David Walbank

David Walbank studied law at Queens’ College, Cambridge and was President of the Cambridge Union Society. He was called to the Bar in 1987.  

 

• leading for the main defendant in a £9 billion prosecution brought by the Federation Against Copyright Theft against the operator of one of the most popular ‘Online Video On Demand’ websites providing links to video material across the World Wide Web
• advising a World Bank Staff member accused of channelling to bank accounts in Switzerland corrupt payments from corporate bidders for World Health Projects
• leading for the defence in a £65 million land bank fraud.

In at least 90% of his cases he is instructed as leader with a second junior counsel to assist him. Although first and foremost a trial lawyer, he has a significant appellate practice (in both the Court of Appeal Criminal Division and the Divisional Court) and has appeared in the House of Lords. He often advises and makes submissions on novel or complex points of law and has regularly been entrusted with responsibility for the conduct of the highest-profile cases, viz. those with ‘reputational’ consequences for the prosecution or the defendant.

 

He has developed a particular expertise in confiscation proceedings and is equally at home with contested and complex factual issues or with the more arcane points of law and procedure. He appeared in the House of Lords in the seminal case of Soneji [2006] 1 AC 340 and has argued important confiscation issues in the Court of Appeal on a number of occasions, including in R v Morgan; R v Bygrave [2008] 4 AER 890 (in relation to the prosecutorial discretion) and in R v James Edward Scott [2008] EWCA Crim 1751 (in relation to hidden assets and ex parte applications in confiscation proceedings).He acted as ‘moderator’ at several of the CBA’s training sessions for barristers on the Proceeds of Crime Act 2002.

 

Equally, his expertise on disclosure issues is widely recognised. In July 2004 he drafted the ‘Protocol For National MTIC Disclosure Exercise’, which was issued by RCPO to all prosecution teams, defence teams and judges in more than 60 pending MTIC prosecutions and continues to be used in all such cases. This was expressly referred to as ‘the Walbank Protocol’ by Gross LJ at para 56(iv) of his recent ‘Review of Disclosure in Criminal Proceedings’, it has been approved in a number of first instance rulings and in the Court of Appeal and it was treated by the Criminal Bar Association as a model for criminal disclosure in its submissions on the Fundamental Legal Aid Review. He wrote the original chapter on disclosure in the first edition of ‘Fraud: Law, Practice and Procedure’ (2004: Butterworths). 

 

Whilst the majority of his work in recent years has been in the criminal courts, he has also had significant experience in the conduct of civil fraud litigation both in this jurisdiction and abroad. He has conducted a number of substantial cases in the High Court, including a claim in liquidator’s negligence, a claim for specific performance of a massive land transaction (against the Sultan of Brunei), a claim by an author for damages against a publishing house for non-publication of a commissioned work and an application for judicial review of a governing body’s decision to exclude a pupil. He continues to undertake civil fraud litigation, including, most recently:  

Given that many of his cases involve case papers running to 10,000s of pages and voluminous Unused Material, he has developed a high degree of proficiency in organising, interrogating and analysing masses of data on disk. Moreover, he is well versed in the requirements of case management and the preparation of fully particularised case plans in relation to the funding of litigation.

 

Outside his case-specific advocacy and advisory work, he has been frequently called upon to provide strategic advice for general policy application. In addition, he regularly offers professional training both to lawyers and to law enforcement officers. He has lectured on disclosure to RCPO lawyers, HMRC investigators and the Enforcement Division of the Medicines and Healthcare Products Regulatory Agency and to the Metropolitan Police Fraud Squad on the law relating to search warrants and Legal Professional Privilege. He recently conducted, together with Professor David Ormerod, a series of seminars on the Fraud Act 2006 and in the Autumn of 2011 he delivered a number of lectures to solicitors from leading white collar defence firms, including lectures entitled ‘Chinks In The Draconian Armour’ and ‘Breaking The Shackles’ (on the conduct of respectively confiscation and restraint proceedings specifically from the perspective of the defence solicitor).

  

 

David  has been instructed, both for the defence and the prosecution, in some of the most notable trials of the last decade in the fields of serious complex fraud, organised crime and the corruption of public officials. His cases include:

 

Redknapp

Instructed in a recent series of tax fraud trials involving a number of high-profile individuals in Premiership football.

 

Leading Counsel for the Crown in this trial of immigration fraud perpetrated on a massive scale; the main defendant was a Church of England vicar who had conducted 250 sham marriages.

 

Prosecution by the Environment Agency under the Environment Protection Act 1990 re the escape of waste sewage water into more than 50 residential properties.

 

He was instructed by the Department of Health (on behalf of the Medicines and Healthcare Products Regulatory Agency) in the first ever prosecution brought under The Medicines for Human Use (Clinical Trials) Regulations 2004, alleging the falsification of data in clinical trials on human subjects.

 

Successfully appealing against conviction for offences in liquidation.

 

Unlawful 'corporate angel' schemes designed to defeat the legitimate aims of company creditors.

 

Prosecution for breaching a director's disqualification when managing deliberately loss-making 'investment vehicles'.

 

Massive MTIC fraud involving VAT loss to HMRC of £333 million.

 

Conspiracy to steal a company pension fund (described as the biggest pension fraud since Maxwell).

Massive MTIC fraud involving the then largest VAT loss by HMRC (£333million).

 

This ten-handed prosecution resulted from a joint HMRC and Metropolitan Police investigation into a multi-million-pound MTIC fraud perpetrated by an organised crime group. The proceedings also involved allegations of a conspiracy to pervert the course of justice by burgling the offices of the Customs & Excise investigators and corrupting a member of the investigation team.

 

He was instructed as Leading Counsel in this seventeen-handed investigation into a multi-million pound excise diversion fraud.

 

He was Leading Counsel for the Crown in the trial of a Church of England vicar, a solicitor/pastor and one other for conspiracy to facilitate the commission of breaches of immigration law. The case involved more than 300 sham marriages. The trial took place in 2010 and attracted widespread national media coverage. All three Defendants were convicted.

 

Instructed as Leading Counsel at the trial of a serving police officer, who had befriended an aged and infirm old lady and tricked her into signing cheques, money transfers and property conveyances, representing the vast bulk of her assets (approximately £280,000 in total). The combination of corruption, witness vulnerability, financial complexity and widespread national publicity made this a particularly sensitive case. The subsequent confiscation proceedings went to the Court of Appeal on the issue of ‘prosecutorial discretion’ and the abuse of process jurisdiction in confiscation proceedings and were reported as R v Morgan; R v Bygrave [2008] 4 AER 890.

Instructed as Leading Counsel in this trial of a senior police officer. The Defendant was at the time of his arrest a Detective Chief Inspector and acting head of Sussex Police Special Branch. The trial attracted widespread national publicity and was unusually sensitive, given the defence case that many of the transactions which were the subject of the indictment had been undertaken by the Defendant acting in a covert counter-terrorist capacity.

Instructed as Leading Counsel in this trial of a barrister, charged with cheating the Revenue by way of a fraudulent £17½ million VAT repayment.

 

The trial of two Customs Officers charged with facilitating the making of substantial fraudulent VAT repayment claims.

Instructed as Leading Counsel for the Crown by the CPS Organised Crime Division (on behalf of the Serious Organised Crime Agency) in this prosecution of seventeen defendants in relation to a heroin-trafficking conspiracy involving more than 20 separate importations.

Instructed as Leading Counsel in this prosecution, resulting from an investigation by the Serious Organised Crime Agency. This was a ‘flagship’ prosecution subsequently featured on a ‘BBC Crimewatch Special’ to illustrate the full range of investigative techniques employed by the Serious Organised Crime Agency.

Instructed as Leading Counsel in the first prosecution brought the CPS Organised Crime Division on behalf of the Deeside region of the Serious Organised Crime Agency. The case focused on the drug-trafficking activities of a Liverpool-based organized crime group. The main count on the indictment charged a conspiracy to supply heroin. Further counts charged weapons offences. Applications, on counsel’s advice, to prefer a further indictment in relation to a cannabis farm on the north coast of Scotland, and for joinder of the indictments, were followed by guilty pleas on the day of trial by the four Defendants then before the Court, as well as from other Defendants subsequently arrested and charged.    

 

Instructed as Leading Counsel in this cocaine conspiracy, which was mainly notable for the complexity of the confiscation proceedings. The main Defendant having been sentenced as an organiser of the trafficking enterprise and a purchaser of the consignment, the Crown argued, even in the absence of any identified assets, for a substantial hidden assets order. Although only £20,000 worth of assets were identified, the trial judge made an order in the sum of £492,000. The Defendant appealed on grounds which required the Court of Appeal Criminal Divison to scrutinise the lengthy and complex public interest immunity hearings conducted before the trial judge and to test the Crown’s analysis in relation to hidden assets. Following a detailed review by the Full Court (Sir Igor Judge and Rafferty & Grigson JJ), the Crown’s approach to the disclosure and public interest immunity issues was expressly commended, its analysis in relation to hidden assets was approved and the appeal was dismissed on all grounds. The relevant citation is R v James Edward Scott [2008] EWCA Crim 1751.

 

Operation Basil
Instructed to conduct this nine-handed prosecution of a major Class A drugs supply and distribution ring, making street level supplies of large quantities of heroin and crack cocaine. The prosecution followed a lengthy investigation, comprising a Stop-Check phase, a Surveillance phase, a Test Purchase phase and a Telecoms phase involving the analysis of many dozens of seized mobile phone handsets. All 9 Defendants pleaded guilty. The judge sentenced on the basis that the gang was averaging 100 deals a day over the whole 14-month indictment period and had achieved virtual saturation coverage within the Medway towns.
 

Instructed as Leading Counsel in this massive money laundering prosecution. The Defendant was the proprietor of a small travel agency in Halifax, through which at least £130 million in illicit cash was laundered in a period of 18 months.

 

This was the final case in a series of linked money-laundering prosecutions in which he was instructed as Leading Counsel. The cases involved teams of freelance launderers and the proprietors of a number of different travel agencies. The total sum estimated to have been laundered through these businesses and transferred out of the jurisdiction was in excess of £300 million.

 

This was a retrial of a money-laundering conspiracy. A major HMRC inquiry, the ‘Danati Review’, had thrown up serious cause for concern regarding the bona fides of the Crown’s original star witness (the bureau owner) and this resulted in a major set-piece abuse of process application.

This appeal to the House of Lords related to confiscation orders resulting from the conviction of three Defendants for a money-laundering conspiracy, involving c.£18 million in Sterling cash. The Court of Appeal had quashed the confiscation orders on the ground that the trial judge lacked jurisdiction to make the orders, because of supposed defects in the postponement procedure. He advised RCPO to appeal the decision of the Court of Appeal and drafted the application for leave to appeal, the petition and the Crown’s skeleton argument. At the hearing of the appeal he was led by David Perry QC.  This is now the leading case in relation to the effect of procedural requirements in criminal proceedings. The House of Lords’ decision was subsequently described by the Court of Appeal in Ashton [2006] 2 CR App R 231(15) as a “sea change” in the approach of the criminal courts to technical procedural defects. The House of Lords judgment is reported as Soneji [2006] 1 AC 340.

 

Instructed by the Director of RCPO to co-ordinate the department’s response to a succession of appeals against conviction in historic money-laundering prosecutions (in the light of the House of Lords decision in R v Saik [2006] 2 WLR 993 regarding the mens rea for conspiracy). At least 65 historic prosecutions were said to be potentially affected. His work on this series of appeals included the following: