Jersey Unreported Judgments

[2009]JRC216

ROYAL COURT

(Samedi Division)

9^th November 2009

Before     :

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

The Attorney General

-v-

Raj Arjandas Bhojwani

Stay for Abuse and Subsidiary Applications to exclude Evidence

M. T. Jowitt, Esq., for the Attorney General.

Advocate J. D. Kelleher for the Defendant.

JUDGMENT

THE commissioner:

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 was due to commence on 9^th November, 2009, but as a consequence of this application is now due to commence on 16^th November, 2009. 

2.        The defence have applied for a stay of the prosecution.  It does so on the ground that it would be an abuse of process for the prosecution to proceed relying on evidence obtained in Nigeria and/or transferred to Jersey and/or adduced by Nigerian public officers as a consequence directly or indirectly of the request made by the Attorney General in two letters of request dated 17^th June, 2002, and 15^th November, 2002, issued under Article 4 of the Criminal Justice (International Co-operation)(Jersey) Law 2002 ("the Co-operation Law").   It described this as the "over-arching application". 

3.        Within the over-arching application are two subsidiary applications as follows:-

(i)       It applies (in addition or in the alternative) for the exclusion of the Nigerian evidence on the ground that it was obtained pursuant to letters of request which disclosed only that evidence was sought for use in connection with an "investigation", such that its use as evidence at trial would be for a purpose other than that disclosed in the letters of request without the consent of the Federal Republic of Nigeria and this in breach of Article 4 of the Co-operation Law.  As to the absence of "consent" the declarations of the Honourable Justice G. O. Kolawole in a decision of the Federal High Court of Nigeria dated 15^th October, operate, on their face, to preclude the giving of effective "consent" or negate the existence of any prior actual or implied "consent" by the " .... Court, tribunal or authority that supplied the evidence ....".  At the hearing the defence also sought the exclusion of the Indian evidence obtained by virtue of a letter of request dated 19^th April, 2005, addressed to the Indian authorities on the basis that the Indian authorities had not given their consent for its use. 

(ii)      It applies (in addition or in the alternative) for the exclusion of an exhibit to the witness statement of Nigerian Commissioner of Police, Peter Gana ("Commissioner Gana") in the form of a statement purportedly given by the defendant under caution on 11^th October, 2002, and exhibited as PG/1.  It does so applying Article 76 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("PPCE") and on the ground that the admission of the evidence would, because it was obtained by deceit or trick and/or because if the relevant conduct was transposed to Jersey it would breach PPCE and the relevant codes of practice and so adversely affect the fairness of the proceedings that the Court ought not to admit it.

4.        For the purpose of the over-arching and first subsidiary applications the defence accept that there is no adverse impact on the quality of the evidence arising from the circumstances in which it was obtained and the defence is not complaining that the admission of this evidence would prejudice the fairness of the defendant's trial. 

5.        In my judgment of 11^th April, 2008, I accepted that the Court had the power to stay a prosecution in cases, applying R-v-Beckford (1996) 1 Cr App R 94,:-(a) where the Court concludes that the defendant cannot have a fair trial; or (b) where the Court concludes that it would be unfair for the defendant to be tried.

The defendant's over-arching application is put on the basis of limb (b).

Applicable Law

6.        Since my judgments of 11^th April and 15^th August, 2008, the nature and extent of the Court's jurisdiction to stay proceedings as an abuse of process has been examined by the Court of Appeal in Warren and Others-v-AG [2008] JCA 135 at paragraphs 2-44.  The Court of Appeal referred (at paragraph 41) to the recent Privy Council case of Panday-v-Virgil (Senior Superintendent of Police) (2008) 3 WLR 296 and the following passage from the judgment of Lord Brown:-

"It will readily be seen that the factor common to all these cases, indeed the central consideration underlying the entire principle, is that the various situations in question all involve the defendant standing trial when, but for an abuse of executive power, he would never have been before the court at all.  In the wrongful extradition cases the defendant ought properly not to have been within the jurisdiction; only a violation of the rule of law had brought him here.  Similarly, in the entrapment cases, the defendant only committed the offence because the enforcement officer wrongly incited him to do so.  True, in both situations, a fair trial could take place, but given that there should have been no trial at all, the imperative consideration became the vindication of the rule of law."

7.        The Court of Appeal described the Court's jurisdiction to stay proceedings as follows (paragraph 43):-

"In our judgement, what underlies the court's jurisdiction to stay proceedings as an abuse of process is the court's inescapable duty to secure fair treatment for those who come or are brought before it.  The court has jurisdiction to stay proceedings in circumstances in which a fair trial is not possible.  It has jurisdiction to stay, also, where proceedings have only been made possible by executive action done in breach of the rule of law and where, as a result of such action, it would be unfair to try the accused at all."

8.        At paragraph 44, the Court of Appeal set out the approach to be taken to the exercise of the jurisdictions to stay in any particular case as follows:-

"In determining whether to stay proceedings where there has been an abuse of executive power, the court has to perform a balancing exercise.  "Weighing countervailing considerations of policy and justice, it is the judge in the exercise of his discretion to decide whether there has been an abuse of process." In reaching that decision in a case such as the present "the judge must weigh in the balance the public interest in ensuring that those who 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." (R v Latif (1996) 1 WLR 104 at pages 112 - 113)."

Relevant History

9.        The first letter of request was dated 17^th June, 2002, and opened as follows:-

"The Competent Judicial Authority, the Federal Republic of Nigeria

Commission Rogatoire

Her Majesty's Attorney General for the Bailiwick of Jersey respectfully presents his compliments to the Competent Judicial Authority of the Federal Republic of Nigeria and requests that consideration be given to providing assistance as requested in this letter.

Her Majesty's Attorney General for Jersey has commenced an investigation into the circumstances surrounding the payments into Jersey of large sums of money suspected to be connected to the late Head of State of the Federal Republic of Nigeria: General Sani Abacha.

Her Majesty's Attorney General therefore issues this letter of request under Article 4 Criminal Justice (International Co-operation)(Jersey) Law 2001."

10.      The letter went on to set out the facts in some detail and then to list the material that would provide relevant evidence to assist in the resolution of the investigation which included a request if appropriate for witness statements or evidence on oath.  The letter then set out the offences under investigation and made it clear that it was the conduct of the defendant that was being examined.  It listed the then indicated predicate offences, the money laundering offences (with which the defendant has been charged) and other substantive offences.

11.      The letter of request was sent to Mr E Monfrini of the Swiss law firm of Monfrini Bottge & Associés with the request that it be transmitted to the competent authorities in Nigeria.  There was also a request for a meeting with Commissioner Gana to discuss the future progress of the Jersey investigation.  Mr Monfrini held a power of attorney given to him by the Attorney General of Nigeria dated 27^th September, 1999, to assist and represent Nigeria for the purpose of international mutual assistance proceedings to be initiated in Switzerland and elsewhere in the world in relation to the recovery of looted monies by the late Head of State, General Sani Abacha and his family members and other public servants and other third parties who had used their position or participated as accomplices to misappropriate public funds.  He was given the specific power to represent Nigeria before any jurisdiction, authority, administration, arbitration tribunal, insurance company, bank, Swiss or foreign institution, official or private assembly and towards all third parties, in particular the Swiss Federal Office for Police Matters and the competent cantonal judicial authorities.

12.      The letter of request was also sent to the Nigerian Government's English lawyers, Kingsley Napley, with a similar request.  I was shown a copy letter from the Nigerian National Security Adviser Lieutenant General A Mohammed Gcon to the President of Nigeria dated 27^th September, 2002, informing him of the Attorney General's request for evidence and that Commissioner Gana had been instructed to liaise with the affected ministries to get the necessary documents.  He indicated that it might be necessary for the President to talk to these ministries in order to hasten action and that he may wish to refer the letter to the Nigerian Attorney General for further advice.  The letter appears to be annotated in the hand of the President to the affected ministries asking them to please forward all relevant documents to the National Security Adviser.

13.      A second letter of request similarly addressed was sent on 15^th November, 2002, but it constitutes in essence a chaser, in particular because the Attorney General had heard that the defendant had been interviewed in relation to these matters.  Kingsley Napley confirmed by letter dated 20^th November, 2002, that it was being forwarded to the Nigerian Attorney General and Commissioner Gana inter alia.

14.      Commissioner Gana took the statement PG/1 from the defendant on 11^th October, 2002, and statements from a number of other persons and on 21^st January, 2003, he signed a States of Jersey Police Statement headed "Article 9 Criminal Justice (Evidence and Procedure)(Jersey) Law 1998" to which he attached those statements and the documents that had been gathered by him.  He describes his role as follows:-

"I am the Deputy Commissioner of the Nigerian Police Force and I am also head of the Special Investigation Panel in the office of the National Security Adviser to the President of Nigeria.  I have been a police officer for the past eighteen years."

The statement ended as follows:-

"I produce these documents in response to a letter of request from the Attorney General for Jersey dated 17/06/02 issued under Article 4 of the Criminal Justice (International Co-operation)(Jersey) Law 2001."

15.      On 24^th February, 2005, Commissioner Gana executed a further States of Jersey Police Statement which, for reasons which are not clear, he said was in response to the chaser letter of request of 15^th November, 2002, and to which he attached the statements produced earlier, together with a number of further other statements and documents.

16.      On 18^th January, 2006, the Attorney General of Nigeria executed a letter undertaking on behalf of Nigeria that in the event of a trial taking place against the defendant the Federal Government of Nigeria would use its best endeavours to ensure that necessary witnesses including but not limited to Commissioner Gana and a Colonel Bako would travel from Nigeria to Jersey to attend the trial

17.      Commissioner Gana signed a further States of Jersey Police Statement on 15^th February, 2008, in which he confirmed his position as a Deputy Commissioner in the Nigerian police force and attached a photocopy of his police identity documents.  He explained that he was chairman of the Special Investigation Panel, which is a panel of Nigerian detectives and security operatives set up in 1998 to investigate cases of corruption involving Abacha and his family, public officers that served in his government and those who assisted them in their crimes.  He explained that he was responsible for gathering evidence for prosecutions and making requests for mutual legal assistance in collaboration with the Nigerian Attorney General.  He then went into further detail as to the work that he had conducted in relation to the letter of request of 17^th June, 2002, which he had received on 24^th September, 2002.  He had taken States of Jersey Police Statements from a number of Nigerian persons all of whom confirmed that the statements had been made for the purpose of criminal proceedings in Jersey against the defendant and following a request by the Jersey authorities under the Co-operation Law.

18.      The defence's case statement of 15^th May, 2008, indicated that it intended to challenge the admissibility of the statement PG/1.  On 2^nd September, 2008, the defence gave the prosecution notice that it had received an opinion from Justice Ayoola that the evidence gathered by Commissioner Gana had not been gathered lawfully.  The defence also gave notice to the Court and to the prosecution of the defendant's intention to issue civil proceedings in Nigeria seeking certain declaratory relief and provided the prosecution with a copy of the originating summons.  The indication given by Mr Kelleher at that stage was that this was a domestic issue within Nigeria and would not affect the Jersey proceedings

19.      The defence's application to exclude PG/1, which required a voir dire, had been fixed for 5^th November, 2008.  That application was withdrawn by the defence two days before the application was due to be heard.   

20.      In May 2009, the defence made two applications, the first to exclude all of the evidence obtained in Nigeria and transferred to Jersey pursuant to letters of request and the second that the hearing of the first application should only take place after the outcome of the civil proceedings the defendant had commenced in Nigeria for declarations that the evidence was obtained unlawfully as a matter of Nigerian law.  In my judgment of 13^th August, 2009, I declined to grant the second application and rejected a prosecution application that I should order the defence to make its first application to exclude the Nigerian evidence at that stage.  I expressed the view that a trial judge could not properly direct a party to bring an application it was not ready to bring and indeed that it might not ultimately wish to bring and thereafter seek to shut the door on further applications.  It was up to the parties which applications they wished to bring and every application that is made (assuming it is prima facie arguable and/or not an abuse of process) has to be considered on its merits at the time it is made and cannot be pre-judged.  I did however say this:-

"Although I have not heard argument on the matter, it would appear clear that the defence are entitled to seek the exclusion of the Nigerian evidence on the ground that the quality of that evidence was or might have been affected by the way in which it was obtained and the effect this would have on the fairness of the proceedings. Such an application would not be dependent on a prior declaration of the Nigerian civil courts as to the lawfulness under Nigerian law of the evidence gathering process and if there are grounds to support such an application, then it should be made as soon as possible by way of a pre-trial hearing.  If the defence decline to make such an application and only apply to exclude the Nigerian evidence if the Nigerian courts in the meantime issue a declaration of unlawfulness, then it would seem clear that, consistent with the defence letter of 29^th April 2009, it will be for the purpose of giving the Court the opportunity to uphold the application of the rule of law on the facts and the prosecution the opportunity to cure unlawfulness in the obtaining of the evidence.  It would be to persuade the Court that it should carry out the Latif balancing exercise.  In other words, that even if the quality of the evidence has not been affected by the way it was obtained, the trial judge should exclude the evidence on broader considerations of the integrity of the criminal justice system."

21.      Thus it was anticipated that in the event of the Nigerian court issuing a judgment declaring that the evidence gathered in to have been unlawful, there may be a further application by the defence.

Nigerian judgment

22.      The defendant posed four questions for determination by the Nigerian court as follows:-

"1  Whether the National Security Council, the National Security Adviser or any of its officers or agencies is empowered to continue the activities of a "Special Investigation Panel" established in 1998 for the alleged purpose of investigating "cases of corruption involving ABACHA and his family, public officers that served in his Government and their cronies"'

2.  Whether the National Security Council,  the National Security Adviser or any of its officers or agencies is empowered to obtain evidence in Nigeria for the purposes of providing such evidence to the States of Jersey to use in the prosecution of the [defendant];

3.  Whether the "evidence" obtained by the "Special Investigation Panel" under the Chairmanship of Deputy Commissioner of Police Peter Gana was validly and/or lawfully obtained, having regard to the provisions of the Constitution of the Federal Republic of Nigeria; and

4.  Whether the statement obtained from the [defendant] by Deputy Commissioner of Police Peter Gana, acting as the Chairman of the "Special Investigations Panel" on October 11, 2002 was obtained lawfully and in accordance with the provisions of Nigeria law, given that

(a)  The [defendant] made the statement as a result of having been informed that the statement was a witness statement;

(b)  The [defendant] was not informed that the true purpose for which the statement was sought was to provide evidence for an investigation, and possible prosecution, of him by the States of Jersey;

(c)  No caution was administered to him prior to the taking and receiving of the statement dated October 11, 2002 and

(d)  The [defendant] was not advised of his right to consult a legal practitioner, or any other person of his choosing before providing any answers to the said Deputy Commissioner of Police Peter Gana."

23.      The Nigerian court had before it an affidavit sworn by the defendant in support of his originating summons and his answers to interrogatories that had been delivered by the Nigerian Attorney General, who was the defendant in the Nigerian proceedings.  The Nigerian court did not hear evidence from Commissioner Gana or receive his response to the answers given by the defendant to the interrogatories.

24.      The issues raised by the Nigerian Attorney General were very similar but expressed as follows:-

"(1)  Whether the Special Investigating Panel (SIP) is empowered to investigate the [defendant] and obtain evidence;

(2)  Whether the Federal Government of Nigeria can make available to the State of Jersey on request any material evidence obtained from the [defendant] during investigation; and

(3)  Whether the statement obtained by the SIP is lawful and admissible against the [defendant]."

25.      Justice Kolawole's findings were as follows:-

(i)       The Special Investigation Panel ("SIP") which Commissioner Gana headed as its chairman was not empowered by any law of the constitution to investigate or obtain evidence from the plaintiff:-

"The SIP which Commissioner Gana headed as its chairman was not empowered by any law of the constitution to investigate or obtain evidence from the [defendant].   The Special Investigating Panel may be constituted and may investigate complaints as in this instance, but in so far as it was not duly created or recognized by any existing law in Nigeria, its activities or operation in that regard, remain in my view, the domestic acts of whoever, and in this instance, the National Security Adviser that had set it up."

(ii)      In terms of the legality of the evidence obtained by Commissioner Gana from the defendant, Justice Kolawole examined the laws and guidelines laid down under Nigerian law in relation to the taking of statements and then applied the same to the facts as he found them to be on the evidence before him.  Whilst he found there was evidence that the defendant had been cautioned, that would be of no value unless he had been informed that he was a suspect or an accused person and there was no evidence to show that he had been so informed.  There was no evidence that he had been either arrested or detained by Commissioner Gana.  He concluded as follows:-

"Given the entire circumstances under which the statement which the [Nigerian Attorney General] has forwarded to the "Royal Court of Jersey" was made, I have no hesitation in answering [Nigerian Attorney General's] issue No 3 and the [defendant's] issues 3 and 4 in the negative.  The statement obtained by the Special Investigating Panel from the [defendant] is in the circumstance, unlawful and I am clear in my view, that were it to be tendered in a Criminal Proceeding instituted in any of the Superior Courts of record in Nigeria, on the strength of the Evidence Act, Supra and the relevant provisions of CFRN, 1999, it would have been inadmissible."

(iii)     The final question he addressed is whether the Federal Government of Nigeria could make available to the States of Jersey on request any material evidence obtained from the defendant during interrogation.  He referred to the Nigerian Mutual Assistance in Criminal Matters within the Commonwealth (Enactment and Enforcement) Act 2004 which provided that all requests to Nigeria from any other Commonwealth country should be challenged through a central authority designated by the President and published in the Federal Gazette.  Neither the Nigerian Court nor the Nigerian Attorney General has been able to produce any such designation or notice in the Gazette.  As to the assertion that there is nothing illegal in what the President did in respect of the letters of request, in the absence of a designated central authority Justice Kolawole said it was a misconception to assume that the President had general powers or a prerogative to exercise.  He could only exercise his powers under the constitution.  He concluded as follows:-

"In the final analysis, in relation to issue No 2 in both the [defendant's] and the [Nigerian Attorney General's] written addresses, my decision is that neither the [Nigerian Attorney General] herein nor the National Security Council, or the National Security Adviser of any of its officers or agencies including the Special Investigating Panel is by any existing law in Nigeria, empowered to obtain evidence in Nigeria for the purpose of providing such evidence for the prosecution of the [defendant] before the "Royal Courts of Jersey".

26.      Justice Kolawole gave the declaration sought by the defendant in slightly amended form as follows:-

"A.  A DECLARATION that the powers, duties, roles and functions of the National Security Council are limited to those set out in paragraph 26 of part 1 of the Third Schedule of the Constitution of the Federal Public of Nigeria, 1999.

B.  A DECLARATION that the National Security Adviser possesses no function, powers or duties under the Constitution of the Federal Public of Nigeria, 1999, other than membership of the National Security Council and, accordingly, may not conduct criminal investigations or otherwise exercise any of the powers of a law enforcement agency.

C.  A DECLARATION that the Special Investigation Panel established under office of the National Security Adviser to conduct criminal investigations in Nigeria against the [defendant] herein after May 29 1999 is unconstitutional and that all investigatory actions undertaken by the said Special Investigating Panel against the [defendant] and matters concerned in this action since May 29^th 1999 are without much ado, null and void and lacking any valid or legal effect whatsoever."

27.      He then went on to make the following observations:-

"This Court, as one of the Superior Courts of record created and established pursuant to Section 6(5) (c) of the CFRN, 1999 in my view, has a Constitutional duty to protect the territorial integrity of the sovereign State which Section 2(1) of the CFRN, 1999 declares "to be known by the name of the Federal Republic of Nigeria" from unlawful and or unconstitutional "invasion" by a request such as was made by the Attorney General of Jersey to the [Nigerian Attorney General] for a legal assistance to gather and obtain evidence from the [defendant] for the purposes of a criminal indictment in Her Majesty's "Royal Court of Jersey and which from the facts and evidence on the record, if allowed to stand, constituted a flagrant/violent subversion of the authority of the said CFRN, 1999 and a breach of its fundamental principle of its inviolability and supremacy as Nigeria's grund norm.  (See Section 1(1) of the CFRN, 1999)."

Over-arching application for a stay

28.      The defence contend that the reliance of the Attorney General on the Nigerian evidence following the judgment of the Nigerian court constitutes a breach of international law and/or comity in that the obtaining of information pursuant to a request has been found by the Nigerian court, in the circumstances to which it refers, to have been "an unlawful and unconstitutional invasion" and if allowed to stand, constitutes a "flagrant/violent subversion of the [Constitution of  the Federal Republic of Nigeria] 1999".

29.      Mr Kelleher cited the seminal work on international law Oppenheim 9^th Edition at paragraph 119:-

"The duty of every state itself to abstain, and to prevent its agents and, in certain cases, nationals, from committing any violation of another state's independence or territorial integrity or personal authority is correlative to the corresponding right possessed by the other states."

30.      The defence contended that the judgment of the Nigerian court requires the Attorney General to desist from any continuation of a breach or violation of Nigerian sovereignty including by the adducing of witnesses who are Nigerian public officers and if the Attorney General will not voluntarily so desist, the Court should take the responsibility for seeing that the process of International law is not abused.

31.      The defence further argued that for the Attorney General to persist in an attempt to adduce evidence in trial without consent under Article 4(4) of the Co-operation Law, (to which I will refer below), is a continuing abuse of the trial process.  The prosecution have taken no steps in consequence of the opportunity afforded to it over a period of some twelve months to cure unlawfulness and such a failure to act must represent a deliberate decision to accept the risk of unlawfulness.  That is wholly inconsistent with a positive duty to take reasonable steps to ensure the lawful obtaining of the evidence.  It points to the danger of the perception of the executive and its officers that the unlawful gathering of evidence had no implications for its admissibility and there will be an invitation to believe that the end justifies the means.  The defence application was not an exercise in punishing the executive; it was an exercise in fairness in holding in check the powers of the executive in preventing abuse by the executive by the clear signal that unlawful or "reprehensible" conduct can and will carry implications and in giving prime issue to the confidence in Jersey's criminal justice system not only by the defendant but also by all the Island's residents and the international community.

32.      I dismissed the over-arching application for a stay at the end of the hearing with reasons to follow because I agreed with the prosecution that it was unarguable.  With all due respect and due courtesy to Justice Kolawole, I cannot accept that the actions of the Attorney General or anyone else in Jersey constitute an unlawful or unconstitutional invasion of the sovereignty of Nigeria. 

33.      All that the Attorney General has done is send a letter of request couched in appropriately diplomatic terms and delivered to the Nigerian Attorney General's duly appointed agent and English lawyers with a request that it be forwarded to the relevant competent authority.  From that point on everything that has been done has been done by the Nigerian authorities within Nigeria. 

34.      It was only a request, and it was entirely a matter for the Nigerian authorities whether or not to accede to it.  I fail to see how a polite request could ever constitute a breach of international law or of the concepts of comity.

35.      Mr Kelleher was critical of the way the letter of request was addressed (to Mr Monfrini and Nigeria's English Lawyers) and that no steps were taken by the Attorney General to ensure that it was being dealt with by the appropriate competent authority in Nigeria.  By so doing, Mr Kelleher argued that the Attorney General invited the risk by default that a Nigerian court could subsequently find that the authority that dealt with the request lacked the appropriate vires.

36.      I do not see how the Attorney General can be criticised for submitting the letter to the duly appointed legal advisers to the Nigerian Attorney General nor do I accept that having done so he then had a duty to ensure that whoever the Nigerian authorities designated to deal with the matter had appropriate power and authority to do so.  There is a presumption of regularity (see below) and he was plainly entitled to proceed on the basis that the Nigerian Attorney General would identify the appropriate person within Nigeria to deal with the request (see the judgment of Sumption JA in Durant International Corp-v-Attorney General [2006] JLR 112 at paragraph 38). 

37.      Furthermore, there was nothing in the subsequent conduct of the matter by Commissioner Gana that would have put the Attorney General on notice as to a possible lack of power or authority.  Commissioner Gana was a serving police officer of many years standing, whose role was well known.  Quoting from the judgment of Rix L J in The Attorney General, of the Federal Republic of Nigeria-v-Mrs Maryam Abacha and others (2001) WL 542308:-

"When General Abacha died, a new military government was formed under General Abdulsalami Abubakar, who became Head of State.  His administration was intended to pave the way for elections and a return to democratic civilian government.  He appointed Major-General Abdullahi Mohammed as his National Security Adviser (NSA).  The previous NSA under the Abacha regime had been Mr Ismaila Gzarzo, who was implicated or to become implicated in the security funds affair.  On 23 July 1998 Major-general Mohammed set up a task force known as the Special Investigations Panel (or SIP) under Mr Peter Gana, an assistant commissioner of the Nigerian police.  The remit of the SIP was to investigate past use of government monies and to attempt to recover misappropriated funds.  Among the matters investigated by the SIP were the security funds and Ajaokuta transactions, as well as other contracts made between Abacha Family interests and government."

It is clear from the letter written to Mr Monfrini and Kingsley Napley that Commissioner Gana was already involved in discussions over this investigation at the time the request was issued.

38.      Fundamentally however, there is no abuse of executive power here and we do not even reach the point of the Latif balancing exercise.  Everything that was done by the Jersey Attorney General and by Commissioner Gana in Nigeria was done in good faith (Mr Kelleher did not seek to argue otherwise), but it now seems, following the Nigerian judgment, that Commissioner Gana may have acted or was acting under a mistake of law in Nigeria.  This is not a case in which the law has been deliberately breached as in the Warren case (where notwithstanding no stay was granted).  There is no possibility therefore of this Court giving the impression that it adopts the approach that the end justifies the means because all of those involved acted in good faith. 

39.      I deal in more detail below with the issue of consent and the effect of the Nigerian judgement, but I do not accept that, having obtained the Nigerian and Indian evidence in good faith, it is an abuse of executive power for the Attorney General to seek to adduce that evidence in these proceedings.

40.      Applying Panday above, this is not a situation in which, but for an abuse of executive power, the defendant would not be before this Court at all and thus the vindication of the rule of law would become the imperative consideration.  Applying the Court of Appeal in Warren (paragraph 43) these are not proceedings that have only been made possible by executive action done in breach of the rule of law and where, as a result of such action, it would be unfair to try the defendant at all.

41.      The responsibility of the Court in receiving witnesses from Nigeria, who were public officers and this in the light of the Nigerian judgment, was the subject of some discussion.  Mr Kelleher asked how this jurisdiction would conduct itself if the roles were reversed and the Jersey Court had declared unlawful evidence gathered and transmitted by Jersey public officers to Nigeria.  Would it be appropriate for them to attend a trial in Nigeria voluntarily potentially to give the very evidence that the Jersey Court had declared to have been unlawfully supplied?  In my view it is entirely a matter for the Nigerian authorities and the public officers concerned to decide whether it is appropriate for those officers to attend the trial in Jersey, as the Nigerian Attorney General has undertaken they would.  If they attend here it will then be entirely a matter for this Court to decide if their evidence is admissible applying Jersey law.  Assuming their evidence is relevant to an issue in the case then applying R-v-Khan (1997) AC 558 (see below) the significance of any unlawfulness will be its effect upon the fairness of the proceedings.

42.      Mr Kelleher made a further submission that it was unfair that the Attorney General should be able to adduce substantial evidence from Nigeria, which it transpires had been gathered unlawfully, when the defendant had been unable to have the evidence of Brigadier General Marwa, which may be of importance to the defence, taken on commission in Nigeria.  A letter of request to Nigeria had been issued at the request of the defence by the Bailiff under Article 4(2) of the Co-operation Law in November 2008 for his evidence to be taken but there has been no response at all despite numerous inquiries.  Regrettable as this lack of response is, it is not suggested that the Attorney General has any responsibility for it and it cannot be characterised as an abuse of executive power.

43.      I now turn to the first of the subsidiary applications.

44.      The Co-operation Law provides in Article 4(4) as follows:-

"Except with the consent of the court, tribunal or authority that supplied the evidence, evidence obtained by virtue of a letter of request cannot be used for any purpose other than that specified in the letter."

45.      The letters of request dated 17^th June, 2002, and 15^th November, 2002, speak only of requests for the purpose of investigation.  Nowhere say the defence in either letter is there specified the purpose of using the evidence supplied at a trial of the defendant in Jersey.  It says the burden is upon the Attorney General to show the existence of a consent for this further purpose.  The issue of consent relates to all of the evidence obtained by Commissioner Gana. 

46.      Mr Kelleher cited the case of R-v-Malcolm Gooch (1991) 1 Cr. App. R. (S) 283 which construed the similarly worded English provision (Section (3)(7) of the Criminal Justice (International Co-operation) Act 1990  "the 1990 Act").  In that case the letters of request referred to a specific prosecution for the smuggling into the United Kingdom from Nigeria of 440 kilograms of herbal cannabis.  No evidence was offered by the prosecution in relation to that alleged importation and the defendant was subsequently convicted of a different importation  Evidence provided by the Swiss and Liechtenstein authorities pursuant to letters of request in relation to the importation which was not proceeded with was then used in subsequent confiscation proceedings brought against the defendant.  Quoting from page 291 of the judgment:-

"If the prosecution had wished to use this evidential material in the confiscation proceedings, the consent of the appropriate authority in Switzerland and in Liechtenstein should first have been obtained.  Such consent was not even sought.  The evidence was nonetheless used in the proceedings.  In our judgment, as the evidence was used for a purpose "other than specified in the [letters]" the use contravened section 3(7).  This material should not have been before the court in the confiscation proceedings.  In our judgment the fact that the appellant had not challenged the evidence itself (he had challenged its admissibility) and that, once admitted, he had sought to rely upon it as a vehicle for argument cannot render admissible that which the 1990 Act provides should not have been used." 

47.      Mr Kelleher submitted that Gooch was authority for the proposition that Article 4(4) of the Co-operation Law was to be strictly construed; thus the evidence provided by the Nigerian authorities pursuant to the letters of request can only be used for the purpose of the investigation, unless the Nigerian authorities consent otherwise.  Even if the Attorney General asserted that they had so consented the judgment of the Nigerian court would render any such consent of no effect.

48.      Mr Jowitt submitted that Article 4(4) was concerned with "specialty" and not a distinction between investigation and prosecution.  He cited Jones on Extradition and Mutual Assistance 2001 at paragraph 80-015 dealing with the background to the English Act.  The author states that there was to be no requirement for reciprocity but the specialty principle appears in Article 3 paragraph 7 (equivalent to our Article 4(4)) with regard to limitations on the use of the evidence for use in the United Kingdom.  The note in relation to the specialty principle reads:-

"A state must not prosecute for an offence other than stated in the request.  In the UK/US Treaty the specialty principle is incorporated in Article 7(2), subject to the requested state's consent. However, once in the public domain, the requested information or evidence is specifically stated to be available for any purpose."

49.      He also drew my attention to the following provision in the Commonwealth Scheme:-

"12.   The requesting country shall not use any information or evidence obtained in response to a request for assistance under the Scheme in connection with any matter other than the criminal matter specified in the request without the prior consent of the Central Authority of the requested country."

50.      In the short report on the case of R-v-Ibori (2008) All ER (D)36, the English Court of Appeal upheld the decision of the trial judge to exclude evidence obtained by letters of request as against a defendant who had not been named in those letters.  It would appear from the report that the "purpose" of the information being sought was for the "investigation" of four other defendants.  No point appears to have been taken that such a purpose did not extend to a subsequent prosecution in relation to the offences specified in the letter of request. 

51.      It is true that in the Attorney General's subsequent request to the Indian authorities the purpose specified was criminal and confiscation proceedings.  Notwithstanding, the letter of request to the Nigerian authorities was detailed and clear as to the alleged criminality on the part of the defendant being investigated.  The purpose of an investigation into a criminal offence is to prosecute that offence.  There would be no point in providing evidence for the former but not the latter.  Evidence is supplied in relation to the alleged criminality which incorporates both the investigation and the prosecution of that criminality.  In my view the specialty principle has not been breached.  The evidence is not being used against other unnamed defendants or in relation to other criminality not specified.  Furthermore, that it was so interpreted by the Nigerian authorities is clear from the fact that Commissioner Gana and the other witnesses all executed States of Jersey Police Statements which made specific reference to those statements being for the purposes of the prosecution brought against the defendant in Jersey and those witnesses have agreed to attend to give evidence.

52.      I do not accept Gooch as authority for the proposition that Article 4(4) of the Co-operation Law is to be strictly construed.  The facts in Gooch can be distinguished because the evidence was supplied for an offence which was not proceeded with.  The specialty principle had been breached because the evidence had been used in relation to quite separate criminality.

53.      In R-v-Gordon Foxley [1995] 2 Cr. App. R.523 it was contended that a letter of request to the German authorities failed to specify the purpose for which the information or documents would be used, namely for a criminal prosecution.  It apparently referred to an inquiry that was being made into offences of false accounting and corruption by the defendant and asked eight questions the last of which was:-

"In the event of criminal proceedings being instituted in England would you be prepared to attend as a witness?"

54.      The manner in which the German authorities dealt with the request (in particular by asking for undertakings as to the use of the evidence in criminal proceedings in England) suggested to the English Court of Appeal that the German authorities had no doubt as to the purpose to which the documents would be put.  The Court of Appeal found that the letter did sufficiently identify the purpose for which the evidence was sought and that there was no breach of the letter and spirit of the 1990 Act.

55.      I too think that judging by the way in which the Nigerian authorities dealt with the request (by the provision of the Jersey Prosecution Statements and by procuring the witnesses to come and give evidence) they were in no doubt as to the use to which the evidence requested in this case would be put.  I too find that the letter of request did sufficiently specify the purpose for which it was sought, which by necessary implication extended to criminal proceedings against the person and for the criminality specified, and that there has been no breach of the letter and spirit of the Co-operation Law. 

56.      If I am wrong in so finding, then I find that there is an overwhelming inference that the authority "that supplied the evidence" namely the Special Investigation Panel consented to the evidence being used for the purposes of a criminal proceedings, again through the provision of Jersey Police Statements and procuring the witnesses to come and give evidence.  Thus if consent was necessary for the evidence to be used for criminal proceedings, it was in fact given. 

57.      At the heart of the defence submissions is the Nigerian judgment and its effect on the proceedings in this jurisdiction.  A number of observations can be made in relation to the Nigerian  judgment:-

(i)       The Nigerian proceedings constituted an action in rem for declaratory relief - it was not an action in personam.

(ii)      It does not address the right of Nigeria as a sovereign state to cooperate with Jersey based upon principles of comity out with the 2004 Nigerian statute (see The Law of Extradition and Mutual Assistance, second edition, by Nicholls, Montgomery and Knowles paragraph 17.04);

(iii)     The defence concede that no issue estoppal arises and the judgment is not otherwise binding on this Court

(iv)      The mere fact that evidence has been obtained unlawfully does not render it inadmissible in so far as Jersey is concerned.  As Lord Nolan made clear in R-v-Khan (1997) AC 558:-

"My Lords, I am satisfied, for my part, that in these circumstances the appellant can no more succeed upon the second issue than upon the first.  I am prepared to accept that if evidence has been obtained in circumstances which involve an apparent breach of the law of a foreign country, that is a matter which may be relevant to the exercise of the section 78 power.  This does not mean that the trial judge is obliged to decide whether or not there has been a breach of the Convention or of the foreign law. That is not his function, and it would be inappropriate for him to do so.  By the same token, it would have been inappropriate for the judge in the present case to have decided whether the admitted damage caused by the police to Mr Bashforth's property amounted to a criminal offence under section 1 of the Criminal Damage act 1971.  But if the behaviour of the police in the particular case amounts to an apparent or probable breach of some relevant law or convention, common sense dictates that this is a consideration which may be taken into account for what it is worth.  Its significance, however, will normally be determined not so much by its apparent unlawfulness or irregularity as upon its effect, taken as a whole, upon the fairness or unfairness of the proceedings.  The fact that the behaviour in question constitutes a breach of the Convention or of a foreign law can plainly be of no greater significance per se than if it constituted a breach of English law.  Upon the facts of the present case, in agreement with the Court of Appeal, I consider that the judge was fully entitled to hold that the circumstances in which the relevant evidence was obtained, even if they constituted a breach of article 8, were not such as to require the exclusion of the evidence."

58.      My task, however, is not to attempt to analyse the Nigerian judgment and its effect within its jurisdiction.  I must approach the matter from the standpoint of this Court's jurisdiction and in particular determine whether the Attorney General has complied with the provisions of the Co-operation Law under which the letters of request were issued.  Article 4(3) is in the following terms:-

"A letter of request shall be sent to either -

(a)       a court or tribunal specified in the letter and exercising jurisdiction in the place where the evidence is to be obtained; or

(b)       any authority recognized by the government of the country or territory in question as the appropriate authority for receiving requests for assistance of the kind to which this Article applies."

59.      I am satisfied that the Attorney General has complied with this.  The letter of request was sent to the Nigerian Attorney General's duly constituted agents.  It is not for the Jersey Attorney General to decide what authority is or is not recognised as appropriate within Nigeria.  That was a matter for the Nigerian Attorney General.  The ordinary presumption of regularity applies - it is presumed that the Nigerian Attorney General will properly discharge his public duties in respect of the letter of request unless the contrary is demonstrated.  The evidence shows that the authority recognised as appropriate by the Nigerian government at the time was the task force known as the Special Investigation Panel under the chairmanship of Commissioner Gana.

60.      That authority has processed the letter of request and provided the Jersey Attorney General with the evidence which he sought.  He proposes to use it for the purposes for which it was supplied.  The fact that unbeknownst to the Jersey Attorney General and the Special Investigation Panel it has very recently transpired that as a matter of Nigerian law the latter did not have the power to carry out the actions it did, does not, in my view, affect the position of the Attorney General under our law.  The Special Investigation Panel's apparent lack of power when it provided the evidence is a domestic issue for the Nigerian authorities.  Furthermore, having received that evidence in good faith, and in compliance with the Co-operation Law, the Attorney General is not now debarred by the judgment of the Nigerian court from using that evidence.  On the contrary, he is under a duty as a matter of Jersey law to seek to do so.  Nor is this Court debarred by the Nigerian judgment from admitting that evidence into the Jersey proceedings.

61.       Foxley provides support for this approach.  In that case it was argued that before documents obtained in Norway pursuant to letters of request could be used in proceedings in England, there was a requirement of Norwegian law that proceedings should first be held in Norway.  In fact the requirement related to witness statements which the prosecution did not use, but the English Court of Appeal said this at page 535:-

"It is for the Norwegian authority to see that there is compliance with Norwegian law. The appropriate Norwegian authority obtained and forwarded the documents to the Crown Prosecution Service in this country. It is to be presumed that the Norwegian authority acted correctly and in accordance with Norwegian law in so doing. The Crown Prosecution Service has complied with section 3 of the 1990 Act and, in our judgement, there was no ground under that section on which these documents could be excluded as evidence in these proceedings."

62.      In this case it is to be presumed that the Nigerian government acted correctly and in accordance with Nigerian law in designating the Special Investigation Panel as the appropriate authority and the Special Investigation Panel acted correctly and in accordance with Nigerian law in providing the evidence (and the consent for its use in criminal proceedings if that was necessary) to the Attorney General.  The Attorney General has received that evidence in compliance with the Co-operation Law and the fact that it transpires subsequently that Nigerian law has not been complied with is no ground under the Co-operation Law for excluding it.

63.      Mr Kelleher cited R-v-CII [2008] EWCA Crim 3062 where in good faith evidence had been removed from Nigeria to London under the provisions of a bi-lateral treaty (agreement) between Nigeria and the United Kingdom without the consent of the Nigerian Attorney General, the designated Central Authority under that treaty, who had the power to refuse consent. Indeed he required its return to Nigeria.  The English Court of Appeal upheld the trial judge's decision not to admit the evidence because it had been transmitted unlawfully under the terms of that treaty, the implication urged by the defence being that unlawfulness in evidence gathering is a proper ground for excluding evidence.  However the decision is concerned with the requirements of a treaty which constitutes an agreement between the two countries and which has no application to the requests made by Jersey in this case.  We are not concerned with any treaty or agreement between Jersey and Nigeria but with whether the terms of the Co-operation Law have been complied with.  The prosecution in CII gave notice to the Court of Appeal that it may submit to the trial judge that the evidence should still be admitted notwithstanding that it had been unlawfully obtained as per the authority of Khan, a contention not raised before the trial judge or the Court of Appeal.

64.      The prosecution asked me to address the following questions:-

(i)       Has the Crown complied with the provisions of the Co-operation Law?

(ii)      If consent was needed to use the evidence for the purpose of the prosecution was that consent given as a matter of fact?

(iii)     If consent was given, does the Nigerian judgment serve to negate that consent?

65.      I have already answered the first question in the affirmative.  I have also concluded that consent to use the evidence was not required as the "purpose" necessarily extended to criminal proceedings for the criminality specified in the letter.  However if consent was needed then I have found it was given by the "authority that supplied the evidence" namely the Special Investigation Panel.  Finally, I have found that the subsequent declaration of the Nigerian court that as a matter of Nigerian law the Special Investigation Panel did not have had the power to give such consent is no ground for excluding the evidence under the Co-operation Law.

66.      In short the Attorney General of Jersey has complied with the provisions of the Co-operation Law and there are no grounds under the provisions of that law for excluding the evidence supplied to and received by him in good faith.

67.      I now turn to the narrower issue raised in relation to the Indian letter of request which was made under both the Co-operation Law and having regard to the Commonwealth Scheme relating to Mutual Assistance in Criminal Matters (the Harare Scheme 1999).  No issue arises under Article 4(4) of the Co-operation Law in that the evidence supplied by the Indian authorities is not being used for a purpose other than that set out in the letter of request, namely a prosecution.  However, when the Indian authorities provided the evidence the letter contained the following paragraph:-

"In case the documents detailed at Sl. No. 1 to 4 of the enclosed-Note are required to be used as evidence in any proceedings by the Attorney General's Office, a "No objection certificate" may please be obtained from this Directorate, prior to such use."

The prosecution have written to the Indian authorities more than a year ago requesting the certificate of no objection and have through its Indian counsel chased the production of the certificate ever since but to no avail.  The defence contend that the absence of any certificate must properly be treated as the withholding of required approval.  The Crown position is that it has complied with the Co-operation Law fully and the evidence is therefore admissible.  Only issues of comity arise and it is up to the Attorney General to decide whether the lack of the "No objection certificate" should outweigh domestic law considerations.

68.      It is clear from the Harare Scheme that subject to a number of prescribed circumstances in which assistance may be refused, the requested country is required to grant assistance and there is no power to impose conditions, save that under clause 7(4) the requested country may make the granting of assistance subject to the requesting country giving an undertaking that the evidence will not be used directly or indirectly in relation to the investigation or prosecution of a specified person.  That is not the position here.  In any event in my view the Indian authorities were not purporting to impose a condition requiring their prior consent to the use of the evidence.  The fact of its provision for the purposes of the letter of request indicates their consent for such use.  A certificate from the appropriate authority confirming that they have no objection (hence a "No objection certificate") is something that they were pleased to provide on request.  If I am wrong in that interpretation then once again the issue in Jersey is whether the Attorney General has complied with the Co-operation Law and it is clear that he has.  There is no ground under that law to exclude this evidence.

69.      Foxley was supplied to me after the hearing by the prosecution (with apologies) and the defence have provided me with its detailed comments by letter for which I am grateful and which I have considered.  Time does not permit me to respond in this judgement to the points raised by the defence but as is clear from the above I do not interpret it as an authority which supports the defence contentions.

70.      Because the defence concedes that the admission of the relevant Nigerian and Indian evidence (other than PG/1) does not prejudice the fairness of the defendant's trial, it follows that I would not exercise my discretion under Article 76 of PPCE to exclude it on the grounds set out in this application.

71.      The first of the subsidiary applications is accordingly dismissed

PG/1

72.      I turn finally to the second subsidiary application for the exclusion of PG/1 under Article 76 of PPCE.  It had previously been accepted that a voir dire must take place before I can make any decision as to the exclusion of this part of Commissioner Gana's evidence but Mr Kelleher submitted that I should exclude it now on the basis of the facts as found by the Nigerian court and the statement prepared by Commissioner Gana in February 2008.  I am not prepared to do so.  Commissioner Gana did not give evidence before the Nigerian court and has not either before that court or indeed this Court been given the opportunity to respond to the issues raised by the defence.  The submissions of the defence therefore in this respect must await the voir dire.

Authorities

Proceeds of Crime (Jersey) Law 1999.

Criminal Justice (International Co-operation)(Jersey) Law 2002.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

R v Beckford (1996) 1Cr. App. R.94.

Warren and Others-v-AG [2008] JCA 135.

Panday-v-Virgil (Senior Superintendent of Police)(2008) 3 WLR 296.

Criminal Justice (Evidence and Procedure)(Jersey) Law 1998.

Criminal Matters within the Commonwealth (Enactment and Enforcement) Act 2004.

Durant International Corp-v-Attorney General [2006] JLR 112.

The Attorney General, of the Federal Republic of Nigeria-v-Mrs Maryam Abacha and others (2001) WL 542308.

R-v-Malcolm Gooch (1991) 1 Cr. App. R.(S) 283.

Criminal Justice (International Co-operation) Act 1990.

Extradition and Mutual Assistance 2001.

R-v-Ibori (2008) All ER (D)36.

R-v-Gordon Foxley [1995] 2 C.r.App..R.523.

R-v-Khan (1997) AC 558.

R-v-CII [2008] EWCA Crim 3062.