“ Your Honour, on Tuesday when this matter came before the court I explained that a matter had been brought to my attention for the first time on 13 January of this year. This has been the subject of careful scrutiny at senior level of the Crown Prosecution Service and as a result of this consideration it has been decided that the Crown will no longer proceed with these allegations and we formally offer no evidence against both defendants.”
“ …. the result of a combination of errors, contributed to by a number of different people, but there was no intention to deliberately mislead the Court.”
“ Phone call received by DC McDonald Friday16/02/2007 from Dave Thompson associate prior to the Interview Thursday15/02/2007 of Christine Ibie-Ibori and Udomaka OKORONKWO both defendants were briefed and de-briefed before and after interview by Roland Baker ex SCD6 officer and Dan Quade ex Customs officer on the instructions of their employer Cliff Knuckey ex Detective Inspector SCD6 (MLIT). Enquiries in Switzerland re air craft you are on the right track. A house appears to be on sale in Hampstead on the same estate where James Ibori owns property. ”
“ Intelligence from a non-attributable source was received on10th Sept 2007 that indicates that KNUCKEY is currently in contact with officers working on the IBORI investigation and has recently met with DC John McDONALD and paid McDONALD money for information, whilst also attempting to meet with other officers namely DS RADFORD ……. Further non-attributable intelligence has suggested that KNUCKEY intends to meet with DC John McDONALD in a central London public house on Monday17th September 2007 . If correct, then this new intelligence clearly indicates that KNUCKEY is currently engaged in an ongoing and corrupt relationship with DC John McDONALD and that this presents a potential risk to the IBORI investigation overall. That said, there is no evidence to corroborate that any such meeting did in fact take place or that DC John McDONALD was actually paid money for passing over any information whatsoever. It cannot be discounted that this intelligence may be wrong or even false.”
“ So far as SCD6 are concerned, there has been a concentration of efforts on the relationship that exists between Cliff KNUCKEY and DC John McDONALD. The enquiries conducted into their relationship has been sparked by the fact that KNUCKEY is an ex-colleague of McDONALD, and both are considered to be long-term friends……The complication and inappropriateness of this relationship stems from the fact that KNUCKEY is representing a client called James IBORI who is being investigated for fraud matters by SCD6, and DC McDONALD is one of the investigating officers. What has been essential in investigating this particular relationship is establishing whether or not KNUCKEY has been passed confidential and important information, whether or not McDONALD has been paid for such information, and also whether or not the IBORI case has been damaged or otherwise compromised…… Other intelligence sources have indicated that KNUCKEY has told third parties that he has met with McDONALD and paid for information, but there is no evidence or other intelligence to corroborate this, and I have to bear in mind the possibility that KNUCKEY may be lying in order to increase his own fees. Other intelligence indicates that McDONALD himself does not believe that KNUCKEY is not corrupt. Recent intelligence also indicates that KNUCKEY has resigned, and will be leaving RISC within a four-week period to start up his own company. At this stage, I have no corroborative intelligence or evidence that DC McDONALD has passed any sensitive intelligence on the IBORI case, or that the case itself has been damaged or compromised. With the departure of KNUCKEY, any possible threat to that case will also be lessened…..”
“Cliff Knuckey would also provide intelligence as to the current state of the investigation from various meetings he had with the investigating officers. Interestingly, on the invoices…there are details of cash payments made to certain individuals for information. ”
“ ….I am attaching here…a private and confidential document. It is the invoice of …[Risc]… It was a private inquiry company headed up by the former head of SCD6 and was recruited by Ibori’s UK lawyers to advise on the Mets strategy. ….It seems that the investigating team may have been paid in cash terms for information. You will see further meeting taking place at NSY [New Scotland Yard] with the source. Do you feel there is mileage to be gained from this aspect. ”
“ …. - Impacts Police credibility as witnesses - Officers begin to understand personal exposure - Forces an external review to be undertaken - Checks Units [i.e., SCD/6’s] conduct and actions - Overwhelm them with actions as listed - They make mistakes and lose focus on matter and pre- occupy their minds - Creates wedge between officers and CPS/Counsel for Prosecution - CPS questions officers evidence and distances itself on conduct”
“ Decision number 3 in the Op Limonium decision log dated 19/09/07 suggests there was intelligence that DC McDonald had been paid money by Cliff Knuckey for information. No material now exists that corroborates this Decision Log entry. This Decision Log entry is the only existing record of this information held by the MPS.”
“What happens if we decide the intel is such that we cannot run Gohil?”
“4. The advice previously given outlined the balance to be struck between disclosing material taken out of context and without consideration of its provenance or reliability and disclosure within the parameters of a defined and focused case having taken into account the context of the material and its provenance. In this case the decision on disclosure would be different. a. If material was taken out of context there would be a need to disclose so that the information could be used to assist the argument of the Applicant before being rebutted by the Respondent by its context, i.e., by showing that the Applicant had fabricated the complaint of corruption. b. If material were put in context, it is unlikely much disclosure would be made.” a. If material was taken out of context there would be a need to disclose so that the information could be used to assist the argument of the Applicant before being rebutted by the Respondent by its context, i.e., by showing that the Applicant had fabricated the complaint of corruption. b. If material were put in context, it is unlikely much disclosure would be made.”
“9. While the fact of intelligence and even the fact of a prior investigation into RML [i.e., Risc] and a prior investigation into DC McDonald could be said to assist the Applicant in their application, when seen in context the full picture supports the Respondent. It shows that intelligence was not ignored but properly acted upon and investigated with rigour. It shows that systems remained in place to identify any possible future corruption. It shows that the intelligence was unfounded. With the caveat that counsel has not seen the source material or original intelligence summarised in these documents: ….. b. Taken out of context only one item of intelligence could assist the Applicant or undermine the Respondent’s case; and c. When seen in context the material does not pass the test for disclosure.” ….. b. Taken out of context only one item of intelligence could assist the Applicant or undermine the Respondent’s case; and c. When seen in context the material does not pass the test for disclosure.”
“ After reading the proposed disclosure it was apparent to me that the vast majority of the quoted intelligence was sensitive and could not be disclosed in this format. This was clearly communicated to David Williams and Michael McCrone. It became clear that neither David Williams nor Andrew Penhale were aware of the sensitivity of the intelligence and had made their earlier judgment without this knowledge.”
“ Note of Voluntary Information provided by the Crown to theApplicant for Leave to Appeal A covert Metropolitan Police Directorate of Professional Standards investigation was conducted between May 2007 and October 2007 into the interaction between members of …[Risc]…and serving police officers. Intelligence existed that claimed officers from different departments were in a corrupt relationship with RISC staff. One officer subject to this investigation was DC John McDonald, who at that time was investigating James Ibori and his associates in an investigation known as Operation Tureen. Intelligence suggested that DC McDonald and RISC operative Cliff Knuckey (an ex Metropolitan Police Service (MPS) Detective Inspector) were known to each other. MPS records showed that DC McDonald had previously worked with Cliff Knuckey prior to the latter’s retirement. Various covert tactics were utilised to assess that risk, and to prove or disprove the intelligence against the MPS officers. These tactics included…… The investigation identified Cliff Knuckey contacting DC McDonald’s office in an effort to speak to him and that DC McDonald’s line manager was aware of this approach. The potential risk this approach highlighted was assessed and monitored accordingly. The investigation was closed after it found no evidence to corroborate any of the intelligence. The Crown Prosecution Service was not consulted, no breaches of Police Misconduct Regulations were identified, no arrests were made and no charges were brought. 14.4. 2014”
“ Intelligence suggested DC McDonald and RISC operative Cliff Knuckey (ex MPS Det Inspector) were known to each other. Cliff Knuckey had bragged to others that he paid DC McDonald for information.”
“ That is not disclosure….That was a note voluntarily disclosed, because once one got the punch line, it became apparent that, having looked at the relationship between Mr Knuckey and Mr McDonald, there was nothing untoward found at all. What is of more interest is what the source of that intelligence was, because at the moment that has not come to light but is being looked at. This is not material – which is why we very particularly described it as ‘voluntary disclosure’, rather than disclosure which undermined our case. That note does not undermine the Crown’s case at all. It shows that somebody made a phone call or planted information to say that there was a corrupt relationship. It was taken very seriously. It was looked at very thoroughly over a period of time. Nothing untoward was discovered. That material actually assists the respondents in this appeal.”
“ On the face of it – and we have not heard submissions about the merits of the case – any court would be extremely sceptical about this application. There is the applicant’s plea of guilty to Indictment 2. There is the lack of any apparent connection between the suggestion of corruption, wide-ranging though they are, and the actual evidence on which the applicant was convicted on Indictment 1……There is the fact of Mr Ibori’s pleas of guilty…. ”
“11. ….such [a] case was not advanced at the trial. On the contrary, the strategy at trial was primarily to seek to challenge the Crown’s case that the monies in question did indeed represent criminally acquired property and that the applicant knew or suspected that. The present strategy on behalf of the applicant – on the jury’s verdict, and on his own subsequent pleas, a corrupt solicitor – is thus now to allege corruption on the part of the investigators.”
“ ….the applicant was himself recorded as present at the meeting which was the subject of the attendance note of11 September 2007 and so would have known what was discussed at that meeting. We therefore note, in this regard, that notwithstanding this knowledge and notwithstanding the numerous other complaints made about the police investigation before the first trial, this particular complaint has only first been raised long after that trial……”
“18. We find it impossible to reconstruct from this material, or the other matters put forward an arguable case of corruption relating to the first trial of the kind Mr Khamisa [i.e., Mr Khamisa QC, then appearing for Gohil] would seek to propound. It would not be permissible inference; it would be complete speculation. It has no support from any evidence of RML itself. On the contrary, subsequent statements by the relevant employee of RML in interview would seem to tend to rebut it; and internal investigations (by the Directorate of Professional Standards) have found no evidence of wrongdoing….. As Miss Wass QC for the Crown recorded in a note of14 April 2014 , that investigation was concluded with no breaches of any Regulations identified or arrests made. There was found ‘no evidence to corroborate any of the intelligence….’. The subsequent investigation has had a like result. More than that, there is simply no evidence that information was being supplied from RML to the unit; at their highest, the documents now relied upon purport to record the passing of information from the confidential source to RML. Moreover, it is in any event complete (and implausible) speculation that information, if any, was passed relating to the applicant’s defence or having a causal connection with the prosecution against the applicant himself. There overall, in our judgment, simply is no sufficient material to justify an argument that the prosecution was so tainted as to amount to an abuse of the process or otherwise that the defence was prejudiced. 19. Mr Khamisa said that ….leave should be granted so that further disclosure could be sought and obtained. That would be speculative too. In any event…..Miss Wass for the Crown has previously stated, and stated again before us, that the prosecution were and are aware of nothing calling for disclosure in relation to these proposed appeals.”
“47. The applicant – we repeat, a solicitor – was free to instruct that the case on the second indictment be defended at trial. He elected not to. He may have been under the usual trial pressures, he may have been disheartened and depressed at the outcome of the first trial, he may have had a natural inclination to follow the legal advice he was being given. But the ultimate choice was his and his mind clearly went with his decision. Thereafter for mitigation purposes much was made of his plea, including expressions of remorse on his behalf; and there were certain other matters, which we do not need to set out here, which operate to reinforce the voluntary and informed nature of the plea…..”
“50. ….. SWQC raised the10 September 2007 intelligence contained in DL3 and DSW informed the meeting that it came from Source A. SWQC immediately stated that Source A was capable of supporting Gohil’s case, that she had previously thought the source was Gohil making anonymous allegations about corruption, that it fell to be disclosed and that the fact that it was from Source A likely meant that it was the end of the case… 51. MM was not present for the revelation, but joined shortly afterwards and had to be brought up to date. He expressed his surprise at the existence of Source A…..”
“ There is a further alternative. The documents on some parts of the case may be so clear as realistically to preclude any significant contribution being made by any other materials to which we might come. That is a familiar position for a Court: for instance, in the civil jurisdiction in the context of giving summary judgment. There are instances where one can safely say that there is nothing else that could impinge on the state of the documentary materials, and there may be parts of this case where that is the correct conclusion.”
“ (1) Subject to the provisions of this Act, the Court of Appeal – (a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case.” (a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case.”
“The general position is that the court is at this point functus officio and will not re-hear an appeal, as it has no general jurisdiction to do so….”
“ The first is a private objective of correcting wrong decisions so as to ensure justice between the litigants involved. The second is a public objective, to ensure public confidence in the administration of justice not only by remedying wrong decisions but also by clarifying and developing the law and setting precedents….”
“ The residual jurisdiction ….vested in a court of appeal to avoid real injustice in exceptional circumstances is linked to a discretion which enables the court to confine the use of that jurisdiction to the cases in which it is appropriate for it to be exercised.”
“There…needs to be a procedure which will ensure that proceedings will only be reopened when there is a real requirement for this to happen.”
“ What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy. The effect of reopening the appeal on others and the extent to which the complaining party is the author of his own misfortune will also be important considerations. Where the alternative remedy would be an appeal to the House of Lords this court will only give permission to reopen an appeal which it has already determined if it is satisfied that an appeal from this court is one for which the House of Lords would not give leave.”
“ The fact that both [the Civil Division and the CACD] have the same implicit jurisdiction does not mean that the jurisdiction has necessarily to be exercised in the same way…. ”
“The jurisdiction is probably confined to procedural errors, particularly as there are alternative remedies for fresh evidence cases through the Criminal Cases Review Commission.”
“ This is an exceptional case, as there was no basis in fact on which this court should have quashed the sentence; what had happened was a rare coincidence of circumstances – carelessness on the part of the transcriber, a failure by the prosecution to check the position, and a failure to check with the Crown Court at Harrow and the judge before accepting (1) that an experienced trial judge had passed a significant consecutive sentence on a defendant when the jury had not convicted that defendant and (2) that the record of the Crown Court which properly recorded the verdict and sentence were in error.”
“6. The implicit jurisdiction of the court to reopen proceedings in exceptional circumstances when it is necessary to avoid injustice was reviewed recently in R v Yasain…. Lord Thomas CJ giving the judgment of the court made plain that it is an exceptional jurisdiction and one that will only be exercised in rare cases where it is necessary to avoid real injustice. He endorsed the general and important principle that there must be finality in litigation. 7. In our view reliance on Yasain in this case is misplaced. The judgment was not intended to open the doors to a flood of misconceived applications to reopen appeals. Those who believe they have grounds for a rehearing of an appeal may, in appropriate circumstances, make an application to the CCRC. An application to reopen an appeal is not the appropriate avenue. Only, we repeat, only in exceptional circumstances will this court consider an application to reopen an appeal. …… 10. If there were good grounds for challenging the sentences imposed, the applicant has a remedy – an application to the CCRC…. ”
“…the judicial ‘steer’ apparent from the judgment in Yasain and in the subsequent cases that the jurisdiction to re-open a concluded appeal on the basis of evidence and material that was not before the court is to be confined to procedural errors of the sort that are clear and undisputed and where it is simpler and more expedient for the court itself to re-open the appeal and correct a manifest injustice without the need for further litigation. ”
“ …In our view, enough time, effort and precious resources have already been spent on getting this error corrected. The application is before us. The applicant has acted in a timely manner. Any delays have not been attributable to him. We must put an end to this unhappy saga.”
“ ….There has been a real increase in the number of applications seeking to apply Yasain which are, almost invariably, without merit and are liable to be rejected summarily. Given the pressure on the Court of Appeal (Criminal Division) to deal with outstanding appeals and applications, it is therefore appropriate to underline the truly exceptional nature of this type of application and the strict need to justify attempts to bring cases within its remit….”
“…now forms an integral part of the protection available in this jurisdiction against the risk and consequences of wrongful conviction, exercising a residual jurisdiction.”
“(1) A reference of a conviction…shall not be made….unless - (a) the Commission consider that there is a real possibility that the conviction ….would not be upheld were the reference to be made, (b) the Commission so consider - (i) in the case of a conviction ….because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it….. (c) an appeal against the conviction….has been determined or leave to appeal against it has been refused.” (a) the Commission consider that there is a real possibility that the conviction ….would not be upheld were the reference to be made, (b) the Commission so consider - (i) in the case of a conviction ….because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it….. (c) an appeal against the conviction….has been determined or leave to appeal against it has been refused.”
“ i) the CCRC exercises an important residual jurisdiction in the interests of justice; ii) the decision whether or not a case satisfies the threshold conditions and is to be referred to the CACD is for the CCRC and not the court; it is not for the court to usurp the CCRC’s function; …………. iv) the threshold conditions serve as an important filter, not least in preventing the CACD from inundation with threadbare cases; they also assist in striking the right balance between the interests of justice on the one hand and those of finality on the other; v) even if the threshold conditions are satisfied, the CCRC retains a discretion not to refer a case to the CACD …..”
“ Intelligence Report dated16/04/2015 . DS Wright report; follows a telephone call with DC McDonald where DC McDonald reported the content of a meeting of a colleague (officer from a different unit) with a legal representative who said that he (legal rep) was doing some work for Ibori’s Lawyers. The Legal rep also said that Duncan McKelvie was doing some work on the case. DC McDonald arranged to meet his colleague on the16 April 2016 [presumably, 2015] in a more suitable place; the colleague confirmed the meeting he had with the legal rep was on28 February 2015 . The Legal rep took a call during the meeting which triggered the conversation re Ibori lawyers and McKelvie. DC McDonald confirmed the detail by email to DS Wright.”