Ben Douglas-Jones KC - BARRISTER

R v Hamilton [2023] EWCA Crim 850 

 

Ben Douglas-Jones KC, who did not appear in the Crown Court, led Emma Nash, from 187 Chambers, and acted for the Crown in an appeal against conviction for an historical offence of rape. He persuaded the Court of Appeal that the conviction was safe. The Court of Appeal accepted that prosecution disclosure failings in respect of the complainant's medical and counselling records, including non-disclosure of a magazine article concerning the effects on the complainant of anti-depressant medication following a subsequent unrelated illness which was similar to the account given in her victim personal statement, had not affected the outcome of the trial. It concluded that the article's content would not have undermined the complainant's credibility in respect of the facts of the rape or more generally.  

  

R v AJW [2023] EWCA Crim 803 

 

Lady Justice Carr (as she then was) with Sir Nigel Davis and Jay J. 

 

The Appellant was convicted of conspiracy to commit immigration fraud by a sham marriage, which was planned in order to enable the applicant to reside in the United Kingdom permanently by reason of marriage to a European national. Evidence was adduced to the effect that her birth certificate had been false. 

 

Ben Douglas-Jones KC, leading James Rowbottom, from Matrix Chambers, sought to argue that the conviction was unsafe because she had been trafficked by her co-accused. Ben argued that the Appellant committed the offence against a background of being subject to the threat of FGM, rape and violent abuse in Nigeria as a child. She was then trafficked or smuggled to the United Kingdom and trafficked through exploitation in which she was subject to forced prostitution and criminal activity - at all material times remaining a child.

 

However, and although the applicant had said at the time in terms that she was a minor, the defence took no steps to obtain or secure a formal age assessment and no inquiry was made as to whether the applicant should be referred as a possible VOT. She was not advised about human trafficking or modern slavery law or of the possibility of a referral to the NRM. 

 

The stance that Ben took caused the CPS to concede that there should have been consideration of her human rights. The Lady Chief Justice agreed with Ben and quashed the conviction. 

 

R v KADIR – leading case on giving evidence via WhatsApp, etc from abroad 

 

The Appellant argued that his conviction was unsafe because a judge had refused a witness permission to appear from overseas via WhatsApp. Ben Douglas-Jones KC, leading Valeria Swift, from 5 KBW, had to argue that the conviction was safe but concede that the judge was wrong to have held WhatsApp to be an inappropriate means of receiving witnesses’ evidence from abroad. 

 

Ben argued that, under the Criminal Justice Act 2003 s.51, as temporarily modified during the COVID-19 pandemic, and also under the version of s.51 which had been in force since 28 June 2022, evidence could be received by WhatsApp. Ben then set out a series of considerations for the Court to take into account to ensure the evidence was not tainted by the video link. 

 

The Court of Appeal agreed with Ben that a judge presiding over a Crown Court trial could permit a witness who was outside the UK to give evidence via WhatsApp video call if it was in the interests of justice.  

 

Ben’s instructing solicitor, Irene Bhadresa, was named The Times Lawyer of the Week (TLTW) as a result of the case.  Ben had to decline the invitation to be TLTW because he has been TLTW before – for his prosecution of the murder of David Gaut. 

 

https://www.thetimes.com/uk/law/article/lawyer-of-the-week-irene-bhadresa-who-was-the-specialist-prosecutor-for-the-crown-in-an-appeal-on-what-is-acceptable-as-evidence-in-uk-courts-brznj89r5

 

https://www.legalcheek.com/2022/09/court-of-appeal-gives-thumbs-up-for-witnesses-giving-evidence-via-whatsapp/

 

https://www.lawgazette.co.uk/news/witnesses-can-give-evidence-by-whatsapp-court-of-appeal-rules/5113719.article

 

https://www.judiciary.uk/wp-content/uploads/2022/10/R.-v-Kadir-Abdul-2022-EWCA-Crim-1244.pdf

 

HADEN Mark and others  [2024] EWCA Crim 344; [2024] 1 W.L.R. 4777; [2025] 1 All E.R. 1071; [2024] Crim. L.R. 730; CLW/24/18/7 - Leading case on abuse of process on appeal after the coming into force of s.45 of the Modern Slavery Act 2015

 

In this landmark case on the extension of postponement periods in confiscation proceedings, Ben Douglas-Jones KC acted for 10 respondent defendants, leading 1: J McClintock; 2: Umar Shahzad; 3: A Taylor; 4. B Evans; 5. C Jeyes; 6. J McNally; 7. N James; 8. E Coverley; 9. R Freitas; and 10. M Cranmer-Brown. 

 

The court clarified the legal framework for confiscation proceedings, emphasizing flexibility and fairness over rigid procedural adherence. It stated that confiscation proceedings can be initiated and postponed to conclude after sentencing, provided this occurs before the court becomes functus officio—56 days after sentencing. The court concluded that the two-year period for concluding these proceedings, starting from the conviction date, can be extended in "exceptional circumstances," a term the court interpreted broadly. An extension can be granted even if the two-year period has expired or if no formal application was made. 

 

Crucially, the court's authority to issue a confiscation order is not contingent on strict compliance with the procedural timelines outlined in section 14 of the Proceeds of Crime Act 2002. While non-compliance can be a factor in determining a fair order and, in rare cases, could be deemed an abuse of process, it does not automatically strip the court of its jurisdiction. The court stressed the importance of case management to ensure timely resolutions, ideally within two years of conviction. 

 

The judgment established that the principles from the cases of R. v Soneji and R. v Guraj were paramount, superseding any prior inconsistent rulings. [1][2] Specifically, it overruled decisions in Revenue and Customs Prosecutions Office v Iqbal and R. v Smith (Anthony) that were not in alignment with Soneji. [3] The court directed that, when an appeal court orders the Crown Court to "proceed afresh", it does not necessitate starting the confiscation process from the beginning but rather continuing from the point of the previous jurisdictional refusal. Ultimately, the refusals to extend the permitted periods in the cases at hand were deemed incorrect and were remitted to the Crown Court for immediate continuation. 

 

R v RAHMAN Melina [2024] EWCA Crim 1719 

 

Ben, leading Giles Fleming, Drystone Chambers, represented the Respondent in this appeal. 

 

The Court of Appeal dismissed an appeal by Jade Melina Rahman against her convictions for being concerned in making an offer to supply cocaine and cannabis. Rahman was in a relationship with Shemsi Hasani, an Albanian national involved in drug dealing, and was a victim of his serious domestic and sexual abuse. 

 

At trial, Rahman was acquitted of money laundering (Count 1) but convicted on two drug supply counts (Counts 3 and 4) based on text message exchanges with Hasani. Her defence was that she was not making genuine offers to supply drugs; instead, the messages were jokes or attempts to appease her abusive and controlling partner. Expert evidence confirmed she suffered from PTSD due to the abuse. 

 

Rahman appealed her convictions on two main grounds: that the trial judge was wrong to withdraw the statutory defence under the Modern Slavery Act 2015 from the jury, and that the judge failed to properly summarise her defence.

 

The Court of Appeal rejected these arguments, ruling that the Modern Slavery defence requires evidence of compulsion to commit the offence. Rahman's own evidence was not that she was compelled to offer drugs, but that she had not committed the offences at all because the messages were a joke. Therefore, she had not provided the necessary evidence to raise the statutory defence. The court found that the judge’s summary of her defence was sufficient and that the evidence against her was "overwhelming". 

 

Rahman's appeal against her two-year suspended sentence was also dismissed. The court found that, since the jury had convicted her, they had rejected her explanation. The judge was therefore correct to sentence her for genuine criminal conduct and had appropriately followed sentencing guidelines while giving full weight to the significant mitigation, including the abuse she suffered. 

  

Patel, Darshan Appeal

 

Ben Douglas-Jones KC, leading Robin Shallard, acted for the Respondent in this seminal case concerning low-THC cannabis.  He argued that the Court of Appeal had been wrong in Margiotta in its interpretation of the interplay between domestic and European law pre-Brexit. The Respondent’s argument was that Patel's convictions for importing herbal cannabis and related offences were safe and that his appeal should be dismissed. 

 

The Respondent refuted the central claim that the low-THC cannabis was not a controlled substance. It argued that the Appellant's reliance on the Margiotta case and EU law was misplaced because there was no evidence that the product's THC content was at or below the 0.2% threshold required for consideration as legal hemp - tests only confirmed it was below 1%. Furthermore, for offences post-dating the Brexit transition period, EU free movement of goods principles did not apply. The Respondent stated that, under the Misuse of Drugs Act 1971, cannabis is defined by the part of the plant, making its THC content irrelevant to its status as a Class B controlled drug. 

 

Addressing the Appellant's claim of receiving inadequate legal advice, the Respondent argued that his guilty pleas were not equivocal. Patel was advised of the challenges to his case, particularly with regards to a police email that he admitted left him with a "suspicion about the illegality of the product". Despite this, he continued to import it. Patel's decision to plead guilty was a calculated one, made freely to accept a guaranteed suspended sentence rather than risk imprisonment at trial. 

 

Finally, the Respondent dismissed the argument that the law lacked clarity, asserting that the UK's definition of cannabis has been consistent for decades and is not dependent on THC levels. Therefore, there was no breach of the Appellant's human rights, and the convictions should stand. 

 

R v M [2021] EWCA Crim 1934  

 

This was a five-handed case where the evidence showed D1 to have been in single-sex relationships. D1 sought to prevent Ds2-5 from knowing about this evidence on the ground that he was married to a woman and from a conservative Pakistani background which did not accept single-sex relationships. 

 

Ben Douglas-Jones KC argued a number of issues relevant to the human rights of D1, including that s.78 of PACE could not be used to prevent the service of evidence in a case, notwithstanding Arts 2, 3, 6 and 8, ECHR being engaged.   

 

The Court agreed that s.78 was for: first, when fairness in the actual conduct of the trial is in issue; second, when there are significant and substantial breaches of the procedural safeguards (e.g. infringements of the Codes of Practice); and, third, when the “moral integrity” of the proceedings has been substantively undermined (for example, on account of entrapment or material bad faith). The evidence was placed before the Crown Court after the interlocutory hearing on rights and all defendants were convicted. 

 

R -V- Bryant [2025] EWCA Crim 621 

 

Ben Douglas-Jones KC, leading James Marsland, appeared for the Crown in this specially constituted appeal to determine at the direction of the Single Judge, Sir Gary Hickinbottom, the correct way to indict multiple incident counts of fraud by false representation. 

 

The Court of Appeal (Lords Justices Bean and Warby and HH Judge Mansell KC) dismissed the appeals of both father and son against their convictions. Roger Bryant, a former National Trust procurement officer, was convicted on 25 counts of fraud and one of perverting the course of justice for orchestrating a scheme where he approved over £1.8 million in invoices for work that was either not done or not completed by his sons' purported contracting companies. His son, James Bryant, was convicted of money laundering in connection with this scheme. 

 

Roger Bryant appealed his conviction on two "multiple-incident" fraud counts, which covered hundreds of invoices not specified in the individual charges. His first ground for appeal was that these counts were improperly formulated under the Criminal Procedure Rules. The court rejected this, finding that charging a course of conduct involving numerous fraudulent invoices as a single count was appropriate and practical, distinguishing it from cases involving sexual offences. 

 

Bryant's second ground for appeal was that his acquittal on three specific fraud counts meant the jury must have rejected the prosecution's primary case that his sons' companies were entirely fictitious. The court also dismissed this argument. It concluded that the jury was entitled to find that, while some minor work may have been done, the companies could not have legitimately carried out the vast scale of work invoiced. The convictions on 22 other specific counts, alongside the multiple-incident counts, demonstrated the jury's conclusion that a systematic fraud had occurred. 

 

James Bryant's appeal was contingent on the success of his father's. As Roger Bryant's appeal was dismissed, the court found that the money laundering conviction against James logically stood and therefore also dismissed his appeal. 

 

Leading case on abuse of process on appeal after the coming into force of s.45 of the Modern Slavery Act 2015

 

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

 

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

 

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

 

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

 

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

 

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

  

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

 

R. v Kadir (Abdul) [2022] EWCA Crim 1244 | [2022] 9 WLUK 159 | [2023] 1 Cr. App. R. 4 A judge presiding over a Crown Court trial could permit a witness who was outside the UK to give evidence via WhatsApp video call if satisfied that it was in the interests of justice. That was the case under the Criminal Justice Act 2003 s.51, as temporarily modified during the COVID-19 pandemic, and also under the version of s.51 which had been in force since 28 June 2022.

 

R. v BYA [2022] EWCA Crim 1326 Ben appeared for BYA.  Her conviction, entered following a plea of guilty to possessing a false identity document with intent, was unsafe. Following her conviction, it emerged that there were conclusive grounds for believing that she was a victim of human trafficking.  She had been exploited in three jurisdictions in enforced prostitution - raped daily.  It was clear that she had committed the offence in an attempt to escape her traffickers and that her culpability was therefore considerably diminished. Had the prosecution given adequate consideration to whether she might have been a victim of trafficking, it might well not have prosecuted her.

 

R. v Elmi (Abdihakim) [2022] EWCA Crim 1428 Ben, leading Andrew Johnson, appeared for the Crown in this leading case on the scope of the s.31, Immigration and Asylum Act 1999 “refugee defence” for document offences.  The appellant contended, relying on FA (Iraq) v Secretary of State for the Home Department [2010] EWCA Civ 696, [2010] 1 W.L.R. 2545, [2010] 6 WLUK 421, that s.31 should be construed to include those granted humanitarian protection within the definition of refugees and, relying on Adimi, to include presumptive refugees. However, the Crown correctly argued that s.31(6) defined "refugee" by reference to the Convention and did not allow a more expansive definition, emphasising the distinction between the two concepts in the Immigration Rules para.339C(ii), FA (Iraq) and Adimi considered. It was not possible to construe s.31 as if it applied to persons with either sort of protection. The defence only applied to refugees but, consistent with its statutory purpose, could be advanced at trial by those who were at that time presumptive refugees. It was for the jury to determine whether the defence was made out (see paras 45-49 of judgment).

 

R. v Nguyen (Hanh Tuyet) [2022] EWCA Crim 1444 Barristers’ strike: leading case on approach on sentencing in absence of Counsel.  Ben, leading Emma King, appeared for the Crown in this appeal.  The Appellant’s barristers did not appear at her sentence.  One was on holiday.  The other was taking part in the Criminal Bar Association days of strike action.  Ben urged the Judge to adjourn the sentence of the Appellant.  He declined to do so.  The Court of Appeal held he had erred in doing so.  The Court of Appeal said, “The efforts made by the judge and prosecuting counsel to assist the appellant at [the sentencing] hearing were praiseworthy”.

 

R v BXR [2022] EWCA Crim 1483 Ben appeared for the Appellant, a Nigerian victim of human trafficking, who had used a false passport to obtain employment prior to the coming into force of the Modern Slavery Act 2015.  He had pleaded guilty to using a false instrument and fraud without telling his legal advisers that he had been trafficked.  The Appellant had been persecuted and subjected to extreme violence and abuse for being of gay orientation in Nigeria and subjected to sexual violence and forced labour and servitude in the UK.  He had been subjected to multiple rape and had later been put through a process of gay conversion “deliverance”.

 

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

  

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

 

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

 

R v Hunter and Smith [2021] EWCA Crim 1785; [2021] 11 WLUK 384 Court considered components of fraudulent trading, Companies Act 2006, s.993(1), in the “Ed Sheeran” ticket touting case where profit was made by reselling tickets for sporting and cultural events, in breach of ostensible restrictions imposed by event organisers. The s.993(1) offence was not subject to limitations of conspiracy to defraud; no requirement for prosecution to prove intention to deceive.  Where criminal allegation is founded on breach of civil law, the judge must rule on the breaches before the jury decides the criminal issues. The case involved the “fairness” and enforceability under the Consumer Rights Act 2015 of the event organisers terms and conditions of sale which impose restrictions on the purchase and resale of tickets and the risk of ticket nullity, the status in law of a “ticket” and the scope, effect and operation of the doctrine of “equity’s darling”.

 

R. v Douglas (Jerome) [2021] EWCA Crim 1193; [2021] 4 W.L.R. 126; [2021] 7 WLUK 513; [2022] 1 Cr. App. R. 5 An important appeal considering the doctrine of autrefois convict, where prison governors and adjudicators act unlawfully in prison disciplinary proceedings; nullities of decisions; and the purview of a judge’s power under s.45(4) of the Senior Courts Act 1981. 

 

R v Brecani [2021] EWCA Crim 731; [2021] 1 W.L.R. 5851; [2021] 5 WLUK 221; [2021] 2 Cr. App. R. 12; [2022] Crim. L.R. 69. Leading case before the Lord Chief Justice on the inadmissibility of Single Competent Authority decisions in criminal proceedings; reaffirming the fact that the CACD may receive SCA decisions to assess safety of convictions.

 

R v CS [2021] EWCA Crim 134; [2021] 2 WLUK 68 The Modern Slavery Act 2015 s.45 did not have retrospective effect. There was no factor which positively indicated that Parliament intended the defence under s.45 to be available in respect of offences committed by victims of trafficking before the Act came into force.

 

H v DPP [2021] EWHC 147 (Admin); [2021] 1 W.L.R. 2721; [2021] 1 WLUK 352; [2021] 1 Cr. App. R. 23; [2021] Crim. L.R. 400; [2021] A.C.D. 41 Leading case before the Lord Chief Justice where it was held it was not permissible to use the Magistrates' Courts Act 1980 s.142 to reopen a case where a defendant had pleaded guilty in the magistrates' court and been sentenced in the Crown Court but later discovered a defence could have been advanced. The remedy was a CCRC application.

 

R (on the application of Purvis) v DPP [2020] EWHC 3573 (Admin); [2021] 4 W.L.R. 41; [2020] 12 WLUK 431; [2021] 1 Cr. App. R. 20; [2021] A.C.D. 32. Obligation on DPP where reviewing a case under right VRR scheme.

 

R v Luckhurst [2020] EWCA Crim 1579; [2021] 1 W.L.R. 1807; [2020] 11 WLUK 309; [2021] Lloyd's Rep. F.C. 53; [2021] Crim. L.R. 694 (Supreme Court appeal pending) Leading case on nature of restraint orders; reasonableness of living expenses under s.41(3)(a) of POCA; living expenses incurred on credit; legal expenses under s.41(4) civil proceedings concerning the same subject matter as the criminal proceedings are not “legal expenses related to the offence”.

 

R v A [2020] EWCA Crim 1408; [2021] 4 W.L.R. 16; [2020] 10 WLUK 371 Leading case on the special category of abuse of process in a case where a possible credible victim of trafficking or slavery commits an offence where the defence under s.45 of the Modern Slavery Act 2015 is excluded by Sched.4. Now see AAD 2022.

 

R. (on the application of L) v DPP [2020] EWHC 1815 (Admin); [2020] 7 WLUK 137; [2020] A.C.D. 106 In determining whether to prosecute a couple for domestic servitude offences relating to their treatment of an overseas domestic worker, the Crown Prosecution Service had failed to properly assess whether they had deceived her in order to induce her to come to the UK, contrary to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 s.4(4)(c).

 

R v Smith (Alec) [2020] EWCA Crim 777; [2020] 4 W.L.R. 128; [2020] 6 WLUK 300; [2020] 2 Cr. App. R. 27 Leading case on multiple hearsay (interplay between ss.115 and 121): a conviction for indecent assault was quashed where highly prejudicial hearsay evidence of an alleged confession was wrongly admitted.  The Court emphasises that the Criminal Procedure Rules are not “decorative”.