Jersey Unreported Judgments

[2010]JRC042

ROYAL COURT

(Samedi Division)

23^rd February 2010

Before     :

M. C. St. J. Birt, Esq., Bailiff, sitting alone.

The Attorney General

-v-

Raj Arjandas Bhojwani

Application for judicial review.

Advocate H. Sharp for the Attorney General.

Advocate N. L. M. Langlois for the Applicant.

Advocate N. M. Santos Costa for the Attorney General of Nigeria.

JUDGMENT

THE BAILIFF:

1.        This is an application by Raj Arjandas Bhojwani ("the applicant") under Rule 16/2 RCR 2004 for leave to apply for judicial review in respect of a decision of the Attorney General dated 5th January, 2010.  In accordance with Rule 16/2(5), I have heard from counsel for the Attorney General as well as counsel for the applicant.  I also agreed to hear from counsel for the Attorney General of Nigeria who wishes to seek leave to intervene in the proceedings if leave is granted to the applicant.

2.        Although this is only an application for leave, it is necessary to set out the factual background in some detail in order fully to understand the arguments which have been made.  However, the essential nature of the matter at issue can be shortly stated.  The applicant is at present on trial in Jersey for various money laundering offences.  Part of the Prosecution case includes evidence obtained from Nigeria pursuant to a letter of request.  Following a decision by the Federal High Court of Nigeria that the evidence was obtained incorrectly and unlawfully under Nigerian law, the Attorney General of Nigeria has asked that the evidence be returned and not used in the Jersey proceedings.

3.        The Attorney General has refused to return the original evidence or to desist from using the evidence in the current criminal proceedings in Jersey.  The applicant has applied to Commissioner Clyde-Smith, who is presiding in the criminal trial, for a ruling that the evidence should not be admitted, alternatively that it would be an abuse of process for the evidence to be adduced.  That application has been rejected by the Commissioner.  The trial began on 26th January and in fact the evidence has now been adduced.  I was informed that the Prosecution has closed its case, the Defence case is in the course of being heard and the trial is expected to be concluded during the course of next week.

4.        The applicant now seeks to quash the decision of the Attorney General to adduce the evidence in the criminal trial and to refuse the request to the Attorney General of Nigeria for the immediate return of the evidence.

Factual background

5.        At the material time, the applicant was resident in Nigeria.  It is alleged by the Prosecution that he was party to two contracts in 1996 and 1997 negotiated with officials serving as part of the military dictatorship of General Abacha, who was at the time the de facto President of Nigeria.  These contracts were for the supply of vehicles to Nigeria and it is alleged that the contracts were at significantly inflated prices such that an illegal surplus of about US$130 million came into the applicant's bank accounts in Jersey.  It is alleged that the surplus was transferred by the applicant to bank accounts in other countries linked to the Abacha regime.  The applicant has been charged with two counts of converting the proceeds of his criminal conduct and one count of removing the proceeds of his criminal conduct, contrary to the provisions of Article 34(1)(b) of the Proceeds of Crime (Jersey) Law 1999.  Amongst other things therefore, the Prosecution must establish that the subject matter of the alleged money laundering was in fact the proceeds of the applicant's criminal conduct.

6.        The applicant was indicted in February 2007 but the matter had been under investigation for many years.  The first letter of request from the Attorney General to the Nigerian authorities was dated 17th June, 2002.  The following description of the sequence of events is taken substantially from the judgment of the Commissioner dated 9th November, 2009, as these matters do not appear to be in dispute.

7.        The first letter 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."

8.        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 applicant that was being examined.  It listed the then indicated predicate offences, the money laundering offences (with which the applicant has been charged) and other substantive offences.

9.        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.

10.      The letter of request was also sent to the Nigerian Government's English lawyers, Kingsley Napley, with a similar request.  Commissioner Clyde-Smith 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.

11.      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 applicant 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.

12.      Commissioner Gana took a statement from the applicant 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."

13.      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 other statements and documents.

14.      On 18^th January, 2006, the then Attorney General of Nigeria (Chief Bayo Ojo) executed a letter undertaking on behalf of Nigeria that, in the event of a trial taking place in Jersey against the applicant for his activities in relation to funds paid by Nigeria under two vehicles supply contracts, 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.

15.      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 applicant and following a request by the Jersey authorities under the Criminal Justice (International Co-Operation) (Jersey) Law 1999 ("the Co-Operation Law").

16.      In September 2008 the Defence (i.e. the applicant's advocates) gave the Prosecution notice that it had received an opinion from a retired judge of the Nigerian Supreme Court that the evidence gathered by Commissioner Gana had not been gathered lawfully.  The Defence also gave notice that the applicant intended to issue civil proceedings in Nigeria seeking declaratory relief on the lawfulness of the taking of evidence in Nigeria.

17.      On 15th October, 2009, the Federal High Court of Nigeria ruled that the evidence had not been obtained in accordance with Nigerian law.

18.      The applicant 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 [applicant];

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 [applicant] 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 [applicant] made the statement as a result of having been informed that the statement was a witness statement;

(b)       The [applicant] 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 [applicant] 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."

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

20.      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 [applicant] 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 [applicant] during investigation; and

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

21.      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 applicant:-

           "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 [applicant].   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 applicant, 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 applicant 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 [applicant's] issues 3 and 4 in the negative.  The statement obtained by the Special Investigating Panel from the [applicant] 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 was whether the Federal Government of Nigeria could make available to the States of Jersey on request any material evidence obtained from the applicant 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 channelled through a central authority designated by the President and published in the Federal Gazette.  Neither the Nigerian court nor the Nigerian Attorney General had 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 [applicant'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 [applicant] before the "Royal Courts of Jersey".

22.      Justice Kolawole gave the declaration sought by the applicant 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 [applicant] herein after May 29 1999 is unconstitutional and that all investigatory actions undertaken by the said Special Investigating Panel against the [applicant] 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."

23.      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 [applicant] 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)."

24.      Following receipt of this judgment, the applicant applied to Commissioner Clyde-Smith for a ruling that it would be an abuse of process for the Prosecution to rely on the Nigerian evidence and therefore that such evidence should not be admitted.  For the reasons given in his judgment dated 9th November, 2009, the Commissioner rejected that application.

25.      Since then there have been further developments.  On 19th November, 2009, the Nigerian Attorney General (by now Chief Aondoakaa, who had apparently replaced Chief Bayo Ojo) made a request for the return of the Nigerian evidence.  The text of the letter is as follows:-

"Jersey Prosecution of Raj Arjandas Bhojwani for Money Laundering

I refer to your letter of request Ref: No.: WJB/SB CRPR007-025 dated 2^nd September, 2008, and my response to same Ref: DPPA/MLAT/007/09, dated 28^th April, 2009, informing you that the request is receiving attention.  I further refer to your letter Ref: TJleC/SB CRPR007-25 dated the 13^th day of November, 2009.

2.        After a very careful scrutiny of the circumstances surrounding the case, serious controversies bordering on Functions, Powers and Duties of Public Office holders under the Constitution of the Federal republic of Nigeria, 1999 emanated from the case which led to a Judgment delivered by the Federal High Court of Nigeria.

3.        In the same vein, I hereby convey to you that the Federal Republic of Nigeria is ready to co-operate with you with a view to reviewing the evidence to determine if there are sufficient grounds to enable us to commence prosecution of the accused person (RAJ ARJANDAS BHOJWANI) in Nigeria on the generality of issues and more specifically on 'money criminally obtained from the Nigerian public purse" as observed in your letter of request.

4.        We confirm that there is an ENROLMENT OF JUDGMENT ORDERS (sic) issued under the seal of the Court and the hand of the Presiding Judge, Hon. Justice G. O. Kolawole on 15^th day of October, 2009, SUIT NO; FHC/ABJ/CS/560/2008, in the FEDERAL HIGH COURT OF NIGERIA, HOLDEN AT ABUJA, between RAJ ARJANDAS BHOJWANI (Plaintiff) AND (I) ATTORNEY-GENERAL OF THE FEDERATION; and (ii) NATIONAL SECURITY COUNCIL (Defendants) at the instance of RAJ ARJANDAS BHOJWANI wherein the Federal High Court declared:-

'that all evidence (oral and/or documentary) obtained by Deputy Commissioner of Police Peter Gana in his capacity as the Chairman of the Special Investigation Panel, for use against the Plaintiff in criminal proceeding in the States of Jersey was unlawfully obtained.'

(The copies of the Enrolment of Judgment Orders and the Judgment are hereby attached and marked as ANNEXURES 1 AND 11).

5.        Consequent of the above, I am unable to oblige your request for any Nigerian witnesses to testify at the trial in Jersey as the crux of the matter is centred on the national interest and I have a Constitutional duty to protect the judicial integrity of the Federal Republic of Nigeria given that the judgment has become of public knowledge.

6.        This is a constitutional matter and the Federal Government of Nigeria intends to vigorously pursue this matter to the Supreme Court of Nigeria for a final decision.

7.        I take this opportunity to inform you that the Federal Republic of Nigeria intends to lodge a request for mutual assistance to Jersey to assist in gathering evidence and transmitting same to Nigeria.  Therefore, all evidence gathered in Nigeria and transmitted to you by the said Special Investigation Panel should be returned to me.

8.        In the meantime, in line with the said judgment I intend to instruct the appropriate constitutionally recognised investigative authorities to investigate the activities of RAJ ARJANDAS BHOJWANI.

9.        I hereby confirm that based on the evidence that would be gathered in Nigeria by the constitutionally recognised investigative authority and any other evidence available to you that would be thus transmitted by Jersey, I would review the entire evidence obtained in view of assessing whether there is a case to answer against such persons including RAJ ARJANDAS BHOJWANI, and deciding whether it is in the Nigerian Public Interest that such a case be brought.

10       Please accept, my highest consideration and esteemed regards.

CHIEF MICHAEL KAASE AONDOAKAA, SAN

Honourable Attorney-General of the Federation and Minister of Justice." (his emphasis)

26.      On 9th December, 2009, the Attorney General wrote to the applicant's Advocates giving notice that, subject to any representations which they might make to him within 14 days, he had provisionally decided to accede to the request of the Attorney General of Nigeria that he provide him with evidence for use in his criminal investigation into the conduct of the applicant in Nigeria and that certified true copies of the evidence would be forwarded to the Nigerian authorities.

27.      On 17th December the Attorney General responded to the Attorney General of Nigeria in the following terms:-

"May I also thank you for the indication of your view that it is in the Nigerian public interest to open a criminal investigation into Mr. Bhojwani.

You will appreciate that I have also considered the public interest of Jersey and my firm view is that it is in the public interest of the Island that Mr. Bhojwani's trial here begins as soon as practicable, as I have no doubt you will readily agree.

I propose therefore to use copies of the evidence which Nigeria has provided.  This is permitted under Jersey domestic law.  Indeed, fairness requires that I should, so that the Jersey Court has before it the fullest possible evidence in reaching its verdicts.

I consider it of the greatest importance to Jersey that such allegations should be tried since, if proved, they amount to serious offences involving grave abuse of Jersey's banking system to conceal the proceeds of corruption, and this is to the detriment of the integrity of the Island's banking system.

Subject to considering any representations received from Mr. Bhojwani's lawyers in Jersey, as a matter of courtesy, I would propose to provide you with authenticated copies of the material Nigeria has supplied to Jersey to assist you in your investigation.  As you will have realised in deciding to open an investigation into the affairs of Mr. Bhojwani, the originals of these documents are, for the most part, directly available to you from the archives of NECON/INEX, the Nigerian Ministry of Defence and the Central Bank of Nigeria."

28.      In a lengthy letter dated 23rd December 2009 to the Attorney General, the applicant's Advocates contended that the Attorney General had misconstrued the letter of 19th November from the Nigerian Attorney General and that he must, before proceeding, seek verification of the Nigerian Attorney General's position.  In particular, it was contended that, by necessary implication, the Nigerian Attorney General's position was that the Nigerian evidence should not be used in the Jersey proceedings.  Also they submitted that the letter was not simply seeking copies of the Nigerian evidence, it was seeking the return of the original evidence.

29.      On 29th December, 2009, Ambassador Chike Alex Anigbo, Permanent Secretary (Political Affairs) in the Office of the Secretary to the Government of Nigeria wrote to the British High Commissioner in Abuja following a complaint it had received from one of the applicant's Nigerian companies.  The letter details the importance of the commercial activities of the applicant's companies to Nigeria, which apparently employ some 300 people and the detrimental effect upon those businesses caused by the Jersey proceedings.  Having asserted twice in the letter that neither the applicant nor any of his corporate entities had ever been investigated for any offences in Nigeria by any constitutionally recognised investigative or law enforcement agency in connection with the two contracts which are the subject of the Jersey proceedings, the letter went on to say this:-

"It is the position of the Nigerian authorities, including the Attorney General, that the evidence provided to Jersey in clear breach of Nigerian law cannot, in these circumstances, be introduced or otherwise relied upon by the courts of Jersey.  Recognising that the United Kingdom has international responsibility for the acts of the public authorities of Jersey, including the acts of its courts, it is further the position of Nigeria that reliance in any way on such evidence by the courts of Jersey would give rise to a violation of the United Kingdom's international obligations to respect in full the sovereignty of Nigeria, as well as obligations owed by the United Kingdom to Nigeria under treaty and general international law.

I am therefore writing to you to request that you take the necessary steps to bring to the attention of the prosecuting authorities of Jersey and the courts of Jersey the concerns of the Federal Republic of Nigeria and to assist in ensuring that the courts of Jersey avoid taking any actions that might give rise to a violation of the United Kingdom's international obligations.  In the first instance, I would invite you to make representations to the courts of Jersey, in accordance with the required formalities, to refrain from authorising the illegal evidence referred to above from being introduced into these proceedings or allowing any reliance to be placed upon such evidence, pending the resolution of this matter."

30.      A copy of that letter was apparently received by the Nigerian counsel to the applicant the next day.

31.      On 4th January, 2010, the applicant's Advocates wrote to the Foreign Secretary, the Right Honourable David Milliband MP, drawing his attention to the above letter dated 29th December and making the following request:-

"We are, accordingly, writing to you to request that you take appropriate steps to bring to the attention of Jersey's Attorney General the significance of the issues raised by the Federal Republic of Nigeria and your concern to ensure that nothing is done which might give rise to a violation of the United Kingdom's international obligations.  In the first instance, we would invite you to make representation to Jersey's Attorney General, in accordance with the required formalities, seeking his confirmation that the relevant evidence will not be relied upon by him for the purpose of the Jersey proceedings, pending resolution of the underlying issues."

32.      On 5th January, 2010, the Attorney General wrote to the applicant's Advocates declining to proceed in the manner suggested by them in their letter of 29th December.  As this is the decision which it is sought to judicially review,  I think it appropriate to set out the entire letter:-

"Dear Advocate Sugden

Attorney General-v-Bhojwani

1. I refer to your letter dated 23rd December, 2009, and the accompanying bundle of documents which I have considered.

The Evidence

2. The evidence gathered in Nigeria and transmitted to Jersey by the SIP falls, so I am advised, into three categories:-

(a) copies of pre-existing documents which form the records of the Central Bank of Nigeria, the Nigerian Ministry of Defence and the Independent National Electoral Commission ('INEC');

(b) copies of a witness statement taken by Commissioner Gana from Mr. Marwa and an original witness statement taken by Commissioner Gana from Colonel Bako;

(c) an original statement which it is accepted by Mr. Bhojwani was typed by Mr. Bhojwani and given to Commissioner Gana by him along with copies of pre-existing documents.

3. The Jersey witness statements of Mr. Bako and Mr. Gana are not covered by the Nigerian Attorney General's letter as they are not evidence gathered in Nigeria and transmitted to Jersey.

Your letter dated 23rd December, 2009

4.  You invite me not to accede to the Nigerian request in the manner I have foreshadowed but invite me to do the following (paragraph 37 of your letter):

(a) Write to the Nigerian Attorney General asking him to confirm that "...it is his intention and request that such evidence not be used in a Jersey prosecution of Mr. Bhojwani";

(b) Write to the Nigerian Attorney General asking:-

(i) for an estimate of the timetable for any appeal against the declaration obtained by your client and, for him to proceed with that appeal as soon as practicable; and

(ii) for an estimate of the likely date on which he will make a request for assistance from Jersey.

(c) 'In the light of the findings of the Nigerian court' decide not to use the evidence in the Jersey trial of Mr. Bhojwani unless and until the Nigerian Supreme Court finds against Mr. Bhojwani in the declaration proceedings in Nigeria;

(d) In considering any request for mutual legal assistance from Nigeria have proper regard to "fundamental fairness and the proposition that Mr. Bhojwani should not face prosecution on materially the same facts in both Jersey and "

My Decision

(5) I have considered your letter carefully and I have decided to do what I originally proposed, that is to say to send certified copies of the evidence to Nigeria.  Further, I have decided not to do any of the things you invite me to do in paragraph 37 of your letter.

My Reasons

(6) After due consideration I do not agree with the construction which you are seeking to place on the letter from the Nigerian Attorney General's letter (sic) is the correct one.  It seems to me that the Nigerian Attorney General is saying that the Nigerian Authorities wish to investigate your client and wish to consider all the available evidence with a view to deciding whether to prosecute him in Nigeria.

(7) If the Nigerian Attorney General's letter were to have the meaning for which you argue I would expect it to set out that position in clear terms and give reasons for taking that position.  Such a stance by a Law Officer of another Commonwealth State would be surprising as one would expect him or her to leave decisions as to the use of evidence in the Jersey courts to me and to the Royal Court.

(8) My proposed response gives the Nigerian Authorities the material they require to carry out the above task:-

(a) In relation to the evidence set out at paragraph 2(a) above, there can be no objection to providing copies as I understand that the documents provided by Nigeria are themselves copies and any original documents will be available to the Nigerian investigators from the relevant Nigerian public body.

(b) In relation to the evidence set out at paragraph 2(b) there can be no objection to my providing a copy of Mr. Marwa's statement as I understand that the version received by Jersey was a copy.  As to Mr. Bako's statement, its content will be clear from the copy.

(c) In relation to the evidence set out at paragraph 2(c), the content of the documents will be clear from the copies. Insofar as your client has a legitimate interest in the Nigerian Authorities having an original version of that evidence, it is within his power to provide it.

9. In any event, even were the Nigerian Attorney General's letter to bear the construction which you seek to place on it, my decision would be the same, for at least the following reasons:-

(a) The Nigerian declaration of illegality has already been considered by the Royal Court and the evidence ruled to be admissible notwithstanding that declaration.  It follows that there is no Jersey legal bar to the use of that evidence.

(b) The Indictment which your client faces alleges serious acts of money laundering which occurred in Jersey.  It is my view that it is in the Jersey public interest that the prosecution for that conduct proceed using the evidence that the Royal Court has declared to be admissible.

(c) International relations between Jersey's Attorney General and the Nigerian Attorney General is not, it seems to me, a matter for the Defence in a criminal case or indeed the Court seized of that case.

The steps you invite me to take

10. In relation to the request I set out at paragraph 4(a), above, I refer to paragraphs 7 to 10, above. 

11. In relation to the request I set out at paragraph 4(b)(i), above, it does not seem to me to be likely that the Nigerian Supreme Court would hear this matter before Mr. Bhojwani's Jersey trial.  It follows that such a letter would serve no purpose.  If I am wrong about the likely timetable, your client, as the respondent to the appeal, is best placed to provide evidence that that is the case and I invite you to provide any such evidence.

12. In relation to the request I set out at paragraph 4(b)(ii), above, it is a matter for the Nigerian Authorities as to whether and when to make a request to Jersey.  If and when such a request is received it will be considered in the usual way.  An incoming request from Nigeria would not have any impact on Mr. Bhojwani's Jersey trial.

13. In relation to the request I set out at paragraph 4(c), above, the Royal Court has rejected the abuse of process argument you based on the Nigerian judgment and I understand that you have conceded that the illegality identified by the Nigerian Judge could not found an argument to exclude the evidence:-see paragraphs 27 and 29 to 31 of your skeleton argument in the abuse of process application.  It follows that I have no reason to await the outcome of the Nigerian proceedings.  In any event, you currently have a declaration of illegality from a Nigerian court.  If the Nigerian Attorney General's appeal were to be successful you would no longer have such a judgment.  It follows, it seems to me, that your client's position may well be weakened by any delay to await the outcome of the proceedings.

14. In relation to the request I set out at paragraph 4(d), above. I will consider any request for mutual legal assistance from Nigeria on its merits, if and when such a letter arrives.

Other matters arising from your letter

15. As to paragraphs 26 to 28, the covering letter addressed to the Bailiff is written on the letterhead of the Nigerian Director of Public Prosecutions and signed by a Senior State Counsel for the Attorney General.

It is unclear why the covering letter refers to the Court's letter, however there is nothing in the Attorney General's letter which refers to Colonel Marwa.  In addition, you have not given a clear reason why, if the letter is intended to refer to the request to take evidence from Colonel Marwa, that should lead me to change my view as to my response to the Nigerian Attorney General's request.

16. As to paragraph 33c, I do not think that this contention can survive in the face of the clear words of the Nigerian Attorney General's letter.  The Nigerian Attorney General says that once evidence has been gathered in Nigeria and "any other evidence available to you that would be thus transmitted by Jersey" has also been gathered, he will review the evidence and apply the evidential and public interest tests.  It follows that the Nigerian Authorities are still a long way from assessing either test.

17. As there is nothing in your letter to suggest that you object to sending copies of the evidence as such, I propose to do so without further notice."

33.      The same day the applicant's Advocates wrote to the Nigerian Attorney General seeking clarification as to his position.  The Jersey Attorney General had earlier indicated that he had no objection to such a letter being written.  On 8th January, the Nigerian Attorney General responded declining to give further clarification of his letter of 19th November, 2009.

34.      In light of these developments since the judgment of 9th November, the applicant applied again to the Commissioner for a ruling that the Nigerian evidence should not be admitted and/or that its use at trial would constitute an abuse of process.  The hearing took place on 21st January and judgment was reserved.

35.      On 22nd January the Jersey Attorney General received a further letter from the Nigerian Attorney General as follows:-

 "RE; JERSEY PROSECUTION OF RAJ ARJANDAS BHOJWANI FOR MONEY LAUNDERING.

I refer to your letter of 17th December, 2009, Reference No. TJLeC/SB CRPR 007-025.

2.        By my letter of 19th November, 2009, I forwarded to you a copy of a Judgment of the Federal High Court, Abuja, Nigeria declaring null and void all evidence previously gathered in this case and forwarded to you by Special Investigation Panel (SIP) which the Court also declared an illegal body.  Unequivocally, the Nigerian Federal High Court has prohibited the use of the evidence so illegally and unconstitutionally obtained by the Jersey authorities from Nigeria.

3.        The judgment of the Federal High Court is clear and unambiguous and that all authorities in Nigeria are bound by it as provided by section 287(3) of the Constitution of the Federal Republic of Nigeria which states thus:-

"The decisions of the Federal High Court, a High Court and all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other courts of law with sunordinate (sic) jurisdiction to that of the Federal High Court, a High Court and those other courts, respectively" Underlining mine.

4.        Indeed, under our own municipal law, that is section 132(1) of the Evidence Act, Cap. E14 Laws of the Federation of Nigeria, 2004 which provides:-

"When any judgment of any court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or seconfary (sic) evidence of its contents.  In cases in which secondary evidence is admissible under the provisions hereinbefore contained; nor may the contents of any such document be contradicted, altered, added to or varied (sic) by oral evidence..."  Underlining mine.

So that whenever a judgment of a court is delivered and embodied in an enrolled order, no one can modify, vary or add to it, either by documentary or oral evidence.

5.        As a result, I requested for the return to me of all the evidence forwarded to you by Special Investigation Panel (SIP) as I could not consent to the use of same in a foreign jurisdiction as that will be a violation of the Court order and consequently undermining Nigeria's territorial integrity which I stand to protect.

6.        We trust that you will respect the judgment of the Nigeria Court as to do otherwise will constitute an affront to Nigeria's sovereignty, complete disregard for vital institution of State and existing State practice and obligations agreed under the Harare Scheme.

7.        Consequent upon the said judgment nullifying all steps taken by Special Investigation Panel (SIP) and declaring the body unconstitutional, I immediately directed the appropriate Law Enforcement Agencies to investigate the matter afresh to enable me reach a determination whether to file charges against RAJ Arjandas Bhojwani in Nigeria.  I have reviewed the preliminary evidence so far gathered and have reached a decision to prosecute RAJ Arjandas Bhojwani in Nigeria for the principal offence of corruption.

8.        Respectfully, you will agree with me that Article 21 of the United Nations Convention against Transnational Organised Crime (The Palermo Convention) and Article 36 of the FATF 40 recommendations makes it certain and clear beyond argument that where criminality involves two nations, the nation most proximate to the offence should prosecute, while the other nation should transfer all persons, assets and evidence to the prosecuting State.  The Principal offence of corruption was committed in Nigeria and the funds in issue are public funds of Nigeria.

9.        It is in line with the above international practice that I would expect your assistance and co-operation in transferring RAJ Arjandas Bhojwani  to Nigeria to face his trial.  We also expect that you will take steps to transfer all proceeds of his crime to Nigeria.

10.      Please, note that any trial in Jersey of RAJ Arjandas Bhojwani will frustrate the trial in Nigeria for the principal offence of corruption in view of our constitutional guarantee against double jeopardy.  The plea of autre fois acquit or autre fois convict will avail him.

11.      We would respect our obligation in respect of expenses incurred by the Government of Jersey.

12.      Please, accept the assurances of my highest regard and personal esteem.

CHIEF MICHAEL KAASE AONDOAKAA, SAN

Honourable Attorney-General of the Federation and Minister of Justice" (his emphasis)

36.      As can be seen this contains an important new piece of information, namely, that as set out in paragraph 7 of the letter, the Attorney General had decided to prosecute the applicant in Nigeria for an offence of corruption.  A copy of that letter was also received by the Defence.  Following receipt of the letter, the Prosecution applied to the Commissioner for an adjournment of the start of the trial, (then fixed for 25th January) of 24 hours for the purpose of allowing the Attorney General the opportunity to consider the further letter from Nigeria's Attorney General.  The Commissioner granted the application and further indicated that he would defer ruling on the Defence application made on 21st January so that he could hear from the Prosecution on 26th January as to the Attorney General's position.

37.      By letter dated 25th January, 2010, the Jersey Attorney General wrote to the Nigerian Attorney General refusing to accede to his request.  Again, because it is critical to the submissions made by the applicant, I set out the whole letter below:-

"Dear Attorney General,

Re: Request for Mutual Legal Assistance: Raj Arjandas Bhojwani

Thank you for your letter of 22^nd January, 2009.  In the light of its content I have considered again the issues that you have raised.

I understand in the light of the legal position in Nigeria that you have explained in your letter, why you have written in the terms that you have and that you, as an authority in Nigeria, are bound by the terms of the judgment of the Federal High Court. 

Naturally, of course, matters of legality in Nigeria do not by themselves dispose of the question from the point of view of the admissibility of the evidence in question in Jersey although I understand your request and the reasons for it.

Just as you must pay regard to the public interest and sovereignty of Nigeria, so I must consider what is in the Jersey public interest.  In particular I have to view the issues against the background that I am satisfied on advice that there is a more than sufficient case against Mr. Bhojwani under Jersey law and that, after years of investigation and preparation, the trial is due to commence this week.  Equally I must also note that a court in Jersey has rejected the submission that in any way the Prosecution in Jersey has behaved improperly in sending letters of request to Nigeria.  Whatever occurred in Nigeria was a situation created by the then Nigerian authorities in apparently failing to carry out proper procedures.

I have of course taken into account the decision you have made to prosecute Mr. Bhojwani in Nigeria for corruption and your request to transfer him, and the proceeds of the crimes alleged against him to Nigeria.  I have also considered the other matters raised in your letter, in particular the Palermo Convention and the Harare Scheme.

Jersey has not yet signed up to the Palermo Convention, but will I understand do so in the near future.  However the principles set out in the Convention have I understand, historically, without being legally binding, been taken into account in Jersey.

Article 4 (1) of the Convention provides that "State Parties" should carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States.  Consequently it seems to me that Jersey's wishes in this matter are entitled to equal weight with those of Nigeria and it would not be appropriate for Jersey to seek to interfere in Nigerian internal matters and, of course, vice versa.

Article 21, on which reliance is placed, states that:-

"States Parties shall consider the possibility of transferring to one another proceedings for the prosecution of an offence covered by this Convention in cases where such transfer is considered to be in the interests of the proper administration of justice, in particular where several jurisdictions are involved."

I am advised that the issue of jurisdiction and venue was considered by your predecessors, who consistently indicated that they supported a prosecution in Jersey, as is evidenced by the consent to use the material in a Jersey prosecution.  Having reflected on it I take the view that it is not in the interests of the proper administration of justice for the proceedings to be transferred to Nigeria.  The trial is listed for this week; witnesses have been warned, the events which will be the focus of the trial occurred principally between 1996 and 2001.  In addition, I have no power to transfer Mr. Bhojwani and the alleged proceeds of his crimes to Nigeria.  Transfer would, in my view, inevitably lead to further delay.

The position is similar with the Harare Scheme.  Whilst under both Conventions a State is entitled under certain circumstances to refuse to grant assistance, the fact is that your predecessors did assist and provided the material to Jersey. I note that under the Harare Scheme, under Article 21(2), the recommendation for the model scheme of legislation included this provision:-

" (2)    where any document, record or property is transmitted to the requesting country in compliance with a request under this scheme, it shall be returned to the requested country when it is no longer required in connection with the criminal matter specified in the request unless the country has indicated that its return is not desired".

There is no provision for the material supplied to be returned forthwith at the request of the requested State.

As to Article 36 of the FATF 40 recommendations, it seems to me that it is in the interests of justice, as stated before, that the trial takes place in Jersey without further delay.

In the event that Mr. Bhojwani is convicted in Jersey and the assets that represent the proceeds of his crime are lawfully confiscated then I will of course consider the possibility of a legal agreement to share assets.  You will be aware that Jersey has co-operated with Nigeria in that respect in the recent past. 

I should also point out so that my position is clear that I do not accept that it is a breach of Nigeria's sovereignty for Mr. Bhojwani to be tried in Jersey under Jersey law for offences that fall within Jersey's criminal jurisdiction.  In this regard I further cannot accept the contents of the letter from the Permanent Secretary (Political Affairs) Office of the Secretary to the Government of the Federation dated 29^th December, 2009.  It is, with respect, wrong for him to describe a prosecution that I and my predecessor have overseen as having been conducted in a 'vindictive and unlawful manner'.  I do not propose to discuss that letter further save to reiterate that I cannot accept its characterisation of the Jersey proceedings which I can only assume were written under a misunderstanding of the correct position.  Had the position been properly understood, I cannot think that the letter would have been expressed in such terms.

As to the use of the material sent under the letter of request, I have referred your letter to the Royal Court in Jersey so that it may be considered and Mr. Bhojwani's defence team may make appropriate submissions to the court that under Jersey law it should not be admitted.

I will, as I have offered previously, be pleased to return notarised copies of the evidence to you to enable your own investigations to proceed in the interim and I will of course consider most carefully any request for mutual legal assistance if made.

I regret, however, for the reasons that I have set out, I cannot accede to your current request.

Please, equally, accept the assurances of my continuing regard and personal esteem."

38.      On 26th January the Prosecution confirmed to Commissioner Clyde-Smith that the Attorney General's position had not changed following receipt of the further letter from the Nigerian Attorney General and that he intended to proceed with the Prosecution relying, subject to the Commissioner's ruling on the Defence application, on the evidence obtained from Nigeria.  The Commissioner was provided with a copy of the Attorney General's letter of 25th January.

39.      .The Commissioner refused the application to exclude the Nigerian evidence and also ruled that it would not be an abuse of process for the Attorney General to adduce the Nigerian evidence.  He announced his decision on 26th January and his reasons were released on the morning of the application for leave before me. 

40.      Since then the trial has proceeded.  As mentioned earlier, the Prosecution case has been completed and the Court is apparently now hearing the Defence case.  The Nigerian evidence has been adduced as part of the Prosecution case.  The trial is expected to finish during the course of next week.

41.      The only development since the Commissioner's decision on 26th January is that on 10th February the Foreign and Commonwealth Office (FCO) responded to the Defence Advocates' letter of 4th January.  The three relevant paragraphs of the letter from the FCO read as follows:-

"You have requested that the Foreign Secretary "take appropriate steps to bring to the attention of Jersey's Attorney General the significance of the issues raised by the Federal Republic of Nigeria and [the Foreign Secretary's concern] to ensure that nothing is done which might give rise to a violation of the United Kingdom's international obligations."

We do not consider that there is any question of the United Kingdom being in violation of its obligations in this matter, and therefore see no need for any action on the part of the Foreign Secretary.

As you know, Jersey is not part of the United Kingdom, and is a self-governing dependency of the Crown, with its own democratically elected Parliament and its own legal system and courts of law.  The question of admissibility of the evidence to which you refer is entirely a matter for the Jersey Court, which we understand has already ruled that it is admissible.

There is no basis for any intervention by the Foreign Secretary in these proceedings." 

As can be seen therefore, the FCO does not consider that there is any question of the United Kingdom being in violation of its international obligations as a result of the decision of the Jersey Attorney General.

42.      Advocate Langlois asked me to review the correspondence in detail before coming to a decision.  I have done that and I have thought it useful to set it out at some length in this judgment.  Nevertheless, one can perhaps summarise the position extremely briefly as follows:-

(i)        The original request for assistance in 2002 was made under the Co-Operation Law and was sent via the duly appointed attorney of the Attorney General of Nigeria.  The evidence in Nigeria was however obtained by the Deputy Commissioner of Police (Commissioner Gana) as Head of the Special Investigation Panel in the office of the National Security Adviser, who was a member of National Security Council.  There is evidence that his actions were authorised by the President of Nigeria.  Furthermore, although the Court has not been shown any document indicating that the then Attorney General of Nigeria authorised the gathering of the evidence, it is clear that it must have been done with his knowledge and approval because he wrote on 18th January, 2006, undertaking that, in the event of a trial taking place in Jersey against the applicant in relation to the particular matters in question, Nigeria would use its best endeavours to ensure the necessary witnesses would attend the trial.

(ii)       It has since been held by the Federal High Court of Nigeria that the evidence was gathered unlawfully as the Special Investigation Panel and the National Security Adviser did not have the constitutional power to do what they had done.  Furthermore, the judge noted that no "central authority" or "competent authority" had been designated by the President under the Mutual Assistance in Criminal Matters within the Commonwealth (Enactment and Enforcement) Act 2004.  This would seem by implication to suggest that it is simply not possible to obtain assistance in criminal matters from Nigeria until such a central authority or competent authority is designated.

(iii)      Following the decision of the Federal High Court, the Attorney General of Nigeria has asked for the evidence to be returned and for it not to be used in the trial of the applicant in Jersey.  This request has been rejected by the Attorney General save that he has agreed to provide copies of all the evidence.

(iv)      It appears that no investigation of the applicant has taken place by any constitutionally recognised authorities in Nigeria until very recently.  Thus, in his letter of 19th November, the Attorney General of Nigeria said that he intended to instruct the appropriately constitutionally recognised investment authorities to investigate the activities of the applicant, thereby clearly implying that none had taken place so far.  In the letter from the Office of the Secretary to the Government dated 29th December, 2009, to the British High Commission, it was stated on two occasions that neither the applicant nor any of his companies had ever been investigated by any constitutionally recognised investigative agency of Nigeria in connection with the matters which are the subject of the trial in Jersey.  However, in his letter of 22nd January, 2010, some 3 weeks later, the Attorney General of Nigeria was able to say that he had reviewed the preliminary evidence gathered by the appropriate law enforcement agencies and had reached a decision to prosecute the applicant in Nigeria for the offence of corruption.

Discussion

43.      The applicant seeks an order quashing the Attorney General's decision to adduce and rely upon the Nigerian evidence in the Jersey trial and not to return the evidence to the Nigerian authorities.  The application originally sought an order requiring the Attorney General to return the evidence to Nigeria and not to rely upon it in any Jersey proceedings but Advocate Langlois accepted at the outset of her oral submissions that such an order was not appropriate in judicial review proceedings.  The appropriate order, if she were successful, would be to quash the decision and return the matter to the decision maker for reconsideration.

44.      Advocate Langlois put forward two grounds in support of the application.  First, she submitted that the Attorney General did not have the power to decide how Jersey should respond to Nigeria's request and accordingly his decision was ultra vires.  The decision should have been taken by the Chief Minister who was the person in Jersey with responsibility for external relations.

45.      Secondly, she submitted that, even if the Attorney General was the correct person to have taken the decision, he failed to take into account a material consideration, in that he failed to take account of the fact that a refusal to accede to Nigeria's request would constitute a breach of international law and would also be a breach of the principles of comity, which governs relations between countries.  She placed reliance in particular on the decision of the Criminal Division of the English Court of Appeal in R-v-CII and others [2008] EWCA Crim 3062.  The decision of the Attorney General should therefore be quashed on that ground.  She accepted that, if upon a reconsideration, the Attorney General (or Chief Minister as she submitted) took proper account of the principles of international law and comity, it would be open to him to reach the same decision.

46.      In response, Advocate Sharp put forward three main arguments.  First, he argued that judicial review was a discretionary remedy and leave should be refused where there is an alternative remedy.  There was such a remedy in this case through the process of the criminal trial and any appeal.  Secondly, he submitted that the applicant was inviting the Court to consider sensitive and delicate matters of international relations and comity, which was not an area where the Courts were willing to go.  Thirdly, he submitted that the two grounds put forward by the applicant did not raise an arguable case sufficient to cross the threshold for granting leave.

47.      I propose to deal first with Mr Sharp's submission concerning an alternative remedy as this will determine the matter if successful.

48.      He referred first to R-v-Director of Public Prosecutions ex parte Kebilene & Others [2000] 2 AC 326.  In that case the defendant sought judicial review of the decision of the DPP to consent to the Prosecution of the defendant under the Prevention of Terrorism (Temporary Provisions) Act 1989.  The House of Lords had to consider the provisions of section 29(3) of the Supreme Court Act 1981, which provides that there is no power in the High Court to judicially review decisions of the Crown Court "in matters relating to trial on indictment".  The House of Lords held that it was not permissible to seek to circumvent that provision or the general common law principle which it represented by seeking to judicially review the decision of the prosecutor rather than the decision of the Crown Court.  I would mention two particular passages.  Lord Steyn at 369 H said:-

"The starting point must be the analogical force of the statute which excludes the High Court's power to review decisions of the Crown Court.  Thus section 29(3) would prohibit an application for judicial review of the decision of the Crown Court judge refusing to hold a prosecution to be an abuse of process by reason of an alleged breach of the Convention.  It would be curious if the same issue could be raised in the Divisional Court by means of a challenge to the decision of the prosecutor to proceed with the prosecutions.  The policy underlying the statute would be severely undermined if it could be outflanked by framing the case as a challenge to the prosecutor's decision to enforce the law rather than as a challenge to the decision of the Crown Court judge to apply the law."

Lord Hobhouse of Woodborough said this at 394B:-

"The Divisional Court avoided this conclusion by saying that it was the Director's decision which it was sought to review not that of the Crown Court judge.  My Lords, this reasoning places a gloss on the subsection.  If the substance of what is sought to review is the answer to some issue between the prosecution and the defence arising during a trial on indictment, that issue may not be made the subject of judicial review proceedings.  The issue is within the jurisdiction of the Crown Court judge and (subject to appeal) it is for him to decide it.  It does not provide a basis for reviewing the decision of the litigator when one is precluded from reviewing the decision of the court.  Suppose that the Crown Court judge had accepted the submission of the prosecution on compatibility:-would it be suggested that the defendants could go to the Divisional Court on the basis that the Director had taken a wrong view of the law and so obtain a reversal of the judge's decision?  In my judgement, it is not correct either as a matter of the construction of section 29(3) or as a matter of principle to use the device of purporting to review the conduct of the Director to obtain the relitigation in the Divisional Court of an issue in the criminal trial."

49.      The principle described above has been authoritatively endorsed by the Judicial Committee of the Privy Council in the case of Sharma-v-Brown-Antoine [2007] 1 WLR 780.  In that case the Chief Justice of Trinidad and Tobago sought leave to judicially review the decision of the DPP to prosecute him for attempting to pervert the course of justice on the grounds that the DPP's decision had been influenced by political pressure from the Prime Minister and the Attorney General.  The Privy Council held that he should not have been granted leave to apply for judicial review because the matters in issue could be adequately dealt with in the criminal process.  The head note reads:-

"That although a decision to prosecute was in principle susceptible to judicial review on the ground of interference with a prosecutor's independent judgement, such relief would in practice be granted extremely rarely; that in considering whether to grant leave for judicial review, the court had to be satisfied not only that the claim had a realistic prospect of success, but also that the complaint could not adequately be resolved within the criminal process itself, either at the trial or by way of an application to stay the criminal proceedings as an abuse of process.  That since, in the circumstances, all the issues would best be investigated and resolved in a single set of criminal proceedings, permission for judicial review ought not to have been granted and had rightly been set aside."

50.      Lord Bingham and Lord Walker, in a joint judgment, set out a number of governing principles at 786H onwards.  On this aspect their judgment was agreed with by the other three members of the Board.  It is worth setting out some extracts from paragraph 14 beginning at 787E :-

(4) The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy...  It is not enough that a case is potentially arguable: an applicant cannot plead potential arguability to 'justify the grant of leave to issue proceedings upon a speculative basis which it is hoped the interlocutory processes of the court may strengthen'... (emphasis added).

(5) It is well established that a decision to prosecute is ordinarily susceptible to judicial review, and surrender of what should be an independent prosecutorial discretion to political instruction (or, the Board would add, persuasion or pressure) is a recognised ground of review:-Matalulu at pp 735 - 736; Mohit-v-Director of Public Prosecutions of Mauritius [2006 1 WLR 3343 paras 17, 21.  It is also well established that judicial review of a prosecutorial decision, although available in principle, is a highly exceptional remedy.  The language of the cases shows a uniform approach: 'rare in the extreme' (R-v-Inland Revenue Comrs, Ex p Mead [1993] 1 All ER 772, 782); 'sparingly exercised' (R-v-Director of Public Prosecutions, Ex p C [1995] 1 Cr App R 136, 140); 'very hesitant' (Kostuch-v-Attorney General of Alberta [1995] 128 DLR (4th) 440, 449); 'very rare indeed' (R (Pepushi)-v-Crown Prosecution Service [2004] Imm AR 549, para 49); 'very rarely': R (Bermingham)-v-Director of the Serious Fraud Office [2007] 2 WLR 635 para 63.  In R-v-Director of Public Prosecutions Ex p Kebilene [2000} 2 AC 326, 371, Lord Steyn said:-

'My Lords, I would rule that absent dishonesty or mala fides or an exceptional circumstances, the decision of the Director to consent to the prosecution of the applicants is not amenable to judicial review.'

With that ruling, other members of the House expressly or generally agreed, at pp 362, 372,376.  The Board is not aware of any English case in which leave to challenge a decision to prosecute has been granted.  Decisions have been successfully challenged where the decision is not to prosecute (see Mohit [2006] 1 WLR 3343, para 18): in such a case the aggrieved person cannot raise his or her complaint in the criminal trial or on appeal, and judicial review affords the only possible remedy: see R (Pretty)-v-Director of Public Prosecutions (Secretary of State for the Home Department intervening) [2002] 1 AC 800, para 67, and Matalulu [2003] 4 LRC 712,736.  In Wayte-v-United States (1995) 470 US 598, 607, Powell J described the decision to prosecute as 'particularly ill-suited to judicial review'.  The courts have given a number of reasons for their extreme reluctance to disturb decisions to prosecute by way of judicial review.  They include:-

'the great width of the DPP's discretion and the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits' (Matalulu [2003] 4 LRC 712, 735, cited in Mohit [2006] 1 WLR 3343, para 17);

'the wide range of factors relating to available evidence, the public interest and perhaps other matters which [the prosecutor] may properly take into account' (counsel's argument in Mohit at para 18, accepting that the threshold of a successful challenge is a 'high one');

the delay inevitably caused to the criminal trial if it proceeds (Kebilene [2000] 2 AC 326, 371; Pretty [2002] 1 AC 800, para 77;

'the desirability of all challenges taking place in the criminal trial or on appeal'; Kebilene, at p 371; and see Pepushi [2004] Imm AR 549, para 49.  In addition to the safeguards afforded to the defendant in a criminal trial, the court has a well established power to restrain proceedings which are an abuse of its process, even where such abuse does not compromise the fairness of the trial itself:  R-v- Horseferry Road Magistrates' Court Ex p Bennett [1994] 1 AC 42.  But, as Lord Lane CJ pointed out with reference to abuse applications in Attorney General's Reference (No 1 of 1990) [1992] QB 630,642:

'We would like to add to that statement of principle by stressing a point which is sometimes overlooked, namely that the trial process itself is equipped to deal with the bulk of complaints which have in recent Divisional Court cases founded applications for a stay.'

The blurring of the executive function of the prosecutor and the judicial function of the court, and of the distinctive roles of the criminal and the civil courts: R-v-Humphrys [1977] AC 1, 24, 26, 46, 53, Imperial Tobacco Ltd-v-Attorney General [1981] AC 718, 733, 742, R-v-Power [1994] 1 SCR 601, 621 - 623, Kostuch 128 DLR (4th) 440, 449 - 450 and Pretty [2002] 1 AC 800, para 121."

51.      The observations of Lord Bingham and Lord Walker in Sharma have been followed by the Jersey Court of Appeal in Trant-v-Attorney General [2007] JCA 073 where Beloff JA said this at para 53:-

"In any event for us to make a pre-emptive ruling of the kind sought would involve a trespass contrary to well-established principle across the boundary which lies between the rôles of civil and criminal courts.  The criminal courts should be permitted to control their own proceedings (see Imperial Tobacco-v-Attorney General [1981] AC 718 at 733, 742; Sharma-v-Brown-Antoine at para 14(v)."

52.      In my judgment, the principles described by the Privy Council must be equally applicable to a decision on the part of a prosecutor to seek to adduce and rely on evidence even where that evidence has been obtained unlawfully.  The criminal court has ample power to control the matter either by refusing to admit the evidence or by finding that there has been an abuse of process.  All the arguments supporting the principle that the court will not judicially review a decision to prosecute are equally applicable in relation to a decision of a prosecutor to adduce evidence.

53.      Advocate Sharp submitted that the applicant's complaint had been dealt with fully in the criminal proceedings.  The application for judicial review is in effect a re-run of the arguments put to Commissioner Clyde-Smith in the hope of achieving a different outcome.  If the applicant were to be convicted, he would be able to make all the points raised in the present proceedings before the Court of Appeal on an appeal against conviction.

54.      Advocate Langlois, on the other hand, argued that the applicant is seeking something very different.  She accepted that the Sharma principle would prevent judicial review of a decision of a prosecutor to adduce evidence which was available to him.  But, she submitted, the position was very different where the issue was whether the evidence should ever have been available to him in the first place.  If Nigeria had refused the request, the evidence would not have been available to the Attorney General and he could not have adduced it.  The present position was similar.  If it was correct that he should have returned the evidence upon Nigeria's request, the evidence would no longer have been available to him.  He would not therefore have been able to choose whether to seek to adduce it.

55.      During the course of the hearing, I pressed Advocate Langlois on the underlying purpose behind the application for judicial review.  What benefit would it be to the applicant?  She accepted that the objective was to strengthen any possible appeal in the event of a conviction.  If there were a decision from the civil court to the effect that the Attorney General's decision was wrong in law and had been quashed, this would strengthen the applicant's hand on any appeal against conviction.

56.      I have no doubt that Advocate Sharp's arguments are correct.  The applicant has run the arguments before Commissioner Clyde-Smith but has lost and the evidence has in fact now been admitted.  The trial is shortly to conclude.  If the applicant is acquitted, the issue will become moot so far as he is concerned.  If he is convicted, he will be able to raise on appeal against conviction all the points which he seeks to raise by way of judicial review.  Reduced to its essentials, the allegation is that the Nigerian evidence was obtained unlawfully under Nigerian law and ought to have been returned to Nigeria upon its demand, which was made prior to the commencement of the criminal trial.  Such matters are entirely within the province of a trial judge when considering whether to allow evidence to be admitted or whether there has been an abuse of process.  As Advocate Langlois very properly conceded, the sole purpose in seeking a decision from the civil court on judicial review is to strengthen the applicant's hand on any appeal.  That is just the sort of parallel or satellite litigation which Sharma discouraged.  I have considered carefully all the arguments which Advocate Langlois has put to me (supplemented by those made by Advocate Santos Costa) and I can see no reason why she should not be able to make all these points with equal vigour before the Court of Appeal in the event of a conviction in support of an argument that the evidence should not have been admitted or that there was an abuse of process.  The applicant has therefore a perfectly satisfactory alternative remedy and in my discretion I refuse leave to apply for judicial review on that ground.

57.      In these circumstances, I do not need to consider the merits of the two grounds put forward by the applicant as summarised at paragraphs 44 and 45 above.  I am anxious to deliver this judgment as promptly as possible and do not wish to lengthen it unnecessarily.  However I cannot forbear from commenting on the first ground as I consider it to be a completely unarguable submission which is doomed to failure.  In saying this I intend no implication concerning the strength or otherwise of her second ground.

58.      At paragraph 14(2) of Sharma Lord Bingham and Lord Walker expressed in eloquent terms the duty of prosecutors to be independent and objective and not to allow their judgement to be swayed by extraneous matters such as political pressure.  These are fundamental principles of the utmost importance.  The idea that it is for the Chief Minister to decide on whether particular evidence obtained from overseas should be retained and adduced in a criminal trial in Jersey seems somewhat surprising.  It would require extremely clear wording to persuade me that a general responsibility for external affairs (as conferred upon the Chief Minister by Article 18 of the States of Jersey Law 2005) was intended to confer powers upon him in relation to the retention and adducing of evidence in a criminal trial in Jersey simply because the evidence is from overseas.

59.      This is all the more so when one considers the terms of the Co-Operation Law itself.  That is the Law which deals with requests from elsewhere to obtain evidence in Jersey and requests from Jersey to obtain evidence elsewhere to assist in criminal investigations or proceedings in Jersey.  Article 4 deals with requests to obtain evidence elsewhere for use in Jersey.  Article 4(1) spells out that it is the Attorney General who decides whether to issue a letter of request (although the Bailiff may do so at the request of a defendant).  Article 5 deals with the situation where a request is made by an overseas authority for assistance in obtaining evidence in Jersey for use in an overseas investigation or prosecution.  Again, the only person given any responsibility under Article 5 for dealing with such a request is the Attorney General.  In particular, it is clear from Article 5(2) that a discretion is conferred upon the Attorney General as to whether to comply with any such request.  This may well involve consideration of relations with other countries.  Yet nowhere in the Co-Operation Law is there any mention of the Chief Minister.  When reaching a decision under the Co-Operation Law which involves sensitive issues of external relations, the Attorney General may of course choose to consult with others (see paras 61 - 69 of Acturus Properties Limited-v-Attorney General 2001 JLR 43 in relation to the power conferred on him under the Investigation of Fraud (Jersey) Law 1991).  However, he does not have to do so.  He is the sole person with jurisdiction to take decisions such as the one in this case (namely whether to accede to Nigeria's request that evidence obtained pursuant to the Co-Operation Law should be returned and not adduced in the criminal trial).  The applicant's argument on vires does not therefore cross the threshold for the granting of leave described by Lord Bingham and Lord Walker at paragraph 14(4) of Sharma and endorsed by the Court of Appeal in Jersey in Welsh-v-Deputy Judicial Greffier [2009] JCA 145C at para 12, namely "that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success..."

The intervention of the Attorney General of Nigeria

60.      The matter listed before me was the application by the applicant Mr Bhojwani for leave to apply for judicial review.  His application was presented in proper form pursuant to Rule16/2(2).  In particular he had completed the relevant form of notice for application for leave to apply for judicial review and supported this by an affidavit.  The Attorney General of Nigeria, acting through Advocate Santos Costa, sought leave to intervene in those proceedings.  He issued a summons seeking leave to intervene in the proceedings commenced by Mr Bhojwani against the Attorney General in order to seek the relief set out in a Representation which was annexed.

61.      I have to say that, on reading the papers, I understood that the application was indeed as described, namely an application to intervene in the judicial review proceedings which Mr Bhojwani sought to bring.  It would follow from this that, if leave were refused to Mr Bhojwani, (with the result that there were no proceedings) the application of the Attorney General of Nigeria would also fall.  It is clear that that was also the understanding of counsel for the Attorney General.

62.      As a matter of discretion, I decided to allow Advocate Santos Costa to address me in support of Mr Bhojwani's application for leave.  It became clear during his submission that in fact, contrary to my understanding, the Attorney General of Nigeria was seeking leave to bring his own proceedings for judicial review.  I have to accept that, on a close reading of the Representation with the benefit of Mr Santos Costa's submissions, the Representation can indeed be interpreted as seeking to bring stand alone judicial review proceedings by the Attorney General of Nigeria.  However, this did not emerge very clearly given that the matter was part of an application to intervene in Mr Bhojwani's proceedings.  The consequence was that Mr Santos Costa had very little time to develop the argument for his own proceedings and counsel for the Attorney General did not deal with the matter at all as he had only come prepared to argue the question of Mr Bhojwani's application and this took up the time available to the Court.

63.      Given that Mr Bhojwani's application for leave has failed, there are no proceedings for the Attorney General of Nigeria to intervene in.  However, I am anxious that the Attorney General of Nigeria should have a proper opportunity, if he wishes, to seek leave to apply for judicial review.

64.      I think the best course is to adjourn the application of the Attorney General of Nigeria.  I am not clear whether he would wish to proceed now that leave has been refused to Mr Bhojwani but, if he does, the correct form of application spelling out exactly the decision which is sought to be attacked and the relief sought must be completed.  Before considering any such application for leave, I would wish to hear from the Attorney General of Jersey in accordance with Rule 16/2(5).  The application and supporting papers must therefore be sent to him.

Authorities

Royal Court Rules 2004.

Proceeds of Crime (Jersey) Law 1999.

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

Criminal Justice (International Co-Operation) (Jersey) Law 1999.

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

Prevention of Terrorism (Temporary Provisions) Act 1989.

Supreme Court Act 1981.

States of Jersey Law 2005.

Investigation of Fraud (Jersey) Law 1991.

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

R-v-Director of Public Prosecutions ex parte Kebilene & Others [2000] 2 AC 326.

Sharma-v-Brown-Antoine [2007] 1 WLR 780.

Trant-v-Attorney General [2007] JCA 073.

Acturus Properties Limited-v-Attorney General [2001] JLR 43.

Welsh-v-Deputy Judicial Greffier [2009] JCA 145C.