Jersey Unreported Judgments

[2008]JRC059

ROYAL COURT

(Samedi Division)

11^th April 2008

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

The Attorney General

-v-

Raj Arjandas Bhojwani

Defence application for a disclosure order.

Advocate M. T. Jowitt for the Attorney General.

Advocate J. D. Kelleher for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The defendant stands indicted for two counts of converting the proceeds of criminal conduct and one count of removing the proceeds of criminal conduct, contrary to the provisions of Article 34(1)(b) of the Proceeds of Crime (Jersey) Law 1999.  His trial is due to commence on 20^th October 2008.

2.        The criminal conduct alleged concerns two contracts negotiated between the defendant and officials of the military dictatorship of the President of the Republic of Nigeria, General Sani Abacha, for the supply of vehicles to the Republic of Nigeria at what the prosecution say were vastly inflated prices.  The prosecution will seek to prove that the sums payable under these contracts which it claims included an illegal surplus of some US$130,000,000, came to the defendant's company accounts at Bank of India in Jersey.  Many millions were then allegedly transferred by the defendant to bank accounts in other countries linked to the Abacha regime. The alleged conversion and removal, which are the subject of the indictment and which involve some six bankers drafts, are said to have taken place in October and November 2000.

3.        The defendant applies for disclosure orders against the prosecution because he contends that there are reasonable grounds for believing that the information sought would be relevant to a defence application that the case against him should be stayed as an abuse of process. The application was heard on the 14^th March 2008 when judgement was reserved.

4.        Specifically, the defendant applies for an order against the prosecution obliging it to disclose all documents, material and information in its possession, power or control which are relevant to:-

(i)        the States of Jersey's knowledge of, influence over, input into and/or role in negotiations which took place between the defendant and the Republic of Nigeria with a view to the settlement of Nigeria's claims in respect of monies held in the Jersey bank accounts which are the subject matter of this case;

(ii)       the circumstances in which an informal freeze was maintained for the period between October 2001 and February 2007 in respect of property and assets held in accounts at the Jersey Branch of Bank of India;

(iii)      the arrangements and/or understanding which exist between the States of Jersey and the Republic of Nigeria concerning the ultimate division between them of any funds recovered from the said Jersey bank accounts as a result of either:

(a)       agreement between the defendant and Nigeria,

(b)       a civil suit brought by Nigeria in Jersey, or

(c)       criminal prosecution of the defendant and subsequent confiscation proceedings in Jersey;

(iv)      any such arrangements and/or arrangements for payments asserted to be by way of reimbursement of costs or expenses which exist more generally and/or have been applied in relation to any other or all alleged 'Abacha monies' cases, including (without limitation of the request) a Mr Abubaker Atiku Bagudu;

(v)       the circumstances leading to the issue of a Jersey warrant for the arrest of the defendant, including but not limited to any co-operation or communication which took place between any representative of the States of Jersey and any representative of the Republic of Nigeria (including its Swiss lawyer, Mr Monfrini) which was designed to facilitate or which in fact facilitated the defendant's arrest in London on 8^th February 2007.

5.        Mr Kelleher, for the defendant, makes it clear in his skeleton argument that it is probable that disclosure made by the prosecution as a result of this application will provide the defence with a basis for further applications for disclosure, in particular, in relation to the circumstances in which the potential prosecution of other persons in connection with "Abacha monies" was addressed.

6.        There are no statutory provisions under Jersey law specifically relating to such an application and it is accepted by both the prosecution and the defence that the disclosure test which applies in this case is the "old test" under English law, i.e. the English common law test in criminal cases, the classic formulation of which is that of Jowit J in R v Melvin and Dingle 20^th December 1993 unreported:-

"I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)".

7.        This has been accepted as the applicable test by the Jersey Court of Appeal in Durkin and Howard v AG [2005] JCA 002, at paragraph 35.

8.        Although the management of the disclosure process and the application of the "materiality/possible relevancy" test must, in the first instance, be the responsibility of the prosecution, in the event of controversy it is accepted that it is for the Court and not the prosecution to decide what should and should not be disclosed (see R v Winston Brown [1995] 1 Cr. App. R. 191 CA at 196-197).

Grounds for the application

9.        The defence submit that abuse of process may become "an issue in the case" such that material which is relevant or possibly relevant to a potential abuse of process argument must be disclosed to the defence under the Melvin and Dingle test as was recognised by the English Divisional Court in R v Director of Public Prosecutions ex parte Lee [1999] 2 All ER 727 DC (especially at 749 C).  Failure to make the disclosure necessary to enable a defendant to raise or to present in the most effective light an argument on abuse of process has caused or contributed to the quashing of criminal convictions by the English Court of Appeal. See R v Early and others, R v Patel and others etc., The Times, August 2, 2002 and R v Grant and others 67 JCL 286.

10.      The defence has put the prosecution on notice that the defendant intends to raise abuse of process as an issue in the case, but submitted that now was not the time for the defence to develop any substantive argument on abuse of process.  The development of that argument would be dependent, Mr Kelleher submitted, on the contents of the material not yet in the possession of the defence.  The purpose of the application for disclosure was to put the defence in the position to make its argument effectively and it therefore followed that the argument could not presently be made.

11.      Notwithstanding this, Mr Kelleher was in a position to indicate the type of abuse of process application to which the requested material is relevant.  It would be based on the second limb of the abuse of process test as set out in the English case of R v Beckford [1996] 1 Cr App R 94 - that is an application based on an argument that in all the circumstances of the case it would be unfair to try the defendant.

12.      Mr Kelleher anticipates that the factual context of his argument on abuse of process would be the negotiations which apparently took place between the defendant and the Republic of Nigeria prior to the defendant's arrest in London on 8^th February 2007.

13.      Without limiting the scope of the argument he may make in due course, he indicated that he is likely to contend that there was in place between the Republic of Nigeria and the States of Jersey an agreement which entitled Jersey to a percentage of any monies recovered from the defendant's Jersey bank accounts by reason of any settlement reached between Nigeria and the defendant.  He is likely to contend that there came a stage where Nigeria, which is of course said to be the victim of the alleged predicate crime in this case, was content to settle its claims in relation to the defendant's Jersey bank accounts at an agreed figure, but that Jersey intervened to influence or persuade Nigeria against such a course.  A relevant factor in Jersey's decision to intervene may well have been the relative sums of money which would be received by Jersey in the event that Nigeria accepted the settlement figure, as compared to the sum which may flow to Jersey in the event of a criminal prosecution and subsequent confiscation proceedings under Part 2 of the Proceeds of Crime (Jersey) Law 1999 ("the 1999 Law").

14.      In the context of the system in which monies thus confiscated were not treated as general States' income (but could be administered, the defence say, for the direct benefit of individual public offices, including the Law Officers' Department), the defence might be in a position to use material requested in 4(i) -  4(iv) above to support an argument that the defendant has, in the words of the Comptroller and Auditor General been 'inappropriately pursued' by Jersey because of financial incentives. (See the report of the Comptroller and Auditor General of an investigation "Drug Trafficking Confiscation Fund, Criminal Offences Confiscation Fund", paragraph 14(2)). In relation to 4(v) above, Mr Kelleher informed me that the defendant was arrested in London on his way from a meeting in Switzerland between his own representatives and a Mr Monfrini, a Swiss lawyer for the Republic of Nigeria.  He says there is a real possibility that there was a communication between Mr Monfrini or another representative of Nigeria, and the States of Jersey which alerted Jersey to the defendant's whereabouts and travel plans.  The defendant had been in Switzerland to facilitate negotiations which he undertook in good faith with a view to settling outstanding issues between himself and Nigeria.  Mr Kelleher says that there is a real possibility that the prospect of settlement was, at that stage, the reason for and/or used to facilitate the defendant's arrest in circumvention of the due process of extradition.  Therefore the material listed in paragraph 4(v) above might assist the defence to argue that this prosecution is an abuse of the process of law.

Position of Attorney General

15.      These matters have been canvassed in correspondence between Advocate Paul Sugden, the partner at Carey Olsen who has responsibility for the conduct of the client relationship with the defendant, and the law officers department.  The position of the Attorney General was set out in his letter of 7^th February 2008 which I think it is helpful to set out in full as follows:-

"Advocate P Sugden, Carey Olsen, 47 Esplanade, St Helier JE1 OBD

Dear Advocate Sugden

Attorney General v. Raj Arjandas Bhojwani (also known as B Raj Arjandas)

Thank you for your letter of 4^th January 2008.

The Crown is obliged to disclose to you material and only material which satisfies the test of relevance to an issue in the case, as applied in this jurisdiction: see my letter to the senior partners of all the Island's law firms, dated 30^th October 2007.

The issue which you identify in your letter is whether any relevant person (as you have defined that term) sought to influence representatives of the Republic of Nigeria against settling the case with Mr. Bhojwani.  You say that that is an issue in the case because you say that if that took place this prosecution is an abuse of process.  You say that that would be particularly so if a significant factor influencing any intervention was the relative sums of money which would flow to a Jersey public body in the event: (a) that a proposed settlement was concluded; and (b) there was a prosecution followed by a confiscation order.

First, may I say this.  This is not civil litigation which can be resolved by financial negotiation.  This is a criminal prosecution.  Any negotiations which Mr Bhojwani engaged in in Nigeria could have been designed to make recompense to one of the victims of his conduct, but it could not properly have been an attempt to buy his way out of prosecution here.  To suggest that a prosecution otherwise properly brought is an abuse of the Court's process simply because it is brought notwithstanding any recompense or attempted recompense of a victim of the offence is a startling proposition and fails to take into account the nature of the criminal process.

At no stage did I ever influence or seek to influence Nigeria against accepting money from Mr. Bhojwani.  My position throughout was that I intended to prosecute Mr. Bhojwani in Jersey if that were practicable.  I informed the Nigerian Government that I expected their assistance in that prosecution even if there were some sort of settlement in Nigeria.  If, as a consequence of that position, Mr. Bhojwani resolved not to offer to reimburse funds to Nigeria then that was a matter for him.  As a matter of law there is nothing to disclose to you.

It is and has always been my view that there is a strong Jersey public interest in prosecuting Mr. Bhojwani.  The evidence shows that he deliberately and calculatedly targeted the Jersey financial system and used it as his tool to assist in the theft of many tens of millions of dollars of Nigerian public money.  The evidence also shows that Mr. Bhojwani engaged in transactions through Jersey which were designed to assist him to retain his proceeds of that conduct and to make a profit from those proceeds by investing them through a Jersey financial institution.  That in itself satisfies the public interest test in Jersey whether recompense is or is not made in Nigeria.

For that reason, nothing I have heard from you, from other lawyers representing Mr. Bhojwani or from sources in Nigeria has caused me to change that view or to revisit my consideration of the public interest.

You raise the case of Mr. Bagudu.  That case is entirely irrelevant to the point you seek to make about the case against Mr. Bhojwani.  I take decisions about each case on its own merits

As you can discover from information in the public domain, Mr. Bagudu is alleged to be one of the principals of what the Swiss Courts have found to be the Abacha criminal organisation.  He has been accused of having been involved in the theft of several billion United States dollars of Nigerian public money and of assisting in setting up a web of companies and bank accounts which spanned Western Europe.  By the time Mr Bagudu was finally arrested in Texas at my request he faced charges in Switzerland and Jersey and a number of substantial indictments in Nigeria;  he was also under investigation in a number of other jurisdictions where several hundred million dollars of 'Abacha money' had been found and frozen.

The international community has recognised that in a case such as that it is simply not possible for an accused person to be tried in every jurisdiction which has charged him.  As you will be aware the current version of the Financial Action Task Force ('FATF') 40 recommendations contains the following recommendation:

'Recommendation 36.

To avoid conflicts of jurisdiction, consideration should be given to devising and applying mechanisms for determining the best venue for prosecution of defendants in the interests of justice in cases that are subject to prosecution in more than one country.'

You will also be aware of the terms of Article 21 of the United Nations Convention Against Transnational Organised Crime ('the Palermo Convention') and the recent United Nations Convention Against Corruption (Article 37).

Having regard to the above, after receiving representations and after consulting other jurisdictions the two European jurisdictions which had charged Mr. Bagudu agreed that their evidence, the money and Mr. Bagudu should go to Nigeria.  In the case of Switzerland this was done by a formal delegation of the Swiss prosecution, in Jersey it was done by Mr. Bagudu agreeing that all the relevant funds attributable to him would go back to Nigeria and the Attorney General of Nigeria giving a written undertaking that the Jersey evidence would be considered by him with a view to possible prosecution.

You raise the arrest of Mr. Bhojwani.  All I will do is repeat that as far as the Jersey authorities are aware, Mr. Bhojwani was freely and voluntarily in the United Kingdom at the time of his arrest.  There is no material which is disclosable to you.  I refer you to the principles applied by the trial judge and approved by the English Court of Appeal in R v Gokal unreported 11^th March 1999.

You ask for enquiries to be made as to Mr. Bako's current status and employment in Nigeria.  I will ask that the enquiries you request are carried out.

Yours sincerely,

Attorney General"

16.      Thus the prosecution do not accept that abuse is an issue in this case and submit that there is therefore nothing to disclose.

The role of the Court

17.      It is not in dispute that the Court has the power to stay this prosecution.  Its powers and duties are summarised in the following extract from a judgment of Neill J in Beckford (at page 100f):-

"The constitutional principle which underlies the jurisdiction to stay proceedings is that the courts have the power and the duty to protect the law by protecting its own purposes and functions.  In the words of Lord Devlin in Connelly v DVP (1964) 48 Cr. App. R.183; [1964] A.C. 1254, the courts have 'an inescapable duty to secure fair treatment for those who come or are brought before them'.

The jurisdiction to stay can be exercised in many different circumstances.  Nevertheless, too main strands can be detected in the authorities:

(a)       cases where the court concludes that the defendant cannot receive a fair trial;

(b)       cases where the court concludes that it would be unfair for the defendant to be tried.

In some cases, of course, the two categories may overlap".

18.      It is not alleged that in this case the defendant cannot receive a fair trial but as previously mentioned he proceeds under the second limb mentioned in Beckford namely that it would be unfair for him to be tried.  In R v Horseferry Road Magistrate's Court cum ex parte Bennett [1994] 98 Cr. App. R. 114 the House of Lords was concerned with a case in which the appellant had been brought back forcibly into the United Kingdom in disregard of the available extradition process and in breach of international law and the laws of the state in which the appellant had been found.  Having noted that abuse cases are usually confined to cases in which the conduct of the prosecution has been such as to prevent a fair trial of the accused, but noting that there had also been cases in which, although the fairness of the trial itself was not in question, the court had regarded it as so unfair to try the accused for the offence that it amounted to an abuse of process, Lord Griffiths continued:-

"Your Lordships are now invited to extend the concept of abuse of process a stage further.  In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures.  If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

My Lords, I have no doubt that the judiciary should accept this responsibility in the field of common law.  The great growth of administrative law during the latter half of this century has occurred because of the recognition of the judiciary and Parliament alike that it is the function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended.  So also should it be in the field of criminal law and if it comes to the attention of the court that there has been a serious abuse of power, it should, in my view, express its disapproval by refusing to act upon it".

19.      The existence of the jurisdiction to stay proceedings was confirmed by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 536, when he spoke of:-

"The inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people".

20.      It needs to be borne in mind however that the Court does not and should not appear to have any responsibility for the institution of prosecutions and the court has no power to refuse to allow a prosecution to proceed merely because it considers that, as a matter of policy, it ought not to have been brought (R v Humphries [1977] A.C. 1 at 46) nor is the Court entitled to intervene and stay proceedings because it may take the view that the Attorney General is acting in a manner that it may regard as over zealous.  That would be to substitute the Court's view of what is expedient in the public interest for the view of the Attorney General.  That is no part of the Court's role (Secretary of State for Trade and Industry v Baker (No. 2) [1985] 1 WLR 1985 at 1989).

Issues in this case

21.      It was agreed that I should consider the following matters in the following order:-

(i)        What is meant by an "issue" in respect of which the disclosure obligation arises;

(ii)       Does the defence application raise such an issue or issues, triggering the obligation to disclose;

(iii)      If yes to (ii), is the scope of the common law obligation to disclose confined to material which may undermine the prosecution case or assist the defence, that is to say what is meant by " relevant"; and

(iv)      Assuming the answer to (ii) is yes and in the light of the answer to (iii), if the Attorney General maintains his position that there is nothing to disclose, what is the proper procedure, if any.

I will take the first two matters together.

22.      Clearly the defendant cannot seek blanket disclosure of all material in the possession of the prosecution in order to see whether or not there has been an as yet unknown abuse of process which can then be argued.  In my view, where the prosecution does not accept that abuse is an issue in the case, it falls upon the defence to draw to the attention of the Court conduct which the court accepts there are reasonable grounds to suspect may have taken place, has the nature or character of abuse and taken at its highest could lead to a stay of the prosecution as an abuse of process.  It is only upon such acceptance by the court that abuse becomes an issue and a disclosure obligation arises.  The Court of Appeal decision in R v Gokal [1999] EWCA Crim 66 is authority for this approach.  In that case the defendant sought to argue that the circumstances of his arrest on a British warrant in Frankfurt en route from Pakistan to be interviewed in the United States should lead to the prosecution being stayed as an abuse.  He raised this argument on four separate occasions before the trial judge and applied for disclosure from the DSFO and letters of request to the United States.  The trial judge refused to order disclosure, refused the letters of request and refused a stay.  He held that on the authorities, what the defendant sought to argue could not amount to an abuse of process.  The Court of Appeal examined each of the four rulings of the trial judge and concluded:-

"We have set these matters out in some detail to demonstrate our conclusion that, at every stage, the judge properly directed himself as to the law, took into account all relevant and no irrelevant matters and reached a decision which was not only within the ambit of his discretion but plainly right.  Whether to order disclosure was a matter for the judge's 'good sense' (See per Steyn LJ in R v Brown (1994) 1 WLR 1599, [1995] 1 Cr. App. Rep. 191 at page 202b of the latter report).  There was no reason, at any stage, for him to order disclosure because there was no issue which required disclosure (See, for example, R v Keane [1994] 2 All ER 478, 99 Cr. App. Rep. 1) (89 of the transcript)."

Ex parte Lee (see paragraph 8 above) was concerned with the timing of disclosure and has no application to a case such as this in which the prosecution do not accept that there has been abuse in respect of which a disclosure obligation arises.

23.      I agree with Mr Kelleher's submission that neither the species nor the general categories of abuse of process upon which a defendant may rely in support of an application to stay are closed.  He referred me to the following passage of the judgment of Lord Diplock in Hunter:-

"The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique.  It would, in my view, have been most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kind of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power".

Interference

24.      Leaving aside the  statement of the Attorney General in his letter of the 7^th February 2008  to the contrary, the central complaint of the defendant is the assertion that the Attorney General has intervened or interfered with negotiations being conducted between him and the authorities of the Republic of Nigeria aimed at settling its civil claims against him and that the Attorney General may have been motivated in so doing by the prospect of sharing in any sums confiscated following a successful prosecution.  At the hearing, Mr Kelleher elaborated on this with a number of scenarios all of which were premised upon this central allegation.

25.      Mr Kelleher accepted that there is no recorded case in which such assertions have been made but argues that they have the potential to bring Jersey's administration of justice into disrepute amongst right-thinking people.

26.      In my view they have no such potential.  It is necessary to consider the relevant conventions and standards that underlie the enactment of the 1999 Law:-

(i)        Article 12 of the United Nations Convention on Transnational Organised Crime provides that State Parties should adopt, to the greatest extent possible within their domestic legal systems, such measures as may be necessary to enable confiscation of proceeds of crime derived from offences covered by the Convention or property the value of which corresponds to that of such proceeds.  Article 14 provides that proceeds of crime confiscated by a State Party shall be disposed of by that State Party in accordance with its domestic law and administrative procedures and when acting on a request made by another State Party priority consideration should be given to returning the confiscated proceeds of crime to the requesting State Party so that it can give compensation to the victims of the crime or return such proceeds of the crime or property to their legitimate owners.  Consideration may be given to concluding agreements or arrangements when sharing with other State Parties on a regular or case by case basis such proceeds of crime or property.

(ii)       Similarly, Article 31 of the United Nations Convention against Corruption provides that each State Party shall take, to the greatest extent possible within its domestic legal system, such measures as may be necessary to enable confiscation of the proceeds of crime derived from offences established in accordance with that Convention or property the value of which corresponds to that of such proceeds and shall adopt, in accordance with its domestic law such measures and other measures as may be necessary to regulate the administration by the competent authorities of frozen, seized or confiscated property.  Under Article 51 the return of assets is a fundamental principle of that Convention and States Parties should afford one another the widest measure of cooperation and assistance in this regard.

(iii)      Recommendation 3 of the FATF 40 Recommendations provides that countries should adopt measures similar to those set forth in the Vienna and Palermo Conventions including legislative measures to enable their competent authorities to confiscate property laundered, proceeds from money laundering or predicate offences, instrumentalities used in or intended for use in the commission of these offences, or property of corresponding value, without prejudicing the rights of bona fide third parties.

27.      Pursuant to those Conventions and standards the 1999 Law makes provision for the substantive offences of money laundering, for the imposition of confiscation orders following sentence, for the recognition of foreign confiscation orders and for the establishment of the Criminal Offences Confiscations Fund ( " the Fund") to receive all amounts recovered under or in satisfaction of such confiscation orders.  Article 24(4) provides as follows:-

"Subject to paragraph (5), monies in the Fund shall be applied by the Committee for the following purposes, that is to say -

(a)       in promoting or supporting measures that, in the opinion of the Committee, may assist

           (i)          in preventing, suppressing or otherwise dealing with criminal conduct,

           (ii)        in dealing with the consequences of criminal conduct, or

 (iii)     without prejudice to the generality of clauses (i) and (ii), in facilitating the enforcement of any enactment dealing with criminal conduct;

(b)       discharging Jersey's obligations under asset-sharing arrangements; and

(c)       meeting expenses incurred by the Committee in administering the Fund."

28.      Under Article 24(8) "asset-sharing arrangement" is defined as meaning any arrangement made between the Attorney General and the appropriate authority of the country or territory outside Jersey for the sharing of the proceeds of criminal conduct that, as a result of mutual assistance, have been confiscated either in Jersey or elsewhere.

29.      Thus, the legislation enacted here (and elsewhere) is aimed at combating, inter alia, international crime and the laundering of the proceeds of that crime.  Subject to the terms of local legislation, states are obliged to cooperate in that process, a process which specifically envisages not just cooperation but asset-sharing arrangements being entered into between the Attorney General and the appropriate authorities of other countries or territories.  It follows that there will be contact and communication between the Attorney General and such other authorities which would quite properly range over the prospects of criminal prosecutions in their respective jurisdictions, the public interests of their respective jurisdictions  and the sharing of any monies duly confiscated as constituting the proceeds of crime. Such discussions could no doubt involve the Attorney General seeking to persuade his counterpart in another jurisdiction to cooperate in a manner which best serves the public interest of Jersey and vice versa and in such discussions the potential for sharing in monies duly confiscated will be a feature. None of this is the territory of abuse. In the fight against international crime and the laundering of its proceeds, that is what any "right-thinking" person would expect.

30.      It is important to note that any arrangements made in relation to any sums that may be confiscated in this case are premised upon the defendant first being fairly tried and convicted.  There being no foreign confiscation order, sums held in bank accounts in Jersey would only stand to be confiscated if and only if the defendant is convicted following a fair trial.

31.      I agree with Mr Jowitt that to talk in terms of "financial incentives" or "gains" or generally in terms of the Attorney General prosecuting in order for the Island and even possibly his own department to profit is misconceived and/or inappropriate.  Criminals profit from their crimes.  Authorities who confiscate the proceeds of that crime, following due process, do not profit.  They are discharging their obligations both under local law and international convention to combat crime. To the extent that funds are returned to the Republic of Nigeria under any arrangements entered into or to be entered into will not constitute a profit to the Republic of Nigeria but a mitigation of its loss. 

32.      The same point could be made in relation to any offence punishable under Jersey law by way of fine.  The fine does not represent a "profit" for the Island but the proper imposition of a penalty to punish the wrong-doer and to deter others.  In the same way the purpose of confiscating the proceeds of crime is not to profit financially but properly to remove from criminals the benefit of that crime. If the Island gains from the process it does so by playing its part in combating crime and the laundering of its proceeds.

33.      The defendant is of course perfectly entitled to seek to reach a settlement on the claims of the Republic of Nigeria arising out of the civil contracts entered into and if a settlement is reached, it could in my view have no relevance to the criminal prosecution in this jurisdiction other than in terms of mitigation should the defendant be convicted, unless, as suggested by Mr Jowitt, settlement of the Republic of Nigeria's civil claim is somehow contingent upon the Republic of Nigeria ceasing to cooperate with the Attorney General of Jersey in the prosecution here or upon putting pressure on the Attorney General of Jersey to stop the prosecution.

34.      Up to this point I have put aside the statement of the Attorney General of Jersey that at no stage has he influenced or sought to influence the Republic of Nigeria against accepting money from the defendant. I did so in order to consider the conduct alleged at its highest. If I am wrong in my assessment of that conduct, then the statement of the Attorney General presents a hurdle for the defence which can only be surmounted if there are reasonable grounds to suggest that his denial is not wholly true or accurate and in their response filed shortly before the hearing the defence argued that there were such grounds.

35.      The defence submitted that the prosecution had already purported to give some disclosure in respect of the issues of abuse of process raised by the defence.  In his letter of 24^th January 2008, Mr Jowitt had written in the following terms:-

"As to the abuse of process argument that you foreshadow ..... I struggle to see how this could amount to an abuse of the process.  Quite apart from the fact that it did not happen, the Court's process has been engaged because the Attorney General has decided that the evidential and public interest tests for prosecuting Mr Bhojwani for serious offences against the law of Jersey are satisfied". [emphasis added]  

36.      The defence accepted that if this were true and accurate, then it would dispose of the defence application for disclosure as the prosecution could have no material in its possession of relevance to events which did not in fact take place.  Given this they argued that it was surprising that the prosecution did not repeat its denial in the skeleton argument provided to the Court but instead sought to persuade the Court that it can decide the disclosure request by summarily dismissing the substantive abuse argument.

37.      In support of this assertion the defence filed an affidavit by Mr Sugden sworn on 12^th March 2008 in relation to a visit he and Advocate Lewis Buckley made to Nigeria in February of this year where they met the Attorney General of Nigeria.  He deposed in the following terms:-

"7.       After explaining a little of the background to the steps the Federal Republic of Nigeria has taken and is continuing to take to recover money from the family and associates of the late General Sani Abacha, the Attorney General turned to the position of Mr Bhojwani.  He explained that he was concerned that Jersey's Attorney General appeared intent on pursuing the prosecution of Mr Bhojwani without regard to the interests of the Federal Republic of Nigeria and its wish to see a resolution in this case of what he regarded as a commercial issue relating to contracts in which the Federal Republic was a party.

8.        The Attorney General explained that his understanding of Jersey's position came from reports provided to him by Mr Enrico Monfrini, a Swiss lawyer, who has acted for the Federal Republic in relation to recovery from the Abacha family and associates.  As to this the Attorney General advised the meeting that Mr Monfrini had represented to him that the Federal Republic's commercial interest was served by the prospect of a financial return from the Jersey prosecution.  The Attorney General reported that this prospect was advanced by Mr Monfrini relying on what he, Mr Monfrini, claims to have been told by the Jersey Law Officers as to the outcome of the prosecution.  As to this, the Attorney General stated that Mr Monfrini claimed to have been told that Mr Bhojwani's conviction is a certainty and that consequent on such conviction it was likewise certain that a confiscation order would be made extending to all of the monies held in Jersey.  In support of this, the Attorney General further stated to the meeting that Mr Monfrini had said that such certainty could be assured because Jersey's prosecutor was related to its Chief Judge.

9.        The Attorney General advised us in a meeting that the significance of the representations made by Mr Monfrini were viewed by him against the background of an arrangement under which Jersey returns monies in Jersey bank accounts to the Federal Republic of Nigeria subject to a retention by Jersey of 10% of their value.

10.      I must make clear that the defence presently has no way of corroborating the reports on Mr Monfrini's representations.  Still less can it be said that Mr Monfrini was properly representing the content and tenor of any communications between him and the Law Officers' Department.  Nevertheless, I have otherwise no reason to question the Attorney General's report on Mr Monfrini's representations."

38.      The regrettably late filing of this affidavit left no time for the Attorney General of Jersey to file a response but in my view the affidavit does not assist the defence arguments. I should say at once that Mr Kelleher did not rely on this affidavit to allege that the Attorney General of Jersey could assure a conviction because of his relationship with the Bailiff, i.e. that there was some conspiracy to pervert the course of justice involving the Attorney General, prosecuting counsel, the Bailiff, the trial judge and the jurats.  That is not the abuse being alleged here.

39.      The reported comments of the Attorney General of Nigeria do not suggest any interference by the Attorney General of Jersey in any negotiations he may have been conducting with the defendant, but, as one would expect, show the Attorney General of Nigeria having regard to the interests of the Republic of Nigeria on the basis of legal advice received from his own lawyer, Mr Monfrini.  There is nothing improper in the Jersey Law Officers giving Mr Monfrini (if they did) an assessment of their view of the prospects of the prosecution in Jersey, although I very much doubt that any experienced prosecutor would ever talk in terms of a 'certainty' or that any experienced lawyer would consider certainty in criminal proceedings was possible.  I note that Mr Monfrini does not attribute the comment that such certainty could be assured because of the relationship between the Attorney General and the Bailiff to anything said by the Law Officers. It appears to have been an observation of his own.  In any event this is not the abuse being asserted by the defence. 

40.      In relation to his letter of 24^th January 2008, Mr Jowitt confirmed that his assertion was true. He said his letter was not a disclosure letter.  The disclosure letter was the letter of the Attorney General date 7^th February 2008 which in any event could not have been clearer on the issue.

41.      As mentioned in paragraph 13 above the defence made reference to comments of the Comptroller and Auditor General. In his report of September 2007 he commented that the process by which the Drugs Trafficking Confiscation Fund and the Criminal Offences Compensation Fund were administered was open to the criticism that the existence of the two funds had created the impression that there are incentives for both the Law Officers Department and the Police to go beyond the normal public interest in pursuing cases in which it might be possible to confiscate funds as a means of securing additional funding for their departments. He emphasised that he had not found any objective evidence that their decisions had been so distorted. I find these unsubstantiated comments to be of no assistance to the issues I have to determine in this case.

42.      In my view the Attorney General's denial of interference is clear and there are no reasonable grounds to suspect that it is not wholly true and accurate. As conceded by the defence, this disposes of the application for disclosure.

The Arrest

43.      Turning to the circumstances of the defendant's arrest, Mr Kelleher accepted in his skeleton argument that, taken on its own, possible collusion between the States of Jersey and Mr Monfrini over the defendant's arrest in London would be likely to fall to be addressed within the proper scope of the 'good sense' in Gokal.  However, he maintained the contention that the circumstances of the defendant's arrest were capable of assisting his principal arguments on abuse of process.  In my view, the defendant's principal arguments on abuse have no potential.  In so far as the arrest is concerned, it is clear from the information provided to me that the defendant was freely in the U.K.  As Mr Jowitt not unreasonably pointed out many arrests are made as a result of the police being tipped off as to a person's whereabouts. There is no evidence of the defendant being lured or tricked into the U.K.  It is clear in any event that luring a person into a jurisdiction from which he can be extradited is not an abuse of power which would lead to a stay of proceedings (See Lliangsiriprasert v Government of the United States of America [1991] 1 AC 225) and neither is tricking someone into travelling to a jurisdiction from which he can be extradited (See In re Schmidt [1995] 1 A.C. 339).

44.      In the defendant's recent application to amend the terms of his bail, I was informed that in 1969 he was granted permanent permission to stay in the U.K. where he has a home and where his family is based. I reiterate therefore that it is clear that the defendant was freely in the United Kingdom at the time of his arrest.  There is nothing therefore in the circumstances of his arrest to suggest abuse of executive power or abuse generally.

Bagadu

45.      The position of the Attorney General in relation to Mr Bagudu is set out fully in his letter of 7^th February 2008.  In the light of my findings in relation to the principal arguments on abuse this request for disclosure must fall away.  In any event, it has no bearing on the case.

Summary on first two issues

46.      Although I accept that the categories of abuse are not closed, I find it useful to have regard to the kind of conduct that has been drawn to the attention of the courts in the cases cited to me and where stays have been ordered:-

(i)        A promise made to a witness that he would not be required to give evidence (Chu Piu-Wing v Attorney General [1984] HKLR 411).

(ii)       Disregard of available extradition process, breach of international law and the laws of the state where the defendant had been found (Horseferry).

(iii)      Assurance by the police that the defendant would not be prosecuted (R v Croydon Justices, ex parte Dean [1993] QB 769).

(iv)      Lying to counsel and on oath to the trial judge about the existence of material and about the status of certain individuals who had turned out to be informants (Early and Grant)

47.      There have been no negotiations between the Attorney General of Jersey and the defendant.  Even if there had been, it is clear that a subsequent prosecution would not be an abuse of process unless there had been a clear statement to the defendant by the prosecutor that there would be no prosecution (See R v Inland Revenue Commissioners, ex parte Allen [1997] STC 1141 at page 14 of the transcript).  It is not alleged that assurances or promises have been given and breached.  It is not alleged that there has been a breach of local or international law or that lies have been told on behalf of the prosecution to deceive the Court or the defendant.

48.      In my view there is no conduct which has been drawn to the Court's attention in its supervisory role that has the nature or character of abuse and which taken at its highest could lead to a stay of the prosecution as an abuse of process.  Furthermore the central allegation of interference has been denied by the Attorney General and there are no reasonable grounds to suspect that his denial is not true or accurate. To order disclosure would be to embark upon an expensive and time-wasting exercise which would have the potential of delaying a prosecution for which the Attorney General has determined there is a strong Jersey public interest.

Balancing Exercise

49.      In R v Latif [1996] 1 WLR 104 the defendant would not have committed the particular offence of which he was convicted but for the conduct of customs officers which included criminal conduct.  This created the dilemma that if the court always refused to stay such proceedings, the perception would be that the court condones criminal conduct and malpractice by law enforcement agencies.  That would undermine public confidence in the criminal justice system and bring it into disrepute.  On the other hand, if the court were always to stay proceedings in such cases, it would incur the reproach that it is failing to protect the public from serious crime.  The judgment of Lord Steyn continues:-

"The court has a discretion:  it has to perform a balancing exercise.  If the court concludes that a fair trial is not possible, it will stay the proceedings.  That is not what the present case is concerned with.  It is plain that a fair trial was possible and that such a trial took place.  In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system.  The law is settled.  Weighing countervailing considerations of public policy and justice, it is for the judge, in the exercise of his discretion, to decide whether there has been an abuse of process, which amounts to an affront of public conscience and requires the criminal proceedings to be stayed.....  An infinite variety of cases could arise.  General guidance as to how the discretion should be exercised in particular circumstances would not be useful.  But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means".

50.      In that case the balance was found to lie against a stay notwithstanding the criminal conduct of the customs officers. In this case I am not concerned with alleged criminal conduct on the part of the Attorney General of Jersey or the Law Officers or with conduct which could in my view be regarded as malpractice or as an affront to the public conscience, but in any event I have considered the alleged conduct which has been drawn to my attention and taking it at its highest I have no doubt that the balance lies firmly with the prosecution continuing.

51.      For all these reasons I find that the defence have failed to raise abuse as an issue and I therefore decline the application for disclosure.

52.      A substantial proportion of the skeleton arguments and the time of counsel at the hearing was taken up in dealing with the third issue, namely the scope of the common law obligation to disclose and to a lesser extent, the fourth issue, namely the procedure to be adopted in such disclosure and it would be appropriate to acknowledge the work of both counsel in that respect.  However, it would be inappropriate for me to make findings in respect of issues that are no longer necessary for me to determine.

Justiciability

53.      In his skeleton argument in response filed shortly prior to the hearing, Mr Kelleher indicated that justiciability is likely to be an independent head of abuse raised by the defence in any event.  On the back of this 'likely' argument, Mr Kelleher sought to justify an order for disclosure of the material in the possession of the prosecution which is relevant to establish the extent to which and manner in which the Federal Republic of Nigeria has been consulted over the Attorney General's decision to litigate the actions of its former Head of State in Jersey, and the extent to which Jersey has sought to influence the attitude taken by the Federal Republic of Nigeria in respect of its decision to treat and settle outstanding issues with the defendant as a commercial matter.  Mr Jowitt submitted that justiciability is a separate juridical concept from abuse and is a straight issue of law which does not require disclosure. He asked for this potential argument to be put on one side for the purpose of this hearing and it was not addressed by either counsel at the hearing.  If this is to be pursued, then it must be pursued by the defence in the ordinary way and I make no findings in respect of it in this judgment.

Authorities

Proceeds of Crime (Jersey) Law 1999.

R-v-Melvin and Dingle 20th December 1993 unreported.

Durkin and Howard-v-AG [2005] JCA 002.

R v Winston Brown [1995] 1 Cr. App. R. 191 CA.

R-v-Director of Public Prosecutions ex parte Lee [1999] 2 All ER 727 DC.

R-v-Early and others, R-v-Patel and others, The Times, August 2, 2002.

R-v-Grant and others 67 JCL 286.

R-v- Beckford [1996] 1 Cr App R 94.

R-v-Horseferry Road Magistrate's Court cum ex parte Bennett [1994] 98 Cr. App. R. 114.

Hunter-v-Chief Constable of the West Midlands Police [1982] AC 529, 536.

R-v-Humphries [1977] A.C. 1.

Secretary of State for Trade and Industry-v-Baker (No. 2) [1985] 1 WLR 1985 at 1989.

R-v-Gokal [1999] EWCA Crim 66.

Lliangsiriprasert-v-Government of the United States of America [1991] 1 AC 225.

In re Schmidt [1995] 1 A.C. 339.

Chu Piu-Wing-v-Attorney General [1984] HKLR 411.

R-v-Croydon Justices, ex parte Dean [1993] QB 769.

R-v-Inland Revenue Commissioners, ex parte Allen [1997] STC 1141.

R-v-Latif [1996] 1 WLR 104.