A, R. v [2007] EWCA Crim 2868

[2007] EWCA Crim 2868Case No 200703668 C5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
HIS HONOUR JUDGE PRICE
T20050958-1
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/12/2007
Before
LORD JUSTICE PILLMR JUSTICE HEDLEYSIR RICHARD CURTIS
Between
ReginaAppellantARespondent
J Carmichael and S Taylor (instructed by the CPS) for AppellantN Lambert QC and P Clark (instructed by Barker Gillette) for RespondentHearing Hearing date : 9 October 2007
Judgment
[1]This is an application by the prosecution for leave to appeal against rulings of His Honour Judge Price, given at the Crown Court at Southwark during the trial of A, on 2 July 2007 and 11 July 2007. By the first ruling, the judge declined to admit in evidence a statement of AD, a potential witness who was not present at the hearing. By the second ruling, he upheld a submission on behalf of A at the conclusion of the prosecution case that there was no case to answer.[2]The judge refused leave to appeal. The timetable for renewed application to this court was, in this case, such that it becomes appropriate to discharge the jury. Leave is granted. If appeal against the second ruling is allowed, there will need to be a re-trial.[3]A was charged with five counts of concealing or disguising proceeds of criminal conduct, contrary to Section 93C(1)(a) of the Criminal Justice Act 1988 (“the 1988 Act”) or, for the later offences, Section 327(1) of the Proceeds of Crime Act 2002 (“the 2002 Act”), and two counts of converting or transferring proceeds of criminal conduct contrary to Section 93C(1)(b) the 1988 Act. The ‘concealing’ counts were based on very substantial sums of money found to have been in bank accounts allegedly controlled by A in London (including that of Orion Worldwide Consult Limited (“Orion”)), sums amounting in total to about US$3 million. The ‘converting’ counts were based on an alleged withdrawal of $454,500 from an account with a bank in London. The prosecution case was that the sums of money deposited into the bank accounts were corrupt payments to A and others who facilitated the making and implementation of a contract to supply a national identity card programme for Nigeria in favour of a French company, Sagem SA, (“Sagem”).[4]We set out, by way of example, two of the counts in the indictment:
“Count 2 STATEMENT OF OFFENCE CONVERTING OR TRANSFERRING PROCEEDS OF CRIMINAL CONDUCT, contrary to Section 93C(1)(b) of the Criminal Justice Act 1988. PARTICULARS OF OFFENCE A on or about the 26th day of June 2002, converted or transferred property, which was, or in whole or part directly or indirectly represented his proceeds of criminal conduct namely by making a withdrawal of 454,500.00 United States dollars in cash from the Hong Kong and Shanghai Bank 22 Victoria Street Branch, Victoria, London, SW1, for the purpose of avoiding prosecution for an offence under which Part VI of the Act 1988 applies. Count 4 STATEMENT OF OFFENCE CONCEALING, DISGUISING, CONVERTING OR TRANSFERRING CRIMINAL PROPERTY, contrary to Section 327(1) of the Proceeds of Crime Act 2002. PARTICULARS OF OFFENCE A on or about the 3rd day of March 2003, concealed, disguised, converted or transferred criminal property, namely a credit of 799,960.00 United States dollars received into the account number 57844666 Orion Worldwide Consult Limited held at Hong Kong and Shanghai Bank 22 Victoria Street Branch, Victoria, London, SW1, which constituted his or another’s benefit from criminal conduct or represented such a benefit in whole or in part and whether directly or indirectly, and which he knew or suspected constituted or represented such a benefit”
. STATEMENT OF OFFENCE PARTICULARS OF OFFENCE Count 4 STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE

[5]In August 2001 Sagem obtained from the Nigerian Government a contract worth $215 million to implement the project. A was a career civil servant in the Government of Nigeria until his retirement in March 2002. He was the Director of the National Identity Card Project (“NICP”). He played an important part in placing the contract, although the final decision was made by the President of Nigeria. He made no secret of his support for Sagem’s inclusion in the list of bidders. Further corruption was alleged to have occurred in relation to a sub-contract negotiated by Sagem in 2002, by which equipment for the project was to be provided. An American company, Datacard, withdrew from negotiations when told by Sagem that an additional sum of $3.1 million was required to be paid to Officetron, a company run by AD, but another American company, NBS, took their place and were prepared to make the payment, alleged by the prosecution to be corrupt.[6]Substantial payments were made by Sagem to Officetron and to other companies Maurang and Sagem Africa Network (“SAN”), said to have been run by AD in Nigeria. There was evidence that a substantial part of those sums found their way into accounts controlled by A and evidence of a close link in time between payments from Sagem into AD’s control and payments from AD into A’s control. The company alleged to be the recipient of some of the substantial payments, Orion, did not trade. Thus, the prosecution contended that the substantial sums of money paid into accounts controlled by the defendant were the proceeds of corrupt giving and receiving of bribes in connection with the identity card scheme. There was also evidence of a substantial payment by Officetron to another high ranking civil servant in Nigeria who had issued a Certificate of Compliance under the contract in favour of Sagem.[7]The prosecution also relied on the contents of a statement made by A when interviewed by the police. When asked about a payment into an account in his ex-wife’s name, he said that he withdrew sums “for people that facilitated the implementation of the contract and without which the contract cannot be aligned”.[8]In relation to the main contract, the defence relied on evidence that Sagem were world leaders in the necessary technology for the cards and that there was nothing surprising about their obtaining the contract. The final decision had been taken after a day long presentation by the five rival companies to the then President of Nigeria. Further, the French Government had lobbied very hard for Sagem and had officials present at the final presentation. In his first ruling, the judge stated that Sagem were “a sound company” and were “a very proper company to be awarded the contract”. The statement also included claims that the sums paid to AD were legitimate payments.[9]The “concealment” counts relied on payments, which the defendant knew or suspected was for his or another’s benefit from criminal conduct, into accounts controlled by the defendant. The defendant also claimed in interview that the payments to him were legitimate business fees for consultancy in relation to the supply of machinery and public relations. There was no documentary evidence to support that claim. As to the $3 million on the sub-contract, the defence relied as well on the absence of proof of payment before the dates in the indictment.[10]No proceedings have followed in the United States or in France. There are criminal proceedings against AD in Nigeria but as yet there has been no trial. AD is pleading not guilty to the Nigerian charges. Application was made to admit the written statement to the police of AD in which, the prosecution submit, admissions of criminal conduct are made.[11]The judge ruled against admission of AD’s statement. While the statement had “a slim air of corruption about it but no more than that” it would not be possible for AD to be cross-examined as the circumstances in which the interview was conducted or as to the contents of his statement. In our judgment the judge’s ruling on admissibility was not surprising and well within his discretion. All the charges involved proving that there had been “criminal conduct” and the criminal conduct relied on by the prosecution was that of AD. The defence submitted that there was no sufficient proof of criminal conduct by AD to permit a case based on the alleged criminal conduct of A to go before a jury. The prosecution accepted that the absence of AD’s statement weakened the case, which then depended entirely on inferences.[12]There was unchallenged evidence of Nigerian law in relation to corrupt conduct and it was agreed between the parties, and accepted by the judge, that “corruption in Nigeria would be a similar offence to corruption in this country”. The prosecution’s case was based on Section 340(2) of the 2002 Act, which provides that, for the purposes of the Act, criminal conduct is conduct which constitutes an offence in any part of the United Kingdom, or would constitute an offence in any part of the United Kingdom if it occurred there. It is submitted that the conduct of AD, judged by the standards of English law, would be an offence in the United Kingdom.[13]In his ruling, the judge cited the case of Montila [2005] 1 Cr App R 26 (HL) where it was held that the prosecution has to prove that the profiting, the subject of the charge, was in fact the proceeds of criminal conduct. The criminal conduct alleged at the trial, and now, was that of AD. At the hearing before this court, reference was made to the Public Bodies Corrupt Practices Act 1889 and to the Prevention of Corruption Act 1906, and, it is submitted, there is a presumption that the payments to AD were corrupt.[14]It is necessary to consider the prosecution’s written submissions to the judge in reply to the submission of no case. The prosecution referred to the conduct of A and the receipt of money by him. There is no reference to the requirement, first, to prove criminal conduct by AD. There is no reference to the Statutes now sought to be relied on. We are told that the Statutes were mentioned orally but there is no reference to them in the ruling and the submission now sought to be relied on, a presumption that receipt of a sum by AD was a corrupt payment, cannot have been made clear to the judge. Moreover, the presumption of corruption in Section 2 of the 1916 Act applies only to payment of money, gift or consideration by the contract-seeker to a person in the employment of a Government Department or a public body, and AD was not so employed. Nor was it the prosecution case that AD was acting as agent of A or that it was a joint enterprise. The presumption may well apply at the second stage, that is the payments to A, subject to defences raised by him, and provided criminal conduct by AD has first been proved.[15]The result is:(a) There have been no convictions in Nigeria, France or the United States arising out of these transactions.(b) There are proceedings in Nigeria to which AD is pleading not guilty.(c) The credentials of Sagem were such that, as the judge put it in his ruling, they “seem to have been the best persons equipped to perform the task and to achieve the contract. There is no safe evidence in my judgment that the contract was actually obtained corruptly”.(d) The prosecution were not in a position to call AD and were unsuccessful in an attempt to adduce his written statement in evidence.(e) On the sub-contract, the defence had the further point that there was no evidence that the sum of $3 million was paid to AD before the dates specified in the indictment.[16]The prosecution invite us first to consider the no case ruling. For the purposes of his ruling, the judge accepted that “large lump sums were paid to the defendant into his two business accounts and another account in lady’s name who he was at one stage close with”. There was a presumption, the prosecution submitted, that AD was not entitled to large payments and that there was no reason for them other than corruption. The judge concluded:
“Of course, the payments made to A, particularly having regard to the explanations he gave, are to say the least malodorous and may well be prime facie evidence that he suspected that it constituted a benefit I know not, but the prosecution have to prove not only that but that the criminal property constitutes a person’s benefit from criminal conduct and it would represent such a benefit. The prosecution said from the very beginning that the criminal conduct was that of AD and, in my judgment, there is not even prima facie evidence that his conduct was criminal. It has not been proved that those payments in fact were made by NBS to him. There is no conviction of AD and if the Crown had waited as I posited, then if convicted, my judgment then might have a prima facie case that AD had acted corruptly and had acted in a criminal way and that prima facie his payments to the defendant resulted from his criminal conduct. If he had been acquitted, it would be impossible to see how the Crown could continue. Therefore in my judgment, there is no prima facie case that the money received from AD was a result of his criminal conduct and hence in my judgment under Galbraith, there is no case for A to answer. The matters are too tenuous. It is inherently weak and suspicion in this case, although it is strong, is not enough for this matter to go to the jury, and I shall so advise the jury”
. R v Galbraith 73 Cr App R 124, cited by the judge, does itself allow the judge an opportunity to assess the strength of the prosecution evidence.[17]Section 67 of the 2003 Act provides:
“The Court of Appeal may not reverse a ruling on an appeal under this Part [Part 9: Prosecution Appeals] unless it is satisfied: (a) that the ruling was wrong in law, (b) that the ruling involved an error of law or principle, or (c) that the ruling was a ruling that it was not reasonable for the judge to have made”
. In this case, no error of law or principle is alleged. The concept of reasonableness in Section 67(c) requires a discretion in the judge. This court may not reverse his ruling unless it was unreasonable. The court should not reverse a ruling merely on the ground that the court would itself have reached a different conclusion. The ruling must be one which could not reasonably have been made in the circumstances, having due regard to the judge’s intimate knowledge of the case.[18]In his ruling, the judge set out the relevant factors as put to him, and his reasoning when reaching his conclusion is cogent. What the prosecution have not confronted is the two stage procedure the circumstances required, the first stage being the proof of criminal conduct by AD. It may be that the prosecution approached the case on the assumption that the evidence of AD would be available to them and admitted. In the circumstances described, and in the absence of direct evidence of criminal conduct by him, we do not consider that the judge’s ruling can be said to be unreasonable.[19]The alleged admissions by A would be relevant at the second stage but do not establish criminal conduct by AD. The enrichment, on the prosecution evidence, of A by way of very large sums of money received by him and his wife in London accounts, and his drawing them out, inevitably aroused very considerable suspicion about his conduct. Investigation was required. However, on analysis, and for the reasons given, we are not prepared to hold that a judge familiar with the material, and who considered it carefully, was unreasonable in reaching the conclusion he did.[20]Had the prosecution sought, having closed its case, then to put a case on a different basis, it is unlikely that the application would have been granted. Insofar as we acknowledge that a prosecution case could have been put, probably with better prospects of success, on a different and fuller basis, the same consideration applies, but more strongly. The prosecution would be seeking a second trial of a case that could have been put at the first.[21]The appeal is dismissed.