IN THE CROWN COURT AT SOUTHWARK T20107219

R E G I N A
V
X
and OTHERS


APPLICATION TO BREAK FIXTURE OF 10th APRIL 2012


1. On 11th February 2012 Brendan Kelly QC withdrew from representing X on the basis he was professionally embarrassed. An advice explaining that decision was served on the Court and it sets out in detail the circumstances of the withdrawal. In summary the withdrawal stems from:
a. BKQC has a close professional working relationship with Bark & Co. Solicitors. A senior but unqualified member of Bark & Co, Fred Bunn, is a former Metropolitan Police Flying Squad officer.
b. It is now the case that the defence of X involves an attack upon the integrity of Bark & Co. and in particular the integrity of Fred Bunn. The case involves an attack on the UK state which systematically abused a website which was a jewel in the crown communication system.
2. The withdrawal of BKQC is no fault of X.
3. The brief background to this problem is:
a. In May 2008 the Metropolitan Police carried out raids and arrests in London relating to the activities of Confidential Access. These raids only happened because the then Labour Government and deputy Prime Minister John Prescott arranged to pay the BBC to expose a website which was causing the government considerable embarrassment. The BBC rather cleverly at the bequest of The Met Police ordered a driving licence in the then Home Secretary’s name Jaqueline Smith. This created the high profile arrests the government needed. The exposure can be found at  http://news.bbc.co.uk/2/hi/uk_news/7424674.stm
b. Questions in Parliament had been asked why the website was still active. The Home Office lied and said “this site is not funded by the home office” when in fact MI5, MI6 and SOCA had been funding and using the website since late 2001. The website allowed anyone to change their identity overnight and to disappear like a shadow, it supplied duplicate documents which were impossible to tell from the real thing. The sites website code was created by a computer genius who now remains a prof at MIT and senior adviser to Microsoft Security in the USA. This goes well beyond any website, and our submission now is that it has been stolen by the UK state. It is the state’s view that no communication protocol is safe whilst this website remains open to the public.
c. Any email, any IP address, any phone caller identity and any SMS text could all be faked. This ability created a powerful machine, a machine which was used and abused by the UK state. How many convictions are unsafe from fake email evidence or fake phone record evidence, we will never know but what we will show is that these fundamental communication protocols are totally unsafe in law, and have been used by the state to manipulate prosecutions, manipulate phone hacking and to hide corruption.
d. At this time X the CA founder was living in Spain. Due to his historical association with CA he sort legal advice from Criminal Defence Specialists based in London. This advice was provided by Fred Bunn of Bark & Co. Conferences took X between X and Bunn, made easier by the fact that Bunn had a base in Spain.
e. As their professional relationship developed Bunn introduced X to Steve Young the Head of Security at Barclays Bank. The purported purpose of that introduction was to facilitate a meeting in Spain between representatives of CA and Steve Young. Bunn indicated to X that there was potential for a multimillion pound purchase of CA by Barclays. Barclays Bank were offered the CA database which contained 1000’s upon 1000’s of clients who were using the CA website.
f. Clients included respected senior political figures who could manipulate documents to their own end, who could create fake paper trails and fake email chains. MI5 expressly used the CA identity system to create fake profiles for their own operations, they made familiar use of the unique telephone caller id system. SOCA used the website to infiltrate their own crime teams into major criminal gangs.
g. Reporters from The News of The World, Sunday Mirror and Daily Mail have all used the website to fake caller id numbers and SMS texting. We can show that the website was used to create a chain within the phone hacking scandal. A perfect example is that A uses B’s home phone number to convince C that they are really B, because caller id is part of Vodafone’s security to verify their customers. Once part of this verification takes X it is then very easy to recover the voicemail pin number. The CA website show exactly which corporations and government agencies whom availed themselves to this service.
h. The meeting took X in Spain on 12th November 2008 and was attended by Barry Sales, X, Steve Young and Fred Bunn. At the meeting Young was provided with information about the workings of CA and the location of its servers. The meeting was conducted as if it was the early stages of a buy-out by the bank. It was left on the basis that Young would get back to Bunn concerning the next stage of the purchase.
i. This was never the intention of Steve Young director of Barclays Bank global security. He was a former ex flying squad officer who left the force after Operation Countryman. John Prescott deputy PM needed the website closed because certain Labour MP’s had used the confidentialaccess website to create their own false expenses. It didn’t stop there the website was used to send defamatory racists texts amongst MP’s and Premier league football players. All in all the website was a complete headache to the then Labour government.
j. I refer to the following extract from Hansard  http://www.publications.parliament.uk/pa/cm200607/cmhansrd/cm070514/text/70514w0016.htm please scroll to Departments Internet.
k. The defence of X had planned to use the Barclays Bank discussions as part of its case. It was intended to advance the argument before the jury that the lawfulness of the business is supported by the fact that Barclays Bank was considering its purchase. It would have been argued that if the business was illegal then the bank could have used the courts to seek appropriate judicial intervention in taking down the CA website.
l. In pursuit of that point considerable effort had been made to contact and obtain witness statements from Young and Bunn; they both ignored the requests. On 8th February 2012 Young finally agreed to discuss the meeting that had taken X in Spain. He refused to give a written statement without having a witness summons served on him but did orally indicate:
i. The meeting did take X in Spain in November 2008.
ii. He was a former colleague of Bunn’s from the Metropolitan Police Flying Squad.
iii. Upon his return from the meeting he informed the police about it. The officer he spoke to was likely to be DC Xinaris, who attended upon him with a Detective Chief Inspector. No witness statement was taken from him.
m. This development has turned what was a potentially useful witness for the defence into a witness who would never be called by the defence to bolster the legitimate nature of the business. It does however open up a new and potentially powerful defence point that Bunn was assisting his old friend from the Flying Squad to obtain information from his professional client, X, which would be used against that client. It would be arguably wrong to use material obtained by the police in such circumstances in the prosecution of a criminal trial. We have been denied access to the Hong Kong server other than provided with copied hard disks of it’s contents. It is the defence case that contents of this server differ substantially to that as provided by the prosecution. This is because the State has deliberately interfered with evidence in order not to cause embarrassment to those who have used CA services. The defendant has already been subjected to an ordinance of strange happening’s. His electronic tag was mysteriously removed after being bailed in Aug 2010 thus giving him the option to leave the jurisdiction. Instead he rightfully informed his legal team who raised the matter with Judge Rivlin. His property was stolen namely a portable hard drive, after fake Serco men arrive to change his electronic monitoring box, thus giving the state advanced disclosure of his possible defence. The only thing they haven’t tried to do yet is kill him!
n. An analysis of the unused schedule in this case does not disclose any meeting between DC Xinaris and Steve Young of Barclays Bank. Young has indicated that no witness statement was taken from him. It is however a fact that within 3 weeks of the Spain meeting the police had sort and obtained the assistance of the Hong Kong Police in taking down the CA Hong Kong Server (3rd December 2008). The Met Police again used their influence to lie to Hong Kong authorities that CA traded with Chinese organised Triads. The information on that server has been used as a significant part of the prosecution against X and would have inevitably supported the issuing of the European Arrest Warrant against X and the granting of search warrants by the Spanish and Dutch Police.
o. Putting aside the issue of whether Bunn has acted against the interests of X and the fact that if he has then he would not have disclosed such deceit to X, there is also the issue of potential non-disclosure by the prosecution. If the meeting between Xinaris and Young did take X then Xinaris must have been informed that the meeting in Spain was jointly organised and attended by Bunn, the very person who was advising X in relation to the criminal investigation against him: that investigation lead by Xinaris. The proper disclosure of this meeting would have meant that BKQC would not have accepted instructions in this case back in July 2011 and that there would have been no late withdrawal and the consequences that flow from that.
4. Additional Fred Bunn issue.
a. The “client – solicitor” relationship between Bark & Co. and X continued after the meeting with Steve Young. Fred Bunn remained instructed by both X and his co-defendant Barry Sales.
b. Up to the recent disclosure by Steve Young, X had believed that Bunn had acted in X’s best interests throughout.
c. X now believes that the advice given to him by Bunn and his representative Chris Finch relating to his extradition from Gibraltar was motivated by reasons other than X’s best interests.
d. On 9th June 2009 a European Arrest Warrant was issue by District Judge Evans. On 18th November 2009 X was arrested in Gibraltar and remanded in custody awaiting extradition. X instructed specialist extradition solicitors in Gibraltar and appealed against his extradition. Whilst the outcome of that appeal was outstanding he was persuaded by Chris Finch, a person he now believes to be a former solicitor who had been struck off the Solicitors Roll, to abandon the appeal. He was thereafter extradited to the United Kingdom on 17th March 2010.
e. At the time of taking the advice from Chris Finch, X had been in custody in Gibraltar for many months and was extremely vulnerable. He can now think of no sensible reason why he would have given up his appeal and believes there has been bad faith on behalf of Bunn.
5. Since the withdrawal of BKQC considerable effort has been put into finding a suitable Queen’s Counsel to lead the defence of X. Understandably X has had input into the decision as to who should represent him at trial. After reviewing a number of options he has requested that Tim Moloney QC be his leading counsel.
6. There is a substantial gulf between the case faced by X and the case faced by his co-defendants. He is the alleged to be the founder, organiser and driving force behind CA throughout the indictment period. The totality of the very substantial volume of served material touches the case against X whilst the co-defendants are, by volume of evidential material, marginal figures.
X - founder, organiser and driving force
Mark Powell-Richards – assisted in credit checks
Michael Daly – printer
Allen Stringer – printer
Jaipal Singh – assisted in diverting calls
Arun Thear – acted as a receptionist as part of a 6 weeks work experience

a. Used witness statements approximately 600 pages
b. Used paper exhibits approximately 14,000 pages
c. Used hard drive exhibits approximately 550,000 pages (NOTE approximately 120,000 pages of “new material” has recently been added to this class of material)

7. Whilst TMQC has the benefit of taking over a case that has a junior and a specialist firm of criminal defence solicitors acting for him, there can be no substitute for a personal knowledge of the case material. Even reading 10% of the used material at a minute per page amounts to 900 hours of work. Without any allowance for conferences, formulating legal arguments and other work associated with preparing for a complex trial it will still take 15 weeks on a 60 hour week to read only 10% of the used material.
8. This trial is fixed to start in approximately 5 weeks on 10th April 2012. An extension of an additional 10 weeks would take the trial start date to 18th June 2012. The defence on behalf of X appreciate that the Learned Judge deciding upon this application will have to balance a number of interests. The defence team that have been working on this case since the transfer of representation in May 2011 are committed to supporting the newly instructed Queen’s Counsel and feel that the knowledge gained by that team will allow TMQC to be in a position to properly advance the defence of X on Monday 18th June 2012.
9. We are however conscious of the need to protect the interests of X and not to end up in a position where he is represented by a Queen’s Counsel who is given too little time to prepare for trial resulting in his contribution to the trial being so inadequate that X cannot receive a fair trial; this is particularly important where X has not contributed to the withdrawal of his formally instructed Queen’s Counsel.
10. In all the circumstances it is respectfully submitted that the trial of X should not start before 18th June 2012.

X's Solicitors
April 2012