Mark Kelly - Crime
Mark is a defence barrister. He has worked in competition law in the European Commission and studied European Law at the College of Europe in Bruges. He was part of the criminal bar association’s team of barristers responsible for teaching criminal practitioners about the impact of the Human Rights Act 1998 on domestic criminal practice.
He has substantial experience in serious fraud work including multi-million pound carousel fraud /MTIC fraud; education fraud; internet fraud and bank fraud. He deals with the associated confiscation and restraint proceedings as can be seen from the reported cases referred to below.
He appeared in the first Revenue Evasion case, [Operation Indicia], post the ‘Bond House’ judgment in which all defendants were acquitted. This arose from submissions he drafted which analysed the implications of the judgment for criminal prosecutions under the VAT Act.
He played a key role in bringing about the collapse of the crown’s attempts to rely upon a co-defendant as a prosecution witness in a Colombian Money Laundering case [involving in excess of £5 million], by challenging the crown’s handling of the witness and by highlighting the crown’s failure to comply with its disclosure obligations in respect of the witness.
In a carousel fraud [causing £54 million loss to the Revenue], he conducted all the pre-trial abuse and severance arguments on behalf of his client as leading counsel was unavailable.
As leading counsel in the confiscation proceedings in the matter of Namer he successfully obtained a legal ruling from the judge that resulted in the benefit figure being reduced from in excess of £230 million to £2.5 million, [the final benefit figure was subsequently agreed at just over £1 million]. The thrust of his submissions on benefit was confirmed as correct in the case of Ahmed and Ahmad [in which Mark also played a significant role by drafting and submitting a skeleton argument to the court at first instance on the appropriate benefit figure]
In Namer Mark also successfully applied for leave to appeal against the sentence imposed on Namer 18 months out of time, [Mark had not been trial counsel].
After sentence of his client in an MTIC fraud Mark drafted the requisite advice and grounds of appeal which were commended by the Court. It was successfully submitted in the CA that the principles enunciated in another CA case in which Mark was junior counsel had not been properly applied and that the sentence was manifestly excessive. The appeal was allowed.
Mark was leading junior in a 3 month trial in which his client was acquitted of allegedly running a learner provider scheme and claiming significant funds from the Department of Education. Mark’s client [who neither spoke English nor was able to write English] was the only defendant out of 6 who was acquitted by the jury.
In a sizeable money laundering case that ran for 3 months Mark identified that the crown’s approach to the allegation was likely to mean that ANY legitimate movements of money between defendants’ would prove fatal to the crown’s case. After argument the learned judge ruled in favour of the defendants and subsequently the crown failed to achieve any convictions on an indictment that contained in excess of 50 counts. Thereafter the crown was obliged to offer no evidence on a related indictment against Mark’s client.
In a case involving an allegation of £100 million fraud in which Mark’s client’s company was said to have directly profited in the sum of £5 million, from providing false invoices the crown was unable to secure a conviction on the fraud. The client was convicted only of false invoicing.
Mark successfully defended a property developer accused of fraudulently obtaining mortgages in conjunction with his co-director and a conveyancing solicitor and a surveyor. The case required meticulous preparation of and the calling of expert evidence in respect of the role of valuers and business accounts. Mark’ s client’s case was further complicated by the fact that he faced two allied offences of attempting to pervert the court of justice.
Mark also has substantial experience representing those charged with huge importations and supplies of drugs. He successfully defended a man charged with supplying 230 kilos of ecstasy and another of importing thousands of kilos of cannabis. He also defended in a case of supply of 100 kilos of heroin [street value in excess of £30 million} during the course of which he successfully challenged the admissibility of evidence obtained through covert surveillance of the defendant in conversation with a co-defendant whilst being transported in a police van.
Mark played a significant role in the successful defence of an alleged gangland leader [burger boys] who was said to have been involved in a ‘drive by’ gang related murder and Mark successfully defended a company director / paramedic charged with supplying class ‘A’ drugs to a fellow paramedic who injected himself with them and died.
Mark achieved an acquittal of a police officer who had been investigated in a ‘sting’ operation by his force and had allegedly ‘stolen’ money planted in an unmarked police vehicle which he had been tasked to search. All the action was caught on CCTV and the uniformed officer ran from the scene chased by undercover officers. The officer was also acquitted of a related offence of Misconduct in Public Office. Mark also represented the officer in the associated disciplinary proceedings.
Mark achieved an acquittal of a police officer charged with arson. She allegedly set fire to a neighbour’s house at a New Year’s Eve party at which she was in attendance with her young child just days after she had been dismissed from the police force for disciplinary offences.
Mark has developed a niche practice defending carers who allegedly sexually abused children in their care. These cases throw up complex legal and factual issues. Fundamental to the successful defence of clients facing these types of allegations is the obtaining of relevant disclosure and in particular Third Party Disclosure. The documents drafted by Mark in conjunction with his instructing solicitor have been commended by the courts and by opposing counsel as providing the requisite clarity and nexus between the clients’ defence and the disclosure sought. On one occasion the requests for disclosure led to the decision by the crown to offer no evidence against Mark’s client.
Dip Law [Belgium];
Certificat de lingue et civilization [degre superieur] from Universite de la Sorbonne, Paris, France
Criminal Bar Association
Bar European Group
European Lawyers Bar Association
POCLA (Proceeds of Crime Lawyers Association)
Chambers & Partners 2016 - Rated as Band 2
"He thinks about the minutiae of the evidence and discusses every point with me and with the clients. He is an excellent advocate and out-thinks his professional opponent."
Chambers & Partners 2014 - Rated as Band 1
"Has significant criminal fraud experience. Instructing solicitors admire his approachability, responsiveness and grasp of detail.
Chambers & Partners 2013 - Rated as Band 1
''Mark Kelly of No5 Chambers has a well-regarded criminal defence practice and is praised as an "excellent leading junior fraud counsel" by sources''
A-G REFERENCE Nos 88 2006  2 CAR[S] 28 [successfully opposed AG reference] - now the guideline case on sentencing in carousel / MTIC frauds
R v NAMER [Michael]  2 CAR[S] 24another guideline case on sentence in carousel frauds
R v SPARTLEY-SJ 670[bad character- misleading impression]
R v OMAR  1 CAR[S]
[lifting corporate veil in confiscation proceedings and implications for realizable assets]
R v LOWE
[criminal law week 2009 and Archbold News 2009] - abuse of process and application of s6 discretion under POCA 2002]
Alll these cases are specifically referred to in the text of Archbold [2009 edition]