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David Bentley Secures Unanimous Acquittal of HGV Driver in 200kg Cocaine Importation Case David Bentley represented a Polish HGV driver stopped at the Port of Harwich in February 2026. His truck was X-rayed and revealed an anomaly in the middle section of his refrigerated cargo. Border Force officers carried out a thorough search of the cargo and discovered 200kg of cocaine hidden within frozen food. National Crime Agency officers were called to take over the investigation, which saw evidence produced from Poland, Germany, Holland and the UK, relating to the movements and actions of the defendant. The defendant did not speak English, so all trial preparation and instructions taken from the defendant before and during the trial, required the assistance of an interpreter. The defendant was unanimously acquitted after a 2-week trial at Chelmsford Crown Court. David was instructed by Kamran Yousaf of Rees Clayton Solicitors, Nelson, Lancashire.

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Dr Felicity Gerry KC Responds to Law Commission Consultation on Homicide Reform Dr Felicity Gerry KC has responded to the Law Commission of England and Wales’s consultation on homicide offences. In addition to disagreeing with the proposed structure, she raised concern that complicity law was excluded . She also calls for wider reform, including the abolition of mandatory life sentences and greater consideration of complete defences for those affected by trauma. In a submission filed on 29 September 2026, Felicity warned that the consultation covers only a portion of homicide and does not review complicity law. She argued that this separation creates serious limitations and risks encouraging over-charging. She urged the Commission to wait for the report of the Westminster Commission on Joint Enterprise before finalising its proposals. Felicity supported alternative proposals for a three tiered homicide proposed by Professor Matthew Dyson, as follows: (1) Murder (mandatory life sentence) (a) Killing intentionally. (2) Aggravated culpable homicide (maximum sentence of life imprisonment (discretionary)) (a) Killing where the offender intended to cause serious injury and was aware that there was a significant risk of causing death. (3) Culpable homicide (maximum sentence of life imprisonment (discretionary)) (a) – intending injury: Killing where the offender intended to cause serious injury. (b) – risking injury: Killing where the offender intended to cause some injury or a fear or risk of injury, and was aware of a significant risk of causing death. (c) – through [insert defence, e.g., loss of self control]: Killing in which there is a partial defence to what would otherwise be murder. (d) – through gross negligence: Killing through gross negligence as to a risk of causing death. (e) – through a criminal act: Killing through a criminal act: (i) intended to cause injury and there was an objective risk of cause serious injury; or (ii) where the offender was aware that the act involved a significant risk of causing serious injury. Felicity added a fourth tier to his proposed structure with the secondary party’s role specified in subsections: Tier 4(a): helping the principal offender in a way that knowingly, intentionally and significantly contributes to the homicide tier. Tier 4(b): commanding or advising the principal offender in a way that knowingly, intentionally and significantly contributes to the homicide tier. In addition to further comments on homicide and sentencing, Felicity raised the following key points: Partial defences and labelling: she supported clearer labelling but opposes calling a killing “murder” where a partial defence applies, and she is very concerned by the suggestion that partial defences should not apply to second-degree murder. Complete defences: she urged the Commission to look beyond partial defences and to develop complete defences, including for victim-perpetrators acting under duress, involuntarily, automatically or as a result of long-term trauma. Modern slavery: she recommended amending Schedule 4 of the Modern Slavery Act so that trafficked persons involved in homicide offences, whether as principals or accessories, can access a modern slavery defence. Non-conviction outcomes: drawing on her work in Victoria Australia, she recommended that the Commission consider a non-conviction sentencing outcome, as in section 8 of the Sentencing Act in Victoria. She said it is particularly suited to infanticide and “mercy” or consensual killings, and more generally to endangerment offences.

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Simon Csoka KC Named Crime and Extradition Silk of the Year Libertas Chambers is delighted to congratulate Simon Csoka KC, Head of Chambers, who was named Crime and Extradition Silk of the Year at The Legal 500 Bar Awards. The award was presented at the annual ceremony, which brings together members of the legal profession to recognise achievement across the Bar. Simon’s award is a significant recognition of his work in the fields of crime and extradition and marks a proud moment for Chambers. Everyone at Libertas Chambers congratulates Simon on this achievement. The evening also provided an opportunity for members of Chambers to join colleagues from across the profession in celebrating the work of barristers, chambers and legal teams recognised by The Legal 500. Further information about The Legal 500 Bar Awards can be found on The Legal 500 website.

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Section 76(8) POCA: Does the New Provision Change the Position in R v Ahmad & Fields? Does this new section have any impact on the Supreme Court’s decision in R v Ahmad & Fields [2014] UKSC 36? By Adrian Kayne On 29th June 2026, section 76(8) of the Proceeds of Crime Act 2002 (“POCA”) came into force. It was introduced in Schedule 21 of the Crime and Policing Act 2026 and in certain circumstances, it enables a Court proceeding under section 6 of POCA to reduce the value of benefit attributable to particular property to such amount (including zero) as the court believes is just. It is a discretionary power. To consider this new provision in context, we should briefly remind ourselves of a few non-exhaustive sections of POCA. When the Crown Court proceeds under section 6 of POCA, section 6(4) requires it to determine: (a) “whether the defendant has a criminal lifestyle” (b) “if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct” and (c) “if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.” For the purposes of POCA, a defendant has a “criminal lifestyle” if “the condition” in section 75(1) is satisfied. Section 75(2) provides that: “the condition is that the offence (or any of the offences) concerned satisfies any of these tests— (a) it is specified in Schedule 2; (b) it constitutes conduct forming part of a course of criminal activity; (c) it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence.” Section 76(4) of POCA provides that: “a person benefits from criminal conduct if he obtains property as a result of or in connection with the criminal conduct.” Section 76(7) provides that: “if a person benefits from conduct his benefit is the value of the property obtained.” Section 84 defines “property” in broad terms and section 84(2)(b) provides that property is “obtained by a person if he obtains an interest in it.” A rigid and formulaic application of sections 76(4), (7) and 84(2)(b) has occasionally led to some defendants being saddled with substantial and, on one view, wholly disproportionate benefit figures in their POCA proceedings. Indeed, many defendants might have been, and may continue to be, deterred from pleading guilty because the draconian scheme of POCA which follows can often result in staggering benefit figures which they find difficult to comprehend. Section 76(8) now gives the court a discretionary power in defined circumstances to mitigate and reduce the value of benefit attributable to particular property if a strict application of section 76(7) would lead to an unjust amount. Section 76(8) provides: “But in a case where— (a) the person— (i) intended to have only a limited power to control or dispose of all or part of the property, (ii) held the property temporarily, or (iii) is treated as obtaining the property as a result of section 84(3), and (b) the court believes that the amount found under subsection (7) in relation to the property would produce a result that would be unjust, the court may reduce that amount to such amount (including zero) as the court believes is just.” This article does not deal with section 76(8)(a)(iii) and the equally new section 84(3). It is confined to sections 76(8)(a)(i), (ii) and (b) and asks if they do no more than put the courier/custodian/minor contributor established case law on a statutory footing or if they go further and allow significant participants in jointly obtained property cases to reduce their joint benefit liability? Where multiple defendants jointly obtain property as a result of or in connection with their criminal conduct, each may be assessed for the full benefit amount; relief may come at the enforcement stage because the Crown is not permitted to double-recover the same benefit – see R v Ahmad and Fields [2014] UKSC 36. The discrete position of ‘paid couriers, custodians and other very minor contributors to an offence’ was recognised as long ago as 2008 in R v May [2008] UKHL 28 when their Lordships held that: “D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers.” The question which the Court in May left open in respect of couriers, custodians and minor contributors in money laundering cases was subsequently answered in a similar way by the Court of Appeal in R v Allpress [2009] EWCA Crim 8. But what of other joint participants in serious crime whose precise role may not be easily discerned or accepted by the prosecution? Will they now be able to invoke section 76(8) to mitigate and seek a discretionary reduction in what would otherwise be a substantial joint benefit figure? And if so, how? In this context it is worth reminding ourselves of what the Supreme Court said in Ahmad in relation to property obtained as a result of a joint criminal enterprise, its value and thus the calculation of a defendant’s benefit: “46…where property is obtained as a result of a joint criminal enterprise, it will often be appropriate for a court to hold that each of the conspirators “obtained” the whole of that property… “48. In some cases, one or more of the conspirators may be able to show that he was only involved to a limited extent, so that he did not in any way obtain the property which was obtained as a result of the crime. Examples include acting as a paid hand in the enterprise … or a latecomer to a conspiracy in which nothing was obtained after his arrival … “49. It is clear from May … that the amount of the benefit which a defendant obtains is not affected by the amount which might be obtained by others to whom he transfers any part of it (any more than it can be affected by his payment out of the expenses of his criminal venture). However, there could be other cases where the court may be satisfied on the evidence that individual defendants obtained (ie assumed the rights of an owner over) only a specific part or share of the property which had been acquired as a result of the criminal activity… “50. There has sometimes been a tendency to equiparate joint involvement in the crime with joint ownership of the fruits of the crime. But the fact that the defendants were jointly responsible for the crime in question does not automatically justify a conclusion that they jointly obtained the resulting property… “51. The tendency to conclude that property is jointly obtained by criminals may also be attributable to the fact that it is often difficult to determine how the asset(s) obtained has, or have, been distributed between the defendants. Judges in confiscation proceedings should be ready to investigate and make findings as to whether there were separate obtainings. Sometimes of course this is too difficult or impossible. In many cases the court will not have before it all the conspirators for a variety of reasons… A court should never make a finding that there has been joint obtaining from convenience, or worse from laziness. Where the evidence supports a finding that the asset acquired from a crime was obtained effectively on a several basis, the judge should make it, but there are cases in which a finding of joint obtaining is the proper, indeed the only available finding, especially but not only where an inference or presumption that the defendants before the court were the only joint obtainers would be contrary to the probabilities.” The perennial problem identified in Ahmad may make the practical application of section 76(8) much more difficult than at first appears when it comes to complex multi-handed cases, particularly when the prosecution and defence cannot agree on the role played by a defendant and the value of the property which he obtained; or, the prosecution does not accept a defendant’s bare assertion in a Basis of Plea or section 17 Response that he obtained no property or played only a limited role and was little more than a paid hand. In such cases, it seems likely that sworn evidence from a defendant seeking to rely on the new subsection may be required, although the court may also rely on other evidence, for how else might a defendant begin to show or prove, depending on where the burden of proof lies, that he intended to have only a limited power to control or dispose of all or part of the property? Or, that he only held it temporarily? How might the court go about determining what limit there was on a defendant’s power, whether it was exercised and/or whether it was in respect of all of the property or only a part of it, without clear evidence about it or from which this might reasonably be inferred? Section 76(8) requires the Court to address these preliminary questions first before going on to consider whether the benefit figure arrived at following a strict application of section 76(7) in relation to the property would cause injustice such that it ought to be reduced to an amount which the Court considers just or to zero. This begs the question: in multi-defendant joint obtaining cases, how might the Court arrive at a just amount when the Supreme Court in Ahmad rejected the notion that the value of jointly obtained property could be apportioned across co-defendants? Quite how this will play out in practice in the context of joint obtaining cases remains to be seen. Might it lead to an increase in the number of defendants willing to give evidence in their confiscation proceedings on matters such as what property they did obtain, what property others obtained, how the joint enterprise or conspiracy in which they participated worked, how the wider spoils were divided, what power or control they and/or others had etc? Or, does none of this actually matter in such cases and might a Court refuse to entertain receiving such evidence because of the decision in Ahmad? Might this mean, in turn, that certain defendants, based on their perceived or believed role within a conspiracy or joint enterprise, would be precluded from invoking and relying on the new section? Alternatively, if and when raised by a defendant who played more than a discrete minor role in a joint obtaining case, will section 76(8) now require the Court to adjudicate on that which the Supreme Court said in Ahmad the Act did not appear to require when it said this: “In many cases it is often completely unclear how many people were involved in the crime, what their roles were, and where the money went. As a result, if the court could not proceed on the basis that the conspirators should be treated as having acquired the proceeds of the crime together, so that each of them “obtained” the “property”, it would often be impossible to decide what part of the proceeds had been “obtained” by any or all of the defendants. There is obvious cause for concern about having to inquire into the financial dealings between criminals who have together obtained property, especially given that the ringleaders are often not even before the court. It is one thing for the court to have to decide whether a defendant obtained any property, which the 2002 Act requires. It is another thing for the court to have to adjudicate on the respective shares of benefit jointly obtained, which the Act does not appear to require.” [para.56] Time will tell By Adrian Kayne If you’d prefer to download the article on PDF please click here

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Small Boats and Gross Negligence Manslaughter: Two Years on from R v Bah Bah was a gross-negligence manslaughter case where causation principles were considered in the context of the defence raising issues concerning his own trafficking. The Court of Appeal focused on these issues of causation in the specific context of a channel crossing, including on novus actus interveniens. Since this case there have been changes in the law – with creation of a new offence – which could be viewed as an attempt to avoid future issues on the Bah point. Introduction 1. The case of R v Bah [2024] EWCA Crim 1499 (Bah) came before the Border Security, Asylum and Immigration Act 2025 and as such the new provisions could be regarded as designed to deal with the legal uncertainty created by this case. Whilst the court confirmed that someone trafficked can be held legally responsible for manslaughter, refugee groups criticised this decision as it can on one view criminalises victims as opposed to targeting the smugglers who run the operations. 2. Section 21 of the 2025 Act now provides for a new offence to deal specifically with an offence of endangering another during sea crossing to United Kingdom. Refugee charities remain critical of this development setting out their concerns that this further codifies the unfair targeting of asylum seekers who are coerced by smugglers and traffickers in carrying out small boat crossings. This offence came into force on the 5th January 2026, amending s. 24 of the Immigration Act 1971. The s. 21 offence provides that where there is the commission of an underlying offence and during the relevant period an act causes or created the risk of death or serious injury, an offence is committed which carries a term of 5 or 6 years imprisonment (depending on the underlying offence). This deftly avoids the causation issues for the offence of gross negligence manslaughter. 3. Many refugee charities have written articles and blogs criticising the new Act. In particular, the Refugee and Migrant Children consortium (RMCC), which represents a group of NGOs and not-for-profit organisations in the sector, published a document detailing their criticisms: available here. 4. The Law Commission are currently undertaking an evaluation of the law on homicide exploring structural changes to bring clarity to the existing legislation. This includes proposals to create tier-types for homicide offences including specified offending conduct in codified form. The Commission published a consultation paper on 17th June 2026 proposing a three-tier structure for homicide with the consultation open until 30th September 2026 and a final report aimed at 2028. The proposals include reform to manslaughter which could impact on offences of gross negligence manslaughter as examined by the Court of Appeal in Bah. For more information, click here. BAH Case Study 5. On 19/02/2024, the applicant was convicted following re-trial at Canterbury Crown Court. He was convicted of the following counts: a. Doing an act to facilitate the commission of a breach of UK immigration law by a non-UK national (contrary to s. 25(1) and (6) Immigration Act 1971). b. Four counts of gross negligence manslaughter. 6. The applicant was sentenced to 9 years 6 months immediate detention with all manslaughter charges having the same length imposed concurrently. In relation to the breach of immigration law, he received 4 years concurrent. The applicant appealed against conviction and sentence. Factual Matrix 7. The applicant was 20 years old at the time of his conviction. He had travelled from Senegal to the UK to claim asylum. He had travelled by boat from Libya to Italy and made his way to Dunkirk where he stayed in ‘The Jungle’ for around three months. The applicant’s plan was to find opportunity to cross the Channel into the UK. 8. The applicant had previous experience of handling boats as he worked with fishing boats back in Senegal. He had assisted in piloting the boat from part of the crossing from Libya into Italy. 9. It was accepted by all parties that traffickers operating in this area charge large sums for the chance to travel to the UK across the Channel in small boats. Most of these individuals who undertake such a voyage do so in the hopes of making claims for international protection. The applicant did not have money to pay for the crossing attempt, but the traffickers approached him offering free passage for himself and a friend if he agreed to steer the boat. The applicant agreed. 10. The applicant and others who were also involved in the crossing were taken by car to the point where the boat would depart. There were 45 people who were intending to be part of the voyage. 11. Traffickers were armed and had threatened as well as assaulted passengers. The traffickers provided an inflatable boat which some of the passengers inflated. Most of the passengers then lifted the boat up and took it to the water. 12. The applicant raised his concerns with traffickers about the boat’s construction and number of intended passengers. It was accepted by the trial judge that he had been put under ‘verbal and some physical pressure’ not to refuse the task he had previously accepted. 13. The crossing happened later that evening. Two passengers used their mobile phones for navigation. For the first 45 minutes the sea was calm and the passage proceeded smoothly. However, within an hour, water started to enter the boat. The volume of water was so significant that the applicant steered the boat towards a fishing vessel, the Arcturus. The Arcturus was engaged in dredging for scallops. 14. Panic inevitably set in, the applicant urged other passengers to stay calm and in their seats. Unfortunately, passengers did not adhere to these instructions. As passengers stood up, the floor of the boat broke, and the boat collapsed in on itself. This trapped some of the passengers inside. 15. The crew of Arcturus helped to save the boat; the applicant was captured on video holding onto a rope to prevent the boat from drifting away. The applicant remained on the boat until most passengers had boarded the Arcturus. Other rescue vessels arrived. 16. The applicant was distressed because his friend was one of those persons that had become trapped in the collapsed boat. In the aftermath of the incident, it was uncovered that 4 passengers had died. The survivors were taken to Dover where they claimed asylum. The Trial 17. The prosecution relied upon expert evidence of a powerboat instructor and author of the advanced handbook on powerboats. The expert had further undertaken training in marine accident investigation. 18. The expert described the skipper’s role on a vessel as the person in charge with the responsibility for the safety of passengers on board and the course of the journey to be taken. The expert concluded that the applicant fulfilled this function as he was placed in charge of the vessel including the responsibility for its safety and that of passengers. 19. It was accepted that the boat was not of satisfactory construction. A craft of this kind was not intended for use in open seas across large distances. There were no necessary safety and navigation equipment provided. The boat was not safe for the purpose of carrying 45 people on open sea. 20. The expert described the Channel as one of the ‘busiest shipping lanes in the world’. The Channel is subject to careful traffic regulation and attempting to cross without any lights was perilous as they would be invisible to larger vessels. 21. Moreover, the weather at the time was cold. The sea temperature was 11.2 degrees with air temperature of 3 degrees. There was a clear risk of cold-water shock for anyone who fell into the water. The expert concluded that there was a significant risk of death to passengers. This risk was assessed as very obvious to most people. 22. The trial judge formed the view that any passenger who embarked on the voyage did so ‘freely and voluntarily […] knowing of the risks.’ Some passengers had helped to inflate the boat and been involved in navigation which consequently made them participants in undertaking the crossing. 23. The applicant raised the defence of duress at the hands of the traffickers. The Jury returned verdicts of guilty to the immigration charge and gross negligence manslaughter. The Appeal 24. The applicant sought leave to appeal against conviction on the following grounds: a. Ground 1: jury irregularity which prevented a fair trial b. Ground 2: trial judge erred in rejecting submission of no case to answer on manslaughter c. Ground 3: trial judge erred in law in that they failed to direct the jury that the deceased’s voluntary choice to risk death by joining the crossing and whether this was significant or more than minimal cause of their deaths. Ground 1: Jury irregularity 25. Following the applicant’s conviction on 19/02/2024, the trial court received an anonymous communication by email that related to the jury. The email came from a colleague of a member of the jury and concerned suggestions that – contrary to the well-known principles of jury confidentiality and judicial warnings for a member not to discuss the case outside of their number whilst a trial is ongoing – these rules had been breached. 26. The registrar referred this email to the Attorney General’s office. The potential jury irregularity was investigated but no action taken. The applicant submitted that the reasons why no action was taken should have been provided to the court. The Court of Appeal rejected the applicant’s challenge that the juror irregularity made the conviction unsafe. They made the following points: a. The email was not received until after verdicts were returned; b. No concerns raised by any juror regarding any misconduct; c. No evidence that the juror’s conduct during trial would render the conviction unsafe. Ground 2: Submission of no case to answer 27. It was accepted that passengers had entered the boat voluntarily. The defence argued in half-time submission that their voluntary action of boarding the boat was a novus actus interveniens that broke the chain of causation. They exercised free-will and choose to embark on a dangerous voyage in full knowledge of the risks. The applicant relied upon the principles laid down in R v Kennedy (No 2) [2007] UKHL 38 as well as other key authorities. These authorities were used to show that the decision of each deceased to take part in the perilous journey was entirely voluntary which fails to establish causation. 28. The prosecution resisted these arguments. Firstly, they distinguished that Kennedy deals with unlawful act and not gross negligence manslaughter. There were clear causation issues in Kennedy because the prosecution failed to identify the unlawful act upon which the manslaughter charge could be founded. The prosecution argued that it was the applicant’s actions in driving the boat across the Channel that resulted in deaths which occurred during this ongoing act. There was no novus actus interveniens. 29. The trial judge rejected the submission of no case to answer. He accepted that each deceased made a free, voluntary and informed decision to travel on the boat driven by the applicant. However, the trial judge held that the defendant and deceased were acting in concert to travel to the UK undetected which meant there was no break in the chain of causation. 30. The Court of Appeal held that: a. Causation is a central issue in result crimes, because causation is used to link the defendant with the criminal consequences of their action. Any assessment of legal causation should maintain focus on whether the accused should be held legally responsible for the consequences of his action. [para 28] 31. The court further considered the six elements of gross negligence manslaughter as confirmed in R v Broughton [2020] EWCA Crim 1093 as follows: a. The defendant owed an existing duty of care to the victim. b. The defendant negligently breached that duty of care. c. At the time of the breach there was a serious and obvious risk of death. Serious, in this context, qualifies the nature of the risk of death as something much more than minimal or remote. Risk of injury or illness, even serious injury or illness, is not enough. An obvious risk is one that is present, clear and unambiguous. It is immediately apparent, striking and glaring rather than something that might become apparent on further investigation. d. It was reasonably foreseeable that at the time of the breach of the duty that the breach gave rise to a serious and obvious risk of death. e. The breach of the duty caused or made a significant (i.e. more than minimal) contribution to the death of the victim. f. In the view of the jury, the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction. 32. The principles of causation dealt with in R v Wallace (Berlinah) [2018] EWCA Crim 690 were also considered. The Court of Appeal held the following at Paragraph 30: There are two well-recognised considerations: the first is that a chain of causation between the act of A and a result may be broken by the voluntary, deliberate and informed act of B to bring about that result; secondly, there is a distinction between “cause” in the sense of a sine qua non, without which the consequence would not have occurred, and “cause” in the sense of something which was a legally effective cause of that consequence. Where there are multiple legally effective causes, it suffices if the act or omission under consideration is a significant (or substantial) cause. There is a well-recognised distinction between conduct which (merely) sets the stage for an occurrence and conduct which on a common-sense view is regarded as instrumental in bringing about the occurrence. 33. They further endorsed the notion that the ‘free, deliberate and informed intervention of a second person, who intends to exploit the situation created by the first, but not acting in concert with him, is normally held to relieve the first actor of criminal responsibility.’ 34. The application made by the defence engaged the first limb of the test from R v Galbraith [1981] 1 WLR 1039. Namely, the evidence could not establish an offence having been committed by the applicant in this case because causation could not be established. 35. The Crown relied upon R v Wacker [2002] EWCA Crim 1944 which involved the facilitation of the illegal entry of 60 Chinese nationals to the UK in a modified refrigerated container of a lorry being driven by the appellant in that case. An air vent had been closed prior to the ferry crossing to prevent discovery of the individuals in the lorry. However, the vast majority died of suffocation with only two surviving. 36. The appellant in Wacker was charged with gross negligence manslaughter. The defence also made a submission of no case to answer which was rejected by the trial judge. On appeal the following was held: The criminal law has as its function the protection of citizens and gives effect to the state’s duty to try those who have deprived citizens of their rights of life, limb or property. Further the criminal law will not hesitate to act to prevent serious injury or death even when the persons subjected to such injury or death may have consented to or willingly accepted the risk of actual injury or death. 37. The applicant in Bah on this basis had to accept that he owed a duty of care to the deceased because he had assumed the role of skipper and had taken charge of the boat. The court held that there was no novus actus interveniens. The applicant and deceased were acting in concert in the same single episode that ended in death. Therefore, it was held that the trial judge was correct in rejecting the applicant’s submission of no case to answer. Ground 3: Voluntary Choice and Causation 38. The applicant submitted that the jury should have been directed on the deceased’s voluntary choice to risk death by joining the crossing as relevant to the issue of causation. 39. The Court of Appeal held that the trial judge correctly analysed that the deceased voluntarily joining the boat does not establish a break in the chain of causation. If the trial judge had given such a direction, it would have been a misdirection. Therefore, Ground 3 was also rejected. Appeal against Sentence 40. The sentencing judge treated the applicant as 20 years old and found he had low culpability as he was not involved in the organisation or coercion of passengers. He did not secure any financial gain except not having to pay for his own passage. 41. However, the judge did find a high degree of harm. The starting point was 5 years. The judge did consider the pressure he was put under, his age, his good character as well as mental health. The applicant also suffered traumatic hardships, and it was accepted that the applicant would struggle to cope in custody. Ultimately, the applicant received a sentence of 4 years on Count 1. 42. On Counts 2-5, the sentencing judge found higher culpability but did note that the deceased freely and voluntarily embarked on the journey in full awareness of the risks. The judge did note that the applicant remained on the boat to help other passengers. The judge had to sentence for four offences and in keeping with totality, the judge sentenced the applicant to 9 years 6 months concurrent with Count 1 of 4 years. 43. The applicant appealed against sentence stating that there should not have been a finding of a high degree of harm on Count 1. This argument was rejected by the Court of Appeal who approved the trial judge’s analysis of the factors to be considered when assessing harm. 44. The applicant also argued that in relation to the gross negligence manslaughter charges he should have been in a lower culpability category as his offending was lesser and subordinate to the traffickers who prey on the vulnerable. The applicant accepted medium culpability. 45. The Court of Appeal rejected these submissions. They noted that guidelines are not to be applied ‘mechanistically’. They concluded that there were features that indicated high culpability. The Court of Appeal noted that the applicant had persisted in conduct which demonstrated a clear disregard for the high risk of death. However, they did agree that the ultimate responsibility does lie with the traffickers. 46. The applicant also stated that the sentencing judge should have considered his age and other mitigating factors. The Court of Appeal rejected this stating that the judge was explicit about taking these factors into account. 47. The applicant then challenged sentence on the grounds that there was a failure to have proper regard to the principle of totality. The Court of Appeal did not agree the sentence to be manifestly excessive. They described the judge’s approach to totality as ‘unimpeachable’. Conclusion 48. Leave to appeal against conviction and sentence was refused. 49. In a time of great political upheaval on the topic of small boats and how different political groups have been accused of manipulating these narratives for their own agendas; this case should not be read as more than a comment on causation. To do so would be to misread the intentions behind the judgment of the Court of Appeal. The nuances raised triggered governmental response in the form of a statute dealing specifically with boat crossings. 50. There is an undeniable human tragedy at the heart of this case. People knowing that they take great risk of death to escape their circumstances. This indicates a level desperation that for many might evoke great sympathy. Reading this case may also elicit compassion for trafficked individuals like Mr Bah which would be an understandably human way to view his predicament – on his case he was forced to do what he did, and he did try to save people when things went terribly wrong. 51. Regardless of the emotional angles attached and notwithstanding recognition of the pressure the applicant was under this did not amount to the defence of duress. There was a general acceptance that Mr Bah’s vulnerabilities and circumstances mitigated his actions. However, the Court of Appeal focused on causation. This case goes no further than that. 52. Therefore, this case assists in relation to causation and confirms the application of the law without commenting on any political narrative arising out of asylum seekers and small boats. However, on one view the nuances arising out of this case caused the government to legislate for the new offence under s 21 perhaps to avoid these issues. The approach to prosecution of this offence and sentencing remains to be seen. 53. The Sentencing Council have launched a consultation on the proposed sentencing guidelines of these offences. Further information can be found here. By Alexandra‑Maria Eugenicos If you’d prefer to download the article on PDF please click here

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Stuck on You: Parasitic Hull-Mounted Narcotics, Maritime Forensics and Organised Crime at Sea For decades, maritime drug trafficking has been associated with concealed compartments, corrupt crews, and false cargo declarations. More recently, however, organised criminal groups have adopted a method requiring neither the knowledge of the shipowner nor the complicity of the crew. Instead, drugs are attached directly to a vessel’s hull below the waterline, allowing legitimate merchant ships, yachts and commercial vessels to transport illicit cargo unknowingly across international borders. Known variously as parasitic smuggling, hull-mounted trafficking or parasite trafficking, the technique represents one of the most sophisticated developments in maritime organised crime and drug smuggling. It exploits the vast scale of global shipping, the practical difficulty of inspecting submerged hulls, and the comparatively predictable movements of commercial vessels. This article examines how parasitic drug smuggling operates, why it has become attractive to organised crime groups, and the unique forensic and legal challenges it presents. What is parasitic smuggling? Parasitic smuggling involves securing packages of narcotics to the external hull of a vessel. Unlike traditional concealment methods, the drugs never enter the ship itself. Typically, waterproof packages are attached using: high-strength magnets bespoke steel cages epoxy or industrial adhesives straps secured around sea chests or structural fittings purpose-built hydrodynamic containers designed to minimise drag. Preferred attachment points include: sea chests stabiliser recesses bow thruster tunnels rudder assemblies propeller shafts bilge keels recesses beneath the counter stern. These areas provide concealment from casual inspection, while allowing experienced divers relatively rapid access. The operational model The attraction of parasitic smuggling lies in plausible deniability. A criminal group operating near the vessel’s port of departure attaches narcotics using commercial divers or specialist underwater teams. The vessel then proceeds on its ordinary commercial voyage. At the destination, another diving team removes the package before customs or port authorities become aware of its existence. If recovery fails, organised crime groups may simply abandon the package, rather than risk exposing the wider network. From the ship’s (and shipowner’s) perspective, nothing unusual may ever be seen to occur. The appeal of the practice Parasitic trafficking offers several operational advantages. First, it avoids corrupting crew members, reducing the number of conspirators and therefore investigative opportunities. Secondly, the drugs never appear disguised as (or concealed in) legitimate items in cargo documentation or manifests. Thirdly, legitimate shipping companies unknowingly provide international transportation free of charge. Finally, should authorities discover the narcotics, proving knowledge on the part of the vessel’s operators may be considerably more difficult than where drugs are concealed within the ship itself. For organised crime, the vessel becomes an unwitting courier. Underwater delivery Attachment operations are often conducted: at anchorages; alongside commercial berths; during periods of reduced security; while vessels await pilots; during prolonged maintenance delays. Commercial diving equipment is sufficient for many operations. Increasingly, however, investigators have reported sophisticated methods including: closed-circuit rebreathers to minimise bubbles; diver propulsion vehicles; GPS-assisted positioning; underwater communications; purpose-built hydrodynamic containers. Some operations have also exploited remotely operated underwater vehicles (ROVs), although human divers remain the predominant method of recovery. Recovery operations Recovery is often considerably more dangerous than attachment. Divers must identify the correct vessel among hundreds arriving within a major commercial port. Timing is critical, as is a degree of diving proficiency. Removal frequently occurs: before customs inspection; overnight; while vessels remain at anchorage; during pilot transfers; before cargo discharge. If the relevant authorities begin searching for underwater packages, recovery teams may abandon the operation entirely. Forensic challenges Hull-mounted narcotics present unusual evidential issues. Unlike drugs recovered from cargo holds, there may be little or no evidence linking the crew to the package. Investigators instead rely upon a combination of: underwater photography; diver body-worn video; ROV footage; marine growth analysis; corrosion patterns; attachment marks; toolmark examination; fingerprint recovery where feasible; DNA profiling; fibre analysis; packaging examination; chemical residue testing. The underwater environment rapidly degrades many forms of forensic evidence. Salt water accelerates corrosion, removes biological traces and contaminates latent fingerprints. Consequently, underwater scene preservation becomes particularly important. The importance of underwater scene preservation Once discovered, the temptation for teams may be to effect an immediate recovery of the drugs. However, premature removal can destroy valuable evidence. Investigators should consider: comprehensive underwater photography before disturbance; precise location mapping; measurements relative to hull features; examination of attachment mechanisms; recording marine growth; documenting corrosion interfaces; continuity of exhibits from recovery through laboratory examination. Underwater photogrammetry and three-dimensional modelling provide increasing opportunities to preserve the original scene before recovery. Marine growth as evidence One particularly interesting forensic consideration is that of marine biology. Barnacle development, algal growth and biofouling may provide an approximate indication of how long a package has remained attached. Although environmental variables prevent precise dating, marine growth can assist investigators in estimating whether attachment occurred shortly before arrival, or much earlier during the voyage. Such evidence may become relevant when reconstructing the chronology of drug trafficking operations. Intelligence opportunities Parasitic smuggling often reflects sophisticated transnational organised crime. Successful investigations therefore often extend beyond the simple recovery of narcotics. In trying to collate the narrative behind the package, investigators may exploit: AIS vessel movements; CCTV around ports; harbour access records; diving equipment purchases; marina CCTV; mobile telephone data; financial intelligence; port worker intelligence; customs databases; previous targeting reports. The objective then becomes identifying both the attachment and recovery teams (and the parties behind them), rather than merely seizing the narcotics. Legal considerations Parasitic smuggling raises difficult legal questions. Knowledge and possession become central issues. If neither the master nor crew knew of the narcotics, criminal liability may be difficult to establish. Investigators must distinguish between genuine ignorance and wilful blindness. Jurisdiction may also become complex where: attachment occurs in one State or jurisdiction; transit passes through several others; recovery is intended in a different State or jurisdiction; the vessel is registered elsewhere. This creates overlapping issues concerning territorial (and extraterritorial) jurisdiction, Flag State authority, and international co-operation. Mutual legal assistance, intelligence sharing and coordinated investigations are therefore essential for investigators to be able to effectively establish an evidential narrative as to what has occurred. The international legal framework Parasitic drug trafficking presents a unique challenge for international law because the conduct often spans multiple jurisdictions. Narcotics may be attached to a vessel in one State, transported unknowingly through the territorial seas and exclusive economic zones of several others, and removed in an entirely different jurisdiction. The vessel itself may be registered under the flag of yet another State, while those responsible operate across several organised criminal networks. Such cases therefore require the coordinated application of international criminal law, the law of the sea and domestic criminal legislation. The Palermo Convention The cornerstone of the international response is the United Nations Convention against Transnational Organized Crime 2000 (UNTOC), commonly known as the Palermo Convention. The Palermo Convention was designed to combat serious organised crime operating across international borders. Rather than creating detailed maritime enforcement powers, it establishes the legal architecture through which States cooperate in investigating, prosecuting and dismantling organised criminal groups. It provides a framework for mutual legal assistance, extradition, joint investigations, intelligence sharing and the confiscation of criminal proceeds. Hull-mounted narcotics operations illustrate precisely the type of criminal enterprise contemplated by the Convention. They typically involve structured groups operating over a sustained period, with clearly defined roles including organisers, logistics coordinators, divers, surveillance teams, transport facilitators and financial controllers. The deliberate compartmentalisation of these functions reflects the hallmarks of sophisticated transnational organised crime. In practice, prosecutions may depend upon the co-operation mechanisms established by the Palermo Convention. Evidence may need to be obtained from several jurisdictions, financial investigations coordinated internationally, and suspects extradited or prosecuted in the State best placed to do so. The Vienna Convention The principal treaty governing maritime drug interdiction is the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, often referred to as the Vienna Convention. Of particular importance is Article 17, Illicit Traffic by Sea. Article 17 requires States Parties to cooperate as fully as possible to suppress illicit drug trafficking at sea, consistently with the law of the sea. Where there are reasonable grounds to suspect that a vessel flying another State’s flag is involved in drug trafficking, the requesting State may seek confirmation of the vessel’s nationality and request authorisation from the flag State to board, search and, where appropriate, take enforcement action. This provision is especially relevant where intelligence indicates that a vessel is being used, knowingly or unknowingly, as a platform for parasitic smuggling. Although the narcotics may be attached externally rather than concealed within the ship, the vessel itself remains central to the trafficking operation. Co-operation between Flag States, coastal States, and law enforcement agencies therefore becomes essential. Article 17 has also encouraged the development of numerous bilateral and regional boarding agreements, enabling more rapid operational cooperation, while respecting Flag State jurisdiction. The Council of Europe’s 1995 Agreement implementing Article 17 is one prominent example. UNCLOS The United Nations Convention on the Law of the Sea (UNCLOS) provides the wider jurisdictional framework within which maritime drug interdiction occurs. Article 108 obliges all States to cooperate in suppressing illicit traffic in narcotic drugs and psychotropic substances carried by ships on the high seas contrary to international conventions. However, UNCLOS preserves the fundamental principle that vessels on the high seas remain subject primarily to the jurisdiction of their flag State. Accordingly, enforcement action against a foreign-flagged vessel suspected of involvement in parasitic trafficking generally requires either: the consent of the Flag State; authority under an applicable international agreement; or another recognised basis under international law. This balance seeks to preserve freedom of navigation while enabling effective suppression of transnational maritime crime. Evidential and jurisdictional challenges Parasitic smuggling creates evidential difficulties extending beyond traditional drugs prosecutions. Discovery of drugs attached to the hull does not, without more, establish that the Master, officers or crew possessed the requisite knowledge or control. Investigators must, therefore, potentially distinguish between an innocent vessel exploited by organised crime and one whose operators were complicit. This requires careful analysis of intelligence, communications data, vessel movements, surveillance material, forensic examination of attachment mechanisms and, where available, financial evidence linking individuals to the criminal enterprise. For prosecutors, these investigations frequently depend upon the complementary operation of the Palermo Convention, the Vienna Convention and UNCLOS. Together, they provide for the relevant State legal mechanisms necessary to investigate, cooperate across jurisdictions and prosecute increasingly sophisticated forms of maritime organised crime. Implications for the maritime industry Although relatively uncommon, compared to container trafficking, parasitic smuggling represents a disproportionate security concern – and is arguably on the rise as a form of narcotics trafficking. Shipping companies may, therefore, wish to consider: underwater hull inspections before departure from high-risk ports; random diver inspections; ROV surveys; enhanced waterside security; monitoring of unauthorised diving activity; crew awareness training; reporting procedures for suspicious underwater activity. Likewise, ports may also benefit from greater co-ordination between harbour authorities, customs agencies, coastguards and police diving units. Overall conclusions Parasitic hull-mounted narcotics illustrate the continual evolution of maritime organised crime. Rather than compromising the vessel itself, traffickers increasingly exploit the ship as an unwitting platform, transforming legitimate commercial shipping into an unsuspecting component of an international drug supply chain. For investigators, these cases demand expertise extending well beyond traditional enforcement. Marine casualty investigation techniques, underwater scene preservation, forensic science, intelligence analysis, and international legal co-operation all become critical. As underwater technologies continue to develop, so too will the methods employed by organised criminal networks. Effective countermeasures will therefore depend upon multidisciplinary collaboration between maritime professionals, forensic investigators, law enforcement agencies and legal practitioners. Ultimately, the most valuable evidence may not be that within the ship, but what lies beneath… Prefer to read this article as a PDF? Download a copy here.

Chaynee Hodgetts

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Libertas Chambers Hosts Landmark FASD Criminal Justice Training On Tuesday 5 May 2026, Libertas Chambers hosted a 2-hour training session for members of chambers and solicitor colleagues on FASD and criminal justice in England and Wales. Fetal Alcohol Spectrum Disorder (FASD) is a common neurodevelopmental disorder caused by prenatal exposure to alcohol. Research in the UK shows that FASD may occur in 3-4% of the population and research in Canada has found much higher figures for prison populations. However, FASD is often missed or misdiagnosed, leaving people with FASD and their families with insufficient support and access to services and at risk of ignorance in criminal justice. The training debunked the stigma blaming mothers for drinking alcohol during pregnancy with preliminary findings of causes by sperm from a male partner. The training also debunked the suggestion that all people with FASD have distinctive facial features where research shows it is found in only 10% of those affected. The research has found that FASD is rarely picked up and certainly not understood in criminal justice where it can lead to false confessions and a failure to identify relevant cognitive issues. The training discussed the need for screening tools in the police station and at court for defence lawyers to be able to identify those potentially affected in order to instruct suitable experts. It concluded that FASD can be relevant to fitness to plead, voluntariness, conduct, fault elements, and various defences alongside fitness to stand trial and special measures. We were delighted to welcome Dr Alan Price, Dr David Gilbert, Uzma Naseem, Tania Goddard and David Connolly (a father of a son with FASD who described their experiences of systemic failure). The event was moderated by Dr Felicity Gerry KC You can read more about the University of Salford FASD research here https://hub.salford.ac.uk/fasd/ You can read Felicity’s paper with David Gilbert and Gabrielle Hill here https://pubmed.ncbi.nlm.nih.gov/39875345/

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FASD Training for Legal Professionals | SAFETRAC Webinar Libertas Chambers is pleased to bring you specialist training webinar focused on Fetal Alcohol Spectrum Disorders (FASD) and their impact across the criminal justice system. SAFETRAC is a research-informed training programme designed to equip barristers, solicitors and legal professionals with a clear understanding of FASD and the significant implications it can have in practice. Individuals with FASD are disproportionately represented in justice settings, with international estimates as high as 46%, and may face particular challenges in understanding their rights, participating in proceedings, and providing reliable evidence. This session will provide a practical and accessible overview of the causes and characteristics of FASD, and examine how these factors influence offending behaviour, police interviews, fitness to plead, and court participation. Drawing on case examples and lived experience insights, the training will also highlight key indicators that legal professionals can identify, alongside practical strategies to safeguard client rights and ensure a fair process. The webinar is delivered by the Salford FASD research team, Europe’s largest specialist group in this field, offering extensive expertise to support legal professionals in strengthening advocacy, ethical practice, and communication when representing vulnerable clients. Session Details Date: 5 May 2026 Time: 5:30pm – 7:30pm Location: Virtual Register: https://forms.office.com/e/ry4xJuRdef Speakers Dr David Junior Gilbert, Chartered Psychologist and University Fellow in FASD and the justice system Tania Goddard, Solicitor and PhD researcher in FASD and fitness to plead Uzma Naseem, Lawyer and PhD researcher in FASD and harmful sexual behaviours Dr Alan Price, Lecturer in Psychology specialising in FASD and trauma This webinar is free to attend for Law Firms and Legal Professionals in the Libertas network To ensure you don’t miss out on future events please register for our newsletter by clicking here.

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Libertas Chambers Supports The Economist Sustainability Week 2026 We’re pleased to share that Libertas Chambers is supporting The Economist’s Sustainability Week next week, and Chambers Member Tanveer Qureshi has been invited to speak on a topic that is moving quickly from “good practice” to live legal risk – 𝗚𝗿𝗲𝗲𝗻𝘄𝗮𝘀𝗵𝗶𝗻𝗴 𝘂𝗻𝗱𝗲𝗿 𝘁𝗵𝗲 𝗺𝗶𝗰𝗿𝗼𝘀𝗰𝗼𝗽𝗲: 𝗿𝗶𝘀𝗸, 𝗿𝗲𝗴𝘂𝗹𝗮𝘁𝗶𝗼𝗻 𝗮𝗻𝗱 𝗿𝗲𝗽𝘂𝘁𝗮𝘁𝗶𝗼𝗻𝗮𝗹 𝗿𝗲𝗮𝗹𝗶𝘁𝘆 🗓️ Tuesday 3 March 2026 | 15:00 GMT | 30 minutes 📍 InterContinental London – The O2 This invitation reflects Tanveer Qureshi’s growing presence in ESG and sustainability – related regulatory work, and the increase in instructions in matters where environmental claims, disclosures, and supply-chain assurance are central issues. Ahead of the session, Tanveer comments: “As scrutiny intensifies, environmental claims are no longer a marketing flourish. They are increasingly treated as statements that must be evidenced and, if they are not, the consequences can be regulatory, commercial, and reputational. In my session, I’ll look at what is changing in practice: where enforcement attention is landing, how claims are being tested, and why businesses with complex supply chains are often the most exposed. The focus will be practical: what “good” looks like in 2026 for manufacturers, retailers, and brands – particularly when it comes to substantiation, governance, and the internal controls that sit behind sustainability messaging. I’ll also cover the UK landscape and regulators, including the CMA and ASA, and how their approach feeds into wider board-level risk management.” Visit the event site for more details: https://events.economist.com/sustainability-week/

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