R v Cii, Ap and Ti; [2008] Wlr (D) 401
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HUGHES |
| Judgment Date | 18 December 2008 |
| Neutral Citation | [2008] EWCA Crim 3062 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 2008/6289/C5 & 2008/6290/C5 |
| Date | 18 December 2008 |
[2008] EWCA Crim 3062
Lord Justice Hughes
Mr Justice Treacy
Sir Peter Cresswell
No: 2008/6289/C5 & 2008/6290/C5
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr R Amlot QC and Miss E Schutzer-Weissman appeared on behalf of the Crown
Mr G Rees QC appeared on behalf of the defendant CII
Mr O Nsugbe QC and Mr J Akinsanya appeared on behalf of the defendant AP
Mr E Lawson QC appeared on behalf of the Secretary of State for the Home Department
The defendant TI was not present and was not represented
: The issues in these interlocutory cross-appeals are whether two groups of evidence obtained from abroad under two letters of request are admissible in the trial. That depends upon the terms of a bi-lateral treaty between the United Kingdom and the Federation of Nigeria.
The English Indictment
Three defendants of Nigerian origin but resident in this country are on trial in the Crown Court for offences which fall into two groups. The first group charges the laundering in England and Wales of very large sums of money which are said to be the proceeds of corruption and/or fraud committed in Nigeria by a sometime provincial Governor there (JOI). The second group charges one of the defendants with mortgage frauds, again closely related to the deployment of money in this country by JOI. There is a additionally a charge of conspiracy to defraud relating to an alleged fraud in Nigeria, also involving JOI, but that count has been severed and does not at present concern us.
The three defendants resident here are all women closely associated with JOI. CII is his sister. AP was at the material time his personal assistant and close associate. TI is his wife. JOI himself is not in England. He is, or may be, in Nigeria, and it is understood that he faces charges there which may reach trial either in 2009 or 2010. We are told that it is now known that another subject of the letters of request (not any of the present defendants) is under investigation both in Nigeria and in England in matters similarly related to the assets of JOI.
The Treaty
Since the offences alleged to have been committed here are so intimately bound up with the source of JOI's apparently immense wealth and the allegation that it is the product of criminal conduct in Nigeria, it is unsurprising that a good deal of evidence needed to be gathered there. There is a valuable working relationship between the Metropolitan Police Force in London and the Nigerian fraud investigation unit, the Economic and Financial Crimes Commission (“EFCC”). The formal arrangements for the exchange or supply of evidence are contained in the bi-lateral treaty to which we have referred. It was signed by the two States in September 1989 and came into force on 30 October 1993. Its full title is 'Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Federal Republic of Nigeria concerning the investigation and prosecution of crime and the confiscation of the proceeds of crime'. It has been successfully operated by the two governments before the present case.
The preamble recites the following objectives:
“… Desiring to improve the effectiveness of law enforcement in both countries in the combating of crime through co–operation and mutual legal assistance in criminal matters;
…
Desirous of strengthening co–operation to fight against crime in all its ramifications,”
Article 1 provides, inter alia, as follows:
“(1) The contracting parties shall, in accordance with the provisions of this Agreement and to the extent permitted by their national laws, afford each other, upon request, mutual assistance in criminal matters, including investigations and proceedings and the tracing, restraint and confiscation of the proceeds of criminal activities.
(2) Such assistance shall include:
…
(b) obtaining information and evidence;
(c) taking evidence of witnesses.”
By article 3 a request for assistance is to be made by the Central Authority of the requesting State to the Central Authority of the requested State. Article 3(2) provides that for the UK the Central Authority is the Secretary of State for the Home Department (“the Secretary of State”) and for Nigeria it is the Attorney General of the Federation (“the Attorney General”).
Article 4 sets out what a request must contain. There is no issue, now, that two letters of request were properly issued by the Secretary of State to the Attorney General. The first (“LR1”) was dated 23 August 2006. The second (“LR2”), described as supplementary to LR1, was dated 30 August 2007. Both were long and detailed. This was clearly a complex and extended police investigation. Both letters of request set out with considerable particularity what was sought, identifying potential witnesses, companies, bank accounts and specific transactions. They also explained the nature of the investigation and why the information was sought.
Article 5 provides as follows:
“(1) Subject to the provisions of this Agreement and to the extent permitted by its law the Requested Party shall grant assistance, in accordance with the requirements specified in the request, as expeditiously as possible.
(2) The Central Authority of the Requested Party shall, subject to the following provisions of the Article, take the necessary steps to ensure that its competent authorities comply with the request.
(3) If the Central Authority of the Requested Party considers that:
(a) the request does not comply with the provisions of this Agreement; or
(b) in accordance with the provisions of this Agreement request for assistance is to be refused in whole or in part; or
(c) the request cannot be complied with, in whole or in part; or
(d) there are circumstances which are likely to cause a significant delay in complying with the request,
it shall promptly inform the Central Authority of the Requesting Party, giving reasons.”
That creates a duty on the requested State to comply with the request. That obligation is also spelled out in article 12(2), which we need not recite, but which stipulates that documents shall be sent, evidence taken, and so on, as asked, and in article 7, which requires the letter of request to be returned to the requesting State together with the evidence duly obtained.
This obligation is subject to article 6, which permits refusal of a request in whole or in part in defined circumstances. In summary, a request may be refused if its contents do not comply with the Treaty, or if it relates to certain categories of offence, viz those of a political character, or which would not meet the requirements of double criminality, or are military offences only, are offences of which the person accused has already been prosecuted in the requested State, or may facilitate prosecution on account of race, origin, religion, nationality or political opinions. Further, a request may be refused if compliance would be contrary to the constitution of the requested State or would prejudice that State's international relations, public policy or other essential national interest. None of those possible reasons for refusal requires analysis in this case. But article 6(2) goes on to provide:
“(2) The Requested Party may refuse to comply in whole or in part with a request for assistance under this Agreement:
…
(c) Provision (sic) of the assistance sought could prejudice an investigation or proceedings in the territory of the Requested Party…”
In event of refusal, article 6(4) requires the requested State immediately to inform the requesting State of the reason for it.
Relevant history
On receipt by the Attorney General of LR1 in August 2006 he forwarded it to the EFCC for action. The Commission is, it is common ground, the appropriate competent authority within article 5(2). Metropolitan police officers then travelled several times to Nigeria and with the co–operation of the EFCC officers gathered a good deal of material. They brought it back to England, leaving copies with the EFCC of everything which had been obtained. The Attorney General at that time was Mr Ojo.
The supplemental request LR2 was issued a year later on 30 August 2007. By then a new Attorney General (Chief Aondoakaa) had recently been appointed in July of that year. Police officers went back in the next month, September, and in October. There was an appointment for them to meet the Attorney General and to discuss the investigation, but he proved unable to keep it. They repaired, however, to the EFCC and with the co–operation of its officers completed substantial further enquiries. They acted in the same way as previously. They left with the EFCC copies of what they had obtained and they came back home.
Whilst any prosecution of JOI is taking place in Nigeria and not in the UK, there was an application made against him in the English courts for a restraint order under the Proceeds of Crime Act. This was not the result of an external request from Nigeria, but was part of a free-standing investigation by the English police. In the course of those proceedings, the solicitors acting for JOI produced, by an e-mail of 15 November 2007, a copy of a letter dated 12 November 2007 written by the Attorney General to the Secretary of State. There might have appeared at first to be grounds for concern whether this letter could be genuine, since it seems to have been in the possession of JOI or his solicitors before it reached the Home Secretary, but it is clear from the submissions of the Attorney General that, despite that wholly unexplained timetable, the...
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