Jersey Unreported Judgments

[2010]JRC026

ROYAL COURT

(Samedi Division)

8^th February 2010

Before     :

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

The Attorney General

-v-

Raj Arjandas Bhojwani

Application to exclude statement PG1

M. T. Jowitt, Esq., Crown Advocate.

Advocate J. D. Kelleher for the Defendant.

JUDGMENT

THE commissioner:

1.        The Defence applies for the statement given by the defendant to Commissioner Gana on 11^th October, 2001 (PG1) to be excluded from the evidence in these proceedings pursuant to Article 76 of PPCE on the basis that its admission "would so adversely affect the fairness of the proceedings that the Court ought not to admit it".  It is not alleged that the reliability of the statement is affected by the circumstances in which it was obtained. 

2.        Whereas Article 74 of PPCE places the burden of proof squarely upon the prosecution, Article 76 places no burden on the Prosecution to disprove unfairness but there is no authority to suggest that the burden falls on the defence, and I therefore proceed on the basis that the burden of proof has no part to play in the exercise of my discretion under Article 76 (see Archbold 15-462).

3.        The application proceeded by way of a voir dire over some 1½ days, effectively on the papers, the defendant electing not to give evidence.  Mr Jowitt called the Prosecution's evidence by reading paragraphs 2-6, 10-12 and 16 of the statement of Commissioner Gana dated 15^th February, 2008 which sets out the circumstances in which the statement PG1 was taken.  The statement has attached to it a number of documents which form part of it.

4.        To set this application in context, I ruled on 6^th January, 2010 that certain statements of both Commissioner Gana and Colonel Bako could be read to the Jurats pursuant to Article 64(2)(b) of PPCE, but on the basis that the admissibility of PG1 would be the subject of this separate application.  If the Defence application fails then it follows that for the same reasons as set out in that judgment, I will give leave to the Prosecution the read the relevant part of Commissioner Gana's statement by which PG1 will be introduced into evidence.

5.        The Prosecution does not rely on statement PG1 as a confession.  It is the Prosecution's case that the defendant's account of the circumstances surrounding the 1996 and 1997 contracts, as set out in PG1, is a tissue of lies and is evidence of guilty knowledge.  It will not be relying on PG1 as evidence of the truth of its contents.

6.        Mr Jowitt also read the statement of DC Patterson dated 15^th January, 2010, and this with the consent of the Defence, to which is exhibited correspondence which the Prosecution says shows that the defendant had been for some time fully aware of the criminal investigation in Jersey and that PG1 was knowingly volunteered by the defendant because he felt that co-operation would dispel any suspicion.  What lies behind this application, says the Prosecution, is not that the defendant was not cautioned but that he tried and failed to talk his way out of trouble and now finds the statement being used against him. 

7.        Commissioner Gana explains in his statement of 15^th February, 2008 that after receiving the letter of request, dated the 17^th June, 2002, he asked his secretary to track the defendant down and invite him to an interview.  At the meeting, the defendant explained to him how the two contracts were signed and admitted inflating the contract prices on the instructions of the awarding authorities and making payments to bank accounts given to him.  He was asked if he would make a "witness statement" but he said he could not do it then as he needed to make reference to documents held in London.  A few days later he came back with a statement which he had prepared.  Commissioner Gana "insisted" that he make a formal statement before him but the defendant wished to adopt the typed statement.  Accordingly Commissioner Gana "gave him a statement to fill and sign the words of caution, which he did."  The document is headed "The Nigeria Police statement of witness/accused".  The details of the station and of the defendant's name, nationality and occupation etc. have been filled in by the defendant.  There is then a further typed section, with parts to be filled in by hand, which reads as follows:-

"In the case of accused person the forms caution will be given and the facts recorded here is manuscripts.  I [Mr Raj A Bhojwani] male having been duly cautioned in English Language that I am not obliged to say anything unless I wish do so but whatever I say shall be taken down in writing and may be given in evidence.  Voluntarily elect STO state as follows". 

The parts in the square brackets are those complete by the defendant.  He would appear to have added in his own hand "as contained in attached three page preliminary statement, submitted on 11 October, 2002."  He signed that page twice and  each of the subsequent three pages are signed and dated.  At the bottom of the facing page Commissioner Gana appears to have written:-

"I certify that this statement was freely made by Raj A Bhojwani".

In the opening paragraph of the statement the defendant stated that he makes "this first PRELIMINARY STATEMENT of my own free will to assist the investigating authorities in Nigeria in respect of certain contracts entered into with the Federal Government and NECON for the supply of vehicles."

After a number of introductory paragraphs he goes on and this by way of summary to say that he had been informed by persons unspecified that the Nigerian government had in principle decided to procure large quantities of TATA vehicles which might be routed through his Nigerian sole distributorship.  He was then contacted by "one Mr Romanus Nwosisi" who invited him to a meeting and confirmed the Nigerian government's decision.  It was Mr Nwosisi who asked for a commission which after some discussion the defendant agreed to pay as it was a "take it or leave it" situation.  The commission was set at 50% of the total cost of the vehicles which he said he found somewhat high but payment of commissions was not prohibited and he did not want to miss out on the opportunity.  It was Mr Nwosisi who produced the draft agreement and who gave him the two account numbers where the commissions were to be paid.  He had no knowledge of the true beneficial owners of these two accounts "SEUZE and KAISER".  The statement then goes into some detail as to the post contractual obligations of the defendant's companies.  It ends "this first preliminary statement will be continued and submitted as the second preliminary statement.  The final statement will cover various aspects of the overseas accounts, investments, profits etc. and will be submitted after I have returned from overseas shortly when I can have access to the records and documents which will enable me to prepare such a statement."

8.        The Prosecution's case to the Jurats would be that Mr Nwosisi was fictional in the sense that whether or not he existed, he was inserted by the defendant in order to distance him from General Abacha and Colonel Marwa.  The commission was substantially more than the 50% referred to and it was the defendant who produced the draft contract.  Over all the Prosecution would say that the statement is a dishonest account aimed at showing the defendant in the best light, watering down his involvement, distancing him from General Abacha and others, substantially understating the size of the commission and talking up his company's post contractual obligations.

9.        The Defence submit that the defendant was misled or lured into making this statement PG1 which constitutes a confession and believing he was assisting Commissioner Gana as a witness and not as a suspect, in ignorance of the Letter of Request issued by Jersey to Nigeria dated 17^th June, 2006 and of Commissioner Gana's intention to provide any statement he made to the Jersey authorities who might use it against him.  He should have been cautioned at the first meeting at least after making these verbal admissions, and if he had been he would not have volunteered the statement.  He signed the caution at the second meeting when his guard was down and having been misled into thinking that he was a witness assisting the Nigerian Police and not as a suspect.

10.      Commissioner Gana had acted promptly upon the Letter of Request when he received it on 24^th September, 2002 and he must therefore have read it and have been aware that it concerned an investigation into serious offences involving the defendant.  By the date of Commissioner Gana's meeting with the defendant, he had received substantial documentation from INEC and extracts from Nigeria's own Letter of Request to Jersey indicates that it was aware of the payments made to KAISER and SUEZE accounts from the defendant's TOSS bank account.  There were more than sufficient grounds to suspect that the defendant had committed offences in Jersey and Nigeria before Commissioner Gana interviewed the defendant and certainly at the time of the first interview when the defendant admitted agreeing to inflate the contract price and make payments to bank accounts given to him.  Mr Kelleher made the following points:-

(i)        The written invitation from Commissioner Gana's secretary to the defendant to attend an interview gives no hint as to its purpose.

(ii)       The evidence of Commissioner Gana makes no reference to him having informed the defendant of the purpose of their meeting and his intentions.  There is no reference to Commissioner Gana informing the defendant of a letter of request from Jersey and the possibility of any statement being used for the purpose of the Jersey proceedings.

(iii)      There is no reference to the defendant being cautioned or advised of his entitlement to be afforded facilities to consult a legal representative in private before the interview or at least after he began making admissions. 

(iv)      When the defendant returned with his statement there is no indication from Commissioner Gana's statement that he administered a verbal caution or advised him of his entitlement to be afforded facilities to consult a legal representative.   The form the defendant was asked to fill in and sign is headed "witness/accused" without one or the other being deleted.  By inference, the defence says that the defendant was filling in the written words of the caution as a witness.

(v)       There is no indication that Commissioner Gana kept any note or record of either of these meetings.

11.      The Defence contrasts the careful conduct of the defendant in Jersey acting and co-operating always through the filter of his legal advisers and his conduct in Nigeria.  The Defence says it was most unlikely that he would have made these admissions if he had understood the true nature of the process in which he was involved.

12.      The Defence asked me to consider the interviews in Nigeria and the circumstances in which the statement PG1 was taken as if these events had taken place in Jersey under the safeguard of the codes of practice.  In particular Mr Kelleher drew my attention to Code C.10.1-3 (in relation to cautions) Code C.10.7 (in relation to records of interviews) and Code C.12.2 (in relation to facilities for legal advice).  He submitted, and Mr Jowitt agreed, that the standards of fairness set by the Code should be extended to the defendant notwithstanding that he was interviewed outside the Island.

13.      In terms of general principles, I was referred to the following extract from the judgment of Saville J in R v Walsh [1990] 91 Cr. App. R. 161 at page 163:-

"The main object of section 58 of the Act and indeed of the Codes of Practice is to achieve fairness - to an accused or suspected person so as, among other things, to preserve and protect his legal rights; but also fairness for the Crown and its officers so that again, among other things, there might be reduced the incidence or effectiveness of unfounded allegations of malpractice.

To our minds it follows that if there are significant and substantial breaches of section 58 or the provisions of the Code, then prima facie at least the standards of fairness set by Parliament have not been met.  So far as a defendant is concerned, it seems to us also to follow that to admit evidence against him which has been obtained in circumstances where these standards have not been met, cannot but have an adverse effect on the fairness of the proceedings.  This does not mean, of course, that in every case of a significant or substantial breach of section 58 or the Code of Practice the evidence concerned will automatically be excluded.  Section 78 does not so provide.  The task of the court is not merely to consider whether there would be an adverse effect on the fairness of the proceedings, but such an adverse effect that justice requires the evidence to be excluded.

In the present case, we have no material which would lead us to suppose that the judge erred in concluding that the police officers were acting in good faith.  However, although bad faith may make substantial or significant that which might not otherwise be so, the contrary does not follow.  Breaches which are in themselves significant and substantial are not rendered otherwise by the good faith of the officers concerned."

14.      I was also referred to paragraph 15-484 of Archbold which provides that the absence of a caution in circumstances in which it should have been administered will normally amount to a significant and substantial breach of the Code and:-

"The thrust of C.10.1 is that before questioning a suspect the police must ensure that he is aware of the true nature of the investigation; it is only if this requirement is fulfilled that the suspect can make meaningful decisions as to whether to avail himself of legal advice and as to how to respond to questions."

15.      I can take the issue of C.12.2 and the entitlement to be afforded facilities to consult a legal representative in short order.  It reads as follows:-

"Immediately prior to the commencement or recommencement of an interview at a police station or other authorized place of detention, the interviewing officer should remind the suspect of his or her entitlement to be afforded facilities to consult a legal representative in private whether by telephone..."

That entitlement arises not under the Codes but under Article 54(1) of PPCE which provides:-

"A person arrested and held in custody in a police station or other premises shall be afforded facilities, if the person so requests, to consult a legal representative in private at any time, by telephone, in writing or in person."

Mr Jowitt submitted, in my view correctly, that Code C.12 applies to interviews after arrest and it is clear in any event that an entitlement only arises after arrest and does not arise at the point of caution.  The defendant had not been arrested and detained in custody and therefore he had no entitlement, applying our code, to be afforded facilities to consult a legal representative and there was thus no obligation on the part of Commissioner Gana to remind him of such an entitlement.  The issue before me in relation to the code, concerns therefore the requirement for a caution, Code C.10.2 being in the following terms:-

"As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, the officer shall caution that person ...."

16.      As a result of the declarations made by the Nigerian court that the evidence obtained at the request of Jersey in Nigeria had been gathered unlawfully, Commissioner Gana has been unable to attend this hearing and with the defendant electing not to give evidence in the voir dire I was in what Mr Jowitt described as an evidential desert, being limited to the documents and certain additional documents disclosed by the Prosecution to the Defence on 3^rd February, 2010, relating to Letters of Request which were admitted pursuant to schedule 4 of PPCE.  Notwithstanding, in order to deal with the application Mr Jowitt submitted that I need to make findings of fact as follows:-

(i)        Was the defendant cautioned?

(ii)       Was he cautioned when he should have been?  If not,

(iii)      Would he have made his statement in any event, notwithstanding the lack of a caution?

To those I've added the Defence allegations which can be incorporated into the following:-

(iv)      Was the defendant lured or misled into making the statement PG1 believing he was doing so as a witness and not as a suspect?

(v)       Was he aware of the true nature of the investigation?

(i) Was the defendant cautioned?

17.      Whilst it is not clear whether at the second meeting Commissioner Gana administered a verbal caution which was then recorded in writing in the form completed by the defendant as the words used imply, it is clear that the defendant himself filled in and signed the form and must therefore have read it.  The Code is not prescriptive as to the method by which the caution is administered.  It is in the same terms as that provided for in Code C and in particular states that anything taken down in writing may be given in evidence.  It is attached to and forms part of the statement PG1.  The defendant completed the form in his own hand, he is an educated man and it is reasonable to assume that he had read and understood its terms.  Having read it he could have declined to submit the statement.  He did not do so.  I find the defendant was duly cautioned by reading, completing and signing the caution section of the statement before submitting it to Commissioner Gana.

(ii) Was the defendant cautioned when he should have been and if not would he have made the statement PG1 in any event?

18.      I take these two questions together.  Mr Jowitt conceded that when Commissioner Gana first met with the defendant in October 2002, and on hearing the defendant's verbal explanation of the two contracts, there were grounds to suspect that he had committed an offence, at which point a verbal caution should have been administered.  There is no indication from Commissioner Gana's statement that a verbal caution was given at this stage.  Would he, the defendant, have made this statement if he had been cautioned?  The correspondence between the defendant's Jersey legal advisers and the authorities here demonstrates that from the outset the defendant proactively sought to co-operate fully with the Police.  I cannot set out all of the correspondence here but on 11^th January, 2002 Mr Sugden wrote to Detective Inspector Minty confirming the defendant's willingness to make himself available for an interview and saying:-

"...Mr Bhojwani firmly believes that your ability to put relevant questions directly to him must be both in your interests and his, not least as some two months have now passed since he was notified of the investigation.  If you or your officers would like to meet with Mr Bhojwani in order to take advantage of his voluntarily offering to provide such assistance to you as you may require, then please let me know."

On the 18^th March, 2002 the defendant voluntarily attended with his legal advisers an interview with the Police held in London, conducted under the provisions of the Investigation of Fraud (Jersey) Law 1991.  After that interview he wrote to Mr Sugden on 19^th March, 2002 as follows:-

"The last interview which was fairly long (4½ hours) and very exhausting notwithstanding, I shall make myself readily available once again if Mr Baker would like to clarify or obtain any further information which might help him conclude his investigation.  This offer is being made in good faith and without prejudice."

It is clear from the correspondence that very substantial quantities of documentation were provided by the defendant to the Jersey Police.  In a further letter of 10^th June, 2002 to Mr Sugden he states:-

"I hope that with all the documents provided so far the Law Officers' Department can wind up their investigations and clear me and my affairs from all further scrutiny and suspicion."

19.      On 3^rd November, 2004 he wrote to Commissioner Gana and describes his position as follows:-

"You will agree that since the onset of this investigation both in the States of Jersey as well as in Nigeria, since mid-2002 (3½years) I have been co-operating fully and have voluntarily provided, without hesitation all the information and documents requested by your Panel as well as the investigatory authorities in Jersey to assist in the investigations.  This has been done because I knew that I have not done anything wrong either in Nigeria or elsewhere".

When I have regard to the circumstances of this interview, as revealed by the limited evidence before me, I draw the opposite conclusion to that drawn by Mr Kelleher.  When you take into account the defendant's approach to the Jersey Police, which was one of full co-operation, including voluntarily submitting himself to a lengthy interview and providing documents, it seems to me most likely that his approach to the Nigerian Police would have been the same.  It is true that the defendant attended upon Commission Gana without legal representation, but he was not subjected to a question and answer interview.  He went away and drafted a statement on his own, apparently referring to documents he held in London.  In the absence of evidence from him I do not know whether he consulted his legal advisers over the preparation of this statement, but I do know that he had access to legal advice.  His co-operation was such that he intended to follow it up with a second statement.  I conclude the defendant's intention consistent with his approach to the Jersey Police, was to co-operate with the Nigerian Police and the apparent failure to caution him at the first interview was not causative of the statements subsequently tendered by him.  I have of course found that he was cautioned when the statement upon which the Prosecution does wish to rely was tendered. 

(iv) Was the defendant lured or misled into making the statement PG1 believing he was doing so as a witness and not as a suspect?

20.      I turn now to the defence submission that the defendant was lured or misled into providing a statement believing he was doing so as a witness and not as a suspect.

21.       Having regard to Archbold paragraph 15-381, I note that voir dires often proceed on the papers alone where they disclose a prima facie breach of the Codes of Practice which it is for the prosecution, through evidence, to justify.  Evidence of the defendant may add little weight to such an attack.  In this case however the defendant is making a positive allegation that he was misled or lured into signing the statement but he has elected not to give any evidence to support that allegation.  He is perfectly entitled to do so but it means that he has to rely on the documentary evidence.  There is in truth very little, if any, evidence within the papers to support this allegation.  Mr Kelleher can point to Commissioner Gana's statement where he said he asked the defendant to make a "witness statement" and to the fact that the caution page was ambiguously headed "Witness/Accused".  Apart from that he can only point to an absence of evidence, namely that the invitation to attend did not disclose the purpose of the interview.  Commissioner Gana makes no reference in his statement to having verified whether he was there as a witness or as a suspect or to informing him of the Letter of Request from Jersey and the possibility of any statement being sent to Jersey.  There is no reference to any note or record that Commissioner Gana may have kept of the two meetings.

22.      As in R v Sherif and others (2008) EWCA Crim 2653 (paragraphs 38 and 39), I find that the defendant gave the statement PG1 to Commissioner Gana because he wanted to co-operate with the authorities.  There is no evidence that he was induced or lured into doing so on the basis that he would not be prosecuted.  If there had been an unequivocal representation by Commissioner Gana that he would not have been prosecuted and that he had acted to his detriment as a consequence, issues of abuse of process would arise (see R v Abu Hamza (2007) 1 Cr App R 27).  There has been no suggestion of that in this case.  I have had regard to the position at the time of the interview with Commissioner Gana, as disclosed in the documents before me; the fact that the investigation of the Nigerian authorities into the activities of the late General Abacha were very widely publicized (see the FT articles); the fact that they had identified the KAISER and SUEZE aqccounts in Switzerland; the fact that the defendant knew that the Jersey Police were undertaking a criminal investigation surrounding him and payments made to Abacha related accounts, and IMD's purchased by him using funds which represented the proceeds of crime (see DI Minty's letter of the 29^th May, 2002); the fact the defendant himself acknowledged that he was under suspicion (see his letter to Mr Sugden on 10^th June, 2002); the fact the defendant had supplied the Jersey Police with documents which included documents, some 20 files, in relation to the 1996 and 1997 contracts (see the letter to Mr Baker of 12^th June, 2002) and the fact the defendant had been questioned by the Jersey Police for some 4½ hours.  It would require clear evidence to support an allegation that in the face of all of this the defendant was lured or misled into thinking he was a witness only.  For someone in his position it would require the kind of unequivocal representation referred to in Sherif. 

23.      In his letter of 3^rd November, 2004 to Commissioner Gana the defendant responded to a request for a further meeting and asked for confirmation as to the capacity in which he was being asked to make a further statement, "Am I being requested to provide this statement as a witness or as an accused?  In order to provide me with some certainty would you please confirm whether or not I am the subject of a criminal investigation and let me know whether provisionally a further statement will bring this matter finally to a close.  I need to know so that I may objectively consider all the options available to me to resolve this matter."  Mr Kelleher says that this letter shows that the defendant was confused as to the capacity in which he had given assistance in 2002.  If he had been in doubt one might have thought that this was the opportunity to raise it, or at least to assert that the last statement had been given as a witness only.  I do not, however, find this letter written some 2 years after PG1 assists one way or the other, that the assertion that Commissioner Gana had misled or lured the defendant into making it. 

24.      In my view there is insufficient evidence to support an allegation that the defendant was lured or misled into submitting the statement PG1 and I reject it.

Was the defendant aware of the true nature of the investigation?

25.      Again Mr Kelleher relies on an absence of evidence in that there is nothing in Commissioner Gana's statement indicating that the defendant was told of the Letter of Request or that his statement would be sent to Jersey.  However, the documentation I have seen makes it abundantly clear that the defendant was well aware of the true nature of the investigation.  I repeat what I say at paragraph 22, above.  The investigation necessarily involves both Jersey where money laundering was suspected to have taken place, and Nigeria where the suspected proceeds of criminal conduct were obtained.  It is plain and obvious that any investigation would involved at least Jersey and Nigeria and that the authorities in both would be seeking to co-operate with each other.  Making the defendant aware of the true nature of the investigation is not to be equated with giving full disclosure of the operational steps being taken in that investigation.  It is self-evident that there can be no obligation on Police investigators to provide suspects with the latter.  In my judgment there was no obligation on Commissioner Gana to advise the defendant of the Letter of Request or the steps he might take with any statement provided, if he did not do so, but I have no doubt that the defendant was well aware of the true nature of the investigation, i.e. a criminal investigation into suspected criminal conduct in Nigeria the proceeds of which were suspected to have been laundered through accounts in Jersey controlled by the defendant to accounts in Switzerland suspected to be connected to the Abacha regime.

Exercise of discretion

26.      Having addressed the findings of fact I now turn to the exercise of my discretion under Article 76 of PPCE, quoting the judgment of Lord Hutton in R v Allen (2002) 1 AC at page 545:-

"When the Crown relies on an oral or written confession by the accused and puts it in evidence it does so because it considers that the confession is true.  When the courts have excluded a confession because it was involuntary having been obtained by an inducement they have done so on the ground that it was unsafe to rely on the confession as being true."

27.      In this case the Prosecution does not rely on the written statement PG1 because it is true.  The Prosecution case is that it represents a tissue of lies and is evidence of guilty knowledge.

28.      Mr Jowitt referred me to the case of R v Gill (2004) 1 WLR 469 in which special compliance officers of the Inland Revenue conducted a Hansard interview without complying with Code C.  It was held that the Code applied to such an interview but that it did not follow from the breach of the Code that the evidence had to be excluded; the Revenue were entitled to rely on the statements as lies told by the defendants which were relevant to the dishonest state of mind adopted by the defendants.  The Court of Appeal said this at paragraph 46:-

"the rationale of paragraph 10.1 of Code C is that already stated, namely to ensure that interviewees are informed of their rights, one of which is not to answer questions, and to inform them of the use which might be made of their answers in criminal proceedings.  However, it seems to us that the principal purpose of such a procedure is to ensure, as far as possible, that interviewees do not make admissions unless they wish to do so and are aware of the consequences.  We do not think that the principal purpose of the code is to prevent interviewees from telling lies.  That is not to say that lies told by a person at an interview to which Code C applies will always be admissible where there is a breach of the code.  Each case depends upon its own facts but, here, we can see no unfairness in admitting the statements as lies, provided that they were otherwise admissible and an appropriate direction was given, as was the case here."

29.      Mr Kelleher sought to distinguish Gill on the facts.  He submitted that PG1 was a mixed statement, only some of which the Prosecution rely on as being lies.  The Prosecution will presumably accept aspects of the statement as being true, namely the fact that the contract price was inflated, albeit by a high amount, and that commissions were paid, albeit that the Prosecution would describe them as bribes.  It would be unfair, argued Mr Kelleher, to allow the Prosecution to rely on the statement to prove lies when right alongside those lies is evidence or proof of truth of what is at heart alleged by the Prosecution.  In his view we were not in Gill territory.  Furthermore the Prosecution had indicated that it did not need the evidence in order to prove its case, which is a factor that I should take into account.  How will the Jurats be able to separate the damaging admissions from what the Prosecution says are lies, or are economies of the truth?  That submitted Mr Jowitt was a matter to be dealt with by way of judicial direction. 

30.      Although I accept that the factual context in Gill differs from the factual context here, I accept it as authority for the proposition that the Prosecution can seek to introduce statements to which the Code applies, as lies told by the defendant and as being relevant to the state of mind of the defendant, provided that to do so would not adversely affect the fairness of the proceedings, and provided further that the statements were otherwise admissible and appropriate directions were given.  I can see no difficulty in the Jurats separating that part of the statement which the Prosecution asserts are lies from the rest of the statement, upon which the Prosecution are not relying, properly directed.  I reject the suggestion that I should take into account the importance of this evidence to the Prosecution.  Mr Jowitt said that if he gave an indication the Prosecution did not need this evidence, it was unintended.  In any event it is up to the parties to decide what evidence they wish to adduce and the fact is that the Prosecution wish to rely on it.

31.      I would summarise the position as follow:-

(i)        The Defence does not assert that the circumstances in which the statement was obtained affects its reliability.

(ii)       I have found that a caution was given when the statement was tendered - indeed it forms part of it.

(iii)      I have further found that even if a caution should have been given at the first interview, it would not have altered the position.  That omission was not causative of the statement being tendered in that it was the clear intention of the defendant to voluntarily assist the authorities as fully as possible in Jersey and in Nigeria.

(iv)      There is insufficient evidence to support the allegation that the defendant was lured or misled into making this statement.

(v)       I have found that the defendant was aware of the true nature of the investigation.

32.      Mr Jowitt submitted, and I accept, that to exclude the statement PG1 would be to conclude that it was unfair because of a purported failure to caution the defendant at the first interview, in that either such failure caused the statement to be given or it caused the defendant to tell lies.  In truth there can be no connection between a failure to caution and a statement which is untrue.

33.      Taking all the circumstances into account I conclude that the admission of the statement PG1 would not so adversely affect the fairness of the proceedings that I ought not to admit it, and I decline therefore to exclude it pursuant to Article 76 of PPCE.  It follows that I give the Prosecution leave, pursuant to Article 64(2)(b) of PPCE to read that part of Commissioner Gana's statement of 15^th February, 2008, which will introduce PG1 into evidence, subject to editing.

Authorities

Police Procedures and Evidence (Jersey) Law 2003.

Archbold.

R v Walsh [1990] 91 Cr. App. R. 161.

Investigation of Fraud (Jersey) Law 1991.

R v Sherif and others (2008) EWCA Crim 2653.

R v Abu Hamza (2007) 1 Cr App R 27.

R v Allen (2002) 1 AC.

R v Gill (2004) 1 WLR 469.