BHOJWANI v. THE UNITED KINGDOM
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo
1. The applicant, Mr Raj Arjandas Bhojwani, is an Indian national, who was born in 1957 and according to the most recent information available to the Court is currently detained at HM Prison La Moye in Jersey. He is represented before the Court by Carey Olsen, a law firm based in Jersey. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. Between 1996 and 1997 the applicant secured two contracts to supply vehicles to the Nigerian Government, then under the rule of General Abacha. He was paid almost 149 million United States dollars (“USD”) for the first contract and almost USD 29 million for the second. He paid all sums into two accounts in the Bank of India in Jersey (“BOIJ”). He subsequently paid approximately USD 100 million to accounts in Switzerland and elsewhere connected with General Abacha and Colonel Marwa, a close collaborator of General Abacha. 4. Following General Abacha’s death in 1998, a Special Investigation Panel was set up in Nigeria to investigate the use of Government monies during General Abacha’s regime. The Panel was chaired by the Deputy Commissioner of the Nigerian Police Force, Mr G. 5. On 23 October 2000 the applicant converted the balance of the two BOIJ accounts into six bankers’ drafts totalling almost USD 44 million. On 25 October 2000 he couriered the bankers’ drafts to London. The bankers’ drafts were subsequently returned to Jersey and, on 2 November 2000, the applicant deposited them into three accounts at the BOIJ. 6. On an unknown date the Jersey police commenced a criminal investigation into money laundering in respect of the applicant. On 17 June 2002 the Attorney General of Jersey sent a letter of request to the Nigerian Government asking for assistance with the money laundering investigation. The Nigerian authorities instructed Mr G. to gather relevant evidence. Mr G. and Colonel B., a retired army officer who had worked closely with General Abacha, made witness statements to a Jersey police officer in Jersey and Nigeria. Mr G. also gathered various business documents which he provided to the Jersey authorities. The Attorney General of Nigeria provided an undertaking that the Government of Nigeria would use its best endeavours to ensure that the necessary witnesses travelled to Jersey to give evidence at any future criminal trial against the applicant. 7. On 15 October 2009 the applicant obtained declarations from the Federal High Court of Nigeria (“the Nigerian judgment”) that the Special Investigation Panel was unconstitutional and that all investigatory actions undertaken by it in respect of the applicant were “null and void, and lacking any valid or legal effect whatsoever”. 8. Meanwhile, the applicant was charged with two counts of converting the proceeds of criminal conduct and one count of removing the proceeds of criminal conduct from the jurisdiction. 9. Following delivery of the Nigerian judgment, the applicant made two applications to the court. 10. In the first, he sought a stay on proceedings on grounds of abuse of process. He contended that the use of the business documents by the Attorney General of Jersey was an abuse of power because the Nigerian court had ruled that they had been unlawfully obtained and because they had been obtained for an “investigation” only, so that there had been no consent to their use at trial. On 9 November 2009 the Royal Court delivered its ruling on this application, declining to stay proceedings. It held that there was no evidence of an abuse of power and that since the purpose of an investigation into a criminal offence was to prosecute that offence, there would be little point in providing the information for the former but not the latter. The court noted that the defence conceded that the admission of the relevant Nigerian evidence did not prejudice the fairness of the applicant’s trial. The judge said: “70 ... [I]t follows that I would not exercise my discretion under Article 76 of [the 2003 Law] to exclude it on the grounds set out in this application.” 11. In his second application, the applicant relied on Article 66 of Police Procedures and Criminal Evidence (Jersey) Law 2003 (“the 2003 Law” – see paragraph 28 below), which allowed the court to exclude admissible evidence “in the interests of justice”. He argued that since the case was focused on alleged corruption at the highest level of government in Nigeria at the relevant time, it should not be assumed that the business documents were reliable. On 23 November 2009 the Royal Court allowed the admission of the business documents. It noted that there was nothing on the face of the documents to indicate that they were not authentic. While it was true that the applicant could not controvert the documents, it was necessary to balance the competing interests. There were a substantial number of documents that the applicant was in a position to controvert and he was also able to give evidence as to the nature of his involvement with General Abacha and Colonel Marwa. It was in the interests of justice that the business documents be admitted. 12. The prosecution subsequently applied under Article 64 of the 2003 Law (see paragraph 27 below) to read the witness statements by Mr G. and Colonel B. The defence argued that further steps should be taken by the prosecution before the judge could conclude that it was “not reasonably practicable”, in terms of Article 64, to secure the attendance of the witnesses. 13. On 6 January 2010 the court held that the witness statements were admissible. It was satisfied “to the criminal standard” that it was not practicable to secure the attendance of the witnesses. It further rejected the applicant’s argument that the admission of the statements would breach his rights under Article 6 §§ 1 and 3 (d) of the Convention. The court recognised the conflict between the approach of the English courts, as outlined in R v. Horncastle and Others [2009] UKSC 14, with the approach of a Chamber of this Court in Al-Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, 20 January 2009. It concluded that the “sole and decisive” test had no application in Jersey. There was nothing inherently unreliable on the face of the statements and it would be in the interests of justice to admit them. 14. Meanwhile the Attorney General of Jersey wrote to the Attorney General of Nigeria requesting that Nigerian witnesses attend in Jersey to give their evidence. The Attorney General of Nigeria replied that, following the Nigerian judgment, he was unable to accede to the request for Nigerian witnesses to testify at the trial in Jersey “as the crux of the matter is centred on the national interest and I have a constitutional duty to protect the judicial integrity of the Federal Republic of Nigeria”. He asked for the business documents to be returned to Nigeria. 15. On 21 January 2010 the applicant applied to have the Nigerian evidence excluded and his prosecution stayed on grounds of breach of international law and comity, based on developments since the 9 November 2009 ruling of the Royal Court (see paragraph 10 above). On 26 January 2010, with reasons delivered on 11 February 2010, the Royal Court refused the applications. It noted that the defence did not contend that the admission of the Nigerian evidence would adversely affect the fairness of the proceedings and that the application to exclude was not therefore brought under Article 76 of the 2003 Law (see paragraph 29 below) but was brought instead under the court’s inherent jurisdiction to exclude evidence as a matter of comity. The court considered that the only conduct being impugned by the defence was the decision of the Attorney General to lead admissible evidence at trial. The only remedy available to a defendant whose complaint was based solely on the merits of the decision to lead admissible evidence was the exclusion of the evidence under Article 76 of the 2003 Law. 16. The trial subsequently commenced in the Royal Court before the Commissioner and two jurats (professional judges of fact). On 5 March 2010, the applicant was convicted of money laundering. On 25 June 2010 he was sentenced to six years’ imprisonment. 17. The applicant sought permission to appeal against his conviction and sentence. He raised twelve grounds of appeal, dated 24 May 2010. Ground 8, which it was stated was intended to be taken together and supplemented by matters addressed in grounds 9 to 12, related to the admission into evidence of “the whole of part of the Nigerian evidence”, namely, the business documents and the witness statements. The grounds explained that the applicant’s grounds of appeal in relation to the Nigerian evidence under grounds 8 to 12 proceeded on the premise that it was open to him to challenge the admissibility of evidence either by an application for a stay on the basis of abuse or an application for the court to exercise its statutory discretion under Article 76 of the 2003 Law to exclude the evidence. 18. The applicant’s challenge in ground 8 was to the decision of the trial judge of 9 November 2009 not to stay proceedings as an abuse of process (see paragraph 10 above). Ground 9 was also a challenge to the decision of 9 November 2009, this time on the basis that the use of the business documents at trial breached the applicable law on mutual legal assistance because they had been used for a purpose other than that for which they had been provided. Ground 10 was a challenge to the decision of 6 January 2010 to admit the witness statements (see paragraph 13 above). It explained that their admission had resulted in unfairness in that the applicant had been denied the opportunity to test and controvert that evidence in circumstances where it was the sole and decisive evidence relied on by the prosecution to prove a part of its case. The ground referred to the trial judge’s finding that the “sole or decisive” test had no application in Jersey’s law and that the admission of the statements would not breach Articles 6 §§ 1 and 3 (d). Ground 11 concerned the judgment of 11 February 2010 to refuse to exclude the Nigerian evidence on grounds of breach of international law and comity and the refusal to stay proceedings on that basis (see paragraph 15 above). Ground 12 concerned the admission of a statement made by the applicant which he does not challenge in the present application. 19. The applicant subsequently prepared a written skeleton argument dated 2 August 2010, which ran to around 1,025 paragraphs, and a bundle of authorities placing before the court some 178 case-law authorities. In his skeleton argument, he explained that in grounds 8, 9 and 11, he contended that the exercise by the trial judge of his discretion to stay the proceedings as an abuse of process was flawed; that the judge had erred in the exercise of his discretion to exclude evidence under his inherent jurisdiction to uphold comity and international law; that the judge had erred in not excluding the evidence under the “overlapping jurisdiction between stay for abuse of process and Article 76” of the 2003 Law; and that the judge had erred in admitting the Nigerian evidence when it had been obtained for a different purpose. He contended that his challenge to the prosecution application in January 2010 (see paragraph 12 above) had included an argument that, if it failed to grant a stay, the court should exclude the evidence under Article 76 of the 2003 Law, but that this argument had not been addressed by the trial judge. He further elaborated on his Article 76 submission, referring to authority on the exclusion of unlawfully-obtained evidence. 20. In further developing ground 10 in his skeleton argument, the applicant challenged the trial judge’s decision that the admission of the witness statements was not unfair. He relied on Article 66 of the 2003 Law (see paragraph 28 below). He criticised a number of determinations by the trial judge, including that the prosecution had done all that it practically could to ensure the attendance of the witnesses, that the inability to controvert the evidence of Mr G. gave rise to only a minimal risk of unfairness, that there was no unfairness in admitting Colonel B.’s statement and that the applicant’s actions in seeking the Nigerian judgment were the direct cause of the non-attendance of the witnesses and should be taken into account. He referred to the English law equivalent of Article 66 as well as relevant English authorities as to the interpretation of the provision. He made no reference in his skeleton argument to Article 6 of the Convention or to relevant case-law. 21. In its skeleton argument in response, the prosecution said: “The Crown assumes that the Appellant has abandoned its challenge to the learned [trial judge’s] conclusion that the ‘sole or decisive’ test has no application in Jersey ... This challenge is not mentioned in the Appellant’s skeleton argument. It would also require the court to come to a different conclusion to the United Kingdom Supreme Court in R v. Horncastle [2010] 2 WLR 47.” 22. At the subsequent hearing, the applicant’s counsel argued, in respect of grounds 8 to 12 of the grounds of appeal, that the use of the evidence was an abuse of executive power because the Attorney General knew that it had been obtained unlawfully, the Nigerian authorities did not consent to its use and the Nigerian authorities had asked for the return of the evidence. There had also been a breach of Nigerian sovereignty, international law and comity for these reasons. 23. On 10 February 2011 the appeal was refused by the Court of Appeal. The court considered whether unlawfully obtained evidence could be fairly admitted and concluded that it could. It noted that “additional grounds relied on in the skeleton argument were not developed in oral argument ... We list them only for completeness and deal with them briefly”. It then addressed the witness statement argument in Ground 10 as follows: “104. It was contended that the evidence of Commissioner [G.] and Colonel [B.] should have been excluded as hearsay when it was reasonably practicable to have secured their attendance, and its admission was unfair to Mr Bhojwani who, accordingly, could not cross-examine them. We note that Mr Bhojwani objected to the Commissioner’s decision that he had been responsible for the absence of the two witnesses in Jersey by instructing the claim for declarations before the Nigerian Court: and Advocate Kelleher sought to explain the dilemma in which his client was placed by the possibility of prosecutions in two jurisdictions. In our view the attribution of responsibility was a finding of fact open to the Commissioner, and the admission of hearsay evidence was a matter for his discretion which there is no basis to impugn.” 24. Leading English counsel provided advice on appeal in writing on 18 March 2011. While the advice referred to the invitation to counsel to consider whether there were arguable grounds for leave to appeal sentence, the advice also appeared to address grounds for appeal against conviction. Counsel referred to various “significant and unusual” features of the case, but noted that these did “not necessarily found compelling matters of law of general public importance”, which, counsel said, was the test applied by the Privy Council for granting leave. 25. As regards grounds of appeal 8 to 12, counsel referred to the submission to the Court of Appeal that use of the unlawfully-obtained evidence without the consent of the Nigerian Government was an abuse of executive power and a breach of Nigerian sovereignty, international law and comity. He discussed at some length the position as regards use of unlawfully-obtained evidence. As to the specific comments on Ground 10, counsel said: “I am unimpressed by the observations at paragraph 104 of the judgment that the failure of witnesses to attend was the ‘responsibility’ of Mr Bhojwani. This implies that he was at fault in circumstances where he merely sought a declaration from the Federal Court of Nigeria upon the lawfulness of what had occurred. There was a basis for impugning the exercise of the Commissioner’s discretion but I do not consider that the Appellate Committee [of the Privy Council] will find this an argument involving matters of law of general public importance. In any event, the evidence given by Commission [G.] and others which was read was not determinative of guilt.” 26. Counsel concluded his advice by emphasising the difference between advising on the merits of an appeal to the Court of Appeal and seeking the special leave of the judicial committee of the Privy Council. He explained: “In the latter case it is necessary to identify a point or points of law of general public importance, in the former there is I understand an appeal as of right on matters of law. I would be failing in my responsibility if I encouraged hopes of success when my view was that no such hopes exist. Considering the case objectively as an outsider who was not involved in the trial or first-tier appeal process I am able to stand back and consider the grounds of appeal dispassionately and I have no hesitation in concluding that there is no prospect of leave being granted in this case.” 27. The 2003 Law deals with the admissibility of evidence in criminal proceedings. Article 64 provides, inter alia, that a statement made by a person in a document shall be admissible in criminal proceedings if the person who made the statement is outside of Jersey and it is not “reasonably practicable” to secure his attendance. Article 65 allows documents to be admitted provided that certain conditions are satisfied. 28. Article 66(1) provides that if a court is of the opinion that in the interests of justice a statement which is admissible by virtue of Article 64 or Article 65 ought not to be admitted, it may direct that the statement should not be admitted. Article 66(2) provides that the court must have regard: “(a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic; (b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available; (c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and (d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused.” 29. Article 76 allows the court to exclude evidence if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would so adversely affect the fairness of the proceedings that the court ought not to admit it. 30. The Human Rights (Jersey) Law 2000 (“the Human Rights Law”) incorporates the Convention into Jersey law. Article 3 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account relevant case-law from this Court. Article 7 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Under article 8, a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the Convention right or rights concerned in any legal proceedings. 31. In Hamilton and Anor v. Attorney General 2010 JLR 313, the Jersey Court of Appeal was asked to consider whether hearsay evidence at a criminal trial had been “sole and decisive” evidence against the appellant and had thus breached his right to a fair trial under Article 6 of the Convention. On 21 July 2010 it dismissed the appeal. It considered the Chamber’s judgment in Al-Khawaja and Tahery and the subsequent judgment of Horncastle in which the Supreme Court had declined to apply it (both judgments cited above). The Court of Appeal concluded that it was not necessary for it to decide, for the purposes of the case before it, whether Horncastle should be followed. It therefore proceeded on the basis that the Chamber judgment in Al-Khawaja and Tahery represented “the law of this Island”. 32. The Judicial Committee of the Privy Council is composed of Justices of the Supreme Court of the United Kingdom and other senior United Kingdom and Commonwealth judges. It is the court of final appeal for Jersey. In criminal cases from Jersey there is no appeal as of right and special leave from the Judicial Committee of the Privy Council is required. Privy Council Practice Direction 3 on “Application for Permission to Appeal” provides that, for criminal appeals against conviction and sentence, permission will be granted only in respect of “applications where, in the opinion of the Appeal Panel, there is a risk that a serious miscarriage of justice may have occurred”. Further information concerning appeals to the Privy Council is set out in L.L. v. United Kingdom (dec.), no. 39678/08, §§ 11-12, 15 January 2013.