Chapman, R v [2017] EWCA Crim 557

Case No 201602665/B3[2017] EWCA Crim 557
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 31 March 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE HOLROYDE
HIS HONOUR JUDGE KINCH QC
(Sitting as a Judge of the CACD)
Between
E G I N Av
Between
PETER MICHAEL CHAPMAN
Computer Aided Transcript of the Stenograph Notes ofWordWave International Limited Trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr D Spens QC appeared for AppellantMr J McGuiness QC & Mr Barnes appeared for Crown
J U D G M E N T
[1]MR JUSTICE HOLROYDE: On 11th June 2016, in the Crown Court at Southwark, this applicant, Mr Peter Chapman, was convicted of four offences of corruption, contrary to section 1 of the Prevention of Corruption Act 1906. He was subsequently sentenced by the trial judge, His Honour Judge Grieve QC, to concurrent terms of 30 months' imprisonment for each offence. His application for leave to appeal against his convictions was refused by the single judge. It is now renewed to the full court. We are grateful to counsel on both sides for their extremely helpful written and oral submissions.[2]In very brief summary the relevant facts were these. The applicant was at all material times employed by Securency Pty Ltd, an Australian company which produces and sells the raw material which is used in producing polymer bank notes. The applicant was employed as the company's director for Business Development for Africa. One of Securency's African customers was the Nigerian Security Printing and Minting Plc ("NSPM"), which was the Nigerian Mint responsible for the production of bank notes on behalf of the Central Bank of Nigeria.[3]NSPM was a valuable customer both to Securency and to the applicant, whose remuneration package included an element of commission. The Managing Director of NSPM, which is a public body, was a Mr "X". Between 2007 and 2009 the applicant made a total of six payments to Mr X, some in pounds sterling and some in US dollars. The fact of these payments and the bank accounts through which they were transmitted were admitted. It was also admitted that Mr X was an agent of NSPM. The issues for the jury were whether they were sure that each payment was, as the prosecution alleged, made as an inducement or reward to Mr X for placing orders for purchases from Securency, and was made corruptly.[4]The case for the applicant, who gave evidence, was that he had not acted corruptly and that each of the payments was a repayment of monies which had been loaned to him in Naira (the Nigerian currency) to enable him to make cash payments which were necessary in the course of his legitimate work for Securency.[5]It is unnecessary to say more about the details of the evidence which the jury heard over a period of about a month. On 11th May 2016, after some days of deliberating, the jury returned not guilty verdicts on counts 1 and 2, the allegations which were earliest in time, but by majority verdicts they convicted the applicant of the four offences charged in counts 3 to 6.[6]The ground of appeal is that the convictions are unsafe because the judge wrongly refused a defence application, made earlier on 11th May 2016, to discharge the jury.[7]At the outset of the trial the learned judge had directed the jury to try the case on the evidence and disregard any press reports. Later in the course of the trial, when the applicant was giving evidence, he was briefly cross-examined about an internal e-mail which had been sent to the applicant and to other members of Securency's staff, in which it was said that Nigeria had been placed sixth in a survey of nations perceived to have serious levels of corruption. The applicant's reply to that e-mail had been to the effect that the only surprise in the results of the survey was that in his view another African nation should also have been placed in the top 10.[8]Following an intervention by Mr Spens QC, then as now acting for the applicant, there was a short discussion in the absence of the jury on which Mr Spens relies today. The submission was made by Mr Spens to the judge that in view of the evidence which had just been given he would be asking for a direction in due course that the jury could only use that evidence in assessing the applicant's state of mind and not for any other purpose. He wished the judge to emphasise to the jury that evidence about general corruption in Nigeria did not make it more likely that the applicant would have committed the crimes alleged against him. That, said Mr Spens, is where prejudice would come in. The judge replied:
"Perhaps it is more to the other end isn't it, that [Mr X] would have been susceptible... It is what Mr Chapman's expectations would be about the acceptability of a bribe which really encapsulates both, doesn't it? What he thinks he can achieve by it and the likelihood of it being acceptable."
[9]Mr Spens agreed with that analysis, and thus, he submits, the risk of prejudice from such a line of cross-examination was identified at that stage of the trial.[10]The cross-examination on that particular topic did not go any further and it was not mentioned again, either in the course of the evidence or in speeches or in summing-up. Mr Spens submits that was because of a general recognition by all parties that there was a risk of prejudice.[11]No complaint is made about either the learned judge's directions of law or the contents of the summing-up generally. The summing-up included, at a very early stage, a further direction to try the case purely on the evidence.[12]The jury had retired to consider their verdicts on 5th May 2016. On 10th May, whilst they were still in retirement, the then Prime Minister (Mr Cameron), attended a reception in the presence of Her Majesty the Queen, on the eve of an international summit meeting in London about global corruption. Part of Mr Cameron's conversation with Her Majesty was picked up by a news agency's recording. He was heard to say, in the context of who would be attending the summit:
"We’ve got the Nigerians ... actually we’ve got the leaders of some fantastically corrupt countries coming to Britain. ... Nigeria and Afghanistan, possibly the two most corrupt countries in the world."
Those remarks were very extensively reported by the news media, the story being front page news in many national newspapers on the morning of 11th May.[13]The defence application to discharge the jury was made on the basis that that publicity of what Mr Cameron had said was so prejudicial to the applicant's case that he could no longer have a fair trial. It was submitted that it was hard to imagine anything which could be more prejudicial to the defence case. There was nothing the court could do to dissipate the very grave risk of prejudice to a fair trial.[14]The prosecution resisted the application, contending that the risk of prejudice could safely be eliminated by appropriate firm directions. The judge, at that stage, gave a short oral ruling refusing the application. He indicated he would give his ruling more fully in writing at a later stage. He then called the jury into court. It was by now the early afternoon and Mr Spens makes the point that for the whole of the morning, since about 10.00 am, the jury had been together in the court building.[15]The learned judge reminded the jury of his earlier direction that they must try the case on the evidence and must ignore any press reporting that there may be about the trial. He then said at page 80D of the transcript:
"Why am I saying this to you now? I am doing so because of certain remarks made by the Prime Minister yesterday on the subject of corruption, which have been widely reported in the press and other parts of the media. While they do not bear directly on any issue you have to decide, they do relate to Nigeria and my instruction to you is this, you must completely ignore anything you may have seen or heard or read about what the Prime Minister said. With respect, it was almost certainly a gross generalisation and certainly had no direct relevance to any person involved in this case. Just ignore it. I repeat, do not let whatever you have heard about what he said influence you in any way in your deliberations and do not discuss what he said with anyone at all until this trial is over. What is paramount, that is to say most important of all, is that Mr Chapman have a fair trial on the evidence and nothing but the evidence. Please take what I have just said to heart and apply it."
The jury then retired to continue their deliberations and at the end of that afternoon they returned the verdicts which we have indicated.[16]The reasons which the judge gave for his decision in his written ruling can be summarised as follows. He accepted that the Prime Minister's comments had been so extensively reported that most, if not all, of the jurors were likely to have been aware of them. He also accepted that the comments would be capable, by themselves, of influencing a person adjudicating in a case involving alleged corruption in Nigeria. The publicity of those remarks had come at a sensitive stage of the proceedings, with the jury in retirement and the decision-making process well underway. In those circumstances the judge acknowledged that there was a risk of prejudice to the fairness of the trial as a result. The question was whether that risk could be eliminated completely or at least rendered minimal by action on his part. The judge referred to a number of cases which had been cited to him, which collectively affirmed the proposition that the entire system of trial by jury is based upon the assumption that juries will follow the directions of trial judges and will return true verdicts according to the evidence. The judge rejected the specific defence submissions for the following reasons.[17]First, the issue in the trial was not whether corruption was rife in Nigeria, but whether the jury were sure that all or any of the six payments had been made corruptly and not in repayment of a loan.[18]Secondly, the cases which had been relied upon by the defence could be distinguished on their facts. In one of them, R v McCann & Ors [1991] 92 Cr App R 239, the prejudicial reporting had had a direct application to the defendants on trial. In another, R v Taylor and Taylor [1994] 98 Cr App R 361, the prejudicial publication had not been reporting of at the trial but comment which assumed the guilt of those defendants.[19]Thirdly, although the risk of prejudice would often be increased where the adverse publicity occurred unexpectedly during a trial, rather than before it, the guiding principle remains that which had been stated in R v Abu Hamza [2007] QB 659, namely that the jury could be trusted to follow judicial direction and to strive to try the defendant fairly.[20]Fourthly, and contrary to the defence submission, the judge said that it was not difficult to imagine more prejudicial reporting than that relating to the Prime Minister's remarks. For example, he observed, reporting which bore directly on the applicant as an individual would be more prejudicial. Although the comments had been reported at a very sensitive stage the judge was sure that the directions he had already given and would go on to give would reduce any risk of prejudice to an absolute minimum.[21]In his admirable submissions to the court today, Mr Spens submits that the judge was in error and that neither the directions he gave nor indeed any directions could dissipate the prejudice to this applicant. He submits that there was only one response which was properly open to the judge in the circumstances which had arisen, namely to discharge the jury. He points out that earlier in the trial, at the stage which we have briefly mentioned, the judge had recognised that evidence relating to corruption generally in Nigeria could cause the jury to think that Mr X was susceptible of being bribed. Mr Spens submits that the publicity given to the Prime Minister's remarks came close to establishing, as a fact, that Nigeria is one of the most corrupt countries in the world.[22]He accepts, of course, that the publicity did not directly relate to any person in this trial but he argues that the judge took too narrow a view of what was a central issue in the case. Broad though the Prime Minister's proposition was, Mr Spens argues that it was particularly prejudicial to the defence of this individual applicant. He acknowledges that cases such as McCann and Taylor and Taylor are inevitably fact-specific decisions, but says there was here a real risk of prejudice which could not be eliminated by judicial directions. Mr Spens emphasises that, although it is not a matter of criticism of anyone, the timing of the Prime Minister's remarks was particularly unfortunate in the context of the timetable of the trial; and moreover, that the need to make the application on the morning of 11th May had had the result that the jury were together for a number of hours, not formally deliberating but nonetheless no doubt able to speak to one another. Mr Spens submits that it would be unrealistic to think that at least some of them did not say something to one another about the media reports.[23]For the respondent Mr McGuinness QC emphasises that the trial judge was in the best position to assess the extent of the risk of prejudice and submits that the judge was right to conclude that his directions would reduce that risk to an absolute minimum. He argues that the circumstances of this case were not so exceptional that the only course properly open to the judge was to discharge the jury.[24]In Abu Hamza Lord Phillips CJ, giving the judgment of the court, referred to the earlier cases to which Mr Spens had invited the judge's attention. At paragraph 90 the Lord Chief Justice quoted a well-known passage, in the earlier case of Re: B, in which the then President of the Queen's Bench Division had referred to the collective experience of the court of the responsibility with which jurors do their duty. The President had ended that passage by saying, as quoted at page 683C in Abu Hamza:
"We cannot too strongly emphasise that the jury will follow them [the judge's directions], not only because they will loyally abide by the directions of law which they will be given by the judge, but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair."
[25]Having reviewed the authorities the Lord Chief

Justice in Abu Hamza said at page 684D:

"Prejudicial publicity renders more difficult the task of the court, that is of the judge and jury together, in trying the case fairly. Our laws of contempt of court are designed to prevent the media from interfering with the due process of justice by making it more difficult to conduct a fair trial. The fact, however, that adverse publicity may have risked prejudicing a fair trial is no reason for not proceeding with the trial if the judge concludes that, with his assistance, it will be possible to have a fair trial. In considering this question it is right for the judge to have regard to his own experience and that of his fellow judges as to the manner in which juries normally perform their duties."
[26]Applying those principles to the present case, it seems to us that the trial judge's approach to the problem was correct. He correctly identified the question he had to ask himself and he was fully entitled to reach the conclusion he did. He rightly recognised the risk of prejudice, but he was entitled to conclude that the risk could be eliminated or at least reduced to an absolute minimum by his directions. The judge was correct to focus on the fact that the publicity about the Prime Minister's remarks did not go to the central issue in the case. The central issue in the case turned on whether the jury were sure that the applicant had, on all or any of the occasions alleged, acted corruptly, not on whether the jury thought there was widespread corruption in Nigeria. The direction, which he gave to the jury early on the afternoon of 11th May, which we have quoted, was clear and firm. Mr Spens, cogent though his submissions were, was not able to identify any basis for doubting that the jury followed that direction.[27]Mr Spens submits that the fair minded and informed bystander, observing these events, would fear that there was a risk that the jury, or at any rate some members of the jury, had been prejudiced. We do not agree. It seems to us that the fair minded and informed observer, knowing all that had happened, would conclude that a very clear direction had been given and there was no reason to doubt that the jury followed it.[28]It is, in our view, an indication of the care with which the jury approached their task that they returned a mixture and guilty and not guilty verdicts. Mr Spens persuasively argues, and Mr McGuinness to an extent agrees, that evidentially the prosecution case on counts 1 and 2 was weaker than the prosecution case on the other counts. But what the mixed verdicts indicate, in our view, is that the jury did not simply adopt a broad brush approach to their task. They clearly applied themselves to discriminating in their assessment of the evidence in relation to the different counts.[29]For those reasons, which although given at greater length are essentially the same as those given by the single judge when he refused leave on the papers, we can see no ground on which it could be argued these convictions are unsafe. The renewed application accordingly fails and is refused.

LORD JUSTICE DAVIS: Thank you very much Mr Spens. Although this has been a judgment on a renewed application we will in the circumstances give leave for it to be cited hereafter.

[31][The court heard submissions as to anonymising ‘Mr X’ in any report]