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Defending Those with Dementia in a Criminal Trial – by Martin Lewis (Barrister, Castle Chambers)

old jailbirdIn the public's psyche, our biggest health fear, cancer, has largely been replaced by a diagnosis of dementia. What can be worse than to suffer the loss memory, control, identity, and the loss of self?

An ever-aging population has meant that dementia is affecting many families, and an appetite to prosecute historic crimes, notably sex crimes, against now elderly defendants, means that dementia has become an increasing feature of our criminal legal system. For some years, the fastest growing sector of UK's prison population has been men in their 60's, 70's , 80's and even 90's with a significant number of these serving lengthy terms for offences committed decades ago.

So how do our criminal courts cope with those defendants who, by the time of trial are suffering, or claiming to be suffering from dementia, severe or otherwise? The answer is, not very well.

Our law on this is still based on the 1836 case of Pritchard and essentially the following criteria apply: can a defendant suffering from a mental disability such as dementia, understand the criminal case that has been brought against him; adequately follow the evidence during the trial procedure; able to provide cogent instructions to his lawyers and is he capable to sufficiently participate in the trial procedure by being able to give evidence on his own behalf, or, archaically, is he able to challenge a juror?

If, supported by the evidence of at least two court approved psychiatrists, the answer to any of these issues is NO, as found by the trial judge, then the defendant is found unfit to plead. Thereafter, a jury is called upon to hear evidence to determine whether "he did the act" e.g., did he or did he not set fire to the building? The jury are not required to enquire into the defendant's mind (or lawyers' speak - mens rea) and consider questions such as intent.

Where a jury finds that the defendant "did the act" then the court's powers are quite limited and are restricted to an absolute discharge or some form of supervision or detention under a hospital order. The judge cannot impose a prison sentence.

This procedure applies to all unfitness to plead cases, but where dementia is the disability, particular difficulties are presented.

Conclusive diagnosis of dementia or the severity of the condition is impossible and physical evidence can only be obtained upon post-mortem.

It is a condition that can easily be feigned and the court misled; notably the infamous case of Earnest Saunders. His case has resulted in the criminal courts approaching cases of claimed dementia with deep suspicion.

The main apparent aspect of dementia is loss of memory and memory loss of the facts surrounding an alleged crime cannot itself amount to a defence or an assertion of unfitness to plead. Therefore, a diagnosis from two psychiatrists that a defendant is mildly affected by his dementia may well not be enough.

Of course there is the current controversy surrounding the high profile case of Lord Janner where according to the DPP there is sufficient evidence to prosecute but, due to his state of dementia (not his age or the age of the alleged crimes) it is thought "not to be in the public interest" to try him.

Undoubtedly, the DPP would not have reached this decision casually and without thorough psychiatric examinations, having taken place and certainly at least one of those psychiatrists would have been appointed by the Crown. Even so, her decision can be criticised. She has deprived the complainants of their chance to give evidence and she has deprived the accused Lord Janner of any chance of testing their evidence in an effort of salvaging what is now a ruined reputation.

Martin Lewis is a barrister of 18 years call at Castle Chambers and deals with cases covering all aspects of criminal law. This article is for informational purposes only and does not constitute legal advice. If you require any advice please contact Jeffrey Lewis or Siobhain Egan on 020 7387 2032, or complete our online enquiry form here.

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The Hatton Garden Heist: What Next for Victims & Losers? - by Jeffrey Lewis

hatton garden safesIt has been described by various sections of the press as the most professional heist of the century, and has been attributed to the infamous ‘Pink Panther Gang’.

Reports have assessed the losses to within a range of between £60 million and £200 million, though the more recent and reliable reports state that just 72 of 999 boxes were broken into. Many of the losers/victims had deposited their business stock in those boxes.

What remedies are available to the victims?


Scrutinise the contract between yourself and the safety deposit company carefully. Don’t imagine that their insurers are going to be ready to pay out quickly; prepare yourself for a long and difficult battle.

First examine the exclusion clauses. Are your items likely to be covered? Are there any maximum value limits? Are particular items excluded from cover?


It could also be argued that the safety deposit company owed the box holders a duty of care to ensure that the items were protected. Was that duty of care breached? Did the company fail to maintain the expected standard of care? Media reports that the Police believe that there may have been an ‘inside man’ involved in this robbery could give rise to a negligence action.


Those that hold the safety deposit boxes will be regarded as the bailors and the Company is the bailee. In these circumstances, the Company would be liable for any loss, damage, or destruction of the items held, unless the Company could prove that the loss was not caused by any breach of duty that they owe the bailors.

How we can help

In 2008, we represented a large number of individuals whose safety deposit boxes were raided by the Metropolitan Police in a high profile operation known as Rize. Many of those holders lost items or had items damaged because of police action.

We dealt with the Met’s lawyers and insurance companies concerning those losses and damages. We also successfully advised and represented clients who found themselves subject to HMRC (tax) investigations and money laundering (POCA) investigations that followed the original police operation.

As a result we know exactly what you will need to prove (in terms of documentation and valuations), and which arguments to raise in order to be fully compensated for your loss.

Contact Lewis Nedas expert lawyers

If you require any assistance in this regard, please contact our specialists Jeffrey Lewis or Ian Coupland by calling us on 0207 387 2032 or completing our online enquiry form here.

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SFO Investigation of Celtic Energy

fraudThe Serious Fraud Office (SFO) often employs all of the tools at its disposal in order to investigate any suspicion of fraudulent activity. In its work, the SFO will only act if it is convinced that there is real evidence of suspect activity, in order to bring a successful investigation and if need be, legal action against the perpetrators. It is surprising therefore when the SFO fails to identify fraudulent activity, and is ordered to repay others for the impact of being under investigated as was the case with Celtic Energy Ltd in February earlier this year.

What was the SFO investigating?

This case has quite a complicated history. In 2013 the SFO had brought charges of conspiracy to defraud against two senior executives at Celtic Energy Ltd, a company specialising in opencast mining, and four lawyers that were advising the company. Through its operations Celtic Energy had come into possession of a coal mine in South East Wales. However when a company ceases mining activities, certain obligations are imposed on it to restore the site to the condition it was in before mining began – so to be the case with Celtic Energy.

There was an allegation from the SFO that Celtic Energy along with its legal advisors had planned to create a company that would be based in the British Virgin Islands, and to transfer the leases of the four minds that it operated to this company. The SFO claimed that this was with a view i.e. a conspiracy to defraud not only the city councils in the area, but also the Coal Authority in allowing it to avoid its legal obligations to restore the pitts, and to pay the cost involved which was estimated to run into several million pounds.

What was the decision?

This case was ultimately dismissed by the courts on the basis that there was no evidence had acted unlawfully – regardless of whether or not they had acted dishonestly. The SFO attempted to restart the court action against Celtic Energy by using a specialised procedure known as “voluntary bill of indictment”. This was refused by the High Court. In nearly a year since the case was dismissed by the courts, the High Court in Cardiff issued a judgement that the legal costs of the claim i.e. the cost of the barristers arguing the case and two High Court hearings, estimated at around £7 million, was to be paid by the SFO. The order to pay legal costs has significant consequences for the SFO, whose role in the UK has come under increasing criticism in recent years.

Why wasn’t the court persuaded that there was a conspiracy to defraud?

Fraud is an inherently difficult crime to prove, and conspiracy to defraud is equally complex to establish in a court of law. The Fraud Act 2006 sets out precisely what is required in order to prove that fraud had taken place:

  • • Fraud by representation;
  • • Fraud by failing to disclose information; or
  • • Fraud by abuse of position

The ‘conspiracy’ element is not actually contained in the legislation, but is part of the common or ‘judge-made’ law. It was created to make up for the fact that the legislation had certain loopholes that had been exposed in later cases. In order to prove ‘conspiracy’ the SFO, in conducting its investigation and prosecution, would have to prove that there is a plan between parties to commit fraudulent activity.

In the case of Celtic Energy, the court was not convinced that there was any fraudulent activity for the following reasons:

  1. The plan of Celtic Energy to transfer the leases the leases it held for the coal mines could be deemed dishonest, but were not illegal; and
  2. In order to prove that there was a conspiracy to defraud the local councils and the Coal Authority, the court needed evidence that they had suffered financial loss as a result of the transfer of the leases. This was not proven. The court drew special attention to the fact that as criminal courts, they are not concerned with the “commercial morality” of Celtic Energy’s dealings. While the plans of the company and its legal advisors may be subject to criticism in the marketplace, this did not amount to criminal activity. Furthermore the court also criticised the SFO for failing to point out what was in fact demonstrable illegal activity, and only identifying what it thought of as illegal. Fraud cases, no matter how they are presented, are incredibly difficult to prosecute. Allegations of a ‘conspiracy to defraud’ make the work of the SFO much more difficult: they must prove that a party had planned to do something illegal.

The case of Celtic Energy is one of the two most notable instances where the SFO has failed to prove its case, and have been ordered to pay several million pounds in compensation.

Contact Lewis Nedas

At Lewis Nedas we have a long and successful history of advising clients concerned with investigation by the SFO and other regulatory bodies. Our dedicated team of Financial Crime lawyers are very familiar with this area of the law, and regularly advise and represent clients in their dealings with regulatory agencies. If you are concerned that your organisation may face an investigation, contact us now. We understand that the prospect of legal action against you or your firm can have a tremendous impact not only on you personally but also the reputation of your firm. We will work in partnership with you to ensure that you understand your rights, and that you are represented by expert lawyers who will handle your case with professionalism and integrity. If you have any questions please contact us on 0207 387 2032 or complete our online enquiry form.

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The Investigation of Ethical Investments and Fraud

SFOThe Serious Fraud Office (SFO) is the UK’s investigative and prosecuting body for dealing with cases of serious fraud and bribery. Owing to the increasing complexity with which fraudsters operate, the SFO employs sophisticated means to investigate suspicious activity. It recently featured in the press, with its criminal investigation into an “Ethical” Investment Company.

What is being investigated?

In March this year, the SFO announced that it had opened a criminal investigation into the dealings of two companies, Global Forestry Investment and Global Forex Investments, and their potentially fraudulent activity. Both companies are headed up by the same people: business partners Mr Andrew Skeene and Mr Omario Bowers, who founded their company GFI Consultants Ltd in April 2010. Following the creation of their consulting company, both gentlemen invited potential clients to a business event where they would give potential investors greater insight into available investment opportunities. Investors were given information regarding an allegedly lucrative investment project in Brazil, the Global Forestry Investments Belem Sky Plantation. The Plantation was described as having huge potential and which could grant a return of up to 20% to investors, through investing in sustainable forestry.

The project was described by Mr Skeene and Mr Bowers as allowing investors to “participate in an ethical and financially rewarding investment.” The investment was presented in the following manner: investors were to lease a plot of land on the timber plantation in Brazil. The value of their investment and the return they could expect was to be based on the trees growing on the land. The project used specialist timber management companies who would then lease the plots from the investors and manage the land on their behalf. The minimum investment was £5,000 with no upper limit. It was claimed that the Rental fees, which were to be £500 per 0.1 hectare plot per year, depending on the timber management company that the investor had chosen. This was to bring about a 10% return, with more to come in the following years. The interesting point to note is that in their literature, GFI Consultants Ltd did highlight (in the small print at the back of their brochure of investment information):

“GFI Consultants Ltd is not regulated by the FSA and is not authorised to offer advice to the general public concerning regulated or unregulated investments. This is not an authorised investment for the purpose of the UK FMSA (2000) and as such buyers have no access to statutory or regulatory protections including the Financial Ombudsman Service and the Financial Services Compensation Scheme.”

In order to give effect to the investment, the land that the investors were to invest in was supposed to be held “in beneficial ownership for the investor” by an organisation called Title Trustees International, a subsidiary of a company called Hutchinson & Co. Trust Company Limited. Hamilton & Co. Trust Company Limited also had another subsidiary, Citadel Trustees which in 2014, changed its name to Highport Trustees.

In what was already becoming a complicated situation, another organisation entered the picture. Emerald Knights, sold the plots of land on the Belem Sky Plantation to the investors and it claimed to investors that Citadel Trustees was regulated by the FSA, even though Global Forestry Investments was not. Investors soon noticed that the investment quickly stopped making payments. In 2013 GFI claimed that this was due to “a cumulate of various factors”, citing severe weather, and a series of banking and logistical issues caused by the regulatory framework in Brazil. In early 2014 GFI claimed that the administrative issues had been resolved. However this did not appease investors who are reported to have lost over £4 million via Global Forestry Investments.

What is the SFO concerned with?

The SFO is concerned that there has been some criminal activity in the alleged ‘ethical’ investment that was being proposed by Global Forestry Investments Ltd, namely Fraud. The law of Fraud is set out in the Fraud Act 2006. The Act defines fraud as: a) The making of a false representation; b) By failing to disclose information if you are under a duty to do so; or c) By abusing the position which you are expected to safeguard. In respect of the activities of Global Forestry Investments, Global Forex Investments and Mr Bowers and Mr Skeene, the SFO will be looking for evidence of Investment Fraud, in that:

  1. They knowingly gave investors information regarding the investment that they knew to be false e.g. the likely return on their investment that they could expect;
  2. They failed to bring to investors’ attention that they knew would have an impact on their decision making; or
  3. In some other way, abusing their position as advisors on potential investments.

The investigation is still ongoing, and has already resulted in the searches on at least two properties in England. If there is any evidence of fraudulent activity, the SFO is entitled to bring both civil and criminal prosecutions against the perpetrators. A civil prosecution by the SFO can result in a substantial fine being issued, while a successful criminal prosecution could result in an individual being imprisoned for up to ten years.

The law of Fraud is very complex, and can be difficult to understand. It effectively looks to guard against any kind of deception that could result in either personal gain or loss to another party. The SFO has developed a very sophisticated structure to investigate cases of alleged fraudulent activity of both individuals and organisations.

Contact Lewis Nedas

At Lewis Nedas we have an expert team of financial crime lawyers, who are regularly involved in a helping clients deal with SFO and other regulatory investigations. We have many years of experience in the field, and work in partnership with our clients to ensure that they are fully advised on the law and how it affects them. If you have any concerns regarding the law on Fraud, or are perhaps concerned about how you or your organisation would be affected by an investigation, please contact us now. We are here to help.

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What is a SOCPA Agreement & How Can it Help Me? – By Siobhain Egan

monopolyA SOCPA Agreement covers an arrangement made between a specified prosecuting authority such as the CPS or the SFO with defendants willing to provide assistance to them with a view to securing immunity against prosecution or a heavily discounted sentence.

The relevant sections with in the Serious Organised Crime and Police Act 2005 are as follows:

  • s.71 covers a full immunity agreement
  • s.72 the Crown has power to agree not to serve certain evidence
  • s.73 power to negotiate a sentencing reduction which has to be finalised by the Sentencing Court
  • s.74 allows the prosecutor to refer a case back to the Court for a sentencing reduction after assistance has been given
  • s.75 power to exclude the public from court during a hearing as defined in s74

In truth though, there have a few SOCPA immunity deals, especially with the former SOCA (Serious Organised Crime Agency – now replaced by the NCA), and they have been very controversial because, as the press have highlighted, those who have faced serious allegations of fraud or organised crime have been given complete immunity and found themselves in the witness protection programme. However, very few individuals have been given complete immunity as a result of the public reaction.

The authorities are keen to promote SOCPA Agreements, in particular the SFO and City of London Police.

Alan Milford, General Counsel of the SFO, gave an important speech in September 2014 at the Cambridge Symposium on Economic Crime and talked openly and encouragingly about the use of these agreements.

What do I need to do in order to secure a SOCPA Agreement?

If you are facing prosecution for a serious allegation and are likely to be facing a serious term of imprisonment as a result, it may be worth considering a SOCPA Agreement. Either party to the prosecution can make the invitation to consider such an agreement. The EARLIER in the process that the invitation is made, the better it will be for the defendant.

First, find a lawyer who has genuine experience of negotiating such agreements. It is a difficult delicate situation, which, if it is to be successful, needs to be handled very carefully, and it requires trust and professionalism on both sides. There have been very few of these agreements recently, therefore only a handful of lawyers in the country have genuinely dealt with SOCPA Agreements. Check which cases they have dealt with before instructing them.

Understand what it is the specified prosecuting authority wants. Generally, it will be fresh information and evidence on aspects of the prosecution about which they are unaware; strong, accurate, admissible evidence implicating other defendants; or the location of hitherto un-located assets purchased with the proceeds of crime. The authorities will need some persuading and it pays if your lawyers are persistent, particularly as it is a decision that will ultimately be taken by a very senior officer.

The whole process can take many months, initially to persuade the authorities to listen to the proposal, and then when the SOCPA process begins.

Frankly, the prosecutors have the stronger hand throughout the process and will expect complete honesty about the defendant, so not just full admissions about the criminal prosecution in question, but about all aspects of any dishonesty or criminality committed in any aspect of the defendant’s life, whether the authorities know about it already or whether or not it could be attributable to the defendant.

It is also important to remember that if the authority is going to proceed to an initial scoping interview, it will have to calculate the time and manpower involved (and therefore, in these difficult economic times, the expense of a SOCPA Agreement), and as far as the forthcoming information is concerned it had better be good quality and completely honest.

There are stringent procedures put in place to maintain ‘sterile corridors’ between those officers conducting the SOCPA interviews and the investigating officers dealing with the main case. All dealings with the defendant will either be recorded by way of interview tapes or on documents, because some of the material maybe disclosable under the Criminal Disclosure Regime to the remaining co-defendants.

Initially, independent officers will embark upon the ‘scoping interview’, which will be recorded. At this stage, the officers will be weighing up the value and extent of the information which the defendant wishes to give. They will also be weighing up his/her motives for co-operation.

Then will come the ‘cleansing stage’, when it will be expected that the defendant comes to the authority with ‘clean hands’ i.e. full admissions of his/her involvement in this and any other criminality. This is a crucial stage of the whole process.

The officers will take time to consider what the defendant has told them and, if they are happy with and interested in what they have heard, they may offer a SOCPA contract for the defendant to sign. Be aware that the prosecuting authority has the right to withdraw that SOCPA contract at any time and for any reason.

Sentencing Discount

Obviously the defendant’s aim in this situation is to achieve the maximum sentencing discount because, as stated, full immunity from prosecution is remote.

It is possible in certain cases to achieve a reduction in sentence of 75% in those cases where the defendant has given maximum assistance, which may include willingness to give evidence or has actually given evidence against others.

SOCPA is quite clear - the defendant must enter guilty pleas at the earliest opportunity, i.e. at the preliminary hearing or at the plea and directions hearing. This depends on the complexity of the case and the efficiency of the prosecuting authority.

Ordinarily, a guilty plea attracts a sentence reduction of one-third. In addition, the sentencing Judge will then apply a further discount depending on the extent of the assistance given under the SOCPA Agreement.

There is some case law on the subject:

R v P, R v Blackburn (2007) EWCA CRIM2290; R v H, R v D, R v Choudhury (2009) ECCA CRIM 2485; R v D (2010) EWCA CRIM 1485.

The role of the defence lawyer within the SOCPA Agreement process

All authorities agree that it is preferable that the defendant’s solicitors assists him/her in this difficult delicate process and, as stated, the invitation to enter such an agreement is often raised, initially, by the defendant’s solicitors, plus many of the subsequent negotiations closely involve defence solicitors.

The difficulty is that there is virtually no payment for the services of the defence solicitor, unless the defendant or a third party meets the lawyer’s fees privately, which probably explains why so few of these agreements have been pursued.

We have just successfully negotiated and completed a SOCPA Agreement in a very high profile SFO prosecution, which will undoubtedly result in a heavily discounted sentence.

My co-defendant has signed a SOCPA Agreement and has offered to give evidence against me

The first thing to do is to demand that all documentation in relation to the agreement be served by the prosecuting authority and to scrutinise it carefully. Take immediate advice from your lawyers.

If we can assist with any of the issues raised within this article, please contact Siobhain Egan on 0207 387 2032 or complete our online enquiry form here.

ADDENDUM 09/10/2015:
The SOCPA agreement to which we referred within this blog resulted in a suspended sentence for our client, who was a former Director of Arck LLP. Both directors were sentenced at Southwark Crown Court on 9 October 2015; the co-defendant was sentenced to a term of imprisonment of 10 years and 8 months, our client received a sentence of two years suspended for two years and 300 hours unpaid work.

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