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Featured Chambers & Partners and Legal 500 Guides 2024 – Libertas Rankings Announced Libertas Chambers are delighted to announce that our clerking team and 12 of our Barristers have been ranked in the latest editions of the Chambers & Partners and Legal 500 directories. Libertas thanks all those who provided such positive assessments and congratulates all our clients, partners and colleagues who have also been ranked. Head of Chambers, Simon Csoka comments “In Libertas Chambers’ third year we have gone from strength to strength with our members appearing in many of the main fraud and criminal trials nationally. We are delighted to see many of our silks and juniors ranked as leading practitioners in Crime and Financial Crime / Fraud. We congratulate them all and also acknowledge the many achievements of all of our other members over the last 12 months, together with the hard work of our clerking team. We thank our instructing solicitors for their continuing support and their positive feedback in the guides.” Libertas Chambers – Leading Set – Crime & Financial Crime – View Chambers & Partners profile Crime – London (Bar) Band 4 -Libertas Chambers is a virtual set with its London facilities on Old Bailey. The set has expanded considerably since its formation in 2020 and now has a considerable crime offering. Barristers here frequently defend clients accused of the most serious crimes, including those involving infanticide, familicide, homicide and terrorism. It has specialist teams for human trafficking and modern slavery, and appellate cases. Recent cases have included the defence of Agneskia Kalinowska in her trial for the torture and death of her son. Financial Crime – London (Bar) Band 4 – The barristers at Libertas Chambers are regularly called upon to represent major corporates, financial institutions and individual clients in complex cases involving allegations of bribery, corruption, money laundering and investment fraud. Additional areas of expertise for the team include insider trading, pension mis-selling and tax evasion cases. The set’s tenants also have considerable experience handling cases with an international element. Tenants are involved in some large-scale cases such as the defence of an individual in a £26 million money laundering prosecution following high-profile celebrity burglaries. Client Service: “The clerks are very proactive and their networking is great, which is massively helpful.” Director of Clerking Marc King is “hugely experienced. He works hard to deliver the best results for everyone.” Clients note in particular the set’s flexibility due to its virtual nature, highlighting that Libertas “was one of the first sets to go virtual and have an offering with meeting rooms in every city in the country. It has really worked.” “If any work needs to be done, the clerks carry it out professionally and quickly.” “Their clerking is very good.” Director of clerking Marc King is “super – he is always contactable, day or night, he is very proactive and his networking is great as well.” Individual Ranked KCs & Juniors Simon Csoka KC – Ranked in: Crime Band 3, Financial Crime Band 2 – View Chambers & Partners profile Simon Csoka KC is a well-regarded criminal barrister who is regularly called upon to defend individual clients in complex and high-profile criminal cases. He has considerable experience handling cases involving allegations of large-scale fraud. “He has a phenomenal capacity for memory and is so great on the detail. He is a polished performer and a great advocate.” “He is a bright and able advocate.” “His memory and grasp of a case is absolutely phenomenal.” “He is dynamite: fierce in his arguments, with a very big intellect.” “His knowledge and willingness to fight for a client are of the highest level.” “He is just phenomenal. You sit back and watch him at work and you just see a true expert.” “He’s a go-to for encrochat cases because of his intellect. The arguments he deploys are exceptional.” Legal 500 – Crime – Tier 3 ‘Simon is at the top of his game – a silk that everybody wants to instruct. He is incredibly bright and extremely persuasive. A phenomenal advocate that commands the respect of the courtroom. He is highly respected by the judiciary and his peers and is a joy to watch. One of the best around.’ Leonard Smith KC – Ranked in: Crime Band 5, Financial Crime Band 4 – View Chambers & Partners profile Leonard Smith KC is a criminal defence silk who commands respect for the pains he takes with his preparation and for the persuasive advocacy he delivers in court. He regularly handles cases involving allegations of mortgage fraud, breach of sanctions and overseas corruption. Smith is frequently instructed by both corporations and individuals, and has a strong record of acting in cases with a global reach. He has notable expertise in international bribery cases. “A fierce advocate who leaves no stone unturned.” “His knowledge base and his mental agility are unrivalled.” “His gravitas is undeniable.” “His advocacy is absolutely fierce.” Legal 500 – Crime – Tier 3 ‘A leading star of the criminal Bar, Leonard excels in cases of the utmost complexity. Thoroughly prepared, he knows all the angles and you want him on your side when the odds are against you. A devastating cross-examiner.’ Adam Kane KC – Ranked in: Crime Band 3, Financial Crime Band 3 – View Chambers & Partners profile Adam Kane KC handles matters involving suspected corruption, tax evasion and money laundering. Kane is frequently instructed to represent professionals facing charges of tax and investment fraud. He has added experience in bribery cases. “He is very good at the detail of frauds and is able to understand the realities of what is going on.” “Adam is a fearsome competitor, an impeccable advocate and highly knowledgeable about the law.” “He’s incredibly erudite and has a wonderful turn of phrase.” “Adam is a heavyweight advocate with vast experience and great tactical know-how.” Legal 500 – Crime – Tier 4 ‘Adam is an extremely hard working and diligent silk. His legal knowledge is extensive and his applications and arguments beautifully and clearly presented, both in writing and orally.’ Felicity Gerry KC – Ranked in Crime Band 5 – View Chambers & Partners profile “She’s an advocate’s advocate, who presents well to juries.” Legal 500 – Crime – Tier 3 ‘Felicity is a fearless courtroom performer, dedicated to putting her clients’ cases faithfully and sympathetically. She is also an authoritative legal analyst. She therefore engages the attention of both juries and judges.’ Keith Mitchell – Ranked in: Financial Crime Band 3 – View Chambers & Partners profile Keith Mitchell frequently acts unled, acting for the defence in high-value cases. His caseload includes a number of tax fraud, corruption and trading standards matters. He has noted expertise in major bribery cases and is adept at handling cross-border issues. “Clients love him and he is a joy to watch in court.” “From managing clients to focus of instructions, guidance and the way he presents himself, Keith is a pleasure to work with.” Legal 500 – Fraud: Crime – Tier 3 Keith is a very persuasive jury advocate and and has excellent pastoral skills with lay clients putting them at ease in the most stressful of cases.’ Roxanne Morrell – Ranked in: Crime Band 5 – View Chambers & Partners profile “Hard-working, professional and no nonsense in her approach.” “She’s an excellent cross examiner.” James Walker – Ranked in: Crime Band 6 – View Chambers & Partners profile “Excellent, not only in his preparation, but also with the client and before the jury.” Gerard Hillman – Ranked in: Crime Band 4, Financial Crime Band 3- View Chambers & Partners profile Gerard Hillman is a proven defence advocate who handles high-value financial crime work, including money laundering, VAT and investment fraud cases. He is singled out for his ability in tax fraud cases. Hillman offers significant expertise in boiler room fraud matters. “He has got really good tactical acumen and a fantastic practice.” “Gerard is a brilliant jury advocate – he’s very persuasive and has a nice, easy going manner.” “Gerard has really good tactical acumen. He sees where he wants to get to in a case and just exactly how he’s going to get there.” “He’s very persuasive and has a very good style in front of a jury.” Legal 500 – Crime – Tier 4 ‘Gerard is intellectually strong and excellent on the facts of a case. His advocacy is second-to-none and he is a user-friendly counsel. Gerry is also a team player and a class act.’ Marie Spenwyn – Ranked in: Crime Band 5 – View Chambers & Partners Profile “Always well prepared and a consummate professional, she is fantastic to work with.” “She has fantastic judgement and is really good at the detail.” Frances Hertzog – Ranked in: Crime Band 6 – View Chambers & Partners Profile “Excellently well prepared and dedicated to the cause.” Matthew Lawson – Legal 500 – Crime Tier 4 ‘Matt is a true jury advocate – he is extremely engaging with a jury and inevitably gets them on side. He is an excellent barrister with exceptional client care and clients love to have him on their side. He is a real fighter and leaves no stone unturned.’ Oliver Cook – Ranked in: Crime Band 5 – View Chambers & Partners profile “Oliver has just got this presence in court about him and he always connects with clients and juries. He is able to present very difficult cases in the most attractive way and gets some extraordinary results.” “A fearless, polished advocate.” Legal 500 – Crime Tier 4 ‘Oliver is a fighter and will not accept any adverse evidence without challenging it and trying to do the best for his client. He is also a natural advocate.’ Of the chambers, and clerking team Legal 500 report the following: Libertas Chambers Founded in 2020 as a virtual set, Libertas Chambers is fast gaining a reputation for excellence, with members having recently been instructed in relation to significant murder, terrorism and organised crime cases. Simon Csoka KC, ‘a fearsome cross-examiner and one of the finest criminal silks in the land’, has a leading practice which largely consists of organised crime and murder cases as well as major drugs mandates and high-profile private instructions. He has recently represented Fleetwood Town manager and former professional footballer Joey Barton in two cases, in which he was both acquitted. Felicity Gerry KC is ‘a force of nature‘ who handles homicide, terrorism, and modern slavery cases, among others. Testimonials ‘Marc King is a cut above. He understands the difficulties solicitors have to deal with and does all he can to try and deliver on consistent service. Louis King also takes the time to make sure solicitors are updated and is always courteous and respectful.’ ‘Marc King is a truly remarkable figure amongst criminal clerks. He is agile, responsive and understands what is needed in cases such that his recommendations are well received. He leads an excellent team of counsel and practice administrators.’ ‘Louis King abounds with calmness and common sense and Gary Douglas is a work-horse who loves the job and will do anything for a client.’ You can read more about what the Guide says about us by visiting Chambers Guide 2024

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Featured Libertas member selected in top 5 international lawyers Labelled “The International Dynamo” Felicity came in second only to Camille Vasquez who ranked first for her recent performance during the highly publicized defamation cases of Depp v. Heard. Felicity was recognised for her work on due diligence in investment listing on SGX for Justice for Myanmar, which led to the $82m divestment of the Golden City scheme and for leading the legal fight and petition for Christine Keeler to receive a posthumous pardon after the fallout of one of Britain’s biggest ever political scandal, The Profumo Affair, in the 1960s Law&Crime Productions is headed by award-winning ABC News Chief Legal Correspondent Dan Abrams. Abrams is also the host of SiriusXM’s The Dan Abrams Show: Where Politics Meets the Law and the former host of the #1 show on weekend primetime cable Live PD on A+E. Tapping into a talent pool of crime producers, lawyers, former prosecutors and law enforcement officers, Law&Crime Productions has unique and unprecedented access to key sources. Whether scripted, unscripted, or for digital, we create compelling programming with top ratings and millions of views without sacrificing our commitment to accuracy and exceptional understanding of crime and the law. Read more here https://lawandcrime.com/partner-content/meet-the-top-5-international-lawyers-you-want-on-your-side/

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Latest News

Art Not Evidence Campaign Dr Felicity Gerry KC is a member of the Art Not Evidence campaign mentioned in the Times Law section today. The Art Not Evidence mission is to fight for a fairer criminal justice system by advocating for a restriction on the use of creative and artistic expression as evidence in criminal trials. The group is collaborating with musicians, community groups, and human rights organisations to campaign for law reform and promote the decriminalisation of rap music and creative expression more broadly. The hope is to create a more equitable and inclusive society that respects the freedom of artistic expression for all. In broader terms Felicity has explained in our webinar on the use of rap music in criminal trials creates an unfair focus on character and culture rather than any individual contribution to a crime which risks unsafe verdicts. Read about Art Not Evidence and the open letter to the Secretary of State for Justice here https://artnotevidence.org/our-mission/ Read the Times Law article by Catherine Baksi article here https://www.thetimes.co.uk/article/concern-over-use-of-drill-music-in-court-d229p00ng

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FELICITY GERRY KC JOINS WE LEVEL UP Felicity joined a coalition of lawyers, academics, psychiatrists, and organisations with significant interest in, and long experience working with, perinatal women in the criminal justice system in making a submission to the Sentencing Council consultation led by WE LEVEL UP. Question 17: ‘Do you agree with the proposed new mitigating factor and expanded explanation relating to pregnancy? If not, please provide any alternative suggestions. Answer: NO: The Level Up submission relies on a wealth of authoritative research to demonstrate that the current proposal is insufficient and there should be a new mitigating factor which specifies that pregnancy, maternity, and the postnatal period is relevant to the sentencing of a female defendant convicted of any crime, and that an associated explanation should be included in all sentencing remarks. The submission makes alternative suggestions including additional measures should also be introduced to avoid custody where a pregnant woman’s sentence is over the custody threshold, or she is facing a mandatory minimum sentence. In practical terms, this means: Where a woman is on the cusp of custody, a non-custodial sentence must be considered. Where a woman is over the custody threshold and facing a custodial sentence of up to 2 years, a suspended sentence must be considered based on the significant harm custody or separation causes to pregnant and postnatal women and their dependants. Where a woman is facing a sentence of over two years, or a mandatory minimum sentence, pregnancy, and the postnatal period to constitute an ‘exceptional circumstance’ that makes the imposition of the minimum term a disproportionate sentence and would justify not imposing the statutory minimum sentence. This approach gives due weight to the significant harm caused by custody to the pregnant woman, her unborn child and a baby who may be born in prison. It also prioritises the best interests of the child over separation and fits with the Ministry of Justice Female Offender Strategy which identifies that “custody is particularly damaging for women” and that many female offenders could be more successfully supported in the community, where reoffending outcomes are better. The impact of custody on a woman who is pregnant is very likely to cause significant harm to the physical and mental health of both the mother and the child. Without a full medical and social picture of the pregnant or postnatal woman, there is a significant risk that sentencers will be unwittingly sentencing a mother to a stillbirth, a baby to death or other serious complications, or an infant to developmental trauma. and the sentencer should give reasons for all sentences of pregnant or postnatal women addressing the known research and data. Download the submission by clicking this link Find out more about Level Up here https://www.welevelup.org/

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Dr Felicity Gerry KC in Daily Mirror on campaign to exonerate Christine Keeler Dr Felicity Gerry KC appears in the Daily Mirror on the campaign to exonerate Christine Keeler. The campaign for the posthumous exoneration of Christine Keeler was covered for 3 days in The Mirror. The campaign is being brought by her son Seymour Platt who was left the task of telling her real story in her will. Dr Gerry KC explains: “At the height of the “Profumo Scandal” Christine was the victim of a violent assault by a man called Lucky Gordon. He was prosecuted, but sacked his lawyers and represented himself. In cross examination of her, he admitted assaulting her. She told the police she had not mentioned two other witnesses because they asked her not to. on the suggestion that she had lied about about who was present, Gordon’s conviction was quashed by the Court of Appeal and she was prosecuted for perjury. She pleaded guilty and was sent to prison. “She was under terrible pressure. For example, news reports account members of the public throwing eggs at her when she attended the Old Bailey in Stephen Ward’s trial where she was also infamously accused of being a sex worker. Ward took his life before verdicts on whether it could be proved he was living on her “immoral” earnings. Most people now accept this was a travesty of justice. It certainly framed her appallingly for the rest of her life, as Seymour Platt has explained in the Mirror. “The law on the charges Christine faced (despite being a victim) only applies if there is a “material lie”. That Christine did not state that two other men were present when she was violently assaulted was totally irrelevant, especially as a proper investigation would have revealed they saw the attack and supported her account and because her attacker admitted in court he assaulted her. “The Criminal Cases Review Commission is now quite properly investigating the case. The implications of the comments her barrister Jeremy Hutchinson QC made at the time make it obvious she pleaded guilty when she was not, and she was appallingly shamed, unlike others whose reputation has been restored. “There is a real risk that she was wrongly convicted by her own plea on an incorrect application of law on credit / lies. Sending her to prison was dreadful and she rightly deserves a posthumous exoneration. It would also go a long way to reframing a case that is the epitome of slut shaming and has had lasting implications for all women being improperly framed as liars, fitting with modern CPS guidance on violence against women and girls” You can read more here https://www.mirror.co.uk/news/uk-news/profumo-sex-scandal-icon-christine-31477770

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Dr Felicity Gerry KC Interview – BBC Radio 4 Dr Felicity Gerry KC interviewed by Joshua Rozenberg KC(Hon) on BBC Radio 4 Law in Action raising serious concerns about the approach to #jointenterprise murder. She deals with how the current approach of the Court of Appeal is another error of law that is inextricably linked with both the safety test and the powers of the CCRC and the refusal of the UK Supreme Court to exercise supervisory jurisdiction. You can listen here https://www.bbc.co.uk/sounds/play/m001rq6t Her latest article on “joint enterprise” law can be found by on LinkedIn

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Latest Insights

Chambers Article: Rule 25.9(2)(c): Defence Statements and ‘openings’ Traditionally in England and Wales the defence may give an opening address at the start of the defence case, but only where evidence is to be called other than from the accused person. In many cases this means that the issues are not identified clearly until a late stage and in long cases there can be an advantage to the prosecution to dominate the trial issues. In a recent webinar we discussed this topic of delivery of defence openings / summary of issues and how defence statements can be framed to support a defence opening. This article is a summary of the key provisions discussed. Click below to read in full. Download Article now To stay up to date with insight articles, webinars and chamber news why not subscribe to Libertas Lens (our periodic newsletter) – Click here to register

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Chambers Article: The ‘Fediverse’ vs P2P: The next generation of digital forensics The courts of England and Wales may still be dealing with the many EncroChat-related prosecutions, but technology has already moved on. While many are focused on AI and its potential for misuse, what some overlook are the networks on which these platforms operate. You may never have heard of the ‘fediverse’ but, if you practise criminal law, you should understand the basics, says Benjamin Knight. Click below to read in full. Download Article now To stay up to date with insight articles, webinars and chamber news why not subscribe to Libertas Lens (our periodic newsletter) – Click here to register

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Unreasonable delay… Sufficient to warrant a permanent stay of criminal proceedings? Article originally posted 9th June 2023. Updated: 18th August 2023 In England and Wales, the answer to this question is no. However, in Canada, a more robust approach is taken to procedural delay in certain circumstances. This article discusses delay to the criminal trial process, once it has begun. This is to be distinguished from the timely prosecution of certain categories of offence which come to light or are reported many years after they were committed, as occurred e.g., in Sawoniuk who was tried and convicted some 50 odd years after his war crimes. England and Wales Article 6(1) of the European Convention on Human Rights provides that every person charged with a criminal offence has the right to a fair trial by an independent and impartial tribunal within a reasonable time. The reasonable time right is not unqualified, but it has been held to be both independent of and separate to the co-existing rights in article 6 to a fair trial by an independent and impartial tribunal. It has been given effect in the domestic laws of England and Wales by the Human Rights Act 1998 which requires public authorities to act in a convention compliant manner. Therefore, as far as an individual charged with a criminal offence is concerned, and in very broad terms, this means that their convention rights not only trump the common law where there may be conflict between the two, but that prosecuting authorities and criminal courts must act in a manner which is compatible with their convention rights. In most cases, time starts to run from the moment a person is charged or summonsed and it continues until the conclusion of any appeals, including appeals against confiscation orders. In order to establish a breach of the reasonable time requirement, an accused is not required to demonstrate prejudice; once a breach has been established, however, the concept of prejudice looms large when the criminal court comes to consider the appropriate remedy for the breach. Typically, this is because an accused whose reasonable time right has been breached, will apply for a stay of the proceedings as an abuse of the process of the court, thereby bringing into play ordinary and well-settled abuse of process principles. The established cases in England and Wales which deal with the appropriate remedy for a breach of the reasonable time requirement are: Attorney General’s Reference (No.1 of 1990) [1992] 95 Cr. App. R. 296, Attorney General’s Reference (No.2 of 2001) [2004] 2 A.C. 72, R v S. (S.P.) [2006] 2 Cr. App. R. 23 and R v F. (S.) [2011] 2 Cr. App. R. 28. Taken together, the following principles emerge: (i) a permanent stay is the exception rather than the rule; (ii) there should be no stay in the absence of serious prejudice to the defendant being tried; (iii) the court is under a duty to regulate and control its proceedings to ensure that the defendant receives a fair trial, notwithstanding the delay. (iv) a permanent stay of proceedings should only ever be ordered in circumstances where the defendant cannot receive a fair trial or where, for a compelling reason, it is no longer fair for the defendant to be tried; (v) in the latter case, a permanent stay will never be warranted in circumstances where a lesser remedy to mark the breach will suffice. Canada Section 11(b) of the Canadian Charter of Rights and Freedoms, contained in Part 1 of the Constitution Act 1982, provides that, “any person charged with an offence has the right to be tried within a reasonable time.” Section 11(d) provides for the co-existing rights to a fair trial by an independent and impartial tribunal. Prior to 2016 and the Supreme Court of Canada’s decision in R v Jordan, [2016] SCC 27 (CanLii), violations of the section 11(b) charter right were determined according to the “the Morin framework”, following the Court’s earlier decision in R v Morin, [1992] CanLii 89 (SCC). The Morin Framework Morin was a straightforward drink-driving case from the state of Ontario which enjoyed a delay of 14.5 months between the defendant being charged and her trial taking place. Her counsel had requested the earliest possible trial date. On the day of trial, counsel applied to stay the proceedings alleging a violation of the defendant’s section 11(b) constitutional right to be tried within a reasonable time. This application was dismissed and the defendant was convicted. Her case progressed all the way up the Supreme Court of Canada (“SCC”). The Court held that in determining an alleged section 11(b) violation, it was not apposite to apply a mechanistic or mathematical formula. Instead, a judge was required to balance the protection afforded to the individual by section 11(b) against other factors which inevitably lead to delay. These other factors were: the length of the delay; any waiver of time periods by the defence; the reasons for the delay, including (a) the inherent time requirements of the case, (b) the actions of the accused, (c) the actions of the Crown, (d) limitations on institutional resources, and (e) other reasons for delay; and prejudice to the accused. The majority stated that unreasonable delay should only be investigated if the period was long enough to raise an issue as to its reasonableness. Short periods of delay would only be capable of raising an issue if a defendant could demonstrate prejudice. With respect to limitations on institutional resources in particular, the Court suggested guidelines of 8 to 10 months for provincial courts to determine matters and 6 to 8 months, post-committal, for trial in the higher courts. It made clear, however, that these were guidelines only, not intended to operate as a limitation period and that they were to be weighed in the scales with the other factors which they had identified. The Court recognised that the practical application of these guidelines would be influenced by the extent to which an accused might suffer prejudice. The Court noted that the guidelines would require adjustment by regional courts to reflect local conditions and that they would also need to be adjusted from time to time to reflect changing circumstances. The Court observed that prejudice might be inferred from the length of the delay: the longer the delay, the more likely an inference of prejudice. However, if prejudice could not be inferred by the court or proved by an accused, any suggestion of an alleged violation would be seriously undermined. The protection afforded by section 11(b) was to ensure that trials were brought on swiftly and to minimise prejudice, not to avoid trials on their merits from ever taking place. A defendant’s attitude to securing a timely trial was an important consideration to be weighed in the scales. A balance had to be struck between the public interest, which demands that persons charged with offences should be brought to trial, and the accused’s interest in the prompt and efficient determination of criminal proceedings. Prior to the SCC’s decision in Morin, an extreme example of a section 11(b) violation which resulted in a stay is to be found in R v Rahey [1987] CanLii 52 (SCC). The provincial court judge presiding over the matter caused an 11-month delay after the prosecution had closed its case and the defendant had asked for a directed verdict of acquittal. Initially, the accused did not object to the delay. After 9 months, he wrote to the Crown requesting that it should press the judge for a decision. He then alleged that his constitutional rights were being violated and requested a withdrawal of the charges. These requests were refused. Instead, the Crown made an application to the superior court for mandamus to compel the provincial judge to deliver a ruling. The day before the provincial judge was due to give the ruling, the defendant made an application to the superior court for an order dismissing the charges on the basis that his section 11(b) constitutional right had been violated by the provincial court. The superior court judge granted the defendant’s application and held that the trial judge’s delay had caused him serious prejudice by frustrating his ability to (i) conduct his defence, and (ii) carry on business while under a financial restraint order. The superior court judge concluded that the only appropriate remedy for the breach was a dismissal of the charges. The Court of Appeal reversed this decision and directed that the trial in the provincial court should continue. It found that the evidence of prejudice was “insubstantial and entirely speculative.” The SCC allowed the accused’s appeal and ordered a stay of the provincial court proceedings. It is of some note that 6 of the 9 SCC Justices empaneled to hear this appeal were of the view that a stay of proceedings was the minimum remedy because the provincial court had lost its jurisdiction to continue trying the accused when it became the author of the section 11(b) violation. R v Jordan [2016] SCC 27 – The New Framework Jordan was charged in December 2008 with offences relating to the supply of controlled drugs. His trial ended in February 2013. He made an application under section 11(b) for a stay of the proceedings on account of the delay. The trial judge applied the Morin framework, dismissed the application and the defendant was convicted. He appealed to the Court of Appeal which dismissed his appeal. The SCC allowed his appeal, set aside his conviction, and ordered a permanent stay of proceedings. The SCC introduced a new concept of presumptive ceilings beyond which any delay is presumed to be unreasonable unless there are exceptional circumstances justifying it. Once a presumptive ceiling has been exceeded, a permanent stay will follow unless the crown can justify the delay. There is no longer a need for an accused to demonstrate prejudice. Unlike the position in England and Wales, accused persons do not have to invoke abuse of process principles and prove on balance of probabilities that they cannot have a fair trial or that it is no longer fair for them to tried. Unless there are exceptional circumstances to justify it, exceeding the presumptive ceiling, in and of itself, leads to a permanent stay and the burden is on the Crown to justify any delay under the exceptional circumstances exception. The majority of the SCC opted for a new framework stating that the Morin framework, “…had given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it. Doctrinally, the Morin framework is too unpredictable, too confusing, and too complex. It has itself become a burden on already over‑burdened trial courts. From a practical perspective, the Morin framework’s after‑the‑fact rationalization of delay does not encourage participants in the justice system to take preventative measures to address inefficient practices and resourcing problems.” “A new framework is therefore required for applying s. 11(b)… At the heart of this new framework is a presumptive ceiling beyond which delay — from the charge to the actual or anticipated end of trial — is presumed to be unreasonable unless exceptional circumstances justify it. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry).” The new framework is applied as follows: Defence delay (caused or waived) does not count towards the presumptive ceiling. Once the applicable presumptive ceiling has been exceeded, the Crown bears the burden of rebutting the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do this, a stay will follow. “Exceptional circumstances” are circumstances which lie outside the Crown’s control. They must be reasonably unforeseen or reasonably unavoidable, and not reasonably capable of remedy. Whether circumstances are exceptional will depend on the trial judge’s good sense and experience. In general, exceptional circumstances will fall under two categories: discrete events and particularly complex cases. If the exceptional circumstance relates to a discrete event (such as an illness or unexpected event at trial), the delay reasonably attributable to that event is subtracted from the total delay. If the exceptional circumstance arises from case complexity, the delay is reasonable and no further analysis is required. An exceptional circumstance is the only basis upon which the Crown can justify a delay that exceeds the presumptive ceiling. The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. The absence of prejudice to an accused person cannot be used to justify delays after the presumptive ceiling has been breached. Only circumstances that are genuinely outside the Crown’s control and ability to remedy may excuse prolonged delay. Below the presumptive ceiling, the burden is on the defence to show that the delay is unreasonable. To do so, the defence must establish that: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail. Stays beneath the presumptive ceiling should only be granted in clear cases. Turning to Jordan’s appeal, the total delay from the date on which he was charged to the end of his trial was 49.5 months. From this, the Court deducted a 4-month adjournment period for a delay which had been caused by the defendant changing his counsel shortly before his trial was due to begin. A further 6 weeks was deducted on account of a further delay occasioned when the defendant’s counsel was unavailable. This left a delay of 44 months which the Court found “vastly exceeded” the 30-month presumptive ceiling for superior court cases under its new framework. While there were some complexities to the defendant’s case, they were not of a kind that could reasonably justify this level of delay. Accordingly, as the Crown was unable to demonstrate that the delay was reasonable, the only remedy for the breach was a stay of the proceedings. Discussion On any view, the Canadian presumptive ceilings are very generous for most criminal cases being tried in the higher and lower courts. They amount to this: superior court cases must conclude within 2.5 years from the date on which a suspect is charged and provincial court cases must finish within 18 months. These are significant time periods for the vast majority of criminal cases. They were set with a view to tackling chronic delays and a culture of complacency to delay which had become embedded in some parts of the Canadian system. The SCC spoke of the need for everyone involved in the Canadian criminal justice system to address inefficient working practices and adequacy of resource problems. In considering the potential utility, therefore, of the Canadian model to practice in England and Wales, one probably needs to consider, first, whether there are, in fact, any Crown Court cases presently taking longer than 2.5 years from charge to conclusion? And in Magistrates and Youth Courts, whether there are any cases that are not being disposed of within 18 months? There may not be that many. Judges and list officers in England and Wales have consistently shown a determination to have trials warned or fixed in the court calendar as soon as possible. Most trials, including those requiring High Court or specialist ticketed judges, used to be warned or fixed for trial within no more than 6 to 9 months of the PCMH; many within less time than this depending on the court centre. Cases were not infrequently moved between different court centres, both on and off circuit, to ensure that they could be tried as quickly as possible, regardless of counsel’s convenience and often to the chagrin of busy counsel. So, in a sense, the Canadian model may not be a good fit to the system in England and Wales. However, should the criminal justice system in England and Wales ever find itself overwhelmed or close to breaking point, to the extent that criminal cases are no longer capable of being listed and disposed of within the reasonable time frames that judges and list officers applied historically and did their best to adhere to, a brave counsel somewhere might wish to take a stab at presenting the Canadian model, with the ceilings suitably adjusted to reflect our own historic standards of efficiency and expedition. Who knows, it might just find favour with some Judges in some cases without the need to demonstrate prejudice and unfairness. In relation to substantial complex fraud cases which in some instances can conceivably take longer than 2.5 years to reach a conclusion, under the Canadian model the complexity of these cases is deemed capable of amounting to an exceptional circumstance justifying the reasonableness of the delay such that no further inquiry is required. Having said this, it is probably fair to observe that there must come a point at which even complex cases should not be allowed to drift on if they cannot be made ready for trial and accommodated by a crown court centre within a reasonable time. Rahey and Morin were considered by the House of Lords in Attorney General’s Reference (No.2 of 2001) [2004] 2 A.C. 72, as indeed was the New Zealand Court of Appeal case, Martin v Tauranga District Court [1995] 2 NZLR 419, in which an approach similar to that in Canada was taken. Lord Bingham described the argument in favour of a permanent stay as a powerful one and opined that it was not at all surprising that such a powerful argument had been accepted by highly respected Courts around the world. However, in addition to the compelling public interest in the determination of criminal charges, he provided four reasons why it should not be accepted in England and Wales: the right which a defendant has is to a hearing which should have certain characteristics; he said it would be anomalous if a breach of the reasonable time requirement had more far-reaching consequences than a breach of a defendant’s other section 6(1) rights e.g., the right to a fair trial. Lord Bingham cited the example of a defendant being convicted after an unfair trial, the Court of Appeal quashing the conviction because of the unfairness but nevertheless ordering a re-trial if a fair trial is still possible. automatic termination of proceedings cannot sensibly be applied in civil proceedings; in practice, automatic termination of proceedings has been shown to weaken the requirement. Citing the Judicial Committee of the Privy Council in the Scottish case of Dyer v Watson [2004] 1 A.C. 379, Lord Bingham pointed out that the convention is directed to breaches of basic human rights, not to departures from an ideal, and that the threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. Lord Bingham expressed a concern that should a breach result in an automatic stay, judges might set the threshold at an unacceptably high level because the idea of setting free dangerous criminals or those who are guilty of serious crime on account of delay has always been repugnant; finally, a close analysis of the ECHR jurisprudence did not support the contention that a breach of the reasonable time requirement should lead to an automatic stay of the proceedings. Adrian Kayne 18th August 2023 Download Article now To stay up to date with insight articles, webinars and chamber news why not subscribe to Libertas Lens (our periodic newsletter) – Click here to register

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Sentencing update – Case notes Case notes from Sarah Day and Marie Spenwyn providing an update as to recent key sentencing developments including a significant case affecting imposition of custodial sentences given capacity in prisons, approach to sentencing those who are sentenced when adults offending committed when a child and new sentencing guidelines. Prison population and sentencing: Summary of recent Statement from the Chairman of the Sentencing Council The Chairman of the Sentencing Council, Lord Justice William Davis, has recently issued a statement in relation to concerns over the high prison population, following the Court of Appeal’s judgment on 3 March 2023 in R v Arie Ali [2023] EWCA Crim 232. The case of Ali clarifies that when sentencing an offence that crosses the threshold for a short custodial sentence where there continues to be pressure on prison capacity, as there is at present, the courts can take into account the impact of the current prison population levels to determine whether to suspend a sentence or impose a community order as opposed to a short custodial sentence. Quoting a letter from the Deputy Prime Minister to the Lord Chief Justice in February 2023, the judgment highlights that operating close to prison capacity has consequences for the conditions in which prisoners are held. Most particularly, they may well be further away from home (affecting the ability for family visits), be in crowded conditions and have reduced access to rehabilitative programmes. Both the case of Ali and the subsequent statement by the Chairman make clear that the high prison population is an additional factor which can be taken into account when deciding whether a short custodial sentence must be imposed immediately or whether it can be suspended. It is not a factor which requires all short prison sentences to be suspended, as ever, that must be based on all the factors pertinent to the sentencing exercise. It would appear that the courts will be reliant on the government to communicate when prison conditions have returned to a more normal state. As a final note, during a recent sentencing exercise in front of Lord Justice Edis sitting at Nottingham Crown Court, he indicated that the issue was only in relation to the male prison population. It is notable, however, that the statement from the Chairman is not limited in that way so it remains to be seen how this will be applied throughout the courts. Sentencing adults for offences committed when a child From the 17th March 2023 R v Ahmed [2023] EWCA Crim 281 is an important judgement in which the Court of Appeal has clarified the approach that must be adopted when sentencing an adult for offences committed as a child. In this case, the court heard five appeals together, which each concerned sexual offences and in which the question the court sought to resolve was the correct approach to sentencing an adult for an offence committed as a child. Each of the five sentences were reduced by the Court of Appeal. A number of principles for sentencing those who offended as children but are sentenced as adults can be distilled (at paragraph 32): The Court rejected the submission of the respondent that the Sentencing Council’s Overarching Guideline on Sentencing Children and Young People can only be applied where there is “relative temporal proximity”. The Court confirmed that whatever the age of the offender at the time of conviction and sentence, the Overarching Guideline is relevant and must be applied (in accordance with Section 59(1) of the Sentencing Code) unless the court is satisfied it would be contrary to the interests of justice to do so. The court must have regard to the maximum sentence which was available at or shortly after the time of the offending. The court must take as its starting point the sentence which it considers was likely to have been imposed if the child offender had been sentenced shortly after the offence. If in all the circumstances of the case the child offender could not in law have been sentenced (at the time of his offending) to any form of custodial sentence, then no custodial sentence may be imposed; Where some form of custody was available, the court is not necessarily bound by the maximum applicable to the child offender. The court should, however, only exceed that maximum where there is good reason to do so. The Court emphasised that the mere fact that the offender has now attained adulthood is not in itself a good reason. The Court further stated they found it very difficult to think of circumstances in which a good reason could properly be found, and thus respectfully doubted the decision in the case of R v. Forbes and others [2016] EWCA Crim 1388 in this one respect. However, the point was not specifically argued in these appeals and so the Court has indicated that a firm decision about it must therefore await a case in which it is directly raised. In each case, the issue for the court to resolve will be whether there is good reason to impose on the adult a sentence more severe than he would have been likely to have received if he had been sentenced soon after the offence as a child. The starting points taken as set out in the points above, may not necessarily be the end point of sentence as they may increase or decrease. As the court is sentencing an adult, it must have regard to the purposes of sentencing set out in section 57 of the Sentencing Code. This case adds to a line of authorities from the Court of Appeal in cases such as R v Ghafoor [2002] EWCA Crim 1857 which emphasise that those who offend when under 18 should be treated differently from those who offend as adults and reviews them in the light of the overarching sentencing guidelines for children now in place since July 2017. The Court stated that this is in recognition of the fact that “in general, children are less culpable, and less morally responsible, for their acts than adults” as stated in R v Limon [2022] EWCA Crim 39. They therefore require a different approach and are not to be treated as if they were “just cut-down versions of adult offenders”. Of significance is the expression of these principles as applicable not only to cases where the offender has relatively recently crossed the threshold to adulthood, but where an adult is being sentenced – potentially decades later – for offences committed as a child. It is no doubt therefore that this will be a significant guideline case and of assistance to practitioners facing a sentencing scenario where the offender has either recently crossed the age threshold and must be sentenced as an adult, or whether the offending was historic offending which took place when a child and is of particular application to sexual offences. New guidelines on sentencing for sale of knives to persons under 18 in force Since the 1st April 2023 two new guidelines relating to the sale of knives by individuals and organisations (offences under s141A of the Criminal Justice Act 1988) to those under 18 have been in force. In circumstances where there had not previously been any guideline in place for these offences (punishable by a fine for organisations but with a maximin of 6 months imprisonment for individuals) the new guidelines are designed to allow for more consistency in the approach to sentencing these offences across the courts. There is one level of harm recognised the same risk of harm (to individuals and the wider community) is risked in relation to every sale. The offence is a summary only one in either case. The guideline for organisations includes specifics as to how they implement training and measures to verify age both in person and online. The sentencing ranges for organisations now provided will likely result in higher fines being imposed. As stated in the forward to the published response to the consultations these offences are not frequently prosecuted but have the potential for serious consequences. For offences that concern large quantities of knives of where there is ‘deliberate or reckless marketing of knives to children’ the guidelines would not apply. New guidelines on sentencing child cruelty Also in force from the 1st April 2023 is a guideline that updates those previously in force from 2019 specifically to take account of the change to the maximum sentences resulting from the Police, Crime, Sentencing and Courts Act 2022 applying to offences committed after the 28th June 2022. There is now a new level of “very high culpability” relating to both causing or allowing the death of a child (now life imprisonment) and causing or allowing serious harm/child cruelty (now 14 years). Download Article now To stay up to date with insight articles, webinars and chamber news why not subscribe to Libertas Lens (our periodic newsletter) – Click here to register

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Dr Felicity Gerry KC will be at the International Bar Association Conference in Paris from 29 Oct to 3 Nov Dr Felicity Gerry KC will be at the International Bar Association Conference in Paris from 29 Oct to 3 Nov – She is the Asia Pacific Member of the Criminal Law Committee – if you are attending, she would be delighted to meet you Conference details here #IBA2023 https://www.ibanet.org/conference-details/CONF2244. Felicity is currently awaiting verdicts in the Al Hassan trial at the ICC and drafted the memorandum that led to the $82m divestment of the Golden City Investment Scheme in Myanmar. She was recently listed as one of the top 5 international lawyers you would want on your side – details here https://lawandcrime.com/partner-content/meet-the-top-5-international-lawyers-you-want-on-your-side/amp/

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Celebrating South Asian Heritage Month NOTE: This event has now been cancelled. Libertas Chambers members celebrate South Asian Heritage Month (SAHM) with a wide-ranging panel discussion on legal issues and careers to honour, recognize, and appreciate South Asian history and culture, as well as to comprehend the rich cultural legacy of countries within South Asia. This webinar presented by our members celebrates the accomplishments and legacy of individuals with origins in the South Asian countries. Presented by our members with South Asian heritage who have expertise in corporate and criminal law on issues concerning South Asian business, countries and heritage in celebration of South Asian heritage month. We are proud to have several practitioners of South Asian origin, which make up 20% of our staff and a collective command of 8 different regional languages. To ensure you don’t miss out on future events please register for our newsletter by clicking here.

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Webinar Video – Defence Statements and Openings: Rule 25.9 and being fair and concise We recently held a webinar on Defence Statements and Openings: Rule 25.9 and being fair and concise. A practice is growing of asking Defence Counsel to open 1 or 2 sentences after the prosecution opening in serious cases which may not be in accordance with the Criminal Procedure Rules. Rule 25.9, taken together with the overriding objective allows for a fair and concise rehearsal of the issues raised in the defence statement or alternatively for the jury to be given the defence statement. This webinar discusses the delivery of defence openings / summary of issues, how defence statements can be framed to support a defence opening, and what is the bare minimum for opening defence issues which is fair. Presented by Dr Felicity Gerry KC and Marie Spenwyn Felicity and Marie have significant experience defending in the most serious of criminal matters including homicide, terrorism and war crimes. Both are co-authors of The Sexual Offences Handbook (3rd Ed forthcoming). They are well versed in taking procedural challenges and taking the best strategic approaches for clients. To ensure you don’t miss out on future events please register for our newsletter by clicking here.

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Defence Statements & Openings: Rule 25.9 and being fair and concise This webinar has now finished. You can view the replay at our later blog post. A practice is growing of asking Defence Counsel to open 1 or 2 sentences after the prosecution opening in serious cases which may not be in accordance with the Criminal Procedure Rules. Rule 25.9, taken together with the overriding objective allows for a fair and concise rehearsal of the issues raised in the defence statement or alternatively for the jury to be given the defence statement. This webinar discusses the delivery of defence openings / summary of issues, how defence statements can be framed to support a defence opening, and what is the bare minimum for opening defence issues which is fair. Presented by our Dr Felicity Gerry KC and Marie Spenwyn Felicity and Marie have significant experience defending in the most serious of criminal matters including homicide, terrorism and war crimes. Both are co-authors of The Sexual Offences Handbook (3rd Ed forthcoming). They are well versed in taking procedural challenges and taking the best strategic approaches for clients. Register today – https://www.eventbrite.co.uk/e/defence-statements-and-openings-rule-259-and-being-fair-and-concise-tickets-633231280807 To ensure you don’t miss out on future events please register for our newsletter by clicking here.

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