Crime Team Newsletter - Third Edition
Welcome to the August edition of the 33 Bedford Row Crime Team newsletter.
You will have seen from our recent Blogs that the past few weeks have been a busy time for the team. Chambers has now been ‘physically’ open for the past month and we have all embraced the new working norms.
This month’s newsletter comprises articles from:
Daniel Walker and Nigel Edwards Q.C. – “Furlough Fraud- The Coming Storm”
Nichola Cafferkey - “Disclosure- An Even Playing Field?”;
Ravinder Saimbhi- “Extended Hours- The Only Way?”; and
Mohammed Saqib- “S.34 RTA 1988 Special Reasons Arguments”
Wishing you all a happy, safe and hopefully sunny August.
[Head of Crime Team]
Furlough Fraud – The Coming Storm
On the 8th of July 2020 the first reported arrest took place in the West Midlands of a 57-year-old man suspected of ‘furlough fraud’. The arrest and search of his property has been reported widely in the national media. It was reported that following arrest the man had his computers, digital devices and documents seized in relation to an alleged £495,000 fraud. His bank accounts have been frozen.
Speaking of the arrest to the media Richard Las, acting director of the Fraud Investigation Service at Her Majesty’s Revenue and Customs (‘HMRC’), commented:
“The vast majority of employers will have used the [job retention scheme] responsibly, but we will not hesitate to act on reports of abuse of the scheme”. “This is taxpayer’s money and any claim that proves to be fraudulent limits our ability to support people and deprives public services of essential funding”.
Since the arrest, the Policy Exchange Think Tank have produced a Report estimating that fraud and error in relation to the Furlough Scheme could have cost the taxpayer between ‘£1.3bn and £7.9bn’.
Given the eye-watering amounts of money involved and the suspected loss to the public purse, it is little wonder that a government spokesman has been quoted as saying ‘we are using every tool and piece of intelligence to prevent, detect and disrupt fraud. Where it still gets through, we are finding and pursuing those who commit it’.
As the Furlough Scheme was brought in so quickly combined with the ease in which it could be accessed, it was always open to abuse. The fact that the Furlough Scheme may have been abused by some, will mean many others will have to go through the scrutiny of an HMRC investigation and potential prosecution. It is with that in mind that we see furlough fraud, or suspected furlough fraud, as the coming storm to hit the criminal justice system.
What is the Furlough Scheme?
The Coronavirus Job Retention Scheme (‘CJRS’), commonly referred to as the ‘Furlough Scheme’, was announced by Government on the 20th of March 2020 as part of a package of measures designed to support businesses in retaining employees during the COVID-19 pandemic.
The Furlough Scheme allows businesses to claim (for the period from the 1st of March 2020) financial support for up to 80% of an employee’s salary to a maximum of £2,500 per month. A ‘furloughed’ worker would then receive 80% of their wages funded by the government, with the employer having the option to pay the 20% difference.
Figures as of the 30th of June 2020 show that some 9.4 million employees had been placed on furlough during the COVID-19 crisis. Some 1.14 million employers made at least one furlough claim during the period. The total claimed equated to £26.5 billion.
Types of Furlough Fraud
Given the widespread belief that the Furlough Scheme has been abused by some, what types of claims are likely to face scrutiny?
The nature of some claims will render them criminal. Obvious examples being:
- Claims being made for employees who continued to work for the business during the period;
- Claims being made in respect of employees who were no longer working for the business having left during the pandemic;
- Claims being made where staff were recruited and immediately furloughed purely to make claims for payments under the scheme;
- Claims being made where employees have returned from authorised leave, e.g. sick leave, in order to benefit from the furlough scheme; and
- Claims being made and part of the money being retained by the business and not being passed on as ‘furlough’ payment to the employee.
However, not all erroneous claims will be as ‘clear cut’. Potential issues may arise in a variety of circumstances that could face scrutiny, such as:
- Claims being made for employees who are asked by the business to attend weekly/fortnightly or monthly meetings for the purpose of maintaining working relationships;
- Claims being made for employees who continued to access and respond sporadically to workplace emails/ letters when not under instruction to do so;
- Claims being made for employees who continued to work, despite being directed by the business not to do so.
The above examples are, perhaps, the tip of the iceberg for the types of claims which will face scrutiny and potential prosecution, but the breadth of such examples shows how businesses could quite easily fall foul of the rules whether intentionally or mistakenly.
The range of offences that could cover such conduct is equally wide-ranging, whether aimed at businesses, directors, or individuals. Cases could be prosecuted under:
- The Fraud Act 2006, with the most obvious being Fraud by False Representation under section 2;
- Money Laundering, under sections 327-329 the Proceeds of Crime Act 2002;
- Failing to Prevent Facilitation of UK Tax Evasion offending, under section 45 of the Criminal Finances Act 2017; and
- Cheating the Public Revenue, under the Common Law.
Each offence involves very careful scrutiny of the alleged wrongdoing combined with the state of mind of the alleged wrongdoer.
The pursuit of the businesses, directors and individuals who have abused the furlough scheme others, sadly, will get caught up in the scrutiny. It is fundamental that all continue to keep and maintain full and complete records of all their claims under the scheme, the reasons for the claims, and identify any discrepancies. The coming storm of ‘furlough fraud’ scrutiny, investigation, and potential charge is on its way.
Nigel Edwards Q.C
Disclosure- an even playing field?
In December 2017 the case of R v Liam Allan which was being heard at Croydon CC became front page news. Why? Well quite simply because of the prosecution’s appalling failure to disclose relevant text messages that undermined the complainant’s credibility on the central issue in the case- namely consent. Mr Allan had been charged with multiple counts of Rape and Sexual Assault. He had properly, and squarely, advanced the defence of consent in his defence case statement. Those acting for him asked for disclosure of relevant material including text messages between himself and the complainant. Worryingly the schedule of unused material that was served by the prosecution contained only three items. This did not include the complainant’s phone download that was in the possession of the police and had been looked at, to some extent, by the officer in the case. There were over 40,000 entries on the download none of which were disclosed pre trial. Notwithstanding the requests contained in the defence case statement proper disclosure slipped through the net until part way though the trial when disclosure was made of numerous messages that fundamentally undermined the complainant’s allegations. Such was the significance of the disclosure that the Crown offered no evidence and not guilty verdicts were returned. Mr Allan’s name and the nature of the charges he faced had been made public since before his charge. For many months he and his family had to endure the stigma which often attaches to allegations of sexual misconduct. A proper and fair approach to disclosure could have avoided that.
What followed in the days and weeks after the collapse of the Allan trial was understandable public outcry. However, a freedom of information request made by the BBC showed that this was not an isolated case of failure to disclose but rather part of a much wider and growing problem. The freedom of information request revealed that in 2016-2017 charges against 916 people for a range of criminal offences had been dropped as a result of disclosure failures. This was an increase of 537 from 2014-2015 and 732 the following year.
The Joint Review of the Disclosure Process in the Case of R v Allan led by the Metropolitan Police and the CPS North concluded that there had been no deliberate failure to disclose material but rather that the failure had been the result of “a combination of error, a lack of challenge and lack of knowledge”. In June 2018 The Commons Justice Select Committee published its report regarding “disclosure of evidence in criminal cases”. The report restated the CPS’s fundamental duty to disclose relevant material obtained by the police during the course of an investigation to the defence to ensure a fair trial. It also recognised that there were disclosure problems in a wide spectrum of criminal cases and that the problems were not limited to cases alleging sexual offending.
More than two years on from R v Allan there remain constant struggles to obtain proper and timely disclosure. As the use of smart phones and social media accounts have increased so has the volume of material, often sensitive, which the police and CPS have to review. In addition, a common feature of cases concerning allegations of sexual offending is that there is potential relevant material held by third parties, for example social services or schools. It is not uncommon for courts in different parts of the country to have different protocols as to how third party material is dealt with. This can further complicate the disclosure process.
A report published by Her Majesty’s Crown Prosecution Inspectorate in January of this year found that there remained significant problems in many areas of the disclosure system. HM Chief Inspector Kevin McGinty who carried out the review said: “In 2017 the joint inspection of disclosure, set out that there appeared to be a culture of defeated acceptance; many in the police and CPS who dealt with the general Crown Court cases thought that the issues around disclosure would continue and never be resolved. Since the joint inspection there has been a concerted effort by the police and CPS to work together to develop and implement measures designed to improve performance. The challenge facing the CPS and police is considerable. The CPS has been struggling to deal with its caseload without having the numbers of lawyers needed to do it. Similarly, the police have struggled with the impact of stretched resources and lack of understanding of disclosure obligations by inexperienced police officers. It will take time for the issues identified in our earlier report to be fully met. This inspection shows that training being employed by the CPS is having an effect. This is to be welcomed, but our findings also show that the improvements come from a low baseline and it is clear that the performance needs to improve further to reach an acceptable standard. This is still a work in progress”.
A practical approach:
It is important that a proactive stance regarding disclosure is taken by those defending, and indeed prosecuting, cases involving allegations of sexual offending. Basic steps such as ensuring that a schedule of unused material has been served along with initial disclosure and querying any apparently short schedule of unused material can often have the effect of keeping the focus on proper and fair disclosure from the beginning of a case. In term of a practical approach to disclosure were there are phone downloads a starting point is often to ask for detail as to the quantity of material that there is on the download and to query the method by which the investigating officer has looked at the download. In some circumstance it may be appropriate to provide search terms that the defence wish to be used when the disclosure exercise is being undertaken. It is important to keep a firm grip on the disclosure process and to pursue all proper avenues of disclosure. A key document to work with these days is the Disclosure Management Document that is designed to act as a case management tool. With that in mind the focus must remain on both relevance and identifying the issue to which the material sought goes. A carefully drafted defence case statement should set out in detail what material is requested. If, despite the service of a defence case statement, the prosecution still do not disclose material which the defence believes exists then an application under Section 8 of the Criminal Procedure and Investigations Act 1996 should be made. The procedure for making a Section 8 application is contained in Criminal Procedure Rules 15.5.
Disclosure requests should never become random fishing exercises:
The complainant and other witnesses need to be protected- disclosure requests should never become a “fishing” exercise. Complainants’ are asked to provide access to their phone, medical and care records etc and should have confidence that the material will be treated properly. The disclosure process should not result in a ‘free for all’ access to personal and sensitive material. However, a failure by the police of properly investigating all proper lines of enquiry can often assist the defence in undermining the prosecution case and creating doubt about guilt. Where is the justice in that? Fair disclosure is essential to a system that is meant to convict the guilty and acquit the innocent.
Extended Hours – the only way?
We have by now heard more about the new ‘Nightingale’ courts, currently being prepared to help to ease the backlog crisis in the courts. Details of 10 sites were disclosed on 19th July. The press release stated that these sites will ‘start to alleviate the pressure on courts and tribunals resulting from the pandemic – ensuring that the wheels of justice keep turning’.
If you are familiar with the criminal courts, you will be well aware that the wheels have been coming off for quite some time and these measures, in reality, afford very little relief in any meaningful way.
Only 3 of these new sites will hear non-custodial crime cases. The idea is that the move will free up room in existing courts to hear other cases including custody trials which need the cells and secure dock facilities for the safety of all parties involved.
In March 2020, with the initial implementation of the lockdown, we were told to ‘Stay at Home and Save the NHS’, and trials were stopped. An exceptional course for exceptional times, but the reality is that trials are the lifeblood of criminal barrister’s careers and many chambers finances. Most of the criminal bar have not been fortunate enough to have taken part in any of the small number of ‘socially distanced’ trials which have been conducted since the courts started to re-open. No one is more anxious to get those backlogs cleared than the criminal bar.
So, if the current additional Nightingale sites are only going to offer a limited additional capacity for criminal trials and the anticipated availability of courts for custodial trials is yet to materialise, what other options are there, say HMCTS, but for extended hours to be introduced to help to clear the ‘Covid’ backlog.
Let’s be clear, the backlogs are not solely caused by the current public health crisis. The backlogs were there already as a result of ongoing underinvestment following years of austerity and cuts to the number of courts sitting days. We have borne witness to the neglect of the criminal justice system, wholesale, for years. In December 2019, there was a backlog of cases in the crown court totalling 37,400. By the end of May 2020, this backlog had increased to 40,500 cases. (This represents an increase of 2.2% according to analysis by the CBA).
Traditional court hours are 10am until around 4.30pm with an hour for lunch. To the casual observer these seem like very civilised hours indeed. But what we know is that the 10am start in court, needs the advocate to be at court by at least 9am in order to speak to the defendant or, if prosecuting, the CPS, officers attending and potentially witnesses.
To be at court by 9am, the advocate will have left home an hour or two before that. In circumstances where the court may be a distance from home and the legal aid payment does not cover any travel expenses, I am sure I am not alone in sometimes taking a very early train simply because it is so much cheaper.
This early start will often be at the end of long hours burning the midnight oil preparing for the trial. Sometimes, instructions may only have been received at 6pm the evening before.
During the lunch ‘hour’, advocates will often spend time dealing with any issues which need to be resolved in time to restart at 2pm. By the time we have popped down to the cells to speak to the defendant to receive any further instructions and managed to buy a sandwich (on the odd occasion that the court actually has any facilities to sell you one), we’re lucky to have had 10 minutes to eat and be back in court, gulping down Rennie as we go back into court for the afternoon session.
A 4pm finish on a good day with another quick visit to the cells is followed by the commute in reverse and then more time is spent in the evening preparing for the next day. Sometimes, there will be conferences scheduled in with clients on other cases. And just because we’re busy in one case, that’s no excuse to let deadlines slip in others. An endless list of defence statements, responses to bad character applications, skeleton arguments. And on and on.
I talk of this because one of the other measures proposed to tackle the (not-really-Covid-but why waste an opportunity to lay the blame elsewhere) ‘Covid backlogs’ is ‘extended hours’. As currently proposed, this could mean having 2 trials running in a court room per day, divided into 2 ‘shorter days’. An 8.30/9.00-13.00 slot for Trial 1, followed by a 14.00-18.00 slot for Trial 2. Sadly, these court hours will simply not work for a multitude of reasons. Defendants in custody are rarely produced at court before 9.30am if they’re even there at all by that time. If a defendant is returned to prison after a 6pm finish, they will not be back in their cells before 8pm by which time they will have missed dinner or any chance to decompress. The impact of earlier starts and later finishes on people’s personal commitments will impact not just on the defendants but also on the court staff, jurors and witnesses in a case.
Now the hamster wheel I have described above will be familiar to many advocates. The relentlessness of perpetual prepping, travelling, eating junk at breakneck speed when we can but having to nevertheless be on top form for our clients takes its toll. What I didn’t factor into the day was the other commitments we have in our lives. Taking care of those who rely on us. Children. Parents. Partners. People who already, despite their best efforts, cannot understand why we often can’t commit to things until almost literally the last minute. Who have long suffered us cancelling plans made many months ago because the late instructions just received need our urgent attention. Over the years, many criminal barristers have missed their children’s plays, sports days and all manner of important events including medical appointments because they were in a case. Some have missed family holidays. Some have even checked themselves out of hospital to go and finish a trial rather than risk the jury being discharged and everyone’s hard work going to waste. The commitment of the criminal bar is undeniable. The uncertainty is exhausting. Childcare arrangements in particular can be an intricate balance of drop offs and pick-ups with involving contingency plans, grandparents, the goodwill of other parents and on occasion, little more than a wing and a prayer.
A comparison of the position of criminal barristers to that of ‘other professions managing flexible working’, is at best a failure to appreciate the realities of the way our practices operate. At worst, disingenuous. Our diaries are unpredictable. Cases are prepped and then pulled by the court for reasons unclear. Hearings are listed at extremely short notice and short shrift given to reasons why the advocate may need an alternative listing. When a trial comes in, we will have to choose to cover it, no matter what the cost to our family life or wellbeing or return it and write off the (unpaid) lost hours of our lives on prep. There are no fixed hours. There are no fixed days. There is no fixed pay. Our daily working lives are a heady mix of variables which already make planning for the rest of our lives a mind-boggling challenge. Further uncertainty and variables in the mix will risk many slipping towards professional and personal burn out.
Most carers cannot make arrangements for cover on a day by day basis not knowing whether the trial they will get tomorrow will be in a morning or afternoon slot. There’s a risk they will on occasion be in both. And worse, in neither. Most criminal barristers cannot afford to risk paying a potential alternative carer more than they are likely to earn on the off chance that their trial will come in.
In current times, we are hearing in the media and in formal announcements that trials are resuming. Things are getting slowly back on track. We’re entering a ‘new kind of normal’. The reality is that even in courts where trials have resumed, many of us are still attending remote mentions to be told that the trials which were in our diaries are being vacated. No new date can presently be set. A further mention will be heard in a few weeks’ time. And so on. We spend our days in a quagmire of written preparatory work and drafting for which we will ultimately never be paid unless we do the trial.
On remote hearings, this has been one of the positives from the lockdown period. We always knew that travelling for up to 2 hours and waiting around at court for a potentially unspecified period for a hearing that may take no longer than 5 minutes was an inefficient use of resources and our energy. Having it forced into play has clearly demonstrated that there are many hearings in crown court matters short of trial in which there is simply no need to attend court in person. I truly hope that this is one of the legacies of the pandemic which will not be abandoned in the forthcoming months and years. A clear time marking, focus and a saving of time and travel expenses is a welcome relief to many of us.
The continued use of the technology, if used sensibly, could save court space to use courtrooms for more pressing trials. There are real possibilities for a much smoother path to a time when we are no longer in backlogs and staring into the abyss of being given warned list trials as far as 2 years ahead which some of us are now seeing.
The reality is that, ultimately, something is going to give. Some of us will find ourselves facing the invidious choice between working and not. Advocates of both genders, single parents or with other caring responsibilities, already disproportionately affected by the conditions and demands of our work, are going to be even more so by the added dimension of ‘extended hours.’ The profession will be poorer for it and justice will not be served.
Justice delayed is justice denied. The many court rooms which have been sitting empty for far too long need to be reopened. Properly. The many available Recorders who are able to need to be drafted in. More ‘Nightingale’ courts need to be identified. There’s a readily available list of court buildings for sale right now which might be a useful starting point. Yes, it’s going to come at a cost. To keep the cost a financial one rather than one which sees a dedicated and noble profession decimated and already worn out is possible. We know that a humane and considered approach can benefit everyone involved in the criminal justice system. Extended hours is not the best way to achieve it. I hope the powers that be will recognise this and with proper consultation with those of us at the coal face, find a better way.
S.34 RTA 1988 Special Reasons Arguments
The special reasons argument is an effective argument to utilise when you find a defendant is ‘technically’ guilty of a driving offence, but you are able to persuade the Magistrates’ Court their sentencing exercise would not be best served to impose penalty points on the driving license.
The relevant law and provision are contained in S.34 RTA 1988. S.34 (1) states “Where a person is convicted of an offence involving obligatory disqualification, the court must order him to be disqualified for such period not less than twelve months as the court thinks fit unless the court for special reasons thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified”. Upon reading this, one can be forgiven for thinking this only relates to obligatory disqualification cases, however this is simply not the position. Special reason arguments can be made for any endorsable offence. There is no such exhaustive list of what can amount to a special reason, the following three are listed to give you a flavour of the types of scenarios they are most common in;
- Exceeding the speed limit to attend a medical emergency.
- Driving without insurance, but holding a genuine belief that valid insurance is in place.
- Drink driving, where drinks have been laced.
It is important to note that the statute does not define ‘special reasons’ however in 1958 the Court of Appeal in R v Wickens provided the working definition as requiring the special reason to be:
- be a mitigating or extenuating circumstance;
- not amount in law to a defence to the charge;
- be directly connected with the commission of the offence; and
- be one which the court ought properly to take into consideration when imposing sentence.
If the above conditions are satisfied the court can then exercise its discretion to not endorse or disqualify a defendant where it ordinarily would do so. It is important to note that in order to be successful in these arguments, the defendant is required, under oath, to give evidence, this also provides the Crown with an opportunity to cross examine the defendant.
Mitigation can often murky the waters due to its inherent overlap with special reasons arguments, as such it is prudent to ensure they are explored carefully by a specialist lawyer. I recently represented a defendant who was guilty of driving with excess alcohol, a number of mitigation points were relevant, such as driving in a remote area with no vehicles or pedestrians in the vicinity and the levels of alcohol being towards the lower end of the scale. With careful consideration a special reasons argument was advanced to the magistrates. The premise of the argument revolved around the defendant being laced with alcohol and as such was not aware to the possibility of being over the limit, the offence was a strict liability case where the offending did occur, but valid reasons satisfying the criteria for special reasons was advanced. Special reasons were found on that occasion. Regularly appearing before the magistrates courts in RTA matters, should you find the need for expert advice, feel welcome to contact the clerks to instruct on a direct-access basis.