The case involved analysis of large amounts of documentation and data. Prosecution and defence of the case required international co-operation between three countries and took video / audio evidence during the trial from individuals outside the UK. Quite apart from the direct benefit of acquittal, the finding allowed Mr S to retain his dual nationality, employment and reputation as an international business consultant

Evan Wright - instructing Jason Pitter QC - represented a defendant charged with sending obscene and offensive messages by WhatsApp. The charges were contrary to s.127(1) Communications Act 2003.

S.127(5) Communications Act 2003 provides “an information or complaint relating to an offence under this section may be tried by a magistrates’ court in England and Wales or Northern Ireland if it is laid or made –

a. before the end of the period of 3 years beginning with the day on which the offence was committed; and

b. before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings.

S.127(7) provides that a certificate of a prosecutor as to the date on which evidence described in subsection (5)(b) came to his or her knowledge is conclusive evidence of that fact.

The case revolved around whether the court could go behind the face of the S.127(7) certificate to enquire as to the accuracy of the date used to calculate the end of the 6 month period. In other words, the defence relied upon the factual matrix in an agreed chronology suggesting that the evidence came to the knowledge of the prosecutor at a much earlier stage; meaning that the certificate could be ‘plainly wrong’. The defence therefore asked the court to hear evidence and reach a determination on which date should be preferred for the purposes of S127(5)(b).

The District Judge decided that the court could make this enquiry. The prosecuting lawyer was called to give evidence and was cross-examined. The judge determined that the case formed exactly the scenario foreseen by Males LJ, in Chesterfield Poultry Ltd v Sheffield Magistrates’ Court [2019] EWHC (Admin) in which “if…the responsible individual…were to review the file so as to have knowledge of all the relevant evidence, but only made a decision about prosecution at a later date…the date when the file was reviewed would be the date when the evidence came to the prosecutor’s knowledge”.

The judge decided that all of the evidence was available in May 2019. Even allowing for the number of potential charges and defendants and the resulting complexity, there was ample time for a decision to have been made within the statutory limits, months before the date on the certificate in November 2019. The judge found that the certificate was ‘plainly wrong’ and the prosecution was therefore out of time. The proceedings were dismissed. Serving a detailed defence case statement and actively pursuing multiple disclosure applications was critical in establishing whether the certificate might be wrong. In complex summary only enquiries where charges are laid or summonses are issued in cases of this type at a point more than six months after the investigation comes to the suspect’s attention, it is worth investigating whether the date on the S.127(7) certificate might be wrong. In the vast majority of cases it will be correct, but in this particular case, the investigation was worthwhile. Even if the prosecution had succeeded, the defence argued privacy and threshold issues on the facts. However, the decision in relation to the certificate meant that there was no need for the factual argument.

The application arose, following a Confiscation Order made at Lewes Crown Court against the defendant in 2018. Despite Catherine’s client having paid the entire sum ordered under the ‘available assets’, the prosecution sought to obtain further funds due to the disparity between the benefit figure and available assets – in other words, they came back for more. An application under section 22 of the Proceeds of Crime Act was made by the prosecution, which sought to confiscate funds contained in the defendant’s son’s trust account.

The application was contested on the basis that the funds could not be considered as an asset available to the defendant as she should be entitled to support herself and her young family. It was argued that the purpose of the funds was to provide a home for her young son and it would therefore not be just for the court to confiscate the funds. The case of R v Mundy (2018) was relied upon, which states that the court must consider all of the relevant circumstances when determining section 22 applications.

Following the above submissions being heard by the court, the prosecution’s application was refused and Catherine’s client will be allowed to access the trust account on behalf of her son and the restraint order previously imposed will now be discharged.

Catherine O’Rourke instructed Jonathan Atkinson of 1 Crown Office Row Chambers. Catherine regularly represents clients involved in confiscation proceedings and applications under POCA.

The Regulator argued lack of integrity and dishonesty. Evan argued that whilst suspension might be ‘desirable’ in this case, it was not ‘necessary’ and neither was it a proportionate response to the perceived risk, even taken at its highest. It was argued that suspension would actually create more prejudice to the client base and the age of the non-disclosure meant that the material risk had already dissipated. The committee agreed and refused the application for an interim suspension. The substantive case focuses on the distinction between lack of integrity and dishonesty.

Sam Healey was instructed to represent the head of an organised crime group operating out of Merseyside in a confiscation hearing and also appeal.

The client accepted his role as suggested by the prosecution in that he was the head of a conspiracy to supply cocaine and had supplied as much as 303kg and at least 216kg of Class A drugs (cocaine) over a 6 month period. The client had been brought back to this jurisdiction following the execution of a European Arrest Warrant. For confiscation purposes, the prosecution calculated the benefit from the supply of drugs to be at least £6.4million and therefore suggested that the client must have hidden assets. The response that we submitted was that the client’s only asset was a watch that was valued at approximately £2,000.Having prepared detailed submissions which relied upon the prosecution’s own evidence to support the defence case, we were able to successfully show that there were no hidden assets.

In particular, it was submitted that the conspiracy was not a profitable enterprise, that there was no evidence of an extravagant lifestyle and the evidence demonstrated that the client’s assets were as described, a single watch. On the day of the confiscation hearing due to take place, the prosecution conceded the evidence and the submissions that were made by the defence and ultimately that the client did not have any hidden assets. Therefore, a confiscation order was made by agreement in that there were no hidden assets and the client’s only available asset was a watch and cash to the combined total value of £2,250.

In separate proceedings at the Court of Appeal, we were also able to secure a reduction in the client’s sentence where it was argued that insufficient credit had been given for the client’s early guilty plea. In particular, the definitive guideline in relation to ‘reduction in sentence for early guilty plea’ dictates that a reduction of one-third should be made where a guilty plea is indicated at the first stage of the proceedings, this normally being the first appearance at the Magistrates’ Court. However, the guidelines also confirm that where there are particular circumstances that significantly reduce a defendant’s ability to understand what is alleged or otherwise make it unreasonable to expect a defendant to indicate a guilty plea sooner than it was done, a reduction of one-third should still be made. The sentencing Court initially found, despite submissions to the contrary, that the maximum credit that should be afforded to the client was one of 25% (one-quarter). However, we were able to persuade the Court of Appeal that in the circumstances of this case and from the case management form that had been completed by Sam Healey at the Magistrates’ Court, that that could not be the client’s first reasonable opportunity to plead guilty as we had not received any evidence or a case summary. This was agreed by the Court, who further reduced the client’s sentence allowing for the full one-third to be applied.

Sam Healey worked with Catherine O’Rourke and instructed Tom Day of counsel at 2 Hare Court.

Sam Healey was instructed by two clients who were stopped by Border Force as they were about to board a flight to Thailand. It was suggested at that time by the Border Force Officers that the cash seized (in excess of £55,000) represented criminal property and that it had either originated from criminal conduct or was to be used for criminal conduct. Later, HM Revenue & Customs (‘HMRC’) confirmed as the prosecuting authority, that they believed that the cash had not been properly declared to HMRC for tax purposes. This, however, ignored the fact that the cash that had been seized was the income for a legitimate business and income that had fallen across two tax years. In effect, there had been a period of delay before some of the cash that had been seized was even due for declaration as income to HMRC.

In this particular case, the delay in the appeal being progressed due to the unavailability of witnesses and also the impact of Covid-19 worked, somewhat, to the Appellant’s advantage. By the time the appeal was heard (by coincidence at a Nightingale Court at the recently transformed Lowry Theatre), the position was that the whole amount of cash that had been seized had been declared in self-assessment returns submitted to HMRC. Accordingly, the tax returns had been filed and also the necessary tax had been paid. Whilst this had been made clear to HMRC over a number of months following the seizure of the cash, by the time that the appeal was due to take place, HMRC had no option but to concede that their basis for forfeiture of the money in the first instance was no longer valid. More specifically, the argument that the money was ‘recoverable property’ was without merit.

The appeal was therefore allowed and the full amount of money that had been seized at the airport, subsequently ordered to be forfeited at the Magistrates’ Court, is now to be returned in full. In addition, HMRC are required to pay some of the client’s legal costs and also interest on the costs that were paid at the Magistrates’ Court, which also must be returned.

Sam Healey represented a client who was jointly charged alongside five others in relation to an allegation of conspiracy to commit murder, in addition to other counts of conspiracy to inflict grievous bodily harm and violent disorder. It was suggested by the prosecution that the client had conspired with others to plan and execute an attack on a group of individuals who were working in the local area. It was suggested that the attack was arranged following an earlier altercation between the client’s brother and a group of individuals where injuries had been caused. It was further suggested that there were more than 15 individuals who had been called upon to provide support in the attack that took place.

The prosecution case relied heavily on telephone call records and cell site analysis, in addition to CCTV evidence and eyewitness accounts. Also, in order to assist the Jury in interpreting the relevance of calls and the location of individuals, diagrams and coloured charts were prepared to aid the Jury in not only understanding the information, but also in the hope that the Jury would agree with the suggested inferences that should be drawn from the information.

In order to rebut the suggested adverse inferences by the prosecution, through careful scrutiny of the CCTV evidence, raw call data records and having independent experts analyse the area that the cell site masts covered, we were able to present a robust defence case that showed that our client could not have been part of the altercation. In addition, that our client was located elsewhere (albeit in close proximity to the altercation) and that the theory and interpretation by the prosecution of the sequence of events was fundamentally flawed. Through this expert analysis of the prosecution case and careful preparation, we were ultimately able to show to the Jury that the prosecution’s case rested on one call. A call that lasted a number of seconds and that they were being invited by the prosecution to find our client guilty of conspiring with others to commit murder (with five others), let alone having sufficient time to introduce himself on the call and explain the reason for the call.

It probably comes as no surprise that Sam Healey, Catherine O’Rourke and Andrea Lock of counsel (Barrister at 9 St John Street) was able to secure a unanimous acquittal of their client on all counts that he faced.

Sam Healey was instructed to represent the CEO of a finance company, having been arrested on suspicion of causing death by dangerous driving contrary to Section 1 of the Road Traffic Act 1988.After further enquiries, the police then alleged that the driver of the vehicle that collided with the deceased had consumed so much alcohol that the proportion in breath exceeded the prescribed limit. In addition, that the driver had failed to stop after a road traffic collision whereby injury was caused to another person, and failed to report the accident contrary to Section 170 of the Road Traffic Act 1982 and Schedule 2 of the Road Traffic Offenders Act 1988. The maximum penalty for causing death by dangerous driving or causing death by careless driving when under the influence of drink contrary to Section 3A of the Road Traffic Act 1988 is 14 years imprisonment with a minimum disqualification of 2 years and a compulsory extended re-test. For the reasons set out below, having instructed JMW Solicitors LLP to advise, assist and represent during this serious and sensitive case, the outcome was considerably different to what one would have expected in light of what was initially alleged.

Having been instructed by the client as his preferred solicitors over those recommended by the funding insurance company, we were able to arrange within a matter of days for a full forensic reconstruction of the collision to take place. The collision took place in the early hours of the morning and in very unusual circumstances; therefore, by completing a full reconstruction with photographs and videos to visually aid in understanding the circumstances surrounding the collision was key in providing robust and proactive representation on behalf of the client. This allowed us to be clear about the facts of the collision and have an expert’s opinion in relation to whether the collision was avoidable or not. This also allowed further investigations to take place by the defence team and ensured we had a full understanding of the circumstances in which the collision occurred in readiness for a further interview under caution. Having tactically considered how to approach a further interview under caution, whilst charges were then still laid for proceedings to commence at Court, it resulted in the prosecution having to reconsider their initial view that the driving was dangerous and reduce this to one of driving without due care and attention (careless driving) in amongst other allegations.

From the outset of the proceedings (the first appearance at the Magistrates Court), we were able to apply considerable pressure to the prosecution and set out clearly further disclosure that was required. This related to the concerns about the investigation conducted by the police and the accounts provided by an eyewitness. Such requests for disclosure were well founded and having been drip-fed further disclosure of materials and information from the prosecution, we were then able to raise further legal arguments in respect of; the conduct of officers; failings in the investigation generally; links between those investigating the case and witnesses; how witnesses had come to provide their accounts and whether there had been compliance with the Criminal Procedure and Investigations Act 1996. These issues ultimately led to an abuse of process argument being advanced and in addition, applications to exclude evidence in accordance with Section 78 of the Police and Criminal Evidence Act 1984.

After changes to how the prosecution put their case upon receiving defence expert reports, trial dates being lost due to inadequate disclosure, over two years having passed since the unfortunate collision, and extensive legal arguments being raised, the prosecution finally accepted that they would have difficulty in proving elements of their case. The ultimate sentence that was passed by the Court was one of a suspended prison sentence with requirements.

Due to the proactive steps taken in the initial part of the investigation, the continued efforts to protect our client’s interests and the detailed and complex legal submissions that were deployed. This allowed Sam Healey, Catherine O’Rourke and Ben Smitten of counsel (barrister at 25 Bedford Row) to be able to secure a just result for their client of a suspended sentence, as opposed to facing what the police initially alleged and a custodial sentence of up to 14 years.

The defendant appeared before Manchester Crown Court this year for what is likely to be the last Operation Leopard prosecution. Operation Leopard was the Greater Manchester Police investigation into a number of attacks deemed to form part of what was described by the prosecution as “Salford gang warfare.” Other incidents forming part of Operation Leopard included the shooting of Paul Massey, a grenade attack upon a family home, and the shooting of the wife and child of an individual said to be associated with one of the “gang leaders”.

The most recent trial focussed upon the shooting of one individual and a machete attack upon another, both of whom were alleged to have been associated with a gang known locally as ‘the A team’. The allegation against the defendant was that he was involved in the placing of the GPS tracker on the victim’s car, which enabled the other conspirators to locate him prior to the attack. Furthermore, the defendant was alleged to have been present when the tracker was monitored, and to have attended at the scene of the attack on the evening of the incident in order to remove it from the car and avoid police detection.

Following a thorough and detailed analysis of the CCTV and telephone evidence, the defence were able to effectively place calls and events relied upon by the prosecution into their proper context. The jury returned unanimous not guilty verdicts in respect of the allegation of conspiring to murder and conspiring to cause grievous bodily harm in the alternative.

Counsel instructed were David Whittaker QC and Harry Bentley of 2 Hare Court.

The direct losses were in the £millions, but the wider loss is still the subject of litigation and is said to be in the £billions. Client B was alleged to have been involved in the laundering of the criminal proceeds by assisting one of the main conspirators.

Over the course of two years, Evan Wright made repeated submissions to the prosecution regarding B’s lack of the requisite knowledge or suspicion. The prosecution eventually discontinued the case against B shortly prior to trial. All but one of the others were convicted at trial and received lengthy prison sentences.

The company attracted very large sums from individual clients and although initial returns were made, later investments by the same clients were not repaid and the company failed to meet its obligations. The police investigated and found that a small number of investors had opened a large number of accounts and had actually secured some profit from the operation. The officers thought that these investors might be part of the fraud, in that they would attract other investors into the scheme and manage their investments to the ultimate benefit of the main fraudsters. Advice therefore revolved around persuading the officers that our client was an ordinary investor who happened to avoid being defrauded. They used a method which made it very difficult for the fraudster to avoid returning a profit to the client’s crypto-currency wallets. The explanation was quite technical and had to be supported with a substantial pack of evidence presented during the police interview, but the officers subsequently agreed that the client should not be regarded as a suspect. This meant that the client’s crypto-currency wallets containing over £50,000.00 could be released and D was free to realise the profits. This case is to be distinguished from one in which someone is claiming to have been defrauded and seeks legal advice in the recovery of the funds. D’s case involved an allegation that she was the fraudster.

Furthermore, Evan was asked to advise on whether the matter should be reported to the SRA and would the client have to disclose the resolution to his employer? Community Resolutions provide an opportunity for the police to deal with appropriate low level offences and offenders without recourse to formal criminal justice sanctions. This may include a simple apology, an offer of compensation or a promise to clear up any graffiti or criminal damage. Many of the crimes the police investigate are not committed by prolific, dangerous offenders. Sometimes they are a momentary lapse in judgement by otherwise law abiding people. However, accepting a community resolution in this situation would have involved a detailed consideration of reporting obligations, particularly 7.7 and 7.8 of the Solicitors Code of Conduct. The Code was changed in November 2019 to place much more responsibility upon the individual solicitor to decide whether matters should be reported to the SRA. The concern was that Paragraph 7.8 would oblige the client to inform the SRA, so that the SRA could decide whether or not to launch an investigation. The very fact of an investigation would have to be declared to his employer because of the nature of the client’s work. There were also concerns that the resolution would appear on an enhanced DBS check, even though it is not regarded as a conviction or caution for reporting purposes. The client was advised that he should seek further information from the officer about how the police proposed to describe the allegation in the ‘circumstances’ section of the resolution form, having regard to the need for an ‘admission’ and with particular reference to the potential defence. Following a conversation with the officer, the police decided not to take further action and closed their file. This removed the need for further consideration of the reporting obligations. Even though the incident was straightforward, the implications for the client’s practice could have been far reaching. The case was opened and closed within one week, incurring very limited costs.

During an investigation lasting over a year, Evan advised the firm in the various legal and factual submissions made to the SRA. Notwithstanding the SRA’s determined stance from the outset and potentially adverse findings from a forensic level investigation of the firm’s work, the SRA eventually agreed not to take any further action. In doing so, the SRA acknowledged the steps taken by the firm to inform itself of the risk and to deal with it appropriately. A referral to the Solicitors Disciplinary Tribunal and a decision against the firm could have had serious consequences for the practice. Instead, careful presentation and analysis of the issues led to an acceptance on the part of the SRA that no breaches of Principles had occurred.

This was resisted at meetings with the Local Authority and JMW prepared witness evidence from staff, along with written submissions setting out the steps taken by the nursery to identify risk factors. This was a multi-agency investigation involving determined efforts on the part of the Local Authority to attach blame to the nursery. It became clear that, without legal advice, the nursery would have felt obliged to agree with the Local Authority when there was no legal or factual basis to do so. The investigation was eventually closed without action being taken against the nursery.

Catherine’s client was alleged to have sexually assaulted the wife of a fellow Corporal during an event, which took place at military Barracks. Whilst, on the face of it, the case appeared to be one of ‘his word against hers’, Catherine’s rigorous scrutiny of all aspects of the prosecution case ultimately led to an acquittal of her client after trial.

Thorough examination of the prosecution’s evidence at the earliest opportunity highlighted inconsistencies in their case, which ultimately led to the prosecution not relying upon an integral prosecution witness to give evidence at trial. Further preparation of the defence case involved interrogation of WhatsApp messages sent in the aftermath of the alleged incident and obtaining accounts from those present, which further undermined the prosecution’s case.

During the trial a successful application was made for an anonymity order due to the status of the client, the possible security concerns and also to protect their reputation. In addition, a hearsay application was made to allow the introduction of crucial evidence – this was also successful.

The defence were ultimately able to undermine the prosecution’s case, leading to an acquittal by the military Board after a 3-day trial.

Catherine O’Rourke instructed Jollyon Robertson of 9 Bedford Row Chambers. Catherine regularly represents service people in the British Army, Royal Navy and the Royal Air Force at Court Martial involved in Court Martial proceedings.