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

 

In his early years in practice, at the chambers of George Carman QC, his work was predominantly in the civil courts and he appeared regularly in the High Court. For many years, however, he has specialised in the prosecution of heavy criminal litigation; he is frequently instructed in the most serious, complex and sensitive prosecutions and has immense experience and proven expertise in the trial of Serious and Complex Fraud and Serious Organised Crime where he is a member of List A.

 

Since 2005, he has been Standing Counsel to the Revenue and Customs Prosecutions Office. In addition, he has been regularly briefed by the Serious Fraud Office and the Department of Trade and Industry. In the CPS grading exercise, he was appointed as a Grade 4 advocate (expressly reserved for “advocates of exceptional experience and ability”). In at least 90% of his cases he is instructed as leader with a second junior counsel to assist him. He has extensive experience in conducting the ‘heaviest’ and most demanding fraud and money-laundering cases, as well as 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 by RCPO with responsibility for the conduct of its highest-profile cases, viz. those with ‘reputational’ consequences for that department.

 

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, since both the SFO and RCPO now operate a system closely akin to the VHCC regime, he is well versed in the requirements of case management, the advanced authorisation and allocation of hours to specific tasks and the need to provide on a monthly basis fully particularised work logs.

 

Outside his case-specific advocacy and advisory work, he is frequently called upon to provide strategic advice for general policy application. In addition, he regularly lectures both to lawyers and to law enforcement officers. Most recently he conducted, together with Professor David Ormerod, a series of seminars on the Fraud Act 2006 and on the different routes to non-jury trial (jury-tampering, sample counts and the ‘burdensome trial’ provisions). And in November 2008 he lectured to members of chambers and outside guests on recent developments in the law affecting the obtaining of confiscation orders, with particular emphasis on R v May, R v Morgan and the so-called Toulson LJ appeals.  

 

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, most recently in R v Morgan; R v Bygrave [2008] EWCA Crim 1323 (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 Diclosure 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. What has become known as ‘the Walbank Protocol’ has been approved in a number of first instance rulings and in the Court of Appeal. The CBA treated it as a model for criminal disclosure in its submissions on the Fundamental Legal Aid Review. He wrote the entire text of 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 litigation in the High Court. Most recently (August 2008), he has acted for BP Plc in obtaining an emergency  freezing injunction in the Chancery Division (in a claim to recover ‘secret profits’ against a senior executive dismissed for gross misconduct) and will be appearing in the Eastern Caribbean Supreme Court in a civil action regarding real property in Antigua.     

 

In a recent professional recommendation, a highly respected Queen’s Counsel wrote that:

 

A senior judge before whom David recently appeared in a lengthy and complex trial rated his performance in the following terms:

 

 

 

Instructed as first junior (assisted by two other juniors) to prosecute a fraud involving the largest ever VAT-loss sustained by Customs & Excise (more than £300 million). The case was exceptionally complex, given that Creaven was a foreign national, who had supplied numerous different groups of UK-based VAT-fraudsters (who were themselves the subject of separate prosecutions). There were 130,000 pages of evidence and more than a million items of Unused Material. Amongst the many procedural complexities were judicial review proceedings brought by the defendant in the Republic of Ireland to quash C&E’s original Letter of Request and the resultant search warrants executed in Ireland. The decisions of the High Court and the Court of Appeal in Dublin resulted in the bulk of the evidence initially available to the Crown having to be returned to Eire. It was in his capacity as prosecution counsel in this case that he was instructed by RCPO to draft the ‘Protocol For National Disclosure Exercise’, which has since been served on the Court and the all defence teams in all MTIC prosecutions.

 

Instructed by the Serious Fraud Office in this seven-handed conspiracy to steal a pension fund (described as “the biggest pension scandal since Maxwell”). The served evidence ran to c.50,000 pages. In addition, the disclosure exercise involved liaison with numerous third party agencies holding potentially relevant materials and David took responsibility for organising and conducting meetings and teleconferences with more than 35 different government departments, regulatory and professional bodies, prosecution agencies and constabularies (eg Inland Revenue, DTI, Financial Services Agency, Insolvency Service, Pensions Regulator, Law Society etc). Six of the seven Defendants were convicted.

 

Also instructed in the restraint proceedings before the High Court.

 

This prosecution resulted from a joint HMRC and Metropolitan Police investigation into a ten-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. When the compromise of the HMRC investigation was first suspected, he was instructed to advise on the approach to be adopted; the corruption was ultimately proved by means of a sting operation, shadowing the main Customs investigation, and run covertly by the Metropolitan Police’s anti-corruption unit. Three Defendants pleaded guilty. The trial of the remaining seven Defendants lasted 8 months before a protected jury. As well as undertaking much of the advocacy at the trial itself, he supervised the entire disclosure process and conducted all the ex parte public interest immunity hearings before the trial judge.

 

Subsequently led for the Crown in the three-week confiscation hearing, which was preceded by an interlocutory appeal to the Court of Appeal and which resulted in confiscation orders in excess of £2 million. He was also instructed as Leading Counsel for the Crown in linked proceedings, following the subsequent extradition from Cyprus of an eleventh Defendant.     

Instructions November 2005 to July 2008

This was a conspiracy to supply cocaine. Instructed as Leading Counsel for the Crown. Two Defendants pleaded guilty and a third was convicted after trial. Sentences were imposed of up to 12 years imprisonment. The case was noteworthy 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. 

 

Instructions August 2006 to June 2007

Instructed as Leading Counsel for the Crown 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. The case papers ran to over 10,000 pages. In the event, the Defendant pleaded guilty and was sentenced to 9 years imprisonment. A confiscation order of £1.9 million resulted.

 

Instructions October 2006 to date

This was the final case in a series of linked money-laundering prosecutions in which he was instructed as Leading Counsel for the Crown. The cases involved teams of freelance launderers and the proprietors of three different travel agencies in Halifax and Bradford. The total sum estimated to have been laundered through these businesses and transferred out of the jurisdiction was in excess of £300 million. In the event, Bhatti pleaded guilty following the conviction of his co-conspirators in the other trials. Confiscation proceedings are pending.

 

Instructions January 2006 to June 2008

This was a CPS prosecution 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. He was instructed as Leading Counsel for the Crown. The Defendant was convicted following a 5-week trial and sentenced to 4 years imprisonment.

 

In the subsequent confiscation proceedings, the Crown successfully argued that, in determining ‘benefit’, the Court could not take into account voluntary restitution made by the Defendant following his arrest in the sum of approximately £200,000. The Court acceded to the Crown’s submission that the only order open to it was a confiscation order in the sum of £106,000, representing the full value of the Defendant’s realizable property at the time of the hearing. The Court of Appeal Criminal Division upheld the order in what is now the leading authority on the exercise of prosecutorial discretion in bringing confiscation proceedings. The judgment is reported as R v Morgan 2 Cr.App.R.(S.) 93(15). Following the making of a property adjustment order in the Defendant’s divorce proceedings, he has recently been instructed in relation to the application to the High Court for a certificate of inadequacy.

This was a prosecution 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. The Defendant was convicted of 11 counts of theft, obtaining property by deception and obtaining money transfers by deception to an aggregate value of £99,000. The facts included the abuse of a police force credit card, theft of a cash float and a large-scale deception on the local authority. The court imposed a sentence of 3 years imprisonment and a confiscation order in the sum of £99,000.

May 2008

Leading for the Crown in this prosecution of a barrister, charged with cheating the Revenue. The case involved a fraudulent £17½ million VAT repayment claim and was complicated by the fact that the Defendant dismissed his lawyers and represented himself. It also involved extensive psychiatric evidence. The Defendant was convicted. 

 

 

Instructions May 2006 to January 2007 

Instructed as Leading Counsel in this seventeen-handed pre-charge fraud investigation, believed to involve a multi-million pound excise diversion fraud. The case papers ran to more than 100 lever-arch files. He was responsible, with his junior, for advising on all aspects of the prospective prosecution.

 

Instructed as Leading Counsel, with two juniors, to advise on charge in this investigation into a multi-handed MTIC fraud. The case was unusually complex, even for a large-scale MTIC, for two principal reasons, viz. (a) the nature of the product - motor vehicles - meant that each individual item could be traced from the European supplier through a succession of sales to its ultimate end user (and there were thus thousands of transaction chains) and (b) the construction of a labyrinthine financial audit trail by which the proceeds of the fraud were allegedly laundered through a complex network of bank accounts. 

Instructed as Leading Counsel in the first prosecution brought by the Deeside region of SOCA, 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. The Court passed sentences of up to 13½ years. Confiscation proceedings are pending.    

 

Operation Basil
Instructed to conduct this 9-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. Following their guilty pleas in the Maidstone Crown Court, the Defendants received sentences of up to 10 years imprisonment.

Operation Haycock

Instructions May 2008 to date

Instructed as Leading Counsel for the Crown in this pending prosecution, which results from an investigation by the Serious Organised Crime Agency. The indictment charges a conspiracy to import heroin and centres on the seizure of 16.7 kilograms of heroin concealed within the weave of a consignment of Afghan rugs shipped from Kabul. Seven Defendants are currently before the Court. Two have pleaded guilty. The trial is fixed for May 2009 with a time estimate of 6 weeks.

Instructions January 2003 to June 2005

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 rationale for the House of Lords’ decision has since been 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.

 

He argued the case in the Court of Appeal in the lead appeal of Suchedina [2007] 1 Cr.App.R.306(23), which clarified the law on (i) the continuing validity of the El-Kurd-type ‘either/or’ conspiracy (ii) the primacy of the ‘intention’ requirement rather than the ‘knowledge’ requirement in laundering conspiracies and (iii) the absence of any requirement to prove the provenance of the cash in ‘intention’ cases.

 

In another case in this series, Ramzan [2007] 1 Cr.App.R.150(10), he formulated the successful submission that the Court of Appeal should not generally grant leave to appeal against historic convictions on the basis of a subsequent change in the law.

 
In Liaquat Ali, he was instructed on the Defendants’ appeals following conviction at their retrial. He drafted all of the Respondent’s documents in response to the numerous grounds of appeal. The appeals were dismissed.

In the most recent batch of appeals in this series, El-Kurd, Sakavickas, Reichwald & Singh [2007] 1 WLR 3190, he drafted the entirety of the Crown’s skeleton argument on what should be the Court’s approach where there has been a fundamental misdirection on the essential ingredients of the offence, but where any reasonable jury, properly directed, must have convicted the appellant.

Arising from the appeals in El-Kurd, Sakavickas, Reichwald & Singh, he was instructed to make submissions on behalf of the Director of RCPO (intervening as an interested party in the appeals of Cottrell and Fletcher [2007] 1 WLR 3262 on the question of the relationship between the Court of Appeal Criminal Division and the Criminal Cases Review Commission. His submissions were successful and the resulting judgment has been characterised as a case of “constitutional significance”.