Hammond & Anor, R v [2013] EWCA Crim 2636

[2013] EWCA Crim 2636

No. 2012/01094/C3 & 2012/01054/C3

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday 12 December 2013

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE LAWS

MRS JUSTICE THIRLWALL DBE

and

THE RECORDER OF MAIDSTONE

(His Honour Judge Carey)

(Sitting as a Judge of the Court of Appeal Criminal Division)

Between

R E G I N ACrown

- v -

Between

PHILIP HAMMOND

ANDREW RYBAK

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Mr F R Holland QC appeared for Applicant Hammond

Miss R Brander appeared for Appellant Rybak

Mr M Chawla QC appeared for Crown

J U D G M E N T

Thursday 12 December 2013

[1]On 25 January 2012 after a 64 day trial at the Southwark Crown Court before Her Honour Judge Taylor and a jury the appellant Rybak was convicted on five counts of conspiracy to corrupt. The applicant Hammond was convicted on four counts (counts 1 and 3-5). On 31 January 2012 Rybak was sentenced to five years' imprisonment and Hammond to three years' imprisonment. Both were disqualified from being a company director for ten years.

[2]There were four co-accused. One, Marchment, has not been apprehended. It appears he is in the Philippines with which the United Kingdom has no extradition treaty. Saunders was convicted on counts 1-3 and 5 and was sentenced to three and a half years' imprisonment. Smith was convicted on count 5 and received a suspended sentence. The jury were unable to reach a verdict in respect of Storey. After the Crown indicated that they would not seek a retrial, he was acquitted on the judge's direction.

[3]Rybak appeals against his conviction on one ground (ground 3) by leave of the single judge. He seeks to renew ground 2 after refusal by the single judge. He does not seek to renew the remaining ground 1. Hammond renews his application for leave to appeal against conviction after refusal by the single judge. He also seeks to advance a fresh ground (Rybak's ground 3 on which leave has been granted).

[4]The Crown case was that the defendants, including Marchment, were involved in corrupt contracts in the context of five projects in the international oil and gas engineering industry. In each project one or more of the defendants was employed by the procurement company acting on behalf of the company which was commissioning the project. For count 1 the defendant so employed was Saunders. For counts 2 and 3 it was Saunders and Marchment. For count 4 it was Marchment. For count 5 it was the appellant Rybak and Saunders. The insiders within the procurement companies then passed on confidential to others: counts 1, 3 and 4 to the two appellants (as we may call them); count 2 to Rybak; count 5 to Smith and, allegedly, Storey. The recipients of the confidential information then passed it on to one or more of the companies bidding for the contract. In return they sought payment of a so-called commission (generally between three and six per cent of the value of the contract). Sometimes this was paid, sometimes not. In many cases the appellants used false names in the course of this process.

[5]The defence case, in general terms, was that there was no corruption. Whatever money made its way back to the insiders in the procurement companies was in repayment of previous loans. Rybak did not give evidence. Hammond did.

[6]Just before the close of the Crown case (day 25 of the trial) it was indicated in open court that Rybak wished to dispense with the services of his leading and junior counsel, and from day 26 he represented himself. This circumstance has figured large in the argument before us.

[7]We turn first to the sole ground on which the single judge gave leave to appeal (Rybak's ground 3). The allegation is that the proceedings were a nullity for want of compliance with section 2(3) of the Prevention of Corruption Act 1906. Section 2 of the 1906 statute so far as relevant provides:

"(1) A prosecution for an offence under this Act shall not be instituted without the consent, in England of the Attorney-General .... .... (3) Every information for any offence under this Act shall be upon oath. ...."

[8]The appellants were not charged with a substantive offence under the 1906 Act. As we have indicated, they were charged with conspiracy to commit such an offence, contrary to section 1(1) of the Criminal Law Act 1977. The Attorney-General's consent was given to the case being brought, but the submission is that the requirement of an oath in section 2(3) must apply to such a charge, just as it would to a substantive charge under the 1906 Act. The argument has been re-cast somewhat in her skeleton argument by Miss Brander for Rybak, perfected on 6 December 2013. The essential steps, which have been elaborated in the course of her clear and helpful oral submissions this morning, are as follows: (1) The requirement for the Attorney's consent imposed by section 2(1) of the 1906 Act applies also to a charge of conspiracy to commit an offence under the Act: see R v Attorney-General, ex parte Rockall

[2000] 1 WLR 882

, 884, and in particular section 4(3) of the Criminal Law Act 1977, upon which Miss Brander placed emphasis this morning. Section 4(3) provides:

"Any prohibition by or under any enactment on the institution of proceedings for any offence which is not a summary offence otherwise than by, or on behalf or with the consent of, the Director of Public Prosecutions or any other person shall apply also in relation to proceedings under section 1 above for conspiracy to commit that offence."

So it is submitted that the requirement of an oath under section 2(3) must likewise apply to a conspiracy charge. The premise of the argument is that section 2(3) constitutes or includes a prohibition within the meaning of section 4(3) of the statute of 1977. (2) Miss Brander refers to R v Nusrat Ghafar

[2009] EWCA Crim 2270

. There it was held that a conviction for a substantive offence contrary to section 1 of the 1906 Act was a nullity for failure to comply with the oath requirement of section 2(3). In fact, the case was listed for an appeal against sentence, but the Crown announced that section 2(3) had not been complied with and invited this court to quash the conviction. Mr Holland QC, who appears on behalf of Hammond, indicated that the matter did not arise entirely ex improviso; the Crown may have had some time to think about it. That may be so. (3) Given steps (1) and (2), it is submitted that a want of compliance with section 2(3) will vitiate a conspiracy conviction. (4) Miss Brander draws attention in her written argument to the procedural history of offences under the 1906 Act. She has referred this morning also to The Royal Commission on Criminal Procedure of 1981. Offences contrary to section 1 were misdemeanours, so that there was no power of summary arrest, and all prosecutions had to be started by way of information. That was the position in 1906. The distinction between "felonies" and "misdemeanours" was abolished by section 1 of the Criminal Law Act 1967, but proceedings for 1906 Act offences still had to be started by information because the power of arrest without warrant applied only in relation to offences carrying a penalty of five or more years' imprisonment. 1906 Act offences carried a maximum of two years' imprisonment. That was so until the maximum was increased to seven years' imprisonment by section 7 of the Criminal Justice Act 1988. There are other changes also that were effected by the Police and Criminal Evidence Act 1984.

[9]Miss Brander's overall submission in relation to this history is that these modernisations cannot have been intended to remove what she submits is the safeguard imposed and guaranteed by section 2(3) of the 1906 Act.

[10]With respect to her submissions, which have exhibited a conspicuous ability, we do not accept these arguments for the following reasons:(1) There is, in our judgment, an important contrast between section 2(1) and (3) of the 1906 Act. Section 2(1) refers to a prosecution for an offence under the Act. Section 2(3) refers only to a case where an information is laid, not necessarily to every prosecution, whether or not in 1906 every case under the Act must have been commenced by information - and we well understand why Miss Brander says that is so. That is not now the case, and was not the case when the appellants were prosecuted. Had Parliament intended that the provision of section 2(3) should follow the modernisations of criminal procedure which succeeded 1906 and had the effect that only some cases under that Act might be started by information, why then Parliament could well have so enacted. But it did not. It seems to us that the conclusion is that the scope or reach of section 2(3) extends only to cases where a prosecution was started by an information properly so-called. In this case the appellants had been arrested under the powers of the Police and Criminal Evidence Act. It was not a case where any information was involved. This aspect was absent from Nusrat Ghafar.

(2) It seems to us, with respect to Miss Brander, that the requirement of an oath in section 2(3) does not constitute a prohibition within section 4(3) of the Criminal Law Act 1977. That is so, first and foremost, as a matter of language. Had Parliament intended that the section 4(3) provision should apply to a case in which the procedural requirement was not a prohibition but rather the need for an oath, as in section 2(3), again that could have been so provided.

(3) We note the reference in the 1981 Royal Commission on Criminal Procedure (the Philips Commission) at paragraph 182:

"Where proceedings follow an arrest without warrant and the accused is charged by the police there is, as a matter of law, an 'information' which has been 'laid'. This, however, is a legal fiction."

Miss Brander deployed the terms of The Royal Commission in order to show that in substance and reality the laying of an information was generally a necessary step in the institution of criminal proceedings. But that is so, as this passage demonstrates, only to the extent that in some, indeed many, cases the information has to be regarded (as is there stated) as a legal fiction. For present purposes the point is that section 2(3) must surely refer, and refer only, to a case where there is, in fact not fiction, an information. We see no warrant for supposing that the section 2(3) requirement should be read as applying in any case where an information as such was not laid. In all these circumstances it is unnecessary to go into the question whether section 123 of the Magistrates' Courts Act 1980 bites upon the case. Out of deference to Miss Brander's argument - she rightly drew this provision to our attention - we will set out its brief terms:

"(1) No objection shall be allowed to any information or complaint, or to any summons or warrant to procure the presence of the defendant, for any defect in it in substance or in form, or for any variance between it and the evidence adduced on behalf of the prosecutor or complainant at the hearing of the information or complaint."

There must be strong arguments to the effect that a failure to fulfil section 2(3) of the 1906 Act would be a defect in substance to which section 123 would apply. The matter may not be entirely beyond doubt, not least given the authority cited by Miss Brander: New Southgate Metals Ltd v London Borough of Islington [1996] Crim LR 334.

[11]For all these reasons, in our judgment, section 2(3) of the 1906 Act has no application to this case.

[12]Before leaving the point, we should note that Mr Holland QC has submitted that Hammond should have had leave on the section 2(3) point (at any rate once Rybak was granted leave) so that Hammond would have been supported by public funds and his counsel could properly and in good time consider this issue relating to section 2(3). Mr Holland submits that

Article 6 of the European Convention on Human Rights

so requires.

[13]However, in our judgment there is nothing whatever that could sensibly be added to Miss Brander's skilled and comprehensive submissions. Had Mr Holland this morning sought an adjournment to consider the point further for himself, there would, with respect to him, have been no basis for it. There is nothing in this complaint. There was plainly no violation of the Convention.

[14]We turn to Rybak's ground 2 on which the single judge refused leave. It is said that the trial judge failed adequately to ensure that Rybak was not unduly prejudiced by his lack of representation from day 26 of the trial onwards. It is said that the judge in particular failed to explain three matters to the jury at the first opportunity after Rybak began to represent himself. They were:(1) that self-representation was a course properly open to any defendant;

(2) that the jury should bear in mind the difficulty of properly presenting a defence; and

(3) that the relevant background to the appellant's decision to represent himself should have been explained. It is this last point upon which the argument has focused this morning.

[15]As we have indicated, the jury were told just before the end of the Crown case on day 25 that Rybak wished to dispense with the services of his leading and junior counsel. The case was adjourned overnight for him to consider his position. The following day there was an extended discussion between Rybak and the judge about the difficulties of self-representation as to which the judge provided Rybak with her written note (see transcript day 26 page 10, line 3). He was given time specifically to consider whether he wished to represent himself or, in the event, retain his legal team, and also whether he would choose to give evidence. We have read the whole transcript for day 26 (page 9, line 15 to page 32, line 23) in which, at length, Rybak affirmed his decision to dispense with counsel. The judge concluded (page 32, lines 20-23) that he should not have the adjournment that would be necessary for the appointment of new counsel.

[16]The judge's refusal of his application for fresh counsel was the subject of Rybak's first ground of appeal, which has not been renewed following refusal by the single judge. However, the discussion with the judge remains relevant to ground 2 because, in our judgment, it exemplifies the care taken by the trial judge to see that Rybak was fairly treated in the event that he would be representing himself. So, indeed, do the exchanges the day before. This following passage from day 26 (page 11, line 18) illustrates the point. The judge said:

"I explained to you yesterday the effects and consequences of not giving evidence and I am going to make clear that that will be your only opportunity to give evidence, that is to say, to set out your version of events or give any explanation of those events or any documents. You will not be able to change your mind and give evidence after other defendants. Further, a closing speech when you have not given evidence is not a chance to explain or give evidence about what others have said or adopt what they have said or to give explanations about the documents in evidence in the trial. You will be limited to arguments and comment, which is not the same as evidence, on the evidence which has been given in the course of the trial. That requires skill, and the serious risk you run is that, if you do not have these skills, you may do your case harm. You will be provided, if you choose to do that, with the daily transcripts of evidence to assist you and any further documents which are provided in the remainder of the trial and in due course, once the evidence is completed, I will give further consideration to any guidance or assistance you may need as to your closing speech. Now, I have said that because it expands a little on what I said yesterday. I am going to give you a copy of that now so that you have it in writing and you can consider it. I am going to ask you if you need time to consider your decision, bearing in mind what has just taken place, and whether or not you want to say anything about that and the timing of any provision of this additional information. MR RYBAK: There are a few things I would like to say. First of all is that my reliance on my speech, just to clarify again, is not to provide any fresh evidence at all, merely to comment on the evidence which has been introduced into the court including such evidence as I elicit during cross-examination, and to invite the jury to infer or to conclude at their option what may in fact be an interpretation of that evidence. I don't intend to say, 'This is what happened', or, 'I believe that means this'. I am going to invite the jury to conclude and make their own conclusions from the evidence which I shall elicit. The only difference is that it would mean that my cross-examination will - no intention of making any allegations. It will just be a question of eliciting perhaps more detail in order to have the full picture that I need to be able to put to the jury, if you follow - JUDGE TAYLOR: You are entitled to ask questions if you represent yourself - 17. JUDGE TAYLOR: - of the other defendants in a proper manner."

That passage exemplifies not only the care taken by the judge to be helpful to Rybak, but also the intellectual capacity to pick up and absorb the points that was demonstrated by Rybak. So does his careful consideration of whether he should give evidence, for which he was given time (see day 26, page 43, line 12), and also his applications for disclosure (see page 43, line 24 and following). All of this took place in the absence of the jury.

[17]At length the jury returned to court. The judge addressed them about the fact that Rybak now proposed to represent himself. This passage is important for Miss Brander's principal argument addressed to us this morning (day 26, page 65, line 22):

"JUDGE TAYLOR: Members of the jury, just to let you know what the situation is, the defendant Mr Rybak himself has decided to dispense with the services of his counsel. He was given time to consider and I have refused his application to have alternative counsel and, therefore, from now on he is going to represent himself. It has been explained to him that he will be subject to the same rules of evidence and procedure as counsel would have been had they continued to represent him and which apply to all the other defendants and the prosecution in this case. It has also been explained to him that my role in this case is to ensure that the trial is fair, and that there may be some occasions when he needs some guidance so that he complies with those rules, so as to ensure a fair trial not only for himself but also the other defendants and the prosecution. He has been provided with all the materials counsel have had on his behalf and will continue to be provided with them throughout the trial. We are going to adjourn now until tomorrow morning to allow him best to consider how to present his case."

[18]As is apparent, that passage includes no explanation of why Rybak had dispensed with his counsel. This is the focus of Miss Brander's complaint this morning.

[19]Mr Holland, acting for Hammond, had raised a concern (see day 26, page 52, line 20 to page 52, line 10) to the effect that the jury might assume that Rybak was guilty but unwilling to plead guilty unless something was said about the reason for his counsel's absence; and Hammond was, of course, closely associated with Rybak. This suggestion is echoed in the submissions supporting this ground of appeal in which Mr Holland has vigorously joined.

[20]We consider, however, that this concern is in the end misplaced. First, it was not clear whether Rybak would give evidence or what precise course his case would take. That raises some uncertainty as to the wisdom of including explanations of the kind suggested in what was to be said to the jury on day 26. Mr Rybak, for all anyone knew, might wish to give his own account to the jury of his dispensing with counsel.

[21]Secondly, and we think more important, an explanation by the judge as to counsel's sudden absence would, as it seems to us, inevitably have invited the jury to speculate as to why counsel were dismissed. Mr Holland has submitted that in the circumstances of this case no harm might be done. But this seems to us to be a case where a decision to give some such explanation would in the circumstances float at least as many dangers as saying nothing at all.

[22]Further, it is to be noted that in the summing-up

the judge said this (day 50, page 37, lines 17-25):

".... you are aware at the close of the prosecution case that Mr Rybak decided to dispense with his counsel. He is entitled to do that and you should not speculate as to the reasons and it is not something which you should hold against him. He was refused alternative representation and as a result has been representing himself. You should treat his case in the same fair way as if he had been represented and in the same way as the other defendants."

Of course, something like that might have been said by the judge at an earlier stage. Certainly it was entirely appropriate that it should be said in the summing-up, by which time manifestly the evidence was complete, as were counsel's speeches.

[23]It is, it seems to us, quite clear from the learning on this subject (see R v De Oliveira [1997] Crim LR 600) that the directions to be given to the jury where a defendant chooses to be, or becomes, unrepresented are very much to be tailored to the particular case. No doubt there were different ways of dealing with the matter. The course taken by the judge cannot, in our judgment, be said to undermine the safety of Rybak's conviction. Although the judge did not spell out in terms the difficulties faced by a defendant acting in person, it is entirely plain that she was at pains to ensure that he was not prejudiced. She invited him to provide her with relevant documents in advance of his cross-examining a co-defendant so that she might warn him of any issues of admissibility. The jury were told that there would be occasions when he would need guidance to comply with proper procedures. They and the judge were, we emphasise, dealing with an intelligent and resourceful defendant. Thus we do not accept (see paragraph 55 of Miss Brander's skeleton argument) that Rybak was put to any prejudicial difficulty in relation to the admissibility of documents which he wished to put to the co-defendant Saunders. Their admissibility was discussed in the absence of the jury. Rybak was given careful and detailed advice - in the absence of the jury. Mr Holland (acting for Hammond) plainly participated in these discussions, with no prejudice that we can see to either Rybak or to Hammond.

[24]Rybak was courteously assisted about other matters. The judge invited him to let her have a copy of his draft closing speech. He declined. He was given a non-sitting day to finalise it. The judge hoped to minimise any necessary interruptions. In the event, he spoke for six hours. The judge had to interrupt on many occasions to remind him not to give evidence. He had been very carefully warned about that. The judge acted entirely properly.

[25]Finally, in relation to the closing speech the judge was, it seems to us, quite entitled to indicate, as she did (on the second day of his speech) that he should draw it to a close by lunchtime that day. No doubt Rybak was under some strain in this long and complex trial. But he was carefully and courteously assisted by the judge in acting as a defendant in person, and that was, of course, wholly his own choice.

[26]On the specific point that it would have been better to give an explanation to the jury as to why Rybak's counsel's services had been dispensed with, we cannot conclude that the judge's decision not to go down that route in the least impedes the safety of Rybak's conviction.

[27]We turn to Hammond's application. So far as he seeks to rely on Rybak's ground relating to the 1906 Act, we have already dismissed that.

[28]Hammond's first ground of appeal is to the effect that the judge failed to order disclosure in relation to the alleged corporate bad character of the procurement companies.

[29]The third ground of appeal is a complaint that the judge misdirected the jury in relation to the "Ecodyne admission".

[30]It is unnecessary for us to go into these two grounds because Mr Holland has, fairly and frankly, told us in terms that they do not stand on their own. They are consequences of the circumstances that arose by reason of the fact that Rybak represented himself.

[31]What remains live is Hammond's second ground of appeal in which it is said that his trial was unfair because his defence was undermined or prejudiced by the conduct of Rybak's case when the latter acted in person.

[32]Hammond's case was that he was an outsider to the industry and had learnt all about it from Rybak. A number of complaints are made on his behalf. At one stage the judge held an ex parte hearing with only Rybak and his then counsel present. The fact that Rybak was not allowed fresh counsel is relied on (at any rate in writing) by Mr Holland, as is the fact that the jury were not given an explanation of why Rybak had dismissed his counsel. We have already said that Mr Holland participated in this part of the submissions advanced by Miss Brander and indeed, as in her case, it was the focus of his argument this morning. Particular attention is drawn to the fact that, during the prosecution case, Rybak's counsel had conceded confidentiality and did not explore industry practice. As Mr Holland put it this morning, there was at any rate a difference of view between Rybak and his leading counsel as to how the case was to be put. Mr Holland supports Miss Brander's submission that an explanation should have been given to the jury as to why counsel's services had been dispensed with. We have already indicated that we regard such a course as tantamount to an invitation to the jury to speculate. The eventuality of a hearing in chambers, without Mr Holland being present, or the scope of legal professional privilege, upon both of which Mr Holland has briefly addressed us this morning, do not in either case diminish that conclusion. It is clear to us - and indeed Mr Holland accepts - that he was able to cross-examine the prosecution witnesses as he chose. It does not seem to us that the fact that Hammond's case was that he was a newcomer or an outsider and had learnt what he knew from Rybak is any inhibition upon the cross-examination of prosecution witnesses as to whether or not, in truth, the information being passed was confidential.

[33]As we have said, the judge acted perfectly properly throughout in dealing with Rybak as a defendant in person. Moreover, it is important from Hammond's point of view to bear in mind that Rybak was only ever permitted to act in accordance with the rules of evidence. Hammond, for his own part, was able to give evidence that he was an industry outsider and relied on Rybak.

[34]The reality here is that Hammond was in the same position as any co-defendant in a multi-handed conspiracy trial. No doubt there were difficulties; there very frequently are. It is perhaps to be noted that Mr Holland, entirely properly, sought to undermine Rybak in his final speech. In addition, as we have already indicated, it was open to him to cross-examine the Crown witnesses as he thought fit.

[35]We do not for a moment suggest that the task of counsel acting for Hammond was in any sense an easy one. Where, however, we are clear is in our conclusion that the passage of events relating to Rybak and his decision to represent himself from day 26 does not in the least degree undermine the safety of Hammond's conviction.

[36]Accordingly, Hammond's applications are refused, and Rybak's appeal is dismissed. 38. (The court conferred) LORD JUSTICE LAWS: As a tribute to your charm and to nothing else, Mr Holland, we will accede to that application. MR HOLLAND: Thank you very much, my Lord.