Thomas Schofield KC

Investigatory Powers Tribunal

Tom has particular expertise in proceedings before the Investigatory Powers Tribunal. The IPT is a unique Tribunal which has exclusive jurisdiction to hear certain complaints against the Security Services, the National Crime Agency, His Majesty’s Revenue and Customs, and police forces in respect of covert surveillance, telephone interception, and device interference.

He is currently instructed by one of the lead complainants in the conjoined ‘EncroChat’ case in which complaint is made about the warrants obtained by the National Crime Agency to source communications data intercepted by the French Gendarmerie. He also represented that lead complainant in the appeal of part 1 of the IPT’s judgment, to the Court of Appeal Civil Division.

Tom has also been involved in IPT cases concerning: the obtaining of a search warrant with the alleged ulterior motive of taking the opportunity to place a covert listening device (a probe) in a home, without informing the Court granting the warrant of the ulterior motive; and directed and intrusive surveillance allegedly conducted without appropriate authorisations.

Confiscation, Asset Recovery, and Account/Cash Forfeiture

A large proportion of Tom’s practice is taken up with confiscation matters. He advises on potential challenges to restraint orders and confiscation orders, and regularly appears in the Court of Appeal concerning such matters. Tom has been at the forefront of challenges to the draconian POCA confiscation regime. Long before the Supreme Court decided in the landmark authority of R v Waya [2013] 1 AC 294 that the mortgage advance in a case of mortgage fraud, could not be considered a part of the defendant’s benefit from his criminal conduct, Tom argued the exact same point in an application to the Court of Appeal, in R v Ziarat Mahmood [2013] EWCA Crim 1291. Initially, the Court of Appeal refused leave to appeal but later granted leave (after R v Waya reached the Supreme Court) and accepted that Tom’s argument was right all along. That decision resulted in the defendant being repaid £50,000 by the confiscation authorities. Tom was also involved in the trial which later resulted in the landmark confiscation authority of R (Respondent) v Fields and others [2014] UKSC 36 in which the Supreme Court settled the issue over apportionment and enforcement of confiscation orders in multi handed conspiracies. Tom was also involved in a post R v Guraj [2016] UKSC 65 appeal – in Guraj, the Supreme Court gave guidance on how to deal with a failure by the Crown Court to make a confiscation order within the 2 years’ ‘permitted period’.

The provisions of the Serious Crime Act 2015 (SCA) which came into force in June 2015, made certain amendments to the rights of third parties to confiscation proceedings, and to the Court’s obligations to such parties. The amended section 10A(2), Proceeds of Crime Act 2002 (POCA), now provides for individuals who claim to have a third party interest in the assets of respondents to confiscation applications, to make representations at the hearing and to be represented by counsel. Prior to this change in the law, third parties had no right to be heard in confiscation hearings and could only assert their interest in property owned by a respondent, at the enforcement stage – although, in R v Hilton (Respondent) (Northern Ireland) [2020] UKSC 29 the Supreme Court preserved the right of interested third parties to assert their interest at the enforcement stage, if not considered at the time of the making of a confiscation order. SCA 2015 also created a right of appeal to the Court of Appeal (Criminal Division) by third parties, in the event of the Court refusing or failing to permit a third party to make representations to the Court concerning his interests (see section 31(5)(b), POCA 2002). Tom regularly accepts instructions from clients with third party interests.

Tom has extensive experience in the field of cash forfeiture, account freezing and forfeiture orders and unexplained wealth orders. A couple of Tom’s recent cases include:

X v The Commissioners of police of the Metropolis (2021)

Tom led the defence team in the then biggest account forfeiture order application in English legal history. The team successfully negotiated the return of over €3 million to the client. See https://www.independent.co.uk/business/companies-agree-to-forfeit-ps29m-allegedly-linked-to-money-laundering-b1943632.html

Bapinder Sandhu v The Chief Constable of West Midlands Police [2019] EWHC 3316 (Admin)

Tom has lectured widely on asset recovery and corporate compliance responsibilities in respect of money laundering:

• Money Laundering, Bribery & Asset Recovery seminar (New Delhi, India);
• GCS 9th Annual AML convention [Compliance & Financial Crime Conference/ Proceeds of Crime Legislation in the UK] (Grand Cayman, Cayman Islands).

Appeals

KS v National Crime Agency [2024] EWCA Civ 1095

An appeal to the Court of Appeal Civil Division, against the IPT’s finding that the National Crime Agency were entitled to apply for a Thematic Equipment Interference warrant in order to access material intercepted from an entire telecommunications network – EncroChat – with a usership of 60,000.

R v Neophytou and Neophytou [2021] EWCA Crim 169

An appeal against the making of a multi-million pound hidden assets confiscation order, on the basis that: the learned judge at first instance miscalculated the benefit figure by extrapolating the turnover of two illicit businesses from just 6 days of footfall data from one of those businesses; failed to give due regard to the delay in the proceedings; wrongly increased the confiscation order to reflect the change in value of money, when the money had not been wholly retained; and imposed an unfair default term. Tom is conducting an appeal against the Court of Appeal’s judgment, to the European Court of Human Rights. One of the grounds is that it is a breach of Article 5 of the Convention to impose a default term for a longer period than the maximum sentence for the substantive offence.

R v Paul Dunleavy [2021] EWCA Crim 39

Against convictions for terrorism offences. The judge at first instance had withdrawn from the jury the only defence (reasonable excuse under section 58(3) of the Terrorism Act 2000) to offences of collecting documents likely to be useful to a terrorist, in a case where the Appellant was 16 years old and suffering from Aspergers Syndrome (High Functioning Autism) – a symptom of which can be highly focused, obsessive interests in guns. Moreover, the trial judge rejected the submission that in an offence of preparing to commit a terrorist act, the jury had to be unanimous as to whether the Defendant intended to commit an act of terrorism himself or intended to assist another to do so. This was the first case in which psychiatric evidence was deemed admissible on the issue of whether it was ‘reasonable’ in law for a person suffering from Autism to indulge their curiosity to collect material likely to be useful to a terrorist (in this case, gun making manuals)

Re. Sadhana Soni (a solicitor) [2019] EWCA Crim 1304

Successfully defended a solicitor who was made the subject of a substantial wasted costs order by the Recorder of Leicester. The solicitor, who was not involved in criminal proceedings, made a request for information about a criminal case in the Crown Court so that it could be used in civil proceedings against the defendant. The court declined the request and then issued a wasted costs order in respect of the time it had taken the parties to respond to the request. The Lord Chief Justice agreed with Tom’s argument that the solicitor and her clients had not been parties to the criminal proceedings (a condition precedent for a wasted costs order) and so quashed the wasted costs order.

Bapinder Sandhu v The Chief Constable of West Midlands Police [2019] EWHC 3316 (Admin)

Represented the Applicant in an appeal by way of case stated. The applicant was found with over £50,000 in cash. The police made an application to forfeit the cash on the basis that on a balance of probabilities, it derived from some form of predicate crime and was going to be laundered in the future. The issue in the appeal was whether the police were required to identify the class of predicate crime;

R v Lewis Poyser and others [2017] EWCA Crim 800

Defended 4 appellants in a post-R v Jogee appeal. The Appellants were convicted on the basis of parasitic accessorial liability by continuing to be involved in a kidnapping whilst foreseeing the possibility that the principal offender might wound the victim with intent, in order to reinforce the ransom demands in a way which was demonstrable to the victim’s family.

R v HM [2017] (reporting restrictions apply)

Successfully overturned a conviction for an appellant alleged to be involved a multi-million pound money laundering arrangement. Millions of pounds in Sterling was deposited with the Defendant and others, and then transferred to a Hawala banker who in turn transferred the money to Iran. The Defendant claims that the money had a legitimate origin and had been raised by ex-patriate Kurds in the UK, to send back to Kurds in Iran who are currently facing significant persecution at the hands of the so-called Islamic State (Daesh). Tom argued that the learned trial judge had undermined his own directions to the jury at the conclusion of the case, such that the Court could not be sure that the jury had safely convicted;

R v Alan Evans [2015]

Application for permission to appeal against a conviction for murder. The Applicant was convicted of murdering his wife by throwing her down a flight of stairs and 8 then smothering her to death. He claimed at trial that the death had been caused as a result of a tragic accident. Post-conviction, material was discovered which (it was argued) could give rise to the possibility that a third-party intruder was responsible for the death.

R v KK [2015] EWCA Crim 13

Appeal against conviction for money laundering. At trial, there was evidence of hundreds of thousands of pounds of expenditure yet the appellant had no visible means of support. The trial judge ruled that this was sufficient to raise a case against the appellant. At the appeal it was argued that the trial judge had misinterpreted the authority of R v Anwoir which permits juries to find the existence of ‘criminal property’ without any direct evidence of the same. The Court was persuaded that the trial judge should have given further directions;

R v Ajaz Budi [2015] EWCA Crim 35

Successful appeal against conviction and sentence, on the basis of a biased summing up

R v Wheaton and Tumara [2014] EWCA Crim 1667

Proper application of the sentencing guidelines for drugs offences where there has been a reclassification of the
drugs between the commission of the offence and sentence;

R v Swinbourne [2013] EWCA Crim 2329 (2014) 178 J.P. 34

The admissibility of confessions in ‘did he do the act’ hearings (hearings in which defendants are unfit to plead or stand trial);

R v Ziarat Mahmood [2013] EWCA Crim 1291

A post R v Waya case. Successfully obtained the return of £50,000 to a defendant who had been made the subject of an unfair and disproportionate confiscation order based on giving inaccurate income information in a mortgage application; and Tom is regularly asked to review cases in which he was not involved at first instance, 10 to advise on any potential points of appeal. Tom has had considerable success in such appeals.