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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Onuigbo (aka Okoronkwo) v R  EWCA Crim 65 (31 January 2014)
Cite as:  EWCA Crim 65
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ON APPEAL FROM
SOUTHWARK CROWN COURT - HIS HONOUR JUDGE HARDY
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE NICOLA DAVIES DBE
RECORDER OF LEEDS - HIS HONOUR JUDGE COLLIER QC
| UDOAMAKA ONUIGBO (also known as OKORONKWO)
|- and -
Sasha Wass QC and Esther Schutzer-Weissmann (instructed by CPU) for the Respondent
Hearing date: 28 November 2013
Crown Copyright ©
Lord Justice Pitchford :
"whereby the proceeds of the criminal conduct of James Onanefe Ibori were used to secure that funds were placed at the disposal of James Onanefe Ibori … to acquire property by way of investment, knowing or suspecting that James Onanefe Ibori was or had been engaged in criminal conduct or had benefitted from criminal conduct in that they facilitated the movement of monies out of Nigeria to other jurisdictions including the United Kingdom"
contrary to section 93A of the Criminal Justice Act 1988.
(1) On 26 June 2011 the learned judge ruled erroneously that the confiscation regime under POCA 2002 applied to the offences of which the appellant had been convicted; rather, the correct regime was that set out in the Criminal Justice Act 1988 as amended;
(2) The prosecution failed to disclose and the judge failed to order disclosure of (i) the unused material schedule; (ii) all documents supporting the underlying transactions itemised in the banking schedules served for the purpose of trial, and (iii) all material in the hands of the prosecution consequent upon its three letters of request for assistance to the Nigerian Government;
(3) The judge failed to require the prosecution to provide particulars and evidence in support of its assertion that payments made to the credit of the appellant's accounts in the United Kingdom constituted benefit from criminal conduct;
(4) On 17 August 2011 the judge failed to grant an adjournment sought on the ground that further preparation time was required;
(5) At the confiscation hearing held on Wednesday 24 August 2011 the judge made a ruling upon the value of the benefit received by the appellant in consequence of her general criminal conduct without first providing her with the opportunity to challenge the prosecutor's assessment of benefit;
(6) The judge made errors in the valuation in the appellant's interest in certain of the realisable assets identified by the prosecutor, namely 36 Hunters Lodge, Maida Vale, 12 Owena Street, Lagos, and rent received in respect of 12 Owena Street, Lagos.
The confiscation proceedings
"Judge Hardy: So the [benefit] is not going to be difficult to arrive at.
Mr Krolick: It may be that your Honour's decision may be required, I do not know, in relation to some of those items but the issues are very small in relation to those.
Judge Hardy: Yes, I see.
Mr Krolick: Benefit is something which, as your Honour may have appreciated from the hearing on Wednesday, the parties are so far apart, but we are hoping that the court will not be troubled by hearing a blow by blow account of what something was spent on in relation to all these bank statements and so forth. So, your Honour, that is the state of play. I cannot say that we have finally resolved and I cannot say that certainly we will resolve but we are narrowing down the issue and we are still talking, so there are still opportunities for resolution."
"I cannot see this case going beyond Friday no matter what happens."
"As I indicated to your Honour, I know it is the usual thing to call evidence about the benefit but this is a case where the benefit claimed by the Crown vastly exceeds the available amount and, as your Honour knows, there was an application to postpone the confiscation hearing because the defence is in difficulties about that, and I still believe that if the available amount was resolved, whether by agreement or, if it proves to be impossible, by the court, the rest would be - that would give the parties an opportunity to conclude their discussions."
"Mr Krolick: What I was hoping to do, and I am quite happy that my friend should open the case on the available amount, is to deal with that as a discrete matter. In my submission, nothing would be lost by doing that and a considerable gain could be achieved by that. That is my submission.
Judge Hardy: Alright, well, let us deal with it in that way and if there are problems then they will have to be resolved as we go through the proceedings."
"Judge Hardy: … As I understand it from what happened yesterday there isn't really a dispute as to the benefit figure.
Mr Krolick: No, I didn't say that. We will resolve the benefit figure but what I was inviting …
Judge Hardy: Well, I mean, it's a bit like Alice in Wonderland at the moment, you know, sentence first, trial later.
Mr Krolick: Well, it is …
Judge Hardy: Because the sentence is the available amount.
Mr Krolick: Yes, your Honour may recall that what I said was that we accept that the benefit figure will exceed the available amount.
Judge Hardy: Yes. Well, I have got to make a finding about what the benefit figure is.
Mr Krolick: Your Honour will have to do that if we can't reach agreement. I am hoping we can … once the available amount has been found by your Honour …
Judge Hardy: Because at the moment it stands at £21 million.
Mr Krolick: I understand that, yes. Well, that's what I am hoping to say to the court. Otherwise we would be spending a great deal of time dealing with that particular matter when it may well not be necessary.
Judge Hardy: So I don't know how you are proposing to handle it, but at the moment I have got quite clear evidence of a particular figure and I am reasonably familiar with the background to this case, having conducted the trial. So that is the position at the moment.
Mr Krolick: Your Honour will recall, I didn't ask any questions about the benefit because I indicated and your Honour did in fact suggest, or agreed I think, that that is what we should do. But …
Judge Hardy: Well, I mean, the figures have got to be decided by me.
Mr Krolick: It will be.
Judge Hardy: Alright."
At this point, Mr Krolick recalled the appellant to give evidence. For the second time, Mr Krolick had, in our view, made plain his intention to complete his case as to realisable assets before resuming negotiations and, if necessary, adducing evidence as to benefit. As we read the passage above the learned judge did not demur. He merely reminded counsel that he would have to make the finding as to benefit and, as the evidence stood, that appeared to be a straightforward matter.
"These are confiscation proceedings under the Proceeds of Crime Act 2002 following Udoamaka Onuigbo's conviction by a jury at this court on 2 June 2010 on 3 counts of money laundering. It is not in dispute that the criminal lifestyle provisions apply. Following representations by the defence, including consideration of a draft accountant's report, the prosecution have put forward a final amended figure of particular and general benefit being in excess of £21 million. After some hesitation Mr Krolick, on behalf of the defendant, realistically appears to accept this figure. The calculation has been carefully prepared, much of the evidence in support having been submitted in schedule form agreed at the trial by Ms Onuigbo's then solicitors and counsel and from oral evidence at the time. I say "realistically" because when a benefit figure of this magnitude is involved and where the realisable amount is likely to come nowhere near that sum, to argue over a few hundred thousand pounds or even a few million pounds is not going to be a sensible use of court time. I therefore find the total benefit figure against Ms Onuigbo to be … £21,734,909.02."
The statutory scheme
(1) That any property transferred to the defendant at any time after the relevant day was obtained by her as a result of her general criminal conduct and at the earliest time she appears to have held it (section 10 (2));
(2) That any property held by the defendant at any time after the date of conviction was obtained by her as a result of her general criminal conduct and at the earliest time she appears to have held it (section 10 (3));
(3) That any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by her as a result of her general criminal conduct (section 10 (4));
(4) That for the purpose of valuing any property obtained by the defendant, she obtained it free of any other interests in it (section 10(5)).
(5) However section 10 (6) contains an important qualification:"(6) But the court must not make a required assumption in relation to particular property or expenditure if –(a) the assumption is shown to be incorrect, or(b) there would be a serious risk of injustice if the assumption were made."
"3(1) Section 6 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 6 (2) was committed before 24 March 2003."
Paragraph 1 provides for citation and interpretation. By paragraph 1 (3):
"1(3) Where an offence is found to have been committed over a period of 2 or more days or at some time during a period of 2 or more days, it shall be taken for the purposes of this order to have been committed on the earliest of those days."
Ground 1: which confiscation regime, POCA 2002 or CJA 1988?
"Section 6 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 6(2) in respect of which a confiscation order is sought was committed before 24 March 2003."
The effect of such a construction is to provide the prosecutor with the ability to elect to proceed under POCA only in relation to offences committed after 24 March 2003 without regard to earlier offences and thus to avoid the literal effect of the Commencement Order. The court in Stapleton was aware of the criticism of Aslam made by the late Professor D A Thomas at  Crim LR 145 but considered that Aslam should be followed.
Ground 5: the benefit ruling
Ground 4: adjournment
Grounds 2 and 3: particulars and disclosure
(1) To give particulars of each and every receipt in the appellant's accounts and transfer from those accounts which the prosecutor asserted represented benefit to the appellant;
(2) To give particulars of the evidence at trial in support of the assertion made at (1) above;
(3) To give disclosure of exhibits and unused material relevant to the assertions made at (1) above.
"... the law seems to me to be clear, that if a solicitor chooses to discharge himself he cannot leave his client in the lurch in the middle of a matter, because his client cannot supply him with money, or by reason of any other difficulty; if he does, he must produce (but not give up) to the new solicitor all papers necessary to enable him to prosecute or defend the matter in litigation."
"In the event of a change of solicitors in the course of an action, the former solicitor's retaining lien is not taken away but his rights in respect of it may be modified according to whether he discharges himself or is discharged by the client. If he is discharged by the client otherwise than for misconduct he cannot, so long as his costs are unpaid, be compelled to produce or hand over the papers even in a divorce case [Hughes v Hughes  P 224,  3 All ER 179]. If, on the other hand, he discharges himself, he may be ordered to hand over the papers to the new solicitor on the new solicitor's undertaking to hold them without prejudice to his lien, to return them intact after the action is over and to allow the former solicitor access to them in the meantime and if necessary to prosecute the proceedings in an active manner."
This statement is also supported by the judgments of a powerful two-judge Court of Appeal in Gamlen Chemical Co (UK) Limited v Rochem Limited and others  1 All ER 1049 (Goff and Templeman LJJ). The court found that a solicitor discharging himself should not be allowed to exert his lien so as to interfere with the course of justice. The court was exercising an equitable jurisdiction (per Templeman LJ at page 1058h) which may admit of exceptions to the general rule and the court may impose conditions on which the papers should be released to another solicitor, depending on the circumstances. It is usual for the solicitor required to hand over the papers to do so upon the new solicitor's undertaking to hold them to his order and to return them intact at the conclusion of the proceedings. In Bentley v Gaisford  QB 627 the Court of Appeal held that the release of papers subject to such an undertaking did not entitle the new solicitor to make copies and send them to his client unless that was necessary for the disposal of the proceedings. The obligation of the new solicitor was to preserve the lien in favour of the first solicitor to the maximum extent compatible with the need for disclosure.
"Solicitors are of course entitled to be paid by the clients for whom they act, but it is a mistake to assume that they have an unfettered right to keep clients' documents until they get paid. Storer's case is only one example of the principle that, at least when the interests of an accused person in criminal proceedings are concerned, the solicitor's right to rely on a lien might have to give way. Indeed the existence of a lien over documents held by a solicitor previously acting for an accused person might not be as clear as has been thought. No case was cited in which it has been held, after argument to the contrary, that a solicitor has a lien over documents relating to criminal proceedings of a former client. The assumption that such a lien exists may, on closer analysis, prove as illusory as the idea that Australia was terra nullius, (Mabo v Queensland [No. 2] [1992 175 CLR 1) or that a husband cannot be guilty of raping his wife (R v L  174 CLR 379)."
"21.2 Where a financial investigation is supporting a criminal investigation or is being conducted alongside a prosecution case, the financial investigator must ensure that revelation of all material is made to the prosecutor on the relevant forms in accordance with the existing procedure set out within CPIA 1996. In normal circumstances this will be via the disclosure officer.
21.2 The underlying principles of the common law, the Guidelines and ECHR mean that prosecution material created or obtained following conviction should be dealt with in the same manner. This will include the continuing duty to review the unused material, particularly, if appropriate, following the receipt of any response to a confiscation statement."
It is the prosecutor's responsibility to examine the material for the purpose of ascertaining whether it may have the effect of undermining the case for the prosecutor or assisting the case for the appellant. There is no doubt as to what is the appellant's case. She says that all or some of the UK and Nigerian banking transactions are the product of legitimate trading. If any of the documents are relevant to that issue they are susceptible to disclosure. If, as Ms Wass QC informed the court in argument, they are not relevant to that issue then they are not susceptible to disclosure.
Ground 6: the available amount
36 Hunter's Lodge, Maida Vale
12 Owena Street, Lagos
Rental income from 12 Owena Street