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Ben Douglas-Jones KC, leading James Rowbottom of Matrix, instructed by Philippa Southwell of Southwell and Partners, acted for the Appellant in Henkoma [2023] EWCA Crim 808. 

H had been a child when convicted of a firearms offence because of his exploitation by gangs as a victim of human trafficking.  Three years later, as an adult, he was convicted of a second firearms offence, when still under the control of gang members. 

It was argued that, in spite of the seriousness of the offences, failings by different branches of the state, including the local authority, during H’s childhood amounted to breaches of international law duties to identify, protect and recover victims of trafficking.  There were therefore breaches of Art. 4 of the European Convention on Action against Trafficking and Art.4, ECHR. 

Lady Justice Carr, the Lord Chief Justice-designate, acknowledged the exploitation and failures in the process that should have protected him.  It was acknowledged that there had been Art.4 failures.  Nevertheless, the seriousness of his offending was such that to prosecute him was not an abuse of process.

The judgment is significant as, for the first time, the Court emphasised that deference is due to the Crown’s position on the public interest in a prosecution, even where the consideration of the public interest in light of the full factual picture only occurs retrospectively at the appellate stage.  The prosecution stance would need to be “clearly flawed” before a conviction will be unsafe.

Following the leading cases of AAD [2022] 1 WLR 4042 and AFU [2023] 1 Cr. App. R. 16, this case and AVI [2023] EWCA Crim 803 provide the bookends to the principles to be applied when considering whether a conviction will be unsafe when elements of exploitation are overlooked in the Crown Court. Ben Douglas-Jones KC appeared in all four cases (AAD, AFU, AJW and Henkoma).

Ben Douglas-Jones KC, instructed by Philippa Southwell of Southwell and Partners, appeared for the appellant in the case of R v AFU [2023] EWCA Crim 23.  The Appellant was a victim of human trafficking who had been kidnapped in Vietnam, trafficked to the UK in debt bondage, tortured and put to work in a cannabis house.

The Court agreed with Ben that the prosecution had been an abuse of process and overturned the Appellant’s conviction for conspiracy to produce cannabis.

The Court reviewed the principles of the UK’s duty in England and Wales not to prosecute victims of human trafficking and slavery (VOTs) where (1) they have a credible defence under s.45 of the Modern Slavery Act 2015 (so that the evidence limb of the Full Code Test is not made out) or (2) their criminality or culpability has been extinguished or diminished to a point where prosecution is not in the public interest, following R v AAD [2022] EWCA Crim 106; [2022] 1 WLR 4042.

Significantly the case confirmed that the usual principle of finality does not apply in guilty plea cases where the defendant is a VOT.

An appellant’s conviction may be safe, applying the Dastjerti [2011] EWCA Crim 365 checklist (see [9]) to Boal principles (see R v Tredget [2022] EWCA Crim 108; [2022] 4 WLR 62 at [154] to [180] and Archbold (2023 ed) at 7-43 to 7-46).  I.e. in a case where the criminal act is committed by a VOT, where a defendant (1) has been correctly advised about a possible section 45 defence and (2) pleads guilty voluntarily following that advice, his/her conviction may be safe on traditional principles. 

However, even if the conviction is safe on traditional appeal grounds, (1) where the State’s Article 4, ECHR operational measures duties have not been complied with; and (2) an appellant has not been identified as a possible credible VOT when they are a VOT, their conviction will be unsafe if (a) their trafficking circumstances have not been properly investigated; (b) had they been properly investigated the appellant would have been shown to have been a VOT; and (c) the CPS would or might well not have maintained the prosecution on evidential or public interest grounds.

Anonymity is to be considered by reference to AAD at [3] and [4] and summarised in Human Trafficking and Modern Slavery Law and Practice (2nd ed) (at 8.103-8.108). 

R. v Kadir (Abdul) [2022] EWCA Crim 1244 | [2022] 9 WLUK 159 | [2023] 1 Cr. App. R. 4

A judge presiding over a Crown Court trial could permit a witness who was outside the UK to give evidence via WhatsApp video call if satisfied that it was in the interests of justice. That was the case under the Criminal Justice Act 2003 s.51, as temporarily modified during the COVID-19 pandemic, and also under the version of s.51 which had been in force since 28 June 2022.

R. v BYA [2022] EWCA Crim 1326

Ben appeared for BYA.  Her conviction, entered following a plea of guilty to possessing a false identity document with intent, was unsafe.

Following her conviction, it emerged that there were conclusive grounds for believing that she was a victim of human trafficking.  She had been exploited in three jurisdictions in enforced prostitution - raped daily.  It was clear that she had committed the offence in an attempt to escape her traffickers and that her culpability was therefore considerably diminished.

Had the prosecution given adequate consideration to whether she might have been a victim of trafficking, it might well not have prosecuted her.

R. v Elmi (Abdihakim) [2022] EWCA Crim 1428

Ben, leading Andrew Johnson, appeared for the Crown in this leading case on the scope of the s.31, Immigration and Asylum Act 1999 “refugee defence” for document offences. 

The appellant contended, relying on FA (Iraq) v Secretary of State for the Home Department [2010] EWCA Civ 696, [2010] 1 W.L.R. 2545, [2010] 6 WLUK 421, that s.31 should be construed to include those granted humanitarian protection within the definition of refugees and, relying on Adimi, to include presumptive refugees.

However, the Crown correctly argued that s.31(6) defined "refugee" by reference to the Convention and did not allow a more expansive definition, emphasising the distinction between the two concepts in the Immigration Rules para.339C(ii), FA (Iraq) and Adimi considered. It was not possible to construe s.31 as if it applied to persons with either sort of protection. The defence only applied to refugees but, consistent with its statutory purpose, could be advanced at trial by those who were at that time presumptive refugees. It was for the jury to determine whether the defence was made out (see paras 45-49 of judgment).

R. v Nguyen (Hanh Tuyet) [2022] EWCA Crim 1444

Barristers’ strike: leading case on approach on sentencing in absence of Counsel. 

Ben, leading Emma King, appeared for the Crown in this appeal.  The Appellant’s barristers did not appear at her sentence.  One was on holiday.  The other was taking part in the Criminal Bar Association days of strike action.  Ben urged the Judge to adjourn the sentence of the Appellant.  He declined to do so. 

The Court of Appeal held he had erred in doing so.  The Court of Appeal said, “The efforts made by the judge and prosecuting counsel to assist the appellant at [the sentencing] hearing were praiseworthy”.

R v BXR [2022] EWCA Crim 1483

Ben appeared for the Appellant, a Nigerian victim of human trafficking, who had used a false passport to obtain employment prior to the coming into force of the Modern Slavery Act 2015. 

He had pleaded guilty to using a false instrument and fraud without telling his legal advisers that he had been trafficked.  The Appellant had been persecuted and subjected to extreme violence and abuse for being of gay orientation in Nigeria and subjected to sexual violence and forced labour and servitude in the UK.  He had been subjected to multiple rape and had later been put through a process of gay conversion “deliverance”.

The court admitted fresh evidence of the true position and found that the nexus between the trafficking and use of the passport reduced the man’s culpability to a very low level and that had the CPS known the facts, it would very likely not have prosecuted him.

His convictions were overturned.

Ben Douglas-Jones KC, instructed by Philippa Southwell of Birds Solicitors, represented BXR (R v BXR [2022] EWCA Crim 1483).  The Court of Appeal (Popplewell LJ, Johnson J and HH Judge Picton) overturned convictions of a victim of trafficking who had, in Nigeria, been: at risk of persecution for being gay; subjected to sex slavery (including multiple rape); witnessed the murder of someone by immolation for being gay; and forced to agree to a “Covenant”, which included ritualistic elements. 

He had then been trafficked to the UK in a state of debt bondage; and, in the UK: subjected to domestic servitude, sex slavery, and gay conversion therapy (“deliverance”) at the hands of ministers of a church.  They put him to work in a factory while subjecting him to further domestic servitude. He had been provided with false documents to secure employment, which had led to his pleading guilty to associated offences. 

The Court accepted that the prosecution had not been in the public interest.  Had the CPS known the trafficking circumstances responsible for the offences, as we have found them to be, and applied the 2013 Guidance, it would very likely not have prosecuted. 

Ben Douglas-Jones KC, leading Valeria Swift, 5 KBW, appeared for the Crown in R v Kadir [2022] EWCA Crim 1244, in which the Vice President of the Court of Appeal Criminal Division gave important guidance on live link evidence from abroad.  The case specifically considered the use of WhatsApp.

1.     A judge has the power to direct a live link via WhatsApp – which is end-to-end encrypted - under S.51, CJA 2003; it is for the judge concerned to make a fact-specific decision in the circumstances of the particular case. 

2.     The party making the application for a live link direction must provide the judge with all the requisite information.

3.     The parties (prosecution or defence) need to give consider and prepare any applications for witnesses to testify from another country via a live link at an early stage of proceedings:

(1)  First, s6C of CPIA Act 1996 must be complied with.  The requirements apply to a witness who will give evidence in person as well as to a witness who will give evidence via a live link.   The failure by a defendant to comply with the requirements where a witness is in another country is likely to give rise to additional difficulties for the prosecution in investigating the proposed witness, and for the court in considering the application.  Notice of the identity of the witness affords an opportunity for appropriate investigations to be made.  Failure to give notice is an inhibition on the prosecution’s ability effectively to test his evidence; see s.51(6)(f)(ii) [the provision which now applies; post-trial, in June 2022, the statute was amended].

(2)  Second, in relation to an application for a live link for a witness who is in another country, it is necessary also to bear in mind the principle that one state should not seek to exercise the powers of its courts within the territory of another state without the permission (on an individual or a general basis) of that other state.  It cannot be presumed that all foreign governments are willing to allow their nationals, or others within their jurisdiction, to give evidence before a court in England and Wales via a live link.  In some states, it may be necessary for the UK to be asked to issue an International Letter of Request (ILOR) to the state concerned; see the guidance issued by the Lord Chief Justice on 4 July 2022. A failure to make a relevant enquiry causes the judge to lack vital information in deciding whether, in the light of the factors listed in s.51, it is in the interests of justice for a live link direction to be made. 

(3)  Third, the adequacy of the arrangements needs to be checked in good time.

(4)  Fourth, there needs to be sufficient information to enable the judge to assess the risks which might be involved in a witness giving evidence from abroad, including any risk that s/he would be under any form of pressure from any other person.  This would include information as to the location from which the witness would be giving evidence.

Ben Douglas-Jones KC, together with Nathaniel Rudolf KC (25 Bedford Row) and William Douglas-Jones (St Ives Chambers), instructed by Ben Henry of Jonas Roy Bloom Solicitors, have secured a landmark Supreme Court win. 

The judgment confirms that defendants whose assets are restrained in criminal cases may pay for civil proceedings relating to the same or similar facts as those of the offence(s) giving rise to the restraint order.

Issue

The appeal related to the scope of permitted legal expenditure as an exception to a restraint order granted pursuant to section 41 of the Proceeds of Crime Act 2002 (POCA). The Supreme Court was asked to decide whether section 41(4) prohibits an exception for reasonable legal expenses in respect of civil proceedings relating to the same or similar facts as those of the offence(s) giving rise to the restraint order.

Facts

The respondent, Mr Luckhurst, faces criminal proceedings in the Crown Court. The indictment alleges fraud and theft arising out of Mr Luckhurst’s conduct practising as an independent financial advisory in a company called BBT Partnership Limited which he vehemently denies. The CPS’ case is that Mr Luckhurst ran a fraudulent Ponzi scheme and stole money from clients. In 2016, a number of BBT’s investors brought civil proceedings in the High Court against Mr Luckhurst and others. Those civil proceedings are ongoing. In December 2017, on the application of the CPS, the Crown Court made a restraint order against Mr Luckhurst under POCA. This was to preserve Mr Luckhurst’s assets to meet any confiscation order which may be made by the Crown Court under the POCA in the event of Mr Luckhurst’s conviction. Mr Luckhurst instructed solicitors to defend the civil claim agaisnt him and sought a variation to the restraint order to pay those solicitors £3,000 for advice on a settlement. Mr Luckhurst’s variation application was refused by the judge at first instance but allowed on appeal. The Supreme Court has confirmed that such civil expenses are permitted.  In a judgment given by Lord Burrows, with whom Lord Hodge, Deputy President, Lord Kitchin, Lord Hamblen and Lord Stephens agreed, the Court found, agreeing with Mr Douglas-Jones QC:

(1) the issue was one of statutory interpretation and the correct modern approach to statutory interpretation is found in R (O) v SSHD [2022] UKSC 3;

(2) on a natural meaning of the words in their context, legal expenses in civil proceedings for a cause of action (for example, a tort or equitable wrong) do not relate to a criminal offence;

(3) any attempt to carve out a meaning for legal expenses in civil proceedings for a cause of action that “relate to an offence” will be artificial and problematic;

(4) the pursuit of the policy of maximising confiscation is qualified by the need to ensure that restraint orders do not unfairly prevent the (alleged) criminal incurring reasonable expenses of certain kinds;

(5) there are two specific indicators that the primary focus of the policy underlying the preclusion of legal fees in s.41(4) was on the legal expenses of defending the alleged criminal offence(s) and resisting the confiscation and restraint orders themselves:

(a) the June 2000 Report "Recovering the Proceeds of Crime", chapter 8; and

(b) the quid pro quo for s.41(4) was that, by amending Sched.2, Access to Justice Act 1999, legal aid was extended to cover restraint proceedings;

(6) as with reasonable living expenses, it will be for the courts to follow the “legislative steer” in s.69(2) so as to strike the correct balance in the exercise of their discretion in determining whether the legal expenses are reasonable: a blanket preclusion could operate to contradict the policy of ensuring maximum confiscation of a criminal’s ill-gotten gains; and

(7) interpretation of the subsection to allow such expenditure reflects the spirit of the reasoning of the Court of Appeal in In re S (Restraint Order: Release of Assets) [2005] 1 WLR 1338.

Ben, leading James Marsland, appears for the Crown in Operation Berber, a 1.8 million fraud on the National Trust; see https://www.telegraph.co.uk/news/2022/03/04/national-trust-surveyor-trial-swindling-charity-17m/

R v AAD [2022] EWCA Crim 106; [2022] 2 WLUK 48 Court of Appeal gave guidance on trafficking and modern slavery in criminal cases, including on admissibility of Single Competent Authority decisions on appeal, abuse of process arguments for slavery or trafficking victims compelled to commit offences, and circumstances where a victim of trafficking can argue conviction following guilty plea unsafe.

Significant case concerning facilitating illegal immigration in cases of small boats carrying migrants being intercepted by authorities in the English Channel:

R v Bani [2021] EWCA Crim 1958; [2021] 12 WLUK 457 Convictions of four “small boat” asylum seekers for assisting unlawful immigration, crossing the English Channel, overturned because court had not properly considered mental element of offence or whether they had “entered” UK illegally. Court of Appeal clarified mental element under Immigration Act 1971 s.25 and jury direction on illegal entry.

Ben, leading Debi Gould, appeared for Crown in Notman a case involving the savage killing of young woman by her partner when he was in a psychotic state brought on by cannabis ingestion:

https://metro.co.uk/2021/11/24/man-jailed-for-killing-girlfriend-after-he-ate-a-cannabis-brownie-15661076/#:~:text=A%20man%20has%20been%20jailed,brownie%20infused%20with%20the%20drug

https://www.independent.co.uk/news/uk/crime/man-stabbed-partner-space-cake-b1963857.html

https://www.dailymail.co.uk/news/article-10213447/Killer-ate-weed-brownie-filmed-stabbing-strangling-girlfriend-hitting-car.html

https://www.bbc.co.uk/news/uk-england-stoke-staffordshire-59325877

https://www.mirror.co.uk/news/uk-news/killer-who-stabbed-ran-over-25537837

https://www.thesun.co.uk/news/16840730/killer-boyfriend-high-cannabis-jailed-eight-years/

https://news.sky.com/story/lauren-bloomer-death-jake-notman-jailed-for-killing-girlfriend-during-psychotic-episode-after-eating-cannabis-brownie-12477345

R v Hunter and Smith [2021] EWCA Crim 1785; [2021] 11 WLUK 384 Court considered components of fraudulent trading, Companies Act 2006, s.993(1), in the “Ed Sheeran” ticket touting case where profit was made by reselling tickets for sporting and cultural events, in breach of ostensible restrictions imposed by event organisers.

The s.993(1) offence was not subject to limitations of conspiracy to defraud; no requirement for prosecution to prove intention to deceive.  Where criminal allegation is founded on breach of civil law, the judge must rule on the breaches before the jury decides the criminal issues.

The case involved the “fairness” and enforceability under the Consumer Rights Act 2015 of the event organisers terms and conditions of sale which impose restrictions on the purchase and resale of tickets and the risk of ticket nullity, the status in law of a “ticket” and the scope, effect and operation of the doctrine of “equity’s darling”.

R v Brecani  [2021] EWCA Crim 731 

Ben, leading Rebecca Austin, instructed by the CPS Appeals and Review Unit, appeared in this landmark decision which profoundly affects the law of evidence and criminal procedure in all cases in which a possible victim of trafficking or slavery faces a criminal trial. 

In a special court sitting of the Court of Appeal, the Lord Chief Justice, the Vice President of the Court of Appeal Criminal Division and Mr Justice Jeremy Baker accepted Ben’s argument that a conclusive grounds decision made by a Single Competent Authority appointed under the National Referral Mechanism and signed by a caseworker was not admissible as evidence in criminal proceedings in determining whether a defendant was a victim of modern slavery under the Modern Slavery Act 2015 Pt 5 s.45(4).

Caseworkers were not experts in human trafficking or modern slavery and could not give opinion evidence in a trial on the question whether an individual was trafficked or exploited.

The Court overturned the Divisional Court decision of DPP v M.

DPP v M [2020] EWHC 3422 (Admin); [2021] 1 W.L.R. 1669; [2020] 12 WLUK 196; [2021] 4 C.L. 54

This was a highly significant case concerning whether or not National Referral Mechanism decisions made by the Single Competent Authority where possible victims of trafficking face criminal charges are admissible at trial. 

Ben appeared for the DPP.

The Divisional Court rejected his argument that such decisions were inadmissible as potentially ultracrepidarian, untested, hearsay/multiple hearsay evidence, which was inadmissible on Hollington v Hewthorn [1943] 1 KB 587 principles, and which would often be self-serving.

In Brecani in a Special Court constitution of the Court of Appeal Criminal Division, the Lord Chief Justice, the Vice President of the CACD and Mr Justice Jeremy Baker overturned DPP v M, holding that Ben’s argument was and had been correct.

H v DPP  [2021] EWHC 147 (Admin); [2021] 1 W.L.R. 2721; [2021] 1 WLUK 352; [2021] 1 Cr. App. R. 23; [2021] Crim. L.R. 400; [2021] A.C.D. 41   

This was an important case which consolidated and explained the two lines of authority concerning s.142 of the Magistrates’ Court Act 1980. 

Ben appeared for the DPP.

In this case, the Lord Chief Justice and Mr Justice Bryan agreed with Ben’s argument that it was not permissible to use the Magistrates' Courts Act 1980 s.142 to reopen a case where a defendant had pleaded guilty in the magistrates' court and been sentenced in the Crown Court but later discovered that a defence could have been advanced.

The remedy available to him was an application to the Criminal Cases Review Commission. Section 142 was designed to correct mistakes made in the magistrates' court which only affected its own determinations, and not to set aside sentences imposed in higher courts.

Ben, leading Debi Gould, prosecuted Ameen Thabet for the murder of his secret former Sharia law wife. 

After a five week, forensically complex trial he was convicted of her murder.  The following day, he confessed.

The victim was one of those described in a New York Times article as being “in peril” of not seeing justice and her name was read by Jess Phillips MP in Parliament as one of those women at risk of not seeing justice.

In The Press:

BBC News: Ameen Thabet jailed for life for murder of woman 

Daily Mail: 'Cold and calculated' businessman, 50, is jailed for life for strangling his secret second wife to death after she demanded he leave his first wife for her

New York Times: https://www.nytimes.com/interactive/2020/07/02/world/europe/uk-coronavirus-domestic-abuse.html

R v Qadir 

Ben, leading Amy Jackson of St Ives Chambers, Birmingham, represented Mohammed Qadir, who was alleged to have conspired to murder three people shot in the gangland killing of Dante Mullings. 

Mr Qadir was also alleged to have conspired to possess a firearm to endanger life.

After a three-and-a-half-month trial, Mr Qadir, who burned the car used in the shooting was acquitted of both counts.  Four defendants were convicted and sentenced to a total of 113 years’ imprisonment.

In The Press:

Daily Mail: Four killers are jailed for a total of 113 years for conspiring to murder man, 20, who was gunned down in drive-by shooting on busy street  

Daily Mirror: Car sprayed with bullets in deadly drive-by shooting metres from a city primary school  

R v CS [2021] EWCA Crim 134; [2021] 2 WLUK 68

In a case presided over by Thirlwall LJ; Holgate and Johnson JJ, Ben, leading Andrew Johnson, argued that The Modern Slavery Act 2015 s.45 did not have retrospective effect.

There was no factor which positively indicated that Parliament intended the defence under s.45 to be available in respect of offences committed by victims of trafficking before the Act came into force. 

The Court agreed.  This case defined the offences to which s.45 applied by reference to the date of the criminal act.

R v Luckhurst [2020] EWCA Crim 1579; [2021] 1 W.L.R. 1807; [2020] 11 WLUK 309; [2021] Lloyd's Rep. F.C. 53; [2021] 4 C.L. 65

Ben, leading William Douglas-Jones, instructed by Ben Henry of JRB Solicitors, appeared for the appellant in this case which transforms the landscape for restraint applications in England and Wales.

This case considers the scope of permissible living expenses and legal expenditure under a Restraint Order pursuant to section 41 of the Proceeds of Crime Act 2002 (“the Act”). The appeal arises following HHJ Carr’s decision to refuse an application to vary a Restraint Order made against the Appellant in 2017.

It addresses fundamental points of principle in relation to:

• Factors for consideration in assessing the “reasonableness” of living expenses under a restraint order;
• The application of SFO v Lexi Holdings Plc (In Administration) [2008] EWCA Crim 1443 to living expenses paid under structured credit facilities, such as a Personal Contract Plan (“PCP”) for a vehicle;
• Whether the “other available assets principle” is applicable to the restraint regime; and
• Whether legal expenses arising from a parallel civil claim, founded on the same facts as the offence for which a defendant is under restraint, are “related to the offence” and precluded by virtue of section 41(4) of the Act.

Reasonableness

Section 41(3)(a) allows restrained funds to be made available for reasonable living expenses and reasonable legal expenses. The ‘legislative steer’ at section 69(2) requires the court to promote the preservation of assets so as to render them available to meet a Confiscation Order. The decision as to what is reasonable is fact sensitive, relating to a defendant’s particular circumstances.

At paragraph 33 of the judgment, the court provides a non-exhaustive list of potentially relevant factors to consider when deciding reasonableness. The factors will be of importance to all practitioners dealing with the issue of reasonableness or otherwise of living expenses. These include:

• Whether the payment is necessary or desirable to improve or maintain the value of the assets available to meet a Confiscation Order;
• The defendant’s assets in relation to the size of any likely Confiscation Order;
• The standard of living enjoyed by the defendant prior to the Restraint Order;
• Affordability: the defendant’s means at the time of the Restraint Order or variation application;
• The period of the restraint;
• Whether there is a prima facie case that the existing standard of living is the result of criminal activity; and if so, what standard of living would be enjoyed but for such criminal activity; and
• The amount of the expenditure sought: an absolute level of unreasonableness. 

In a significant departure from status quo, the judgment moves away from the previously test that a defendant under restraint can maintain pre-restraint expenditure provided he does not enjoy a “Rolls Royce lifestyle”. This trite term, which has commonly been used since Re: D and D (1992) (Unreported) is no longer of application.  Instead, the court must address its mind to a more objective standard of reasonableness, taking account of the factors above, in accordance with the legislative steer

Lexi Holdings

The Court found that the fact that living expenses are incurred on unsecured credit does not of itself prevent them being permissible under a Restraint Order. Many ordinary and reasonable living expenses are incurred on unsecured credit (e.g., food and clothes purchased with a credit or debit card). Living expenses are not to be precluded merely because they are incurred by way of unsecured credit. Renting a car may constitute a reasonable living expense. A PCP is a common method of buying a car on financing terms. It is for the court to determine whether renting a car in the circumstances is a reasonable living expense permissible under the Act.

The judgment will have significant effect for those practitioners who deal with exceptions to restraint orders and the approach to prima facie third party debts which are in fact structured facilities for the payment of living expenses in arrears.

Other Available Assets Principle

It is well established that in civil Freezing Order cases, where a defendant has assets available to meet living or legal expenses which are not caught by the restraint, he is expected to resort to those funds as he will not be allowed to draw on the restrained assets. This is known as ‘the other assets principle’. The court was of the view that this principle also applies to restrained funds under section 41 of the Act. 

Where living expenses cannot be shown to be reasonable, or where there are other available assets (to whomsoever they may belong), funds will not be made available from the restrained assets.

Legal Expenses

Section 41(4) of the Act contains an absolute prohibition on permitting expenditure on “legal expenses related to the offence”.  However, the court held that the Act does not prohibit the use of restrained funds being used for reasonable legal expenditure in civil proceedings arising in whole, or in part, to the same factual enquiry which gives rise to the Restraint Order. The court made clear that this does not mean that such expenditure will always be allowed. The court should exercise its discretion in line with the legislative steer. The court should exercise a measure of control in relation to the nature and extent of permitted spending. Consideration should be given to countervailing factors, e.g., where a defendant’s interest in civil proceedings can be adequately protected by his legally represented co-defendants.  

Ben Douglas-Jones QC took part in a recent 5 Paper Buildings seminar with James Marsland and Christopher Jenkins about human trafficking and modern slavery victims who offend: identification, non-prosecution and Section 45.

Ben Douglas-Jones QC recent comment piece in The Times argues that Section 45 of the Modern Slavery Act 2015, which provides a

defence to the charge of slavery or trafficking if the suspect was compelled to commit the act because of their own enslavement or exploitation, should be changed.

Just click the download button below to read Ben's article.

Ben Douglas-Jones QC, leading Andrew Johnson, represented the Crown in an important case concerning victims of trafficking who commit serious convictions which do not attract a defence under s.45 of the Modern Slavery Act 2015: R v A [2020] EWCA Crim 1408:

(1)          This case is important re the notion of residual abuse of process following R v DS [2020] EWCA Crim 285.  It is an important acknowledgment (alluded to in other cases but never said in terms) that serious cases require a greater dominant force of compulsion before trafficking extinguishes culpability/criminality in the context of the CPS’s guidance and public interest.

(2)          Schedule 4 to the Modern Slavery Act 2015, and its exclusion of certain offences from the scope of the defence in s.45, is not in conflict with the international obligations imposed by council of Europe Convention On Action Against Trafficking In Human Beings and/or the EU Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims 2011/36/EU.

(3)          The 2015 Act has changed the legal landscape in relation to the protection available to victims of trafficking who commit criminal offences. The special abuse of process jurisdiction in these cases was because there was a lacuna in domestic law in relation to the UK’s international obligations. Parliament has now determined how those obligations should be implemented by enacting the 2015 Act. The lacuna has been filled.

(4)          Schedule 4 of the 2015 Act which excludes s.45’s application to serious sexual and violent offences reflects the balance struck by Parliament between preventing perpetrators of serious criminal offences from evading justice and protecting genuine trafficking victims from prosecution.

(5)          Cases in which duress and the s.45 defence are not available, but where it would not be in the public interest to prosecute on the basis of a victim of trafficking’s status will be rare. The seriousness of the offence will in such circumstances require an even greater degree of continuing compulsion and the absence of any reasonably available alternatives to the defendant before it is likely to be in the public interest not to prosecute an individual suspected of an offence regarded by Parliament as serious enough to be included in Schedule 4.

(6)          There is no conflict between the Schedule 4 exclusions and the UK’s international obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”) or the EU Directive 2011/36/EU (5 April 2011).

Ben Douglas-Jones QC and Edwards Jenkins QC recently took part in a Five Paper Buildings seminar about fraudulent trading. 

Ben, leading Justin Jarmola of St Ives Chambers, Birmingham, successfully prosecuted Sean Sweeney and Sharon Cronin for the robbery, fraud and manslaughter of Mark Lloyd. Cronin ran a technical psychological defence which was rejected by the jury.

In The Press:

BBC News - 'Callous' couple jailed for killing Mark Lloyd in Perry Barr robbery 

Birmingham Mail - Sean Sweeney and Shannon Cronin jailed for manslaughter of Mark Lloyd in Perry Barr street  

MSN News - Mark Lloyd mum's tragic tribute as Shannon Cronin found guilty of manslaughter and robbery

Ben Douglas-Jones QC is leading William Douglas-Jones (of St Ives Chambers) in R v L - representing a defendant in connection with an alleged Ponzi scheme run under the direction of a solicitor.

Ben Douglas-Jones is leading Amy Jackson (of St Ives Chambers) in R v B, et al - representing a 19-year-old indicted for conspiracy to murder and conspiracy to possess firearms with intent to endanger life in connection with a drive-by shooting in Birmingham. 

In R v Hunter, Ben Douglas-Jones QC led Rhodri James (of 23 Essex Street) in the representation of the first defendant in the landmark National Trading Standards prosecution of the officers of BZZ Ltd for reselling concert and event tickets using multiple names. 

The case involved the evidence of Ed Sheeran’s manager and promoter. 

Ben led an abuse of process argument based on Regulators’ Code (Adaway consumer abuse) and the law concerning tickets and contractual webs involved in the ticketing industry; and unfairness to consumers in business-to-consumer contracts forming part of contractual webs.

Ben led argument on the law of fraud, fraudulent trading and dishonesty concerning consumer fraud in the secondary ticketing industry.

News Coverage

The Guardian: 'Nothing illegal about reselling tickets', jury at fraud trial told

Daily Mail: Two online touts who resold tickets to high profile events worth £11m might have 'upset' Ed Sheeran but have done nothing illegal, fraud trial hears

In R v GB [2020] EWCA Crim 2, Ben Douglas-Jones QC led Andrew Johnson in an important case concerning the change in law appeals concerning victims of trafficking who were prosecuted for offences. 

In R v DS [2020] EWCA Crim 285, Ben Douglas-Jones QC led Daniel Bunting in a leading case abolishing abuse of process in cases where victims of trafficking are prosecuted for offences following the statutory defence in the Modern Slavery Act 2015.

Ben Douglas-Jones QC was instrumental in R v Idahosa [2019] EWCA Crim 1953 -  a leading case on the asylum defence and the duty of advocates to keep notes of advice given and instructions received at court.

In R v Choudhuri [2019] EWCA Crim 2341, Ben Douglas-Jones QC was instrumental in a leading case concerning the approach to fresh psychiatric evidence in appeals based on fitness to plead and inability to form mens rea.

Ben Douglas-Jones QC has taken part in important human trafficking training with Beyond Borders in Doha. 

At the event, Ben trained public prosecutors, judges and ministerial officers - informing them of key legal issues concerning human trafficking and slavery.

In R v DL [2019] EWCA Crim 1249, Ben Douglas-Jones QC was instrumental in a case concerning the delay in cases involving young witnesses (s.78 PACE).

In Pegram v DPP [2019] EWHC 2673 (Admin); [2020] Crim. L.R. 244; [2020] A.C.D. 2, Ben Douglas-Jones QC was involved in an important case concerning the scope of “in the execution of duty” of a police officer and the duty to leave self-defence to the tribunal of fact.

Ben represented 4 of the largest secondary tickets sellers in the UK: Worldwide Tickets Ltd, Black Sync Ltd, Alan Gambin and Gary Harvey before the President of the First Tier Tribunal General Regulatory Chamber in the first ever appeals brought under the Consumer

Rights Act 2015 against penalties imposed for alleged failings to comply with the Act.  He showed that the penalties were an abuse of process and the penalties had been imposed so as to breach natural justice.  The appeals all succeeded. 

Ben has been ranked in Chambers UK 2019 as a New Silk for Consumer Law. He was described as ""An excellent communicator who is always immaculately prepared and shows outstanding attention to detail. An engaging advocate, he is very personable and puts clients from all backgrounds at ease."

Meanwhile, for Financial Crime it was noted that Ben is ""Fantastic and incredibly hard-working." "He's very on top of his cases and a very good lawyer." 

Ben Douglas-Jones QC appeared for the Crown in GS [2018] EWCA Crim in which the Court analysed what constitutes a change in law case for the purposes of granting leave to appeal against conviction out of time in human trafficking cases. 

The risk to the Applicant’s immigration status was deemed to be a substantial injustice. The case set out a hard edge approach in the receipt of medical evidence on appeal in the context of trafficking cases on the grounds that the evidence could have been adduced in the Crown Court, exceeded the proper scope of the experts’ expertise and a retrospective analysis of an appellant’s psychological status will not necessarily be accurate. 

The case addressed the significance of duress being rejected by a jury where trafficking status is on appeal relied on to show an abuse of process.

Ben Douglas-Jones QC and Aparna Rao secured convictions of Philip Bujak, the former CEO of the Montessori charity for species of fraud including the receipt of a kickback in relation to the sale of a property in Princes Gate near Hyde Park, the inflation of invoices from the charity’s printing company, the forgery of art restoration invoices to show that art belonged to Montessori when it in fact came from his private art collection and business expense claims which in fact related to successive family reunions. 

Bujak received a 6-year prison sentence and was disqualified for acting as a company director for 10 years.

Ben Douglas-Jones QC appeared for the Crown in MK v R; Gega v R [2018] EWCA Crim 667, a crucially important case which has resolved the burden of proof where a defence is raised under s45 Modern Slavery Act 2015.

Ben Douglas-Jones QC appeared for the Crown in R v Edwards [2018] EWCA Crim 595 in which the Vice President of the Court of Appeal handed down definitive guidance on the approach to sentencing defendants with mental illnesses.

Ben Douglas-Jones QC has been appointed Recorder of the Crown Court.

Ben Douglas-Jones QC appeared for the DPP in an important Divisional Court case before the President of the QBD and Kerr J in which the best evidence rule, memory refreshing, status of Forms MGDDA in Drink and Drug Driving cases and the status of documents following the advent of digital working.

The launch of Human Trafficking and Modern Slavery Law and Practice by Philippa Southwell, Michelle Brewer and Ben Douglas-Jones QC has been hailed a great success by publisher Bloomsbury Professional.

The book is now available online. Click here to buy your copy http://bit.ly/2sK8GlW

Ben Douglas-Jones is to be appointed to QC in February 2018.

Ben together with Michelle Brewer (barrister, Garden Court) and Philippa Southwell (solicitor, Birds) is the editor of the Bloomsbury professional handbook to be published in February 2018.

Ben appeared in R v L and R v N before the Court of Appeal in which the Vice President of the CACD endorsed his suggestions concerning what material should be given by appellants in human rights based appeals.  The CACD also set out how to approach anonymising appellants in cases involving victims of human trafficking.

Operation Cleo 2.

Stephen Oliver was represented by Ben, led by Graham Trembath QC.  He faced allegations of creating and operating copycat government websites to defraud the public.  The case was complex and substantial.  After a trial the defendants were acquitted of copycat website fraud and the prosecution abandoned further proceedings concerning consumer protection offences.  A second case has been discontinued.

Ben, leading James Marsland, appeared for the Specialist Fraud Division before the Court of Appeal R v Mumtaz [2017] EWCA Crim 1843 (serious and complex fraud).  In a judgment given by Hickinbottom LJ the Court agreed with Ben that there was no prejudice in an amendment to the indictment which had secured the conviction of the Appellant.

In October 2017, Ben conducted human trafficking training for Beyond Borders together with Peter Carter QC in Oman.  They trained judges, prosecutors and civil servants concerning identification and treatment of trafficking victims.

The Court of Appeal agreed with Ben that there was no double jeopardy in a conviction and sentence for escape in the Crown Court in respect of a prisoner who had been charged with and sentenced for a prison disciplinary offence of escape; R v Robinson [2017] EWCA Crim 936 (double jeopardy).  The prison sentence was to be treated as void.

Ben appeared for P in Reigate and Banstead BC v Pawlowski [2017] EWHC 1764 (Admin).  It has become a leading case on a council’s power to suspend a private hire licence.  

Singh v Cardiff Justices established that it was unlawful for a local authority to use suspension as a holding operation pending further investigation. Accordingly, a local authority could not lawfully suspend by reason of a criminal charge on a "wait and see" basis.

If it suspended the licence, it had to do so by way of a substantive decision on the fitness of the driver to hold the licence. Once it was seen that suspension was not a holding operation but a substantive decision, it became apparent that suspension would rarely be the appropriate course where a driver was charged with a matter for which, if convicted, he would be subject to revocation of his licence.

If such a charge merited action, and if the action was not by way of an interim measure pending determination of the facts at criminal trial, revocation would generally be the appropriate course. To suspend a licence because an allegation was made and then revoke it because the allegation was proved was contrary to the decision in Singh.

That was not to say that, once a decision had been taken to suspend upon notification of a charge, no subsequent decision to revoke could ever be taken. It was possible to envisage a case where facts thereafter emerging from the criminal trial put a different complexion on the matter. The initial suspension would not necessarily rule out a subsequent revocation in such circumstances, having regard in particular to the fact that the local authority's powers were conferred for purposes of public protection.

Any decision to revoke would be subject to a statutory right of appeal. Further, if it should later transpire, for example by reason of acquittal at trial, that the former licence-holder was indeed a fit and proper person to hold a licence, provision could be made for expeditious re-licensing.

Ben appeared for the Crown in R v PK [2017] EWCA Crim 486; [2017] Crim. L.R. 716. The President of the QBD held that the test for granting leave to appeal out of time where a case followed a guilty plea and was not a change in law case was the Mateta / Boal test.

Ben Douglas-Jones, led by John McGuinness QC, represented the DPP in an important case concerning the right to free speech. In DPP v Kingsley Smith, an appeal by way of case stated, the Administrative Court (Divisional List) found that four posts on Google+ were not merely an expression of the right to free speech: they were “menacing” or “grossly offensive”. 

Smith was an Islamic revert who had made comments supportive of ISIS.  He posted messages on You Tube clips:

1. describing the conflict of radical Islam and the extreme right in Britain,
2. of the plea of the David Cameron, the then Prime Minister, from the pulpit of Oxford Cathedral for religious tolerance and
3. articles about ISIS and British Military power:

“If I saw Paul Golding [leader of the far right wing organisation “Britain First”] I would slice his throat.”

“David Cameron I'm gonna put an lED on your doorstep.”

“One day I will kill these kufr !!!! Allahu akbar".

“Allah Akbar kill the kufr!!!” (translated as “God is great, kill the disbeliever!”).

The Court found that the case was very different from Chambers, a case in which a joke in bad taste about blowing up an airport had been made.  The messages were clearly not a joke:

The District Judge had first to consider whether the sole element of the actus reus that was in dispute on each charge, namely whether the relevant message was of the proscribed character, was proved. To answer that he had to ask himself whether, as a question of fact, taking account of the context and all relevant circumstances, and applying the standards of a reasonable person in an open and just multi-racial (and, I would add, multi-faith) society, it was proved that a particular message was grossly offensive to those to whom it related or was of a menacing character – i.e. would have created a sense of apprehension or fear in a person of reasonable fortitude who received or read it.

The District Judge did not do that in circumstances where there was a clear case that the messages were grossly offensive.

Ben Douglas-Jones appeared for the Crown in a landmark special court (Lord Thomas CJ, Hallett VP and Goss J) hearing of 6 conjoined appeals, led by John McGuinness QC, in the case of Joseph et al. [2017] EWCA Crim 36.  It concerned victims of human trafficking charged with offences.

It addressed:

1. Whether duress needed to be reassessed in the context of victims of trafficking;
2. How to approach the prosecution of victims of trafficking who commit serious offences (such as drug trafficking) less than murder;
3. Whether the courts should redefine the approach to the prosecution of victims of human trafficking following the coming into force of the statutory defence to offences of being a victim of trafficking (s45 of the Modern Slavery Act 2015);
4. The prosecution of child victims of trafficking (where the CCRC erroneously suggested that the Court of Appeal had misunderstood the law on the basis that the Court in R v Le and R v N [2012] EWCA Crim 189, [2013] QB 379 (in which Ben Douglas-Jones appeared) had looked at compulsion in relation to child victims in the wrong way);
5. The relationship between the Competent Authority and the CPS.

Ben Douglas-Jones appeared on a panel of experts in human trafficking including Mr Justice McCloskey, President of the Upper Tribunal, Upper Tribunal Judge Finch, Pam Bowen CBE, the CPS Lead in Human Trafficking, Michelle Brewer, a barrister with expertise in human trafficking and Bernie Gravett, a trafficking expert, in a roundtable discussion with 8 Romanian judges of live issues in human trafficking.

Ben Douglas-Jones appeared in six cases in a two-day special court hearing before The Lord Chief Justice, Vice President of the Court of Appeal and Goss J in an appeal which will determine the scope of the definition of human trafficking, examine the role of the competent authority in the national referral mechanism and consider whether drugs mules carrying significant quantities of Class A drugs across international borders should be prosecuted in the public interest when they are victims of trafficking.

Ben Douglas-Jones represented a defendant (F) for cyber crime including the procurement of DDOS attacks over a two-year period in which Pay Day loan providers and the Consumer Rights Group forum were targeted.  He received a non-custodial sentence.

Press Coverage

Wales Online

BBC

The Times 22 November 2016

The Guardian 22 November 2016

Ben Douglas-Jones appeared in the appeal of a life sentence (R v Hoppe) where Gross LJ giving judgment said that when looking at whether a hospital order should have been imposed when an appellant was originally sentenced, while the Court had to look at whether the Court erred in passing the life sentence (Vowles) it would be artificial not to take into account the punishment that an appellant had undergone in the intervening years.

R v Miharessari [2016] EWCA Crim 1733 (asylum seekers breaching Channel Tunnel security).  Ben represented the Crown and submitted that (1) there had been no abuse of process in charging the appellants with a 19 Century offence which had the effect of depriving them of the refugee defence under s.31 of the Immigration and Asylum Act 1999; and (2) the offence of obstructing an engine was made out when the Channel Tunnel rails were powered down as a result of asylum seekers penetrating tunnel security.

Ben Douglas-Jones recently appeared in two Court of Appeal cases (Z, 7 July 2016 and Chikho, 13 October 2016) which considered the status of Turkey as a stopover point for refugees seeking to rely on the asylum seeker’s defence to criminal offences.  

The 1951 Refugee Convention, as a post-Second World War instrument, was originally limited in scope to persons fleeing events occurring before 1951 within Europe.  A 1967 Protocol removed the geographic and temporal limits of the Convention.

Turkey however maintained the geographical limitation. Thus no Convention protection was historically afforded to refugees from outside Europe seeking asylum in Turkey.  A stopover in Turkey could (historically) not prevent a refugee from relying on the refugee defence.  In Chikho the importance of advice given at the Crown Court was highlighted.

R. v D [2016] EWCA Crim 454; [2016] 4 W.L.R. 122; [2016] 2 Cr. App. R. 18; [2016] Crim. L.R. 569

Ben Douglas-Jones appeared in an important appeal concerning defective indictments and the substitution of offences on appeal.

Ben Douglas-Jones has been ranked in fraud and consumer law in the Legal 500 2016.

The Directory described him as “A serious player in fraud” and noted his cross-examination skills in the context of consumer law.

Galvin v Revenue and Customs Commissioners [2016] UKFTT 577 (TC); [2016] S.T.I. 2560

Ben Douglas-Jones appeared for the applicant in an application to reinstate an appeal against the imposition of civil evasion penalties following the strike out of an appeal in the FTT Tax Chamber.  

The case concerned the application of Art 6 of the ECHR in tax cases where evasion penalties were imposed.

Ben Douglas-Jones, leading Jamie Marsland, secured convictions against James Ponchaud and another following a six week trial of a double MTIC VAT fraud.

R v M [2016] 4 W.L.R. 146  [2016] 2 Cr. App. R. 20 (doli incapax)

Ben appeared in an important case concerning bad character in cases where doli incapax applied.  It was held that the presumption of incapacity of committing a crime could only be rebutted by the prosecution by clear positive evidence, not consisting merely of evidence of the acts amounting to the offence itself, but that the appellant knew that his act was seriously wrong as distinct from mere naughtiness or childish mischief.

R. v M [2016] 2 Cr. App. R. 20

Ben Douglas-Jones appeared in an appeal concerning the presumption of incapacity of committing a crime in historical offences where doli incapax applied.  

The presumption could only be rebutted by the prosecution by clear positive evidence, not consisting merely of evidence of the acts amounting to the offence itself, but that the appellant knew that his act was seriously wrong as distinct from mere naughtiness or childish mischief.  

Where such incidents formed bad character evidence then the presumption was irrelevant.

R. v Zaredar (Arash)

Ben Douglas-Jones appeared in an appeal which led to Gross LJ stating that the substance of the judgment should be incorporated into training for solicitors.

R. (on the application of S) v Croydon Magistrates' Court

Ben Douglas-Jones appeared for the DPP in an appeal concerning a district judge's refusal to adjourn a trial days before it was listed.  The decision was Wednesbury unreasonable where the decision was made in the absence of relevant evidence.

A renewed application for an adjournment on the morning of the trial with the benefit of the missing evidence should have been dealt with as though the magistrates were in the judge's position days earlier, and without taking the presence of witnesses into account. 

R. (on the application of Ram) v DPP [2016] EWHC 1426 (Admin)

Ben Douglas-Jones appeared in a significant case in which guidance was given on the approach to be adopted in cases of judicial review of the Victims' Right to Review Scheme.

R v Boateng [2016] EWCA Crim 57; [2016] 4 W.L.R. 70; [2016] 2 Cr. App. R. 5; [2016] Crim. L.R. 495.  Ben appeared for the Crown in this case where a number of important aspects of charging immigration fraud offences was considered.  In particular, the Court considered the case of Kaile, where it had been said, on one view, that a defendant could not be guilty of smuggling a child into the UK because a child could not form the guilty mind for the underlying offence.  The Court found that the underlying mischief could be s.3 of the Immigration Act 1971, which required no mens rea.  

R v YY [2016] EWCA Crim 18; [2016] 1 Cr. App. R. 28 (role of the CCRC in appeals concerning refugees).  Ben appeared in this case, where the President of the QBD said that the CCRC should not normally refer refugee defence cases to the CACD where there had not been a previous unsuccessful appeal.  The president suggested that a “triage system” should be introduced.

R (Ewing) v Cardiff Crown Court [2016] EWHC 183 (Admin); [2016] 4 W.L.R. 21; [2016] 1 Cr. App. R. 32; (2016) 180 J.P. 153; [2016] E.M.L.R. 18; [2016] Inquest L.R. 32; [2016] A.C.D. 44 Ben appeared in this case which considered the rights of people to take notes in the Crown Court, contempt of court and vexatious litigants acting as an amanuensis.