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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Akle & Anor, R. v [2021] EWCA Crim 1879 (10 December 2021) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2021/1879.html Cite as: [2021] EWCA Crim 1879 |
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ON APPEAL FROM SOUTHWARK CROWN COURT
HHJ BEDDOE
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE JEREMY BAKER
and
MR JUSTICE JAY
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ZIAD AKLE and PAUL BOND |
Appellants |
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- and |
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THE CROWN |
Respondent |
____________________
Howard Godfrey QC (acting pro bono) and Robert Fitt (assigned by Registrar of Criminal Appeals) for Paul Bond
Michael Brompton QC, Gillian Jones QC and Faras Baloch (instructed by the SFO) for the Crown
Hearing dates: 1st July, 20th and 21st October 2021
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Crown Copyright ©
LORD JUSTICE HOLROYDE:
Summary of the key facts:
Arrests and investigations:
Disclosure:
"Conviction as evidence of commission of offence
(1) In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court in the United Kingdom shall be admissible in evidence for the purpose of proving that that person committed that offence, where evidence of his having done so is admissible, whether or not any other evidence of his having committed that offence is given.
(2) In any proceedings in which by virtue of this section a person other than the accused is proved to have been convicted of an offence by or before any court in the United Kingdom , he shall be taken to have committed that offence unless the contrary is proved."
"The defence will argue that the plea should not be admitted under section 74 of PACE because the plea was brought about through improper means and its admission will result in unfairness. Any material going to support this argument falls to be disclosed."
It was submitted that BAJ's plea, and possibly the decision by the SFO not to pursue any charges against the Ahsanis, appeared to have been improperly influenced and facilitated by Tinsley. Tinsley was described as "a 'fixer' seeking to negotiate between the Ahsanis, the US authorities and the UK authorities" and it was said that BAJ had entered his pleas as a result of being placed under improper pressure, and misled, by Tinsley.
i) 7 December 2018: Akle, Tinsley and Saman Ahsani;
ii) 16 January 2019: Akle, Tinsley, Rachel Talay and her colleague Brown;
iii) 1 February 2019: Akle and BAJ;
iv) 6 March 2019: Akle and BAJ;
v) 31 May 2019: Akle and BAJ.
The trial:
(1) had the prosecution made them sure that there was a conspiracy, as set out in the count in question in the indictment? If so,
(2) had the prosecution made them sure that at some stage during the life of that conspiracy, Akle was a part of that conspiracy in the sense that (i) he knew of its existence, (ii) he played a deliberate and knowing part in it, and (iii) he intended thereby to promote some or all of its objectives? If the answer to all those questions was yes, Akle would be guilty of the count in question. If the answer to any of them was no, he would be not guilty.
Rulings relevant to Akle's grounds of appeal: (1) abuse of process:
"[It is important that I acknowledge, however, that I do not [have] the whole picture, have not examined every communique or note and I am only dealing as best I can with the material I have. Nonetheless it seems to me that when this case is finally concluded a review of the contact with DT should be comprehensively reviewed to see what lessons can be learned from it.]"
"They should have had nothing to do with someone who had no official status, who was not employed by any US government agency, who was not the Ahsanis' lawyer (not a lawyer, at all), but a freelance agent who was patently acting only in the interests of the Ahsanis (whose interests could obviously potentially conflict with those of BAJ and ZA); and they should not have countenanced, let alone encouraged (if only tacitly) his contact with either BAR or ZA, who were throughout under investigation by the SFO, represented by UK lawyers, and formal proceedings for the offences set out in this indictment had begun with requisitions issued on the 15th November 2017 which were followed by their first court appearance on the 7th December 2017."
Rulings relevant to Akle's grounds of appeal: (2) admissibility of BAJ's guilty pleas:
Rulings relevant to Akle's grounds of appeal: (3) evidence relating to Tinsley:
Akle's grounds of appeal against conviction:
Akle's grounds of appeal against sentence:
The initial appeal hearing:
The documents provided pursuant to the court's direction:
"I have probably had nine conversations with her and four meetings, one of which went three hours, and I am dealing now with her number 2 and 3 on some things. Collectively, I think it's going to benefit everyone "
" officially we can't talk to him because he's represented by another attorney, you understand? And so I'm officially not talking to you about this, I'm telling you theoretically what we're looking at for Sami which I would like to try to get for you."
Akle pointed out that there was already a trial in the UK, to which Tinsley replied that there were ways to get round that: "we've done it before". He suggested he could meet the DSFO alone and ask hypothetically "if these guys came to the table in the US, can we get their cases dismissed here?"
" listing meeting dates for contact with DT and explaining unsuccessful efforts to recover his texts with DT prior to 29/07/2019. Further email in respect of same 21/10/2019. Phone rebuilt and data unobtainable from service provider."
That entry was not added to or expanded upon in the Tranche 6 schedule, and so Akle's representatives were not informed of the circumstances in which the phone was rebuilt.
The submissions on appeal:
Akle's appeal against conviction discussion:
"Disclosure refers to providing the defence with copies of, or access to, any material which might reasonably be considered capable of meeting the test for disclosure."
"6. In deciding whether material satisfies the disclosure test, consideration should be given amongst other things to:
(a) the use that might be made of it in cross-examination;
(b) its capacity to support submissions that could lead to:
(i) the exclusion of evidence;
(ii) a stay of proceedings, where the material is required to allow a proper application to be made;
(iii) a court or tribunal finding that any public authority had acted incompatibly with the accused's rights under the ECHR.
7. It should also be borne in mind that while items of material viewed in isolation may not be reasonably considered to be capable of undermining the prosecution case or assisting the accused, several items together can have that effect."
Retrial?
"Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried."
"It is apparent that the conditions which permit the court to order a retrial are twofold: the court must allow the appeal and consider that the interests of justice require a retrial. The first condition is either satisfied or it is not. The second requires an exercise of judgement, and will involve consideration of the public interest and the legitimate interests of the defendant. The public interest is generally served by the prosecution of those reasonably suspected on available evidence of serious crime, if such prosecution can be conducted without unfairness to or oppression of the defendant. The legitimate interests of the defendant will often call for consideration of the time which has passed since the alleged offence, and any penalty the defendant may already have paid before the quashing of the conviction."
Akle's appeal against sentence:
Bond's Appeal against Sentence
Bond's grounds of appeal against sentence:
Conclusion:
i) We grant Akle's application for leave to appeal against conviction on grounds 2 and 3. We allow the appeal on those grounds and quash the convictions.
ii) We decline to order a retrial.
iii) We adjourn Akle's application for costs. We direct that Akle must by 4pm on 7 January 2022 file further written submissions in the light of this judgment; the SFO must by 4pm on 21 January 2022 file further written submissions in response; and the parties must by 4pm on 28 January 2022 file an agreed bundle of any relevant documents and an agreed time estimate. Oral submissions on the issue of costs will be heard at the earliest convenient date after 28 January 2022.
iv) We refuse Bond's renewed application for leave to appeal against sentence.
Note 5 See [81]-[85] above. [Back] Note 6 See [74], [75] above. [Back] Note 10 See [44] above. [Back]