consistent approach ofthis court to the question of theimposition of a discretionary lifesentence. In the last of those cases,Costello , Keene LJ giving the judgment ofthe court underlined at paragraph 19 thepoint that particularly since theenactment of the dangerousnessprovisions of the Criminal Justice Act2003 and the availability of a sentence ofimprisonment for public protection, thereneed be no temptation to impose a lifesentence because of concern as to risk forthe future. That is amply catered for bythe imposition of a sentence ofimprisonment for public protection.”

The effect of this line of authority is toindicate to the Courts that discretionarylife sentences should only be passed in alimited category of serious case and thatthey should only be passed if, but only if,the instant offence is of such gravity asto call for a very long sentence. Whilstthe thrust of the authorities is that theseare essentially the governing factors it isworth noting that; in approving R vStephens the Court in R v Wilkinson doesseem to acknowledge the existence oftwo potential other aspects of the “testfor discretionary life” namely; where itappears from the nature of the offencesor from the defendant's history that he isa person of unstable character likely tocommit such offences in the future andwhere the consequences if he does arelikely to be specially injurious. This seems


to bring back in to play the criteriarelating to future risk that in both thisand other authorities the Court are keento say are “amply catered for” by thepassing of IPP. That said here the Courtdoes use the word “such” when describingthe offences arguably this must meanoffences of the same or comparable levelof utmost gravity.

In order then to suggest an approach to asentencing Court the following coursecould be seen as appropriate. The learnedJudge should be asked to considerwhether the offending (the offence andone or more offences associated with it)was such that the overall sentencingpicture 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

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, theCourt was satisfied that all of thesestringent criteria were met then could alife sentence be justified. If one wasjustified then a minimum term(presumably a very long one) would haveto be set under section 82As of thePowers of Criminal Courts (Sentencing)Act 2000. (This unless the Court wassatisfied under section 82 (4) that,because the offending picture was soserious, that no minimum term should beset.) As to this see Practice Direction(Criminal Proceedings; Consolidation)para IV.47 [2002] 1 WLR 2870 see para IV47.3.

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

of discretionary life imprisonment nowhas a considerable number of hurdles tocross before such a sentence can properlybe passed. Plainly the seriousness of theoffence is overwhelmingly the drivingfactor. If such a sentence is justified bythe application of these principles then itwill be for a very serious offence or seriesof offences indeed. If an advocate isfaced with the task of assessing andadvising upon the type of cases wheresuch a sentence can or would be passedthen a reading of the authorities referredto above will assist the practitioner. Anyanalysis of sample sets of facts andcircumstances that might or might notqualify an offender for such a sentence isbeyond the scope of this article.

Perhaps the true message to be drawnfrom this article is that it will be for theadvocate to persuade the Court byfocussed submissions that IPP is or it notsufficient. Perhaps once again theCriminal Justice Act 2003 and thejurisprudence of the Court of Appeal onthis topic have thrown up an opportunityfor the art of the advocate.

A. Lockhart QC

End of an Odyssey

Peter Haynes QC

On 10th June, 2010, judgment waspronounced in the case of Prosecutor –v-Popovic et al., For Peter Haynes it markedthe end of the longest case of his career,and one of the longest in the history ofcriminal law anywhere in the world. Aftera trial lasting almost 3 years, 315 livewitnesses, 87,392 exhibits and nearly40,000 pages of transcript, he reports onthe historical background to the trial, theproceedings and the outcome of the case.

The events surrounding the fall ofSrebrenica, in what was Bosnia andHercegovina in July 1995 amounted tothe defining moment of the YugoslavianWars of independence of the early 1990’s.

Not only was the single worst atrocitysince the second world war committed inthe heart of Europe no more than acouple of hours drive from the Italian andAustrian borders, it was committed at atime when the victims were supposedlyunder the protection of the UnitedNations, and at a time when theinternational community wasendeavouring to resolve the parties’disputes diplomatically.

Understanding of the war and its causesin this country was and remains basic –though in fairness, the BBC’s 6 partdocumentary “The Death of Yugoslavia”remains the benchmark reference text formany, not least for the fact that itinvolved interviews with those whoprosecuted the war on all sides. I willattempt no more than the briefest outlinehere.

Following the Death of Tito, nationalistfactions within the former Yugoslavia,sought first to maximise their influencewithin the Communist party and theFederation, then to secede. The lattercourse was relatively simple for Slovenia,the small alpine state in the north of thecountry. For Croatia, it took a year ofbloody war, as the Yugoslav army soughtto control what its political masters

regarded as its sovereign territory. ForBosnia the process involved as onecurrent politician poignantly put it“passing through the gates of hell”.

Unlike the other republics whosepopulations were substantially composedof a single ethnic faction, Bosnia’spopulation comprised Serbs, Croats and amuslim majority. Worse still thedemography of the country presented asa leopard skin print with villages of oneethnic group juxtaposed to their newfound enemies. As each faction sought tocarve out maximum territory, the Englishlanguage found a new phrase, “ethniccleansing.”

In May 1993 the town of Srebrenicabecame the first United Nations declaredsafe area as muslim refugees flockedthere from the surrounding areas ofEastern Bosnia.

The town was also home to a largenumber of muslim soldiers and, despiteSerb complaints that the UN wasfostering an army base, the militarisationof the town increased, and it became astrategic base for muslim militaryoperations. Many atrocities werecommitted by these forces on thesurrounding Serb villages.


In July 1995 the Serbs decided todemilitarise the town and launched anaction to reduce the size of the enclave toits urban limits (by then the UN perimeterwas several miles from the town centre).On 11th July, with military defeatinevitable, the muslim population andthe army quit the town. Approximately40,000 people left in 2 separatedirections; the army struck north throughSerb held territory towards its ownforces; the civilians walked to the nearbyvillage of Potocari, where the UN had amajor base.

In Potocari men were separated fromwomen and children and bussed to thenearby town of Bratunac where theywere executed in a variety of schools andwarehouses. Those who were captured orsurrendered from the column marchingnorth met a similar fate. After a day ofexecutions, it was decided to move theremaining prisoners further north to themunicipality of Zvornik where the bulk ofthe executions were carried out in anassortment of remote locations.

How many people were executed was thesubject of much archaeological,anthropological and demographicevidence. It remains a point of contentionbetween the Serbs and the Bosniaks.Suffice to say the Tribunal found that thenumber was no less than 5,800, andpossibly as many as 7,800. Whatever thenumber, the operation revealed a highdegree of centralised planning in thetransport, execution and burial of a largenumber of men.

The trial of Popovic and others was thethird trial relating to the Srebrenicamassacre. In the first, the Drina Corpscommander, General Krstic, was

convicted of complicity in genocide andsentenced ultimately to 35 yearsimprisonment. In the second thecommander of the Bratunac brigade wasconvicted of aiding and abettinggenocide and sentenced to 18 years’imprisonment.

The trial of Popovic et al. involved MainStaff officers, security officers, the policeand the command of the Zvornik brigade.My client, General Vinko Pandurevic, wasthe commander of the Zvornik brigade,who was both the commander of thetactical unit which took the town ofSrebrenica, and the commander of thebrigade 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 whohad committed the crimes alleged inZvornik.

The prosecution sought to prove its casethrough a series of strands of evidence:firstly, there were those who had survivedthe ordeal; there were “insiders”, Serbsoldiers or policemen who had pleadedguilty or simply been present during theevents; there were the records of theArmy of the Bosnian Serbs (“VRS”);intercepted radio communications; aerialimagery provided (slightly reluctantly) bythe USA, and, given the blanketadmissibility of hearsay evidence, aplethora of experts and investigators whowere permitted to reconstruct eventsfrom documents and informationreceived. There was also a huge volume ofevidence seeking to establish thenumbers of dead (mentioned above).

The defendants, with 2 exceptions werecharged with genocide, conspiracy tocommit genocide (yes, it is perfectlypermissible in international criminal lawto have both on the same indictment!),Extermination (mass murder withoutgenocidal intent), Murder as a crimeagainst humanity (civilians), Murder as awar crime (soldiers), forcible transfer, anddeportation (some of those who fledwent to Serbia, which is another country).

One of the central difficulties with thecase was the variety of the personnel ontrial. There was, as one of my Americancolleagues put it, no scope for runningthe “empty chair” defence. The army highcommand were present, the police werepresent, the security services werepresent, and the command of thefootsoldiers on the ground were theretoo. As if things were not hard enough,this was a cut-throat defence!

It didn’t really matter to the prosecutionbecause it could rely upon the well-

established doctrine of JCE. Theindictment alleged 2 separate JCE’s: thefirst, the forcible transfer of the muslimpopulation from Eastern Bosnia wasbased upon the strategic objectives ofgovernment and army high command,evidenced by written documents; thesecond, a JCE to commit mass murder,which could be inferred from the well-planned and executed murder operationfollowing the fall of the town.

The concept of a JCE has been developedthrough case law. It is a form ofcommission of an offence, commissionbeing one of the forms of individualliability defined by the Statute of theTribunal. There are 3 forms of JCE incustomary international law; basic,systemic and extended, known judiciallyas JCE I,II and III. Systemic JCE’s are reallyonly applicable in cases involving campguards and the like. The other 2 were saidto apply in this case. To prove a basic JCEit must be established that (i) a pluralityof persons had a common purpose, (ii)that the common purpose was a crimeunder the relevant statute, and (iii) thatthe accused participated. Crucially to beconvicted of committing an offence as aparticipant in a JCE, the accused musthave the intent to commit the crime,including any requisite specific intent.

The exception to the latter proposition isthe extended JCE, where the accused doesnot have to be shown to possess theintention to commit the crime alleged ifthat crime was a natural and foreseeableconsequence of the JCE he was party to.In this case, the prosecution alleged, forexample, that sporadic acts of murderwere a natural and foreseeableconsequence of the plan to force 40,000people out of the town of Srebrenica.

These concepts, simply stated here, maynot be entirely alien to British lawyers.The major practical difference incustomary international law is that,where they are alleged, they must bepleaded in the indictment.

The other ways in which an accused maycommit an offence are specifically set outin the Tribunal’s statute (as they are in thestatutes of all the other ad hoc tribunals,and the ICC itself). They are planning,instigating, ordering and aiding andabetting.

The concept of aiding and abetting hasbeen developed through case law. To beguilty as an aider and abettor the accuseddoes not need to possess the intent forthe substantive crime. He must, however,know that his acts assist, encourage orlend moral support to the perpetration ofa crime, the essential elements of which


he is aware. His acts must moreover , havea substantial effect on the commision ofthe crime.

Pandurevic was of course the commanderof a brigade of 5,000 men, some of whomdemonstrably were participants in thecrimes alleged in the indictment. As suchhe was additionally charged under Article7(3) of the statute with superior (oftenreferred to as command) responsibility. Itis often said that the essential differencebetween individual and superior liabilityis that the former is a crime ofcommission, whilst the latter is one ofomission. A commander who orders thecommission of an offence is guilty as anindividual, whereas he is liable as asuperior, if he fails to prevent thecommission of offences by hissubordinates, or alternatively fails topunish them for their actions.

Thus the statute and jurisprudence of theTribunal equip the prosecutor with avariety of forms of liability with which tocatch the accused. As if there were notenough, the prosecutor in this case choseto allege a concurrent conspiracy! One ofcourse has to refect that Article 1 of theSatute does in fact read : “TheInternational Tribunal shall have thepower to prosecute persons responsiblefor serious violations of InternationalHumanitarian Law...”

In practical terms the greatest challengefacing lawyers in these fora is casemanagement. As counsel you bearultimate responsibility, and not just forthe presentation of the case in court. Inmilitary terms, counsel’s role is strategic,operational and tactical. This means youhave to develop the case theory, createthe machinery to run the case, and theninvestigate, select the material andpresent it.

It would be disingenuous to say this wasanything other than a wholly enjoyableexperience; setting up a legal team andan office in the Hague was of coursecompletely novel to someone who hadspent 20 years taking pink ribbon offdog-eared piles of paper! As indeed wasmarshalling the voluminous material andpresenting it to the court electronically(Popovic was the first case to use fulleCourt, ie no hard copy documents at all),as well as keeping a weather eye on thedeveloping evidence and making surethat the closing submissions wereaccurate and properly footnoted.

To the astonishment of our Serbian andAmerican colleagues, the Anglo-Slovenian Pandurevic team became prettyadept at the investigative side too,unearthing good quality witnesses on our

Bosnian road trips and making seriousinroads into the prosecution’s ownwitnesses in pre-testimony interviews.

In court there was much to learn too.Legal argument is almost exclusivelyconducted on paper (filing documentsentitled “ sur-reply” certainly took meback a few years!) and proceedings whichare entirely conducted throughsimultaneous translation beforeprofessional judges (and over such a longperiod) demand a different style of oraladvocacy. The transcript is king – it has tobe created, marked, filed, and used tomake your point in closing argument. Iam nonetheless of the certain view thatthe natural instincts of the British courtroom advocate will serve you well in anycriminal trial.

The major strategic decision in the casewas to call my client to give evidence.Alone of the 7 accused, Pandurevic gaveevidence in his own defence. He gaveevidence for 22 days. His evidence was 6months in the preparation. Givingevidence as an accused is unusual in theInternational Tribunals. It is unheard of incontinental systems and very rare in theUS from what I could gather. Theprosecution also have an uncanny habitof “finding” evidence to destroy defencewitnesses in cross examination. TheGeneral was keen to tell his story fromthe outset, and initially I didn’t feelinclined to dissuade him, especially giventhe myriad forms of liability he had toavoid. My qualms grew as the day nearedbut in the end we stuck to the plan.Although he wasn’t believed entirely, itwas ultimately a good judgment call.

The Judgment of the Tribunal was clearthat it was a judgment of the individualcriminal responsibility of those on trial. Itwas not a judgment of who they were orwhat office they held. Pandurevic wasacquitted of all but 2 counts on theindictment. On those 2 counts he wasconvicted as an aider and abetter. Inrelation to the count of the murder as awar crime he was convicted in relation to10 men who had been held at hisbarracks, and subsequently handed overto the security services; he was convictedof aiding and abetting by omission, withone of the 3 judges dissenting. The basisof his conviction was that he should haveknown that handing these men to thesecurity services meant they were likelyto die. He was additionally convicted ofaiding and abetting forcible transfer byreason of his command of the tacticalgroup which led the attack on Srebrenica.

Central to his defence was the assertionthat the so-called murder operation had

been organised by General Mladic andput into effect through his securityservice, which although an organ of thearmy, had a separate professionalcommand chain, and was capable ofusing men and machinery to its ownends. Although the Tribunal did notaccept the separate command chaintheory, the overall verdicts reflect thepersonal involvement of those indicted.Beara, the Main Staff Chief of Security,was convicted of Genocide, conspiracy,and extermination and sentenced to lifeimprisonment, similarly, Popovic, theCorps Security commander. Nikolic theBrigade Chief of Security, was convictedof aiding and abetting genocide andsentenced to 35 years.

Pandurevic, of course, still fell to besentenced for grave crimes. He received asentence of 13 years’ imprisonment. Hissentence was substantially discounted for2 reasons. Firstly, because his actions inopening his defence lines to allow theremnants of the muslim column,including armed men, to reach their ownforces, saved the lives of up to 10,000people. Secondly, his written reports,condemning the placement of prisonersin schools in Zvornik, were the onlywritten record of these events by a Serbofficer. The Tribunal regarded the writingof these reports as exhibiting bravery andintegrity. The dissenting judge felt that hehad not been given sufficient credit forthese acts.

For what it is worth he has served asubstantial portion of that sentence onremand.

It would be nice to reflect upon a job welldone, however, disturbing as it does verymany aspects of the Prosecution’singrained case theory, and with Karadzicand Tolimir currently standing trial forthe same events (not to mention the everpresent threat of the arrest of Mladic), Ianticipate receiving the Notice of Appealany day soon.

General Vinko Pandurevic listens asJudgment is pronounced in his case.

P. Haynes QC


Recent Developmentsin the Use of SpecialCounsel

KJ Hegarty QC

This year has already seen two caseswhere Special Counsel and the usethereof has been the subject ofargument. This article will consider in thelight of the two cases how SpecialCounsel can be employed in a case and tohighlight the necessity of being alive totheir uses. Both cases touch upon currentissues in the trial procedure: firstly jurytampering followed by trial without ajury and secondly anonymity orders forwitnesses.

In K S S v Northampton Crown Court[2010] EWHC 723 (Admin) the defendanthad been on trial and the jury had beendischarged following an allegation of jurytampering. The trial judge had decidedthat there would be a trial without a juryand that the defendant be remanded incustody whereas before he had been onbail. The first decision was appealed tothe Court of Appeal which found therehad been jury tampering and remittedthe decision as to mode of trial to Flaux J.In determining the question of mode oftrial the judge considered the ClosedMaterial. That is to say material that thedefendant did not see. Special Counselhad not been appointed and the judgeconsidered that material without hearingany submissions on that material onbehalf of the defendant. Flaux J.remanded the defendant in custodyfollowing a bail application. The casebefore the Administrative Court revolvedaround whether Special Counsel shouldhave been appointed in respect of thebail application.

The complaint made was the failure ofthe court to find any proportionatemeans of safeguarding and advancing thedefendant’s interests where matters, i.e.the closed material, were held againsthim in respect of his bail of which he hadnot been informed which led to theconsequence that he could not answerthose matters and his liberty was in turnat risk.

It is to be noted that the complaint didnot extend to the mode of trial procedureas whichever way that was decided itcould not impact on his liberty.

The principles to be employed as to theappointment of Special Counsel were setout in R (Malik) v Manchester CrownCourt [2008] EWHC 1362 (Admin) by SirAnthony Clarke M.R.

“(a) A special advocate should beappointed where it is just, and thereforenecessary (to assist a judge) in order forthe issues to be determined fairly.

(b) Where the material is not to bedisclosed and/or full reasons are not to begiven to the claimant there are only twopossibilities: (a) that the judge willdetermine the issues, which may includeor be limited to issues of disclosure, bylooking at the documents himself orherself or (b) that he or she will do sowith the assistance of a special advocate.

(c) The appointment of a special advocateis, for example likely to be just wherethere may be significant issues and/or asignificant number of documents. Theposition may be different where there arevery few documents and the judge canreadily resolve the issues simply byreading them.

(d) All depends upon the circumstances ofthe particular case, but it is important tohave in mind the importance of thedecision from the claimant's point ofview, the difficulties facing the claimant

in effectively challenging the case againsthim in open court and whether theassistance of a special advocate will ormight assist the claimant in meeting theSecretary of State's case and the court inarriving at a fair conclusion.

(e) These principles should not be dilutedon the grounds of administrativeconvenience. ”

Both sides accepted that Article 5 of theEuropean Convention and Common Lawand elementary common law principles offairness applied to bail applications andthat the considerations raised by LordPhillips of Worth Matravers in HomeSecretary v AF (Number 3) [2009] UKHL28 (“AF”) at paragraph 59 applied inprinciple to applications for bail.

In “AF” Lord Phillips was dealing withcontrol orders. He referred to the decisionof the Grand Chamber of the EuropeanCourt in A v UK. [2009] 49 EHRR 29 . LordPhillips said it

“ establishes that the controlee must begiven sufficient information about theallegations against him to enable him togive effective instructions in relation tothose allegations. Provided that thisrequirement is satisfied there can be afair trial notwithstanding that thecontrolee is not provided with the detailor sources of the evidence forming thebasis of the allegations.”

A remand in custody causes a loss ofliberty. Albeit that the duration is closely


policed it could result in the equivalent ofa not insubstantial sentence ofimprisonment. The Court held that toprotect the interests of the defendant inrespect of the closed material that SpecialCounsel should have been appointed andthe decision in refusing bail was quashed.This did not lead to his immediate releaseas the earlier decision to remand him incustody still stood.

The second case is R v John Chisholm[2010] EWCA Crim 258. Anonymity orderswere made under the Criminal Evidence(Witness Anonymity) Act 2008 (nowovertaken by the Coroners and Justice Act2009). The rulings were made in closedhearings and Special Counsel took theopportunity to cross examine at least oneof the witnesses to whom theapplications for anonymity applied forthe purpose of exploring whether thecriteria for making the orders soughtwere made out. The conviction wasappealed and Special Counsel alsoappeared in the Court of Appeal. TheCourt took the opportunity to make someremarks. Toulson LJ stated

“At the appellate stage, it is obviously notthe case that whenever the single judgeor the full court is considering anapplication for leave to appeal againstconviction on grounds relating to ananonymity order, it will request theappointment of special counsel. In manycases, the court, on reading the closedmaterial, will be able to reach a view

about the propriety of what happenedand the safety of the conviction withoutany need for special counsel. However,there may be cases where, beforedeciding whether to grant leave, or ongranting leave, the court may consider itnecessary in the interests of justice torequest that special counsel beappointed. This might be for a number ofpossible reasons:

the court may consider that help isneeded from special counsel to ensurethat it has all the material which it oughtto have;

the court might want to know whetherspecial counsel, having read the groundsof appeal and supporting advice, wouldwish to present argument in support ofany of the grounds of appeal on the basisof material not known to the applicant orappellant's ordinary counsel.

the court might also wish to knowwhether special counsel would want toraise some other point unknown to theappellant's ordinary counsel relating towhat happened in the closed proceedings.

or there might be questions on which thecourt feels that it needs the assistance ofspecial counsel to do justice. Thesematters would call for individualconsideration in the individual case. “

It is to be remembered that the role ofSpecial Counsel is to advance submissionson behalf of the appellant which couldnot be made by ordinary counsel who

does not have knowledge of the closedmaterial or of what happened in closedproceedings.

The two cases show ways that SpecialCounsel can be employed, in a bailapplication and in a conviction appeal.The essence is to ensure that a responsecan be made to closed material whereotherwise the fairness of the trial may bequestioned or where the liberty of theaccused is at risk. It is worth remindingoneself that wherever there is closedmaterial the judge may be assisted by theappointment and it should be brought tothe judge’s attention so that a decisioncan be made one way or the other for theinvolvement of Special Counsel.

K. Hegarty QC

Kevin Hegarty QC is on the AttorneyGeneral’s list of Special Counsel.


FRAUD TRIALRESOLUTION: ONESTEP FORWARD TWOSTEPS BACK?

James Burbidge QC

In this artice I shall consider the recentjudgment by Thomas LJ in the case of R vInnospec Limited [2010] EW Misc 7 andthe Lord Chief Justice in the very recentcase of R v Dougall [2010] EWCA Crim1048, and their potential effect on thepractical use of a plea agreement in fraudcases in accordance with the proceduresset out in paragraphs IV.45.16-45.28 asamended, of the Consolidated CriminalPractice Direction and the AttorneyGeneral’s Guidelines on Plea Discussionsin Cases of Serious or Complex Fraud. (Seealso section 73 of the Serious OrganisedCrime and Police Act 2005.) I will alsorefer to a recent case of R v Owen andOthers, in which I appeared at WorcesterCrown Court before HHJ Hooper Q.C.instructed by Jonas Roy Bloom, and inwhich a plea and sentence agreementwas formulated in apparent accordancewith these provisions.

It will be well known that the AttorneyGeneral in March 2009 issued guidelinessetting out the process by which aprosecutor may discuss allegations ofserious or complex fraud with a personwhom he is prosecuting (or expecting toprosecute) on or after the 5th May 2009.“Serious or complex” is defined in theGuidelines as being established if at leasttwo of the following list of 7 criteria arepresent:

1.The amount obtained or intended to beobtained is alleged to exceed £500,000;

2.There is a significant internationaldimension;

3.The case requires specialised knowledgeof financial, commercial, fiscal orregulatory matters such as the operationof markets, banking systems, trusts or taxregimes;

4.The case involves allegations offraudulent activity against numerousvictims;

5.The case involves an allegation ofsubstantial and significant fraud on apublic body;

6.The case is likely to be of widespreadpublic concern;

7.The alleged misconduct endangered theeconomic well-being of the UnitedKingdom, for example by underminingconfidence in financial markets.

It can be seen that if the idea of anagreement is attractive to practitioners orrather a lay client, many fraud cases willarguably be caught by the guidelines. Thefirst and fourth criteria will be commonin many organised frauds, not just theprovince of SFO prosecutions or TreasuryCounsel. The fifth criterion arguablycovers any offences against HMRC orDWP. Defence practitioners used toarguing over the category of a Very HighCosts Case will have already sought toapply the LSC’s very similarseriousness/categorisation criteria to thefacts of a case by the time that pleas areconsidered!

In its foreword the guidelines set out thepotential benefits of such pleadiscussions. Most are obvious to even theleast experienced practitioner. They mayresult in an early resolution of the casethereby reducing anxiety and uncertaintyfor victims and witnesses and providefurther clarity for accused persons whoadmit their guilt. The issues in disputemay be narrowed, so that even if the caseproceeds to trial the trial can be managedmore efficiently in accordance with theCPR. Obviously if pleas are accepted,litigation can be kept to a minimum. Thislatter point inevitably creates a realsaving in the parties’ costs and Court andJudge time. The guidelines envisage thatin some cases plea discussions will takeplace prior to the commencement ofproceedings and that thereby the chargesbrought by the prosecutor will reflectthose agreed, rather than those that theprosecutor would necessarily havepreferred if no agreement had beenreached. Also that any criminalinvestigation may not be complete whenthese discussions take place.

Procedures have to be put in place toensure that they command public andjudicial confidence; that any agreementreached is reasonable, fair and just; thatthere are safeguards to ensure thatdefendants are not under improperpressure to make admissions; and thatthere are proper records of discussionsthat have taken place. This will clearlypave the way for Solicitors and Barristersspecialising in fraud cases to get involvedwith the cases of people suspected of

fraud at a much earlier stage than mayhave hitherto been the case. One firmtells me that this is now becoming a realfactor for fraud litigation specialistsdealing with all manner of frauds. I amsure it is something all will want toconsider and be prepared for.

The guidelines deal with the importantissues of who with and how pleadiscussions should be initiated andnegotiated, with guidance on theimportant issues of recording andconfidentiality. It is affirmed in theguidelines that they are meant tocomplement the existing practicesthrough which prosecutors discuss caseswith defendants or defence legalrepresentatives after charge, and thetraditional interventionist practices ofjudges at PCMH hearings or indeedGoodyear directions.

Paragraph A9 asserts “Where a pleaagreement is reached, it remains entirelya matter for the Court how to deal withthe case.” What does this mean? WellThomas LJ in R v Innospec Ltd said itmeant that it did not bind the Judge. Asubject we will come to later.

Every practitioner in criminal law knows,that in reality, especially in serious cases,but also those involved with potentiallythe estreatment from the offender of asignificant amount of his assets; thatwhat really leads to a determination of a‘plea agreement’ is the assessment ofwhat punishment lies in store. Withoutthe legal representatives considering thisaspect with the lay client there will oftenbe no compromise on plea. Often it is thesticking point with any negotiations.

SENTENCE

The Attorney General’s Guidelinesrecognise this and purport to encouragean element of agreement over thepunishment. Thus in Paragraph D:9:“Where agreement is reached as to pleas,the parties should discuss the appropriatesentence with a view to presenting a jointwritten submission to the court. Thedocument should list the aggravating andmitigating features arising from theagreed facts, set out any personalmitigation available to the defendant,and refer to any relevant sentencingguidelines or authorities. In the light ofall these factors, it should makesubmissions as to the applicablesentencing range…”. There is clearguidance that such consideration shouldinclude asset recovery and POCA powers.

There is once again the caveat to preventanyone suggesting that these are true‘plea bargaining’ powers: D:12 “In the


course of the plea discussions theProsecutor must make it clear to thedefence that the joint submission as tosentence (including confiscation) is notbinding on the Court.” At paragraph E:5“[Once the signed formal plea/sentencedocument has been placed before theCourt] it will then be for the Court todecide how to deal with the pleaagreement. In particular, the court retainsan absolute discretion as to whether ornot it sentences in accordance with thejoint submission from the parties.”

A PRACTICAL EXAMPLE

In the case of Owen in January and Marchof this year this was my first experienceof the practical utilisation of the AttorneyGeneral’s guidance on plea/sentencearrangements. The case was a prosecutioninstigated by the Department ofEnvironment, Farming and Rural Affairs(DEFRA). It became known as “the eggcase”. (See e.g. The Guardian, 12th March2010). Keith and Alan Owen are brothers.Along with Keith’s wife Carol they rancompanies involved in the production,packaging and distribution of eggs, manyof which were to be on sale at High Streetsupermarkets. DEFRA alleged that allthree were involved together and with anIrish national co-accused, Pearse Piggott,in a conspiracy to defraud, essentially byrepackaging caged birds’ eggs for onwardsale as free range or Organic eggs andalso by repackaging/rebranding (lowerquality) foreign eggs as British Lion markeggs. The mark up, per half or full dozenis obvious to all. DEFRA in a case summarysuggested by this fraudulent passing-offa multi-million pound fraud wasperpetrated. (The Times suggested thatthe fraud had cost consumers £50million).

A plea agreement and joint submission asto sentence and sentencingconsiderations was entered into betweenKeith Owen and the Prosecution. This wasa case which fulfilled at least 4 of thequalifying criteria for “serious andcomplex” fraud. The agreement involvedKeith Owen admitting guilt to counts offurnishing false information for anaccounting purpose contrary to section17(1)(b) Theft Act 1968 (“falseaccounting”), not the conspiracy. Theupshot of this agreement was that Keith’sbrother (my lay client) and Keith’s wifewere not pursued: the Counts againstthem lying on the file. (More cynicalpractitioners may recognise a familiarcompromise reached by a principaldefendant faced with the considerablepressure applied to him by the addition offamily members on the same indictment.)They thus faced no trial, nor any risk of

sentence or confiscation of assets. Theagreement indicated that if acceptable toa judge it would render a trial estimatedto last 3 months as otiose; the avoidanceof the costs of that trial; the avoidance ofinconvenience of witnesses sometravelling from abroad and the avoidanceof lengthy, complex and costlyconfiscation proceedings.

HHJ Hooper Q.C. received the submissionas to sentence in the following terms:that the appropriate level of sentencewas between 2 to 3 and a half years. Thatthe defendant should be disqualifiedfrom being a director for between 6 to 10years. That a confiscation order should bemade (benefit and realisable) at £3million.There was a determined figure ofProsecution costs. This submission wasmade public in Court, and so that is why Imention these terms.

It must be said that the Judge had beeninvolved in the case from its inceptionand had heard all the preliminary anddirections hearings, so he had acomprehensive knowledge of the case. Heimposed a sentence of 3 years’imprisonment, so within the bandaccepted and as frankly had beenanticipated by the lawyers in the case. Healso made a confiscation order in the sumof £3million.

All this of course is and appearsappropriate. There can be no appeal andthe prosecuting authority cannot bedissatisfied given that it entered into anagreement within which the parameterswere observed.

So let us turn to Judicial guidance that isnow available on cases such as “the eggcase”.

JUDICIAL GUIDANCE

R v Innospec Ltd is reported at [2010] EWMisc 7. The rather unusual citation forthis was because the judgement ofThomas LJ was not in his position of thepresiding judge in the Court of Appeal(Criminal Division) as he often is, but asthe sentencing judge in a case atSouthwark Crown Court. The facts areinvolved and I state them as shortly asrelevant. Innospec Ltd (I.L.) are a UKcompany but a wholly owned subsidiaryof the US company, Innospec IncDelaware (the executive offices were inCheshire). I.L. manufactured an antiknockfuel additive known as Tetraethyl lead(TEL). Steps to phase out TEL had begun asearly as the 1970s because of health andenvironmental issues. Indeed it is bannedas a fuel in the US and Europe. Howeverby 2000 Indonesia remained a customer.Through agents in Indonesia the directing

minds of the company engaged insystematic and large scale corruption ofsenior Government officials to buy theproduct. An estimate of the bribes was$8million.

The US Government began to investigateInnospec Inc from July 2005. Three USagencies were involved DOJ: Departmentof Justice; SEC: Securities and ExchangeCommission and OFAC: Office of ForeignAsset Control. It discovered that InnospecInc had entered into five contracts withthe Iraqi Ministry of Oil to sell them TELpaying c.10% of the contract price as abribe. Further bribes were paid with thepost-Saddam Ministry to continue supply.In all the total paid or promised as bribeswas $5.8m. The US investigation alsodiscovered that Innospec Inc had sold fueladditives to Cuba in violation of UStrading with the enemy regulations(although apparently without bribery!).

Innospec Inc’s directors assisted with theinvestigation and they ultimately decidedthey would wish to cooperate with the


authorities by admitting criminaloffences. They wanted to achieve a globalsettlement. The Serious Fraud Officejoined in the discussions with their trans-Atlantic counterparts. On investigationthe DOJ (i.e. US) and the SFO agreed thatthe fines and other penalties which mightbe imposed in the US and UK mightexceed $400m in the US and $150m inthe UK. Both the SFO and the DOJ agreedthat they should not seek to impose apenalty that would drive the companyout of business.

A ‘global settlement’ was sought inrelation to the two countries’ concurrentproceedings, with the aim that thefinancial settlements would be divided.This was ground-breaking. It was alsoaccepted that this was to be an unusualcase in effect because only a fraction ofthe penalties that properly could beimposed would be sought in the light ofInnospec Inc and I.L.’s ability to pay.

The discussions took place on the basisthat the SFO would have primacy in

respect of the Indonesian corruption andthe DOJ in respect of the Iraqi corruption.

The SFO suggested a 50/50 split, as thecriminality in Indonesia and Iraq had beenorchestrated and arranged through theUK. The US authorities would not acceptthis through their three departments andproposed a US/UK two to one third split.The negotiations and reasoning areinteresting but you can glean these fromThomas LJ’s clear exposition. Suffice tosay the SFO agreed to a split broadlyalong these lines.

The split to the SFO amounted to $12.7million. Counsel for the Prosecution andCounsel for I.L. discussed and negotiatedhow this would be set out. It was agreedthat $6.7m would be a fine orconfiscation and the balance would be acivil settlement.

In the US courts on the 19th February2010 a global settlement was set out inCourt where it was stated a settlement ofa sum between $28.8 m and $40.2mshould be made. The DOJ would be askingthe US Courts to approve a fine of$14.1m. This was followed by anagreement by I.L. to have a summonsserved upon them for conspiracy on the24th February 2010 and the case wastransferred to Southwark Crown Court.

THE PLEA AGREEMENT

The SFO and I.L., no doubt conscious oftheir agreement with the US authorities,sought to ensure the US and UK Courtswould deal with the sentence on thesame day. The plea agreement included ajoint submission (SFO/I.L.) on sentencingin agreed terms. This made clear that ofthe $12.7m that would be available to theSFO:

a.A confiscation penalty of $6.7m wouldbe made in respect of the Indonesiancorruption; and

b.There would be a civil recovery order of$6m of which $5m would be paid to theUN development fund for Iraq.

c.It was accepted that it was for the courtto determine the appropriate sentence,but the parties submitted that theapproach upon which they were agreedshould commend itself to the court as itwas compatible with the approach beingadopted in the US.

A similar plea agreement was entered inthe US. It acknowledged that theminimum fine payable under the FederalSentencing Guidelines in respect of theIraq corruption was $101.5 m with arange of up to $203m but this would bereduced because of Innospec Inc’sinability to pay this amount. Similarly the

American agreement indicated that thecourt had to approve the agreement andwas not bound by it.

In the US the judge of the Federal DistrictCourt for the District of Columbia interalia imposed the fine of $14.1m (i.efollowed the agreement).

However Thomas LJ was not so compliantat least in words! In paragraphs 26 and 27of his judgment he stated “It is clear thatthe SFO cannot enter into an agreementunder the laws of England and Wales withan offender as to the penalty of theoffence charged. One reading of the jointsentencing submission and pleaagreement in the light of the surroundingcircumstances would suggest that apenalty had in fact been agreed. [Thejudge indicated that he accepted fromthe Director of the SFO and Counsel, thatno penalty had in fact been agreed andthat it was for the Court to decide.]Although the sentencing submissionproceeded to put forward a specificproposal as opposed to the range as setout in the authorities, that must havebeen because the provisions of theConsolidated Criminal Practice Directionhad not been fully appreciated …principles of transparent and open justicerequire a court sitting in public itself firstto determine by a hearing in open courtthe extent of the criminal conduct onwhich the offender has entered the pleaand then, on the basis of itsdetermination as to the conduct, theappropriate sentence. It is in the publicinterest, particularly in relation to thecrime of corruption, that although, inaccordance with the Practice Direction,there may be discussion and agreement asto the basis of plea, a court mustrigorously scrutinise in open court in theinterests of transparency and goodgovernance the basis of that pleawhether it reflects the public interest.”

Thomas LJ stated that he believed a fineof $12.7m would have been whollyinadequate to reflect the criminalitydisplayed by I.L. The corruption wassubstantial of senior governmentofficials, over a long period of time and amajor purpose was not merely to procurecontracts but to delay the phasing out ofTEL and as the judge said “therefore toprolong the damage to the people ofIndonesia and its environment.” Howeverbecause of the agreement and decision inthe American Courts Thomas LJ imposedthe fine of $12.7m declining to state thatwhich he thought should have beenappropriate. Although he did state thatunless he had been satisfied that the newmanagement would not engage in similarconduct in the future, he would not have


been shy in determining a punishmentthat would have caused the demise of thecompany.

Thomas LJ commended the SFO’sdetermination to see that those involvedin corruption are pursued to court.However he concluded that the SFO hadno power to enter into the arrangementsmade and no such arrangements shouldbe made again: “... a suggested agreedsentence is not only impermissible, it canraise false hopes.”

One can entirely see why a Court shouldretain control of pleas and sentences. It isjust and appropriate that they should. So,for example, as in the Innospec case aconflict of interest might arise with aprosecuting authority preferring theimposition of a confiscation order ratherthan a fine. Or one can envisage where aparty might abuse a dominant position.Protection of the public interest isrequired.

However is it possible that Thomas LJ hasheld back by a significant note of cautionthe head of steam to successfullycompromise cases that might otherwisehave been engendered by the bare AG’sGuidelines. Although it has to beconceded that the AG never intended togo as far as the US plea bargainingsystem: as he warned in his press releaseto these Guidelines of March 2009 he was“careful to avoid a perception of pleabargaining associated with the US.”

On June 1st 2010 in a judgment by theCourt of Appeal in R v Dougall the LordChief Justice Lord Judge reaffirmed thisposition in strident terms in paragraphs18 ff of the judgment, indicating that thedefendant had committed a very seriousoffence involving substantialinternational corruption for which themaximum available custodial sentence ofseven years in prison wasdisproportionately moderate. Care had tobe taken not to allow the issue ofguidelines for the prosecution of cases offraud and corruption to suggest that theywere rather more respectable than otherforms of crime, or that those whocommitted fraud or corruption shouldnot be ordered to serve prison sentencesbecause such sentences should bereserved for those they would regard ascommon criminals. These were notvictimless crimes. Equally, there were nospecial rules which applied when theycame to be sentenced. Although theProsecution should be involved in theprocess by which the sentencing courtwas fully informed about any mattersarising from the evidence which mightreflect on the defendant’s criminality and

culpability including of course matters ofmitigation, and of any positive assistancegiven to the investigating authorities byhim, that process did not involve anagreement about the level of sentence.Responsibility for the sentencing decisionin cases of fraud or corruption was vestedexclusively in the sentencing court, or onappeal from that court in the Court ofAppeal Criminal Division.

In this case the defendant conspired witha company by whom he was employed tomake corrupt payments/inducements tomedical professionals working within thepublic health system of Greece in relationto the award of contracts for the supplyof orthopaedic products in favour of thecompany for which he worked. Heentered into a plea agreement with theSFO pursuant to section 73 of SOCPA2005 and was clearly helpful to theinvestigation from the outset.

His plea agreement, however, may havegone too far: the LCJ described some ofthe terms of the agreement reached as“advocacy, and would do credit to anaccomplished advocate advancingsubmissions in mitigation on behalf ofthe defendant. It does not simply andobjectively draw the attention of thecourt to matters of personal mitigation.”

The particular offensive agreed term, if Imay call it that, between the prosecutionand defence was “A court may concludethat whilst the custody threshold iscrossed, an immediate custodial sentenceis not appropriate. In particular, the courtwould act wholly within its discretion byimposing a suspended sentence ofimprisonment.” As The LCJ said of this atparagraph 29: “That is as near telling thecourt not only that a suspended sentenceshould be imposed, but bearing in mindthat the Director [of the SFO] must knowperfectly well that a suspended sentenceinvolves a sentence of imprisonment of12 months or less and cannot be appliedto a sentence of 13 months’ or longer, itis remote from the range of possiblesentences.”

CONCLUSIONS

So what then does the future hold for theAttorney General’s Guidelines in Complexor Serious Fraud in the light of thesejudgments? Certainly in the egg case towhich I was party they provided a realavenue for compromise between theprosecution and the principle defendant.The parameters of sentence were narrowand the confiscation was essentiallydetermined by the parties. No doubt inmany if not in all fraud cases an accusedwill want to have some realisticunderstanding of what sentence he will

face and what will be the financialliability. The purpose and intendment ofthe guidelines was in part at least toencourage the compromising of thesecases, given the obvious burdensomenature of lengthy and involved trialswithin an adversarial system, wheredecisions are made by jurors whohopefully can stay healthy and motivatedfor the duration of many weeks if notmonths. Thus as I suggest in the title theywere certainly a step forward in theinvestigation and determination of fraudcases.

The question will be whether Thomas LJ’sjudgment and that of the Lord ChiefJustice and their strictures are merely anobvious restatement of the Court’spowers or potential for taking two stepsback. An accused will now be told by hislegal advisers (with more vehemence thanbefore) that whilst the parameters of hissentence will be suggested to the Court inagreed terms and the level of his liabilityalso in a similar way, the reality is no-oneknows what will happen. In thosecircumstances it may be that those of usthat conduct fraud litigation will findourselves back to the situation before theguidelines.

A WAY FORWARD?

A cynical approach might be torecommend parameters of sentence andconfiscation where there is a naturalmiddle-way and anticipating that theJudge will take the middle course.However, perhaps the safest course for adefence team acting for a defendant whowishes to know his fate with a degree ofaccuracy before tendering his plea wouldbe to present a judge with a ‘prospective’agreed plea and sentence agreement andin addition requesting a Goodyearindication. The new Bribery Act with itsprovisions coming into force in October islikely to provide a host of other reasonsfor looking in depth at the AG guidelines.I feel another article coming on. Watchthis space!

J. Burbidge QC


News

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

Congratulations to Andrew Molloy from the Criminal Group, who recently rode1000 miles in under 24 hours on behalf of the Royal British Legion. Andrew wasraising money for the Poppy Appeal which supports veterans, their families andour serving personnel in their time of need. Andrew riding a CBR Fireblade 1000completed a northern clockwise route from Leeds via the Highlands of Scotlandand Edinburgh back to Leeds. If you would like to donate to a very worthwhilecause please visit www.justgiving.com/andrew-molloy

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

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


Mr David Crigman QC * 1969/89

Mr Stephen Linehan QC * 1970/93

Mr Timothy Raggatt QC * 1972/93

Mr Christopher Millington QC * 1976/01

Mr James Burbidge QC * 1979/03

Mr Paul Farrer QC * 1988/06

Mr Peter Haynes QC 1983/08

Mr Kevin Hegarty QC* 1982/10

Mr Andrew Lockhart QC* 1991/10

Mr Michael Garrett 1967

Mr Malcolm Morse * 1967

Mr Robert Hodgkinson 1968

Mr Patrick Darby 1978

Mr Stephen Thomas * 1980

Mr Bernard Linnemann 1980

Mr Makhan Shoker 1981

Mr Paul Mytton 1982

Mr John Evans 1983

Mr John Edwards * 1983

Mr Neil Williams 1984

Mr Mohammed Latif 1985

Mr Francis Laird * 1986

Mr Andrew Jackson 1986

Mr Nicholas Cartwright *• 1986

Mr Simon Ward * 1986

Miss Blondel Thompson 1987

Mr Jonathan Salmon • 1987

Mr Richard Atkins * 1989

Mr Simon Davis 1990

Mr James Puzey 1990

Mr Glyn Samuel 1991

Mr Matthew Barnes 1992

Miss Kristina Montgomery * 1993

Mr Lee Marklew 1993

Miss Heidi Kubik 1993

Mr Stefan Kolodynski 1993

Mr Anthony Johnston 1993

Mr Nicholas Smith 1994

Mr Jonas Hankin 1994

Mr Darron Whitehead 1995

Mr James Dunstan 1995

Miss Naomi Gilchrist 1996

Mr Simon Phillips 1996

Mr Tim Green 1996

Mr Shane Crawford 1996

Mr Andrew Smith * 1997

Miss Raj Punia 1999

Miss Sharon Bahia 2000

Miss Jane Sarginson 2000

Miss Jennifer Josephs 2000

Miss Kate Iliffe 2000

Mr Ben Mills 2000

Mr Zaheer Afzal 2000

Mr Ian Speed 2000

Mr David Munro 2001

Mr Tom Walkling 2001

Mr Andrew Molloy 2004

Mr Ben Williams 2006

Mr Jonathan Barker 2006

Miss Alice Winstanley 2006

Miss Hannah Bush 2007

Mr Iqbal Mohammed 2007

Mr Daniel Janner QC ‡ 1980/02

Mr Timothy Mousely QC ‡ 1979/03

* Denotes Recorder of the Crown Court

• Denotes Deputy District Judge

‡ Denotes Door Tenant

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