Bhadresh Babulal Gohil v R

Hearing dates: 27 and 30 November and 01 December, 2017

Judgment Approved

INTRODUCTION

This is the judgment of the Court to which each member of the Court has contributed.

As will be seen, this case is concerned, albeit on its own very particular facts, with the width of the jurisdiction to re-open final determinations of this Court. Further, the case illuminates the importance of the Crown getting disclosure right first time. Still further, it underlines the essential need for coordination between investigators, prosecutors and independent counsel – with their separate roles – in our institutionally “split” prosecution system.

On the 25th April, 2016, the applicant Mr Gohil (“Gohil”) applied to re-open the final determination of this Court of his applications for leave to appeal. On the 23rd June, 2017, this Court ruled that Gohil's application to re-open should be heard as an oral application and gave directions for the hearing.

On the 15th September, 2017, the applicant Mr Preko (“Preko”) applied to re-open the final determination of this Court of his appeal against conviction. On the 20th October, 2017, this Court directed that Preko's application should be heard together with Gohil's application and set a timetable for the hearing.

THE PROCEDURAL HISTORY

The procedural history can be relatively briefly summarised. Mr James Ibori (“Ibori”) was the Governor of the Delta State of the Federal Republic of Nigeria from 1999 – 2007, during which time it was alleged that he defrauded the State of some US$89 million and that he intended to secrete the proceeds of this political corruption in offshore accounts and trust funds. On the 27th February, 2012, before HHJ Pitts at Southwark Crown Court, Ibori pleaded Guilty to 10 counts of fraud and money laundering (the “money laundering” and “V mobile” indictments). On the 17th April, 2012, Ibori was sentenced to a total of 13 years' imprisonment. An appeal against sentence was dismissed. Ibori did not at the time appeal against his conviction.

Gohil was a solicitor and a partner in the firm of Arlingtons Sharma (“Arlingtons”). From 2005, the firm acted for Ibori. It was the Crown's case ( inter alia) that Gohil provided a client account for Ibori, through which Ibori laundered money. On the 22nd November, 2010, following a trial before HHJ Hardy and a jury at Southwark Crown Court, Gohil was convicted of 4 offences of money laundering and 1 of prejudicing a money laundering investigation (the “Tureen” indictment). On the 6th December, 2010, before the same Judge, Gohil pleaded Guilty to a further 8 offences (the “Augen” indictment), involving a conspiracy together with Ibori and others to defraud two states in Nigeria regarding the sale of shares in a mobile telephone company (V Mobile) and allegations that Gohil had forged documents and laundered funds in relation to that fraud. The Augen fraud was said to involve some US$37 million. On the 8th April, 2011, Gohil was sentenced to a total of 10 years' imprisonment, comprised of 3 years on Tureen and 7 years consecutive on Augen.

On the 17th June, 2014, a different constitution of the full Court dismissed Gohil's renewed applications for leave to appeal his convictions on the Tureen and Augen indictments. The judgment of the Court, given by Davis LJ, was handed down on the 9th July, 2014 (“the July 2014 judgment”).

Preko, previously an investment banker who had worked at Goldman Sachs for 10 years, was alleged to have assisted in placing over US$5 million of the Ibori funds in foreign accounts. On the 9th December, 2013, Preko was convicted of two counts of money laundering after a re-trial and was sentenced to a total of 4 years 6 months' imprisonment.

On the 3rd February, 2015, a different constitution of the full Court handed down a judgment, given by Rafferty LJ, dismissing Preko's appeal against conviction (“the February 2015 judgment”).

As already foreshadowed, Gohil and Preko have now applied to re-open the final determinations of the full Court in their cases. If their applications to re-open are successful, they wish then to join in the applications by Ibori and others (Lambertus De Boer, Christine Ibori-Ibie, Daniel McCann and Udoamaka Onuigbo) for leave to appeal and for Extensions of Time (“EOTs”) to do so.

THE GOHIL APPLICATION TO RE-OPEN

(1) Overview: To explain the background, it is necessary to begin by stepping back in time. In about 2006, as the Metropolitan Police Service (“MPS”) investigation into Ibori progressed, he hired private investigators Risc Management Limited (“Risc”), through solicitors Speechly Bircham (“SB”), as part of his defence team. Gohil was either involved in obtaining this assistance from Risc or, on any view, very soon became aware of Risc's involvement. Risc employees included a number of former MPS officers; one such – and holding a senior position at Risc — was a Mr Cliff Knuckey (“Knuckey”), previously a MPS Detective Inspector. One MPS officer then engaged on the Ibori investigation was a Detective Constable John McDonald (“JMD”), who looms large in the story. Knuckey and JMD knew each other; before Knuckey's retirement from the MPS, JMD had worked with him.

The Ibori investigation was conducted by MPS officers from the Proceeds of Corruption Unit (“POCU”), part of what was then the SCD6 Fraud Squad. JMD was an officer in SCD6.

In 2007, the MPS Directorate of Professional Standards (“DPS”) conducted a covert investigation (operation “Limonium”) into allegations of a corrupt relationship between Risc and serving police officers, in the event, JMD in particular. In the circumstances described below, no arrests were made, no charges were brought and Limonium was closed.

Following his convictions and sentence, Gohil launched a campaign alleging that MPS officers engaged on Tureen and Augen were corrupt – they had received corrupt payments from Risc and Risc had passed confidential information to them. Initially, Gohil suggested that the origins of his complaint lay with material which had reached him post-trial from an anonymous source. It subsequently became clear that the source of his allegations came from invoices in the possession of SB and which were available to him from a time pre-dating his trials.

In 2013/2014, following a further MPS investigation (operation “Tarbes”), the file was referred to the CPS, who took the decision that there was insufficient evidence to charge JMD. However, in June 2014 and also as a strand of Tarbes, the CPS took the decision to charge Gohil for attempting to pervert the course of justice, and Knuckey with false accounting (relating to inflated payments and invoices appearing to record payments to “sources” but which Knuckey now averred had been simply bills to cover his own losses in missing a holiday). The essence of the Crown's case against Gohil, from June 2014 until January 2016, was that the suggestion of corrupt payments from Risc to MPS officers was false; as expressed in a Crown skeleton argument (dated 26th May, 2015) resisting dismissal and severance of the Tarbes proceedings, “DC McDonald has been thoroughly investigated and exonerated and is actually free from blame”. The Court of Appeal had previously been told (see further below) that “nothing untoward” had been found at all.

On the 21st January, 2016, the Crown offered no evidence in relation to the Tarbes indictment, the day after the trial had been due to start. Leading counsel, Ms Wass QC (“SWQC”), said this to HHJ Testar, sitting at the Southwark Crown Court:

“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 Judge invited the Crown to give reasons for this late and previously unforeshadowed development but leading counsel was not in a position to do so.

As a result of offering no evidence and the serious nature of the allegations made against MPS officers and – by this stage – the CPS and counsel, the Crown took a number of important steps. First, leading, junior and disclosure counsel were replaced. Secondly, a review was launched in respect of a number of aspects of disclosure in the Ibori series of cases (project “Phoenix”). As we understand it, Phoenix has resulted in the disclosure of nearly 10,000 pages of new material, an exercise, in our judgment, wholly dwarfing the scale of the disclosure task that would have been required had it been properly undertaken in the first place.

Subsequently and as reflected in its Response to the Grounds to re-open appeal against...