Tom Forster has considerable experience of and proven track record in defending and prosecuting serious and complex fraud and associated proceedings before the Administrative Court and regulatory tribunals.
He has also developed a reputation for defending in cases of serious crime including homicide and gun crime, drugs/people trafficking and sexual offending. For example, between 2009 and 2010 Tom has defended in a number of homicides at the Central Criminal Court (CCC).
His ability in all areas has been noted in the leading directories on legal services. In Chambers UK Guide to the Legal Profession (2011 Edition) Tom is described as a leading junior specialising in fraud work whom solicitors commend as possessing “great oratory skills”. Tom is also noted in the Legal 500 (2010 Edition) for his work defending serious crime and in particular complex murder investigations involving “expert technical evidence”.
Tom began at the Bar with a mixed practice in both civil and criminal work. However, at an early stage he was involved in criminal cases which were publicly reported; for example, R. v. Ollerenshaw [1999] 1 Cr.App.R. (S) 65 (a leading sentencing authority upon prison overcrowding) and R. v. Plavecz (2002) (a significant ruling on the meaning of section 3 of the Public Order Act 1986). He also received instructions very early in his career in the SFO prosecution of Ian and Kevin Maxwell.
As his practice developed Tom received instructions to defend as a led junior and leading junior in a number of high profile frauds prosecuted by the SFO and HM Revenue and Customs. In 2010 this trend has continued. For example, Tom has been instructed to defend in a number of important prosecutions involving the unlawful export of military and dual use equipment to third countries, a high profile FSA prosecution of alleged insider trading and a large mortgage fraud. In 2011 he is due to defend a large fraud upon the VAT system and another involving wholesale abuse of tax credits.
Tom has also been instructed to defend in prosecutions brought by the HSE and Environment Agency. These cases often involve fatalities and corporate clients.
In 2010 the Attorney-General re-appointed Tom as a Special Advocate to assist in proceedings before SIAC and/or other tribunals where highly sensitive material is in issue. He was first appointed in 2007.
Tom also prosecutes serious financial crime including corruption and bribery. For example, in 2009-2010 Tom was instructed as Junior Counsel in the SFO’s investigation into BAE Systems. In 2009 at Worcester Crown Court he was instructed as a leading Junior in a successful SFO prosecution of a high yield investment fraud. He was appointed to the “A” list of SFO Counsel in 2009.
He is also instructed by CPS Organised Crime Division, and in 2011 successfully prosecuted a number of defendants following an investigation by the Serious Organised Crime Agency into the manufacture of over £17 million counterfeit £20 notes.
He undertakes work in both the Administrative Court, normally for respondents, and prosecutes and defends before various disciplinary tribunals including the Pharmaceutical Society of Great Britain and the Disciplinary Tribunal of the Inns of Court. He has been instructed regularly to appear at inquests in Coroners’ Courts.
He is a specialist in confiscation proceedings (POCA/CJA), related asset forfeiture work and civil recovery proceedings. In 2010 he received a number of instructions to defend in serious and complex applications for confiscation involving intricate financial arrangements including off shore tax structures. He is also instructed to advise in cases which raise issues concerning the application of the ECHR and has been invited to lecture by the British Institute of Human Rights.
In addition, Tom undertakes advisory work. For example, he regularly advises banks, solicitors and companies upon their duties under the anti money laundering measures. He is frequently required to act as independent Counsel and review documentation for the purpose of identifying legally privileged material. He has been asked to advise upon and draft restraint orders by RCPO.
Publications and Seminars
He is a contributing author to “Fraud: Law, Practice and Procedure” (Sweet and Maxwell). Mr Justice Irwin described this as an “excellent work, which will be at my side in future fraud cases” and drew “particular attention to Chapter 17”, which was written by Tom.
He lectures on asset recovery, the proceeds of crime and money laundering in addition to the impact of the ECHR (seminar providers include CTL Conferences and the British Institute of Human Rights). In 2010 he addressed a number of audiences concerning the role of Special Advocates and the novel challenges faced by defence Counsel in Military Tribunals.
Cases of Note
Serious and Complex Fraud
SFO’s investigation into BAE Systems (2010). – Tom was instructed as Junior Counsel in this high profile investigation with specific reference to arms deals in Central and Eastern Europe.
Regina v. Byrne and ors (2011 Canterbury CC) – Tom is instructed to represent a company director in a large fraud on the VAT system (total value £2 million).
Regina v. Ademuyiwa (2011 Inner London CC) – Tom is instructed to defend in this prosecution by FPS of a large scale tax credit fraud (total value £5 million).
Regina v. Elekwa and others (2010 Southwark CC) – Tom was instructed to defend in this large case brought by the FPS (investigated by SOCA) alleging a conspiracy to defraud mortgage lenders.
Regina v. Gardner (2009 Worcester CC) – Tom was instructed by the SFO as a Junior alone to prosecute a high-yield investment fraud which targeted expatriates resident in South-East Asia who worked in the petro-chemicals industry. The defendant was convicted following a contested trial and sentenced to 7 years imprisonment.
Regina v. Ponder and ors (2008 Southwark CC) – Tom was instructed to defend as a Junior alone in what at the time was the largest MTIC fraud prosecuted by HMRC (Operation Euripius). The case was successfully defended when the Court allowed an application to dismiss the charges. The Prosecution subsequently made an application for a voluntary bill of indictment which, in the light of the Crown Court decision, was an exceptional remedy. These proceedings were successfully resisted and resulted in a authoritative ruling on the jurisdiction of the High Court to issue a voluntary bill – [see R. v. Goldstone and ors [2008] EWHC 976 (QB)].
Regina v. Ollis (2008 Ipswich CC) – Tom was instructed to defend the manager of an investment fund who was accused of mismanaging client funds and siphoning off secret profits to off shore tax havens. The case was interesting as it involved the prosecution of rarely charged FISMA offences and the use of live satellite links to obtain evidence from overseas.
Regina v. Hanne Sayers and ors (2008 Nottingham CC) - He defended as leading Counsel in this wide ranging MTIC fraud. The case attracted the interest of the media as the matter was successfully defended when the indictment was stayed as an abuse of the process of the Court as a result of the failure of the Prosecution to comply with its duties of disclosure.
Regina v. Sthankiya and ors (2007 Birmingham CC) - He was instructed on behalf of the defendant as a led Junior in this SFO prosecution of a £60 million fraud following the collapse of the Ciro Citterio menswear chain. The indictment was stayed as an abuse of the process of the Court as the defence successfully argued that the Prosecution’s selective approach to the investigation prevented a fair trial of the real issues.
Regina v. Beveridge and Gauntlett (2006 Southwark CC) – He was instructed to defend as a led Junior in this multi-million dollar money laundering prosecution. The matter was of interest to both the general public and the legal profession as the defendants were solicitors who it was alleged had laundered the proceeds of fraud through a partnership account. The case was successfully defended and raised important issues about the “know your client” rules under the money laundering regulations.
Regina v. G and ors (2004 Southwark CC) - He was instructed by the SFO as Junior Counsel in this high profile investment fraud. The case involved two notable legal rulings in the Court of Appeal as to the permissible ambit of expert evidence and the interplay between legal professional privilege and the disclosure of sensitive and privileged material (see R . v. G. [2004] 2 Cr.App.R. 38, C.A. and R. v. G. and B. [2004] 2 Cr.App.R. 37, C.A.).
Export Controls and Arms Trade
Regina v. Sarig and Freckleton (2010-11 Southwark CC) – Tom was instructed to advise both defendants on the merits of an appeal against their convictions for brokering the supply of munitions and firearms (bombs, automatic weapons and shotguns) to various third parties in contravention of the Trade in Goods (Control) Order 2003. He is also instructed to advise upon an application for confiscation made in the same proceedings.
Regina v. Gill and ors (2011 Central Criminal Court) – Tom is instructed to defend an employee of a company who it is alleged was knowingly concerned in an attempt to export electrical equipment to Iran which goods are said to be “dual use” and therefore useful in the manufacture of WMD.
Regina v. Jones and another (2010 Southwark CC) - Tom was instructed to defend a company director in a prosecution brought by HMRC where it was alleged military equipment had been exported to third countries such as Iraq.
Asset Recovery
R. v. Demetriou (2010 Blackfriars CC) – Tom successfully defended an application for confiscation which targeted off shore assets such as land and other real estate.
R. v. Pettit (2010 Cambridge CC) – Tom further successfully resisted in large measure an application for confiscation which targeted assets in Central Europe.
R. v. Lee [Bank of Scotland as an interested party] (City of Westminster Magistrates) – Tom represented the interested party – the Bank – in an application for forfeiture of large cash sums. The matter was complicated as it involved the tracing of assets.
R. v. Scott (2008-09 Kingston CC) – He defended in a complicated application for confiscation by SOCA which was interesting as the case turned, in part, on his submissions as to the legal approach to the issue of benefit following the quartet of cases - R. v. Sivaraman [2008] EWCA Crim 1736 , R. v. May [2008] 2 WLR 1131 , Jennings v. CPS [2008] 2 WLR 1148 and R. v. Green [2008] 2 WLR 1154.
CPS v. City of London Magistrates Court and Keith Hartley (interested party) [2007] EWHC 1924 (Admin) – He acted for the interested party and successfully resisted the CPS application for an order quashing the decision of Justices to apportion time served in default of payment of a confiscation order. The case was important as the Court clarified the interrelation between an application for judicial review and an application to state a case. It also issued guidance upon the meaning of “promptness” in the context of an application for Judicial Review.
HMRC v. O (CJA No 9) [2006] EWCA (Admin) - He successfully represented the “interested party” in resisting an application to enforce a charging order on the matrimonial home. This case raised fundamental questions about the property rights of a third party on an application to enforce a confiscation order.
Advisory Work – In 2010 Tom has advised solicitors firms, banks and money exchanges upon their obligations under the money laundering regulations. This has also involved advice upon international business transactions and an organisations exposure to regulation in foreign jurisdictions.
Homicide
Regina v. Ginesi (2011 CCC) – Tom was led in defending this multi-handed allegation of murder. His client was acquitted following a four month trial.
Regina v. Cowie (2010 CCC) – Tom was led in this difficult murder trial in which the 16 year old defendant ran a case of self-defence in respect to a fatal stabbing. The Recorder of London described the case as “unique” and upheld a defence submission of no case to answer on the unusual basis that the Prosecution could not prove the defendant did not act in lawful self defence.
Regina v. Cartwright (2009 CCC) – Tom was led in this murder trial which involved difficult medico-legal issues such as the impact of a pre-existing brain injury and a history of alcoholism on the defence of self defence and issue of provocation.
Regina v. Palomeque (2008 CCC) – He was led in this murder trial which was successfully defended in part when the jury returned a verdict of not guilty but guilty of manslaughter by reason of provocation. The case was a clear forensic success as defence Counsel undermined the Prosecution by deploying evidence from both an expert imaging analyst and mobile telephone records to demonstrate the production of a deadly weapon by the deceased.
Regina v. Dyce (2008 CCC) – this involved a multi-handed trial of 4 men who lured the deceased to his death. The case was of note as it involved Prosecution applications for witness anonymity which were successfully resisted before the decision in the House of Lords landmark ruling in Regina v. Davis [2008] 3 W.L.R. 125 (H.L.).
Regina v. Eastwood (2008 CCC) – He was instructed as Junior Counsel alone to represent the defendant in a case where he killed his foster mother and repeatedly stabbed his foster father as they both lay asleep in bed. The case was notable in that Tom was required to seek an indication as to the “minimum term” on a sentence of life further to the procedure in Goodyear [2005] 3 All ER 117.
Double Jeopardy case (2008 CCC) – this case is subject to a reporting restriction in which he is instructed to defend the respondent to an application under section 84 of the CJA 2003 for an order quashing an acquittal and ordering a retrial on production of new and compelling evidence.
Regina v. Dore (2006 CCC) – He was instructed as a led Junior in this case where it was alleged the defendant killed his wife. The case was important as it required Tom to undertake the cross-examination of a blood spatter expert.
Health and Safety and Environmental Protection
HSE v. GA International Ltd (2007 Doncaster MC) – He defended a meat processing company for various breaches of the HSWA 1974 whereby machinery was operated in a dangerous manner and condition. The corporate client’s omissions were successfully mitigated following (a) Tom’s carefully argued written and oral response to the Prosecution “Friskies” schedule and (b) his advice to overhaul specific areas of the client’s safety procedures and policies concerning risk assessments.
HSE v. O’Rourke Scaffolding Limited (2007 CCC) - He defended in this matter which involved multiple fatalities following the collapse of a scaffold on a large construction site. The case was important as it demonstrated how the early instruction of an expert engineer and Health and Safety Consultant was vital to agreeing a basis of plea which substantially mitigated the culpability of a corporate client.
EA v. H Waste Management (2004 St Albans CC) - He defended a large waste management company charged with various breaches of the Environmental Protection Act 1990. The case was of interest as it involved a technical legal argument concerning the definition of waste further to the European Directive.
Sexual Offences
Regina v. Franklin (2011 Snaresbrook CC) – Tom is instructed to defend in this prosecution of a young man accused of rape in respect of tow complainants. The case involves young complainants and interesting arguments as to the use of s.41 YJCEA 1999.
Regina v. Steels (2010 Peterborugh CC) – Tom successfully defended this prosecution of a step father upon an allegation of rape in respect to this step daughter. The case was particularly difficult as it involved issues concerning the mental capacity of the complainant who was severely learning disabled.
Regina v. Uddin (2010 Isleworth CC) – Tom defended in a sensitive case involving an allegation of rape by the complainant against her husband. The case was particularly controversial as is it involved sex acts between observant Muslims and an application to cross-examine upon previous sexual history under s.41 YJCEA 1999.
Regina v. Ogunsanya (2010 Wood Green CC) – Tom defended in this sensitive case involving an allegation of rape by a young male defendant on a young female. The defendant was acquitted following the cross-examination of the complainant as the Court ruled the weight of the evidence failed to support the charge.
Regina v. Tate (2008 Peterborugh CC) – Tom successfully defended this prosecution of a sexual assault of a well known and respected teacher. The case attracted a good deal of public interest and was unusual as the defence were given leave to cross-examine the complainant about alleged lies concerning her sexual history.
Regina v. Tene and ors (2008 Snaresbrook CC) - He defended in a multi-handed trial whereby the Prosecution alleged the complainant was the victim of a multi-assailant rape. The proceedings were novel in that the Prosecution wished to rebut the defence of consent by introducing background evidence of the complainant’s sexual and medical history. This also required Tom to undertake a complex cross-examination of an expert physician on the issue of the causes of intra-uterine pain.
Regina v. Smith (2007 Croydon CC) – He defended in this case which involved a mentally and physically challenged complainant and defendant. The case was particularly noted for the use of intermediaries and experts upon the issue of mental and physical capacity.
Offences of Violence
Regina v. Morrison (2010 Wood Green CC) – Tom defended in this multi-handed conspiracy to rob, blackmail and kidnap. The case was newsworthy as it involved the attack by a criminal gang upon a family in their own home during which a loaded shot gun was held to the head of a 7 year old girl during which ransom demands were made. Tom led for the principal defendant following which he was commended by the Judge for the conspicuous skill he had demonstrated in advancing a difficult defence case.
Regina v. Erinoso (2010 Southwark CC) – Tom led for the first defendant in a trial involving allegations of blackmail and false imprisonment. The case was particularly serious as both victims were subjected to serious violence and effectively tortured over 24 hours.
Regina v. Nazrul Islam [2010] 1 Cr.App.R.(S.) 655 – Tom defended in this grave case of causing grievous bodily harm with intent which attracted a great deal of public interest in circumstances where the prosecution initially alleged it was an example of a homophobic attack on a defenceless young man who was left as a complete tetra- pelagic. The case was also of interest to professionals as the Court of Appeal was forced to address the tension in sentencing practice between, on the one hand, affording a young man sufficient mitigation in the light of his youth, and on the other, ensuring the most serious attacks receive severe punishment so as to maintain public confidence in the criminal justice system.
Regina v. Islam and ors (2009 CCC) – Tom led for the second defendant in this trial of attempted murder. The case was difficult as it involved a confession by the defendant to the police in an interview under caution which the Judge excluded following an application under both ss.76 and 78 PACE.
Regina v. Virdee and ors (2007 Snaresbrook Crown Court) – He defended in this conspiracy to blackmail and kidnap prosecution. The case was notable in the East London area as it involved an enterprise to kidnap and hold to ransom a prominent local businessman. Tom was able to achieve a negotiated basis of plea for his client which avoided a prison sentence. The remaining defendants were all convicted and received lengthy custodial sentences.
Regina v. Grey [2003] EWCA Crim 1001 (Archbold 14-47a) – He prosecuted in a series of armed robberies at the CCC during which the jury was invited to identify the robber with the assistance of a facial mapping expert. The case is important as in the Court of Appeal guidance was issued as to the proper limits of this type of evidence in the absence of a national database or agreed formula from which conclusions as to the probability of occurrence of particular facial characteristics can safely be drawn.
Disciplinary Tribunals
Tom has been instructed to prosecute many cases by the Bar Standards Board. He is currently involved in a matter involving an allegation of forgery in the context of a barrister supplying legal services under the Direct Public Access provisions and is instructed to resist an appeal against a finding by the Disciplinary Tribunal on the basis that it did not represent an unwarranted interference with the barrister’s rights to free expression and privacy under the ECHR.
Other important cases involving issues of principal for the regulation of the profession include:
BSB v. PS (2004 Disciplinary Tribunal to the Inns of Court) – He prosecuted this matter before the disciplinary tribunal and successfully resisted the subsequent appeal to the Visitors of the Inns of Court. The disciplinary proceedings were important as they involved the regulation of a non-practising barrister who had effectively perverted the course of public justice in seeking to defend an action in the County Court for forfeiture of a commercial lease and damages following unlawful subletting.
BSB v. P (2004 Visitors to the Inns of Court) - He successfully resisted an appeal against conviction to the Visitors of the Inns of Court. The matter was of acute importance to the Bar Council as the appellant sought to challenge the regime by which barristers are required to obtain a practising certificate on payment of a fee on the basis that the fee represented an unwarranted charge and thereby was a disproportionate interference with the applicant’s right to property under Article 1 of the Convention.
