Ben Douglas-Jones KC - BARRISTER
Ben Douglas-Jones KC is a leading silk in financial, serious, consumer, appellate and human rights crime. He defends professional and corporate clients including public limited companies. He prosecutes for the Serious Fraud Office and CPS Headquarters' Specialist Fraud Division, Appeals and Review Unit, Organised Crime Unit, Proceeds of Crime Unit and Complex Case Units. He also prosecutes for local authorities.
Ben has prosecuted financial crime in the Supreme Court and has defended in the most high profile frauds in England and Wales for over 18 years. Ben practises in all serious, complex fiscal and non-fiscal fraud, including corporate, financial, banking, carousel, MTIC, tax evasion scheme, acquisition, mortgage, Excise, Hawala, advance fee (419), boiler room, Ponzi , NHS, dental, pharmaceutical, Internet, car-ringing, gambling, cheque clearing cycle and insurance fraud.
Recent fraud cases include: the “Ed Sheeran” landmark National Trading Standards prosecution of ticket “touts": in R v Hunter, Ben represented the first defendant in the prosecution of the officers of BZZ Ltd for reselling concert and event tickets using multiple names; and R v Bryant, the National Trust procurement fraud. He is member of the Fraud Lawyers' Association.
Ben has vast experience in Proceeds of Crime Act 2002 cases, including restraint, confiscation, receivership, forfeiture, civil recovery and asset freezing proceedings.
Ben’s appellate work has seen him appear in over 200 reported cases. He is a leading Silk in appeals concerning issues of human trafficking and refugees, including the leading cases of AAD (2022), Bani (2021), Brecani (2021), R v GS (2019), R v Joseph (2017), R v Mirahessari (2016); R v Mateta (2016); R v L (2013), R v N and L (2011). Ben conducts second-opinion defence appellate work where he did not appear in the Crown Court and is instructed by the CPS Appeals and Review Unit in the High Court and Court of Appeal.
Ben’s human rights work has led to his representing a team of amici curiae in the International Criminal Court appeal of Dominic Ongwen in connection with child soldiers. He is leading a team of lawyers in a UN submission concerning the abuse of children and slaves in brick kilns in Cambodia. He represented the family of Shamima Begum in connection with the removal of her citizenship.
He also has significant expertise in miscarriage of justice work having represented Colin Stagg and secured the £706,000 compensation for Stagg’s wrongful indictment for the murder of Rachel Nickell.
Ben has appeared in high profile and complex murder and homicide cases, including Operation Molar, in which he represented a 19-year-old indicted for conspiracy to murder and conspiracy to possess firearms with intent to endanger life in connection with a drive-by shooting in Birmingham, and Operation Triangle, in which he prosecuted the murderer of a child killer.
Ben has consistently appeared in high profile consumer law and consumer crime cases over the last 20 years, including the recent Ed Sheeran secondary ticketing (ticket tout) case, the Worldwide Tickets Ltd combined regulatory appeals on the penal sections of the Consumer Rights Act 2015 and Operation Cleo, a multimillion pound alleged copycat website case, where the defendants were found not guilty of alleged multimillion pound consumer fraud. Ben’s regulatory practice extends to all areas of consumer law, with an emphasis on trade-marks and copyright law, criminal planning, food safety and environmental health.
He is ranked in Chambers and Partners and Legal 500 for criminal fraud/financial crime, consumer law and general crime. According to Legal 500, Ben is “extremely bright”, with "great intellectual strength" and “extremely able” with the ability to “marshal cases of the utmost complexity”.
Ben was called to the Bar of England and Wales in 1998.
He was called to the Bar of Grenada in 2011, with rights of audience in the Eastern Caribbean Court of Appeal.
He was appointed a QC in 2018.
Ben was appointed Deputy High Court Judge in 2021; authorised to sit in the Administrative Court.
He was appointed Recorder of the Crown Court in 2018; authorised to sit in serious sexual offences.
Ben was The Times Lawyer of the Week in 2019 for successfully prosecuting Ieuan Harley for the murder of David Gaut.
He is editor of Southwell, Brewer and Douglas-Jones KC – Human Trafficking and Modern Slavery Law in Practice; Bloomsbury Professional - February 2018. He is also an author of the Blackstone’s Guide to the Consumer Rights Act 2015; 2nd edition 2021.
Ben is editor of Human Rights in Criminal Law; Bloomsbury Professional – to be published in 2022.
Ben has co-written the CPS Guidance on charging and prosecuting victims of human trafficking for over 10 years, the Law Society Guidance on defending people who might be victims of human trafficking and the refugee defence and the Judicial College Guidance on trying defendants who might be victims of trafficking or slavery.
Ben is author of Blackstone’s Guide to the Consumer Rights Act 2015.
Recent Appeals
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”.
Latest News
Trafficking Convictions Overturned
Ben Douglas-Jones KC, instructed by Philippa Southwell of Birds Solicitors, represented BXR (R v BXR [2022] EWCA Crim 1483). The Court of Appeal (Popplewell LJ, Johnson J and HH Judge Picton) overturned convictions of a victim of trafficking who had, in Nigeria, been: at risk of persecution for being gay; subjected to sex slavery (including multiple rape); witnessed the murder of someone by immolation for being gay; and forced to agree to a “Covenant”, which included ritualistic elements.
He had then been trafficked to the UK in a state of debt bondage; and, in the UK: subjected to domestic servitude, sex slavery, and gay conversion therapy (“deliverance”) at the hands of ministers of a church. They put him to work in a factory while subjecting him to further domestic servitude. He had been provided with false documents to secure employment, which had led to his pleading guilty to associated offences.
The Court accepted that the prosecution had not been in the public interest. Had the CPS known the trafficking circumstances responsible for the offences, as we have found them to be, and applied the 2013 Guidance, it would very likely not have prosecuted.
GUIDANCE ON LIVE LINK AND WHATSAPP EVIDENCE IN CRIMINAL TRIALS
Ben Douglas-Jones KC, leading Valeria Swift, 5 KBW, appeared for the Crown in R v Kadir [2022] EWCA Crim 1244, in which the Vice President of the Court of Appeal Criminal Division gave important guidance on live link evidence from abroad. The case specifically considered the use of WhatsApp.
1. A judge has the power to direct a live link via WhatsApp – which is end-to-end encrypted - under S.51, CJA 2003; it is for the judge concerned to make a fact-specific decision in the circumstances of the particular case.
2. The party making the application for a live link direction must provide the judge with all the requisite information.
3. The parties (prosecution or defence) need to give consider and prepare any applications for witnesses to testify from another country via a live link at an early stage of proceedings:
(1) First, s6C of CPIA Act 1996 must be complied with. The requirements apply to a witness who will give evidence in person as well as to a witness who will give evidence via a live link. The failure by a defendant to comply with the requirements where a witness is in another country is likely to give rise to additional difficulties for the prosecution in investigating the proposed witness, and for the court in considering the application. Notice of the identity of the witness affords an opportunity for appropriate investigations to be made. Failure to give notice is an inhibition on the prosecution’s ability effectively to test his evidence; see s.51(6)(f)(ii) [the provision which now applies; post-trial, in June 2022, the statute was amended].
(2) Second, in relation to an application for a live link for a witness who is in another country, it is necessary also to bear in mind the principle that one state should not seek to exercise the powers of its courts within the territory of another state without the permission (on an individual or a general basis) of that other state. It cannot be presumed that all foreign governments are willing to allow their nationals, or others within their jurisdiction, to give evidence before a court in England and Wales via a live link. In some states, it may be necessary for the UK to be asked to issue an International Letter of Request (ILOR) to the state concerned; see the guidance issued by the Lord Chief Justice on 4 July 2022. A failure to make a relevant enquiry causes the judge to lack vital information in deciding whether, in the light of the factors listed in s.51, it is in the interests of justice for a live link direction to be made.
(3) Third, the adequacy of the arrangements needs to be checked in good time.
(4) Fourth, there needs to be sufficient information to enable the judge to assess the risks which might be involved in a witness giving evidence from abroad, including any risk that s/he would be under any form of pressure from any other person. This would include information as to the location from which the witness would be giving evidence.
Luckhurst - Landmark Supreme Court Win
Ben Douglas-Jones KC, together with Nathaniel Rudolf KC (25 Bedford Row) and William Douglas-Jones (St Ives Chambers), instructed by Ben Henry of Jonas Roy Bloom Solicitors, have secured a landmark Supreme Court win.
The judgment confirms that defendants whose assets are restrained in criminal cases may pay for civil proceedings relating to the same or similar facts as those of the offence(s) giving rise to the restraint order.
Issue
The appeal related to the scope of permitted legal expenditure as an exception to a restraint order granted pursuant to section 41 of the Proceeds of Crime Act 2002 (POCA). The Supreme Court was asked to decide whether section 41(4) prohibits an exception for reasonable legal expenses in respect of civil proceedings relating to the same or similar facts as those of the offence(s) giving rise to the restraint order.
Facts
The respondent, Mr Luckhurst, faces criminal proceedings in the Crown Court. The indictment alleges fraud and theft arising out of Mr Luckhurst’s conduct practising as an independent financial advisory in a company called BBT Partnership Limited which he vehemently denies. The CPS’ case is that Mr Luckhurst ran a fraudulent Ponzi scheme and stole money from clients. In 2016, a number of BBT’s investors brought civil proceedings in the High Court against Mr Luckhurst and others. Those civil proceedings are ongoing. In December 2017, on the application of the CPS, the Crown Court made a restraint order against Mr Luckhurst under POCA. This was to preserve Mr Luckhurst’s assets to meet any confiscation order which may be made by the Crown Court under the POCA in the event of Mr Luckhurst’s conviction. Mr Luckhurst instructed solicitors to defend the civil claim agaisnt him and sought a variation to the restraint order to pay those solicitors £3,000 for advice on a settlement. Mr Luckhurst’s variation application was refused by the judge at first instance but allowed on appeal. The Supreme Court has confirmed that such civil expenses are permitted. In a judgment given by Lord Burrows, with whom Lord Hodge, Deputy President, Lord Kitchin, Lord Hamblen and Lord Stephens agreed, the Court found, agreeing with Mr Douglas-Jones QC:
(1) the issue was one of statutory interpretation and the correct modern approach to statutory interpretation is found in R (O) v SSHD [2022] UKSC 3;
(2) on a natural meaning of the words in their context, legal expenses in civil proceedings for a cause of action (for example, a tort or equitable wrong) do not relate to a criminal offence;
(3) any attempt to carve out a meaning for legal expenses in civil proceedings for a cause of action that “relate to an offence” will be artificial and problematic;
(4) the pursuit of the policy of maximising confiscation is qualified by the need to ensure that restraint orders do not unfairly prevent the (alleged) criminal incurring reasonable expenses of certain kinds;
(5) there are two specific indicators that the primary focus of the policy underlying the preclusion of legal fees in s.41(4) was on the legal expenses of defending the alleged criminal offence(s) and resisting the confiscation and restraint orders themselves:
(a) the June 2000 Report "Recovering the Proceeds of Crime", chapter 8; and
(b) the quid pro quo for s.41(4) was that, by amending Sched.2, Access to Justice Act 1999, legal aid was extended to cover restraint proceedings;
(6) as with reasonable living expenses, it will be for the courts to follow the “legislative steer” in s.69(2) so as to strike the correct balance in the exercise of their discretion in determining whether the legal expenses are reasonable: a blanket preclusion could operate to contradict the policy of ensuring maximum confiscation of a criminal’s ill-gotten gains; and
(7) interpretation of the subsection to allow such expenditure reflects the spirit of the reasoning of the Court of Appeal in In re S (Restraint Order: Release of Assets) [2005] 1 WLR 1338.
1.8m National Trust Fraud
Ben, leading James Marsland, appears for the Crown in Operation Berber, a 1.8 million fraud on the National Trust; see https://www.telegraph.co.uk/news/2022/03/04/national-trust-surveyor-trial-swindling-charity-17m/
Guidance Given by Court of Appeal in Appeals Where Victims of Trafficking Offend
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.
Significant case concerning facilitating illegal immigration in cases of small boats carrying migrants being intercepted by authorities in the English Channel:
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.