Welcome to 2022 and to the second edition of The Libertas Lens for the year. In this newsletter, we include 2 expert insight articles, links to recap and catch up on previous Webinars with video, update you on the latest news and case updates, and provide links to 3 upcoming Webinars from our expert team and special guest speakers. To view the edition click here To register for Libertas Lens and ensure you never miss out on our news, events and free webinars follow this link or click Join our Newsletter in the footer below.

The financial action task force released a report on 22 March 2022 on Money Laundering, terrorist financing and Migrant smuggling. The summary states: Every year, millions of migrants seek to escape regional conflict, political instability, persecution and poverty in search of a better future. They can risk their lives at the hands of migrant smugglers who see them as an opportunity to make financial gains and often have little regard for the migrants’ safety. The proceeds generated by migrant smuggling are estimated to exceed USD10 billion per year. This FATF report analyses the money laundering and terrorist financing risks associated with migrant smuggling. While there has been an increase in migrant smuggling, many countries do not consider it a high-risk crime for money laundering and the associated financial flows are rarely investigated. The report identifies the most common methods to transfer and launder the proceeds of migrant smuggling, from hawala, integration of proceeds into legitimate business such as shops, travel agencies and transport companies, and the increasing use of professional money launderers. Using countries’ experiences, the report provides several recommendations and good practices that allow authorities to better trace criminal proceeds and enhance the effectiveness of money laundering investigations. The report highlights the need for countries to understand the money laundering risks they face from migrant smuggling and to proactively follow the money linked to this criminal activity, including through increased collaboration with national and international authorities and the private sector. The FATF calls on countries to proactively follow the money linked to migrant smuggling. Strengthening institutional, international and regional cooperation is an important step. There should be particular focus on supporting countries directly affected by migrant smuggling. To read Dr Felicity Gerry’s module on the links between migrant smuggling, cybercrime and human trafficking click the following link https://www.unodc.org/e4j/en/tertiary/index.html Read Felicity’s related article https://ieeexplore.ieee.org/document/8940396

All members of Libertas Chambers will be supporting the Criminal Bar Association (CBA) policy of not accepting returned Advocate Graduated Fee Scheme (AGFS) cases from Monday 11th April 2022. AGFS cases now produce fees which are less than half of what was paid 20 years ago, without taking into account inflation. In those 20 years, inflation has aggregated the cost of living to 80% more than in 2002. The fees are intolerable and cannot sustain a sufficient number of able criminal barristers who are willing to do legally aided criminal work. The retention rate at the Criminal Bar is now hitting crisis levels. There are now not enough barristers nationally to cover all the work. Successive governments have operated as though the future problems are just that, in the future, and so not their short-term political concern. We have warned the MOJ year on year for decades of the pending crisis that is now unfolding daily. We have repeatedly been promised increases but instead have seen cut after cut, and purported increases which were nothing more than disguised cuts. At a time when inflation will hit 10% this year, fees continue to decline even when taking into account the paltry offer made by the Secretary of State for Justice. We recognise that this will cause inconvenience to our solicitors and anxiety for defendants. However, we are convinced that if action is not taken now to halt the decline, it will be too late to reverse the decline in the future. We thank our solicitors for their patience in the weeks and months ahead. Simon Csoka QC Head of Chambers

Fahrid Chishty represented a client at Wimbledon Magistrates’ Court in connection with Part V POCA proceedings. The client was alleged by the National Terrorist Financial Investigation Unit (NTFIU) to have received over £140,000 into his personal and business accounts which represented the proceeds of a series of frauds perpetrated against the Kuwait Health Office, a wing of the Embassy of Kuwait in London. Fahrid and his instructing solicitors, Connaught Law Ltd, submitted detailed representations to the Applicant authorities, setting out the client’s position that he was a legitimate businessman. On 28th March 2022, Wimbledon Magistrates’ Court made orders under Section 303Z4 POCA to set aside the AFOs against three of the client’s accounts, with the Applicant confirming that the monies, on analysis, did not represent recoverable property. As a result, more than £90,000 will be immediately released and returned to the client.

Despite appealing to the Court of Appeal, the accused’s conviction appeal was abandoned on the day of the Appeal in 2006. Siobhan Grey QC instructed by Saul Lehrfreund at the Death Penalty Project – who are committed to providing access to justice and addressing miscarriages of justice – sought to reopen the appeal against a murder conviction and argue three grounds of appeal before the Eastern Caribbean Supreme Court – 1. failure to call alibi evidence; 2 The Summing Up failed to highlight specific weaknesses in the ID evidence and 3) a failure to leave a two limb good character direction to the jury for a man of good character The Court ruled that the Appeal against a conviction for murder could be reopened and the Court reserved Judgement on the substantive appeal.

The cases involved working very closely with those instructing solicitors who understood the critical importance of unused material to the defence as well as the need to obtain third party material at an early stage of the criminal process. The case at Portsmouth Crown Court concerned historic sexual abuse allegations whereby one of the sexual assault allegations was recorded on the camera of a mobile phone yet despite this the Defendant was unanimously acquitted of all charges. Siobhan was instructed by Denise Medlock from Sussex Defence Solicitors. The second case at Maidstone Crown Court involved historic allegations of rape and indecent assault which resulted in the Defendant being unanimously acquitted of all charges. This case involved a detailed analysis of unused material including third party documents such as counselling and therapy records from outside the jurisdiction and material identified on social media to undermine the prosecution witnesses. Siobhan was instructed by Maria Monan from Monan Gozzett solicitors.

The latest Singaporean business to be affected by international sanctions is Emerging Towns & Cities Singapore (ETC), the developer of the Golden City complex in Myanmar. ETC has notified the Singapore Stock exchange (SGX) that it intends to divest itself of a build-operate-transfer agreement with the Myanmar Army’s Quartermaster General’s Office that was due to last 70 years and with profits in excess of $150 million. The decision was taken after a legal memo, drafted by barristers Dr Felicity Gerry QC and Daye Gang was filed with SGX by Myanmar activists: Justice For Myanmar. The memo set out the necessary risk assessments for the proposed investment, including the likelihood of breach of sanctions by funds from the project reaching the Military Junta, known as the Tatmadaw and labelled Terrorist organisation. The memo highlighted a number of business and human rights risks as well as the consequences of breach of U.S. and E.U. sanctions on Myanmar.  In addition to the ETC divestment, SGX is likely to change its approach to investment listing – progress in itself for a jurisdiction plagued by money laundering scandals. The legal memorandum found that international law and guidance places due diligence obligations on the Singapore Exchange (SGX), and possible liability on the Monetary Authority of Singapore and the Singapore Government, in relation to companies doing business with the Myanmar military. It also found that Singapore has an international legal obligation “to investigate, prevent and cease transactions that amount to wrongful acts”, which are applicable to business transactions with the Myanmar military and its business interests. Legal remedies would be “easily pursued and enforced” against SGX if the Myanmar military’s financial organs are found to be in breach of international laws and/or compliance regulations including international human rights and humanitarian law. SGX initiated regulatory actions against ETC after Justice For Myanmar published an investigation into payments to the Myanmar army, implicating funds raised on the SGX. ETC has commissioned two independent reviews: one by Nexia TS Advisory into contractual payments to the QMGO and fundraising; and another by Kelvin Chia Partnership into the applicability of sanctions and compliance with “applicable laws”.However, the legal memorandum found that these reviews may not address international law risks in light of the 2019 UN Independent International Fact-Finding Mission on Myanmar (FFMM) report into the Myanmar military’s economic interests, and ongoing atrocity crimes. The legal memo also raised the possibility of reputational and sanctions risks for the SGX, its regulator the Monetary Authority of Singapore, and by extension, the Singapore Government, should it not prevent continued payments from ETC to the Myanmar army. ETC suspended trading earlier this year and on 23 March 2022 it announced it was seeking to divest its investment in Myanmar via the sale of its entire shareholdings and to cease its activity in and exposure to the Myanmar market, asking SGX for an extension of time to find and offer and seek shareholders’ approval for the proposed divestment  Singapore has been the largest foreign investor in Myanmar since 2012, having invested more than US$24 billion (S$32.2 billion) between 1988 and January 2021. Activists supported by legal expertise on international business and human rights compliance see this as an example of effective pressure on Singapore companies to cut ties with the Myanmar military and its associated businesses to undermine the regime’s political legitimacy. Read more here  https://investor.etcsingapore.com/newsroom/20220323_174937_1C0_M06XNM7G9YJMBXIE.1.pdf

Felicity and junior Daye Gang were instructed by the Australian Centre for International Justice (ACIJ) on behalf of the Centre for Research on Multinational Corporations (SOMO) to consider the consequences of the sale of communications company Telenor Myanmar, a subsidiary of Telenor Group (Telenor), a Norwegian company where the Norwegian state has a majority shareholding, to Burmese company Shwe Byain Phyu through its initial sale to Lebanon-based M1 Group. The memo was delivered to both the CEOs and Boards of Directors of Telenor and M1 Group, to Norway’s Minister of Trade and Industry, and published publicly. The memo captures the business and human rights issues that arise for multinationals engaging and investing in telecommunications in Myanmar. Read more here https://www.somo.nl/norway-and-telenor-could-be-held-responsible-under-international-law-for-human-rights-abuses-resulting-from-myanmar-deal-legal-experts/