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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Alstom Network UK Ltd, R. v (Rev 1) [2019] EWCA Crim 1318 (23 July 2019) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2019/1318.html Cite as: [2019] WLR(D) 427, [2019] 2 Cr App R 34, [2019] EWCA Crim 1318 |
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2019] EWCA Crim 1318 | ||
ON APPEAL FROM the Crown Court at Southwark
Sir
Roderick
Evans
T20147445
Strand, London, WC2A 2LL |
||
2019 |
B e f o
r
e :
MRS JUSTICE MCGOWAN
and
MR JUSTICE BUTCHER
____________________
Regina |
Respondent | |
| - and - |
||
Alstom Network UK Limited |
Appellant |
____________________
Rachel
Scott & Mr Will Hays (instructed by Serious Fraud Office) for the
Respondent
Mr Alexander Cameron QC, Miss Nichola Higgins, Mr Quinton Newcomb & Mr Shiv Haria-Shah (instructed by Fulcrum Chambers Limited) for the Appellant
Hearing dates : 4th July
2019
____________________
VERSION
OF JUDGMENT APPROVED
Crown Copyright ©
Lord Justice Gross :
INTRODUCTION
Respondent
("the SFO") submits that the answer is and must be "yes". That question comprises Ground 1 of AIL's grounds of appeal and forms the principal issue before us on this application ("Issue I: Trial in the absence of the DMWs").
raise
subsidiary issues. Ground 2 goes to the adequacy of the Judge's directions to the jury in the summing-up in seeking to address the consequences of the AIL trial taking place in the absence of its DMWs ("Issue II: The adequacy of the Judge's directions"). Ground 3 criticises the structure of the summing-up, which is said to have exacerbated the unfairness complained of under Issues I and II ("Issue III: The structure of the summing-up").
relation
to a contract with the Transport Corporation in Tunisia, i.e., Societe des Transports de Tunis ("Transtu" and "the Tunisian contract"
respectively).
AIL was acquitted on counts 1 and 2, concerning CAs
relating
to Indian and Polish contracts.
renews
its application for leave to appeal conviction, following
refusal
by the Single Judge (Sir
Roderick
Evans), to whose observations we shall
return
in due course.
THE FACTS
UK
subsidiary of the French multi-national engineering conglomerate
Alstom
SA ("
Alstom")
which, at all material times, operated in the power generation and transport sectors. During the indictment period, AIL's directors included Mr Graham Hill, Mr Bruno Kaelin and Mr Jean-Daniel Lainé, all of whom were based in Paris. Between 2000 and 2006, AIL administered payments to consultants for the transport sector of
Alstom
SA's business. The consultants, i.e., third party contractors or agents, were engaged in
relation
to a project by way of CAs to provide services
relating
to the project in question.
relation
to a contract with the Delhi Metro
Rail
Corporation
Ltd
in India ("the Indian contract").
relation
to a contract with Tramwaje Wasrszawskie in Poland ("the Polish contract").
relating
to the Tunisian contract.
"STATEMENT OF OFFENCE
Conspiracy to Corrupt, contrary to section 1 of the Criminal Law Act 1977
PARTICULARS OF OFFENCE
ALSTOM
![]()
NETWORK
![]()
UK
LIMITED (formerly
Alstom
International Limited) between the 1st day of April 2003 and the 30th day of November 2006 conspired with Bruno Kaelin, Jean-Daniel Lainé and others to give a corrupt payment or payments to public officials of the
Republic
of Tunisia or to other agents, namely monies comprised within the sum of €2,363,778 disguised as payments in
respect
of a Consultancy Agreement with Construction et Gestion NEVCO Inc dated 11th May 2004 as an inducement or
reward
for showing favour to the
Alstom
Group in
relation
to the award or performance of a contract between
Alstom
Transport SA and Societe des Transports de Tunis ('Transtu') for 30 trams."
retired
in December 2005 and was
replaced
by Mr Lainé.
Roc
Finance ("
Roc"),
incorporated in the Lebanon and linked to or controlled by a Mr Belhassen Trabelsi ("Mr Trabelsi"), the brother in law of the then President of Tunisia. Mr Trabelsi's company, Toucan, had the same address as Nevco.
Roc,
which stated that "in executing the contract [with
Alstom]
Nevco is acting for and on behalf of
Roc
Finance who shall assume all of the obligations and be entitled to all of the
rights
of Nevco arising from the contract". A copy of the CA together with partially completed share transfer forms for
Roc
was later found in a safety deposit box in Geneva, leased by Mr Trabelsi.
referred
to as "Mr T" telephoned International
Network,
a department within
Alstom
SA, seeking to be paid. The
request
was forwarded to Mr Lainé. Payments were subsequently made to Nevco. It may be noted:
i) When Nevco
requested
their first payment in December 2005, no invoice was submitted and Nevco had to be sent a template invoice.
ii) The total paid to Nevco was €2,363,778 (€2,159,730 and $250,000). There was an issue between the parties as to the extent of services performed by Nevco, if any, but in any event, the level of
remuneration
exceeded AIL's limits.
iii) In April 2006, after the first invoice was submitted by Nevco and pursuant to the terms of the CA, a payment of €1,199,850 and $250,000 was made to Nevco. Two weeks later, Nevco sent the majority of the funds to
Roc.
iv) A similar pattern followed the second payment of €959,880 in November 2006.
received
from the Lebanese Canadian Bank S.A.L. Beirut on order from Mr Belhassan Traboulsi…to his own account". The Lebanese Canadian Bank was also the bank used by
Roc.
No further details as to the payer were
recorded
and there was no evidence of the flow of funds beyond that.
report
commissioned by Jean-Daniel Lainé
revealed
the link between Nevco and Mr Trabelsi; shortly thereafter, Mr Lainé stopped all further payments to Nevco.
recovered
from an address in Canada. It contained contact details for Mr Etienne De, to whom both Messrs Kaelin and Lainé
reported
and other employees of
Alstom
– but not those of either Mr Kaelin or Mr Lainé - together with the contact details of the individual who held the office of Minister for Transport in Tunisia between 1997-2002 and 2004-2011.
relation
to all Counts was that each CA was a sham and simply a cover for the payment of a bribe paid as an inducement or
reward
for awarding the
relevant
transport contract to
Alstom.
In each Count, AIL was guilty by way of the "identification" (or "attribution") principle,
via
two directing minds: Mr Hill and Mr Kaelin in
respect
of Counts 1 and 2 and Mr Kaelin and Mr Lainé in
respect
of Count 3.
Roc
and Mr Trabelsi. Nevco had no dealings at all with Transtu.
recounted
was said to support the prosecution case that the Tunisian contract had been obtained corruptly by AIL, through the corruption of Messrs Kaelin and Lainé.
relation
to Count 3 was that other than the fact of the payment and that the
recipient
of the payment (Nevco) was,
via
Roc
and
Roc's
connection to Mr Trabelsi, indirectly connected to the (then) President of Tunisia, there was no evidence that the payment was made for corrupt purposes. Whatever the monies were paid for, they were not paid as a bribe for the award of the Tunisian contract.
Alstom.
The company was too big to know what everyone was doing. It was Mr De who had approved the CAs and he (
rather
than Mr Kaelin or Mr Lainé) was in touch with compliance and those on the ground. Moreover, Messrs Kaelin and Lainé both played a part in systems designed to combat corruption. It was the transport division which had contact with Nevco; Mr Kaelin and (for that matter) Mr Hill had simply signed the CAs; Mr Lainé had signed nothing.
relation
to Count 3 was whether there was a conspiracy to pay monies by way of a bribe to officials in Tunisia and, if so, whether Mr Kaelin or Mr Lainé, as the DMWs of AIL, were parties to that conspiracy.
respect
of Counts 1 and 2 were said by the prosecution to be a Mr Graham Hill and Mr Kaelin. The AIL DMWs for the Tunisian contract, Count 3, were alleged by the prosecution to be Mr Kaelin and Mr Lainé. Mr Hill was a defendant to Counts 1 and 2 and gave evidence at the trial. Mr Kaelin and Mr Lainé were absent.
OTHER
RULINGS
AND PROCEEDINGS
Ruling
of 11 May 2016 ("the 11 May
Ruling"):
The issue of the anticipated absence of Messrs Kaelin and Lainé from the trial has been consistently canvassed by those
representing
AIL. In circumstances where AIL was to be prosecuted under Count 3 with no DMWs present, AIL applied to HHJ Pegden QC pursuant to s.78 of the Police and Criminal Evidence Act 1984 ("PACE") to exclude the acts and declarations of Messrs Kaelin and Lainé in furtherance of the (alleged) conspiracy. Neither Mr Kaelin nor Mr Lainé was under any duty to assist with the trial. Mr Kaelin lived in Switzerland, could not be extradited and had declined to attend. The prosecution had not charged Mr Lainé for, essentially, case management
reasons;
no question of abuse of process arose in connection with that prosecution decision. There was, however, an overlap between the AIL application under s.78 and an application to stay the proceedings as an abuse of process given the absence of both DMWs. The Judge chose to deal with the matter under s.78, thus avoiding the need for AIL to satisfy the civil burden of proof applicable to a stay application. Nonetheless, he
refused
the AIL application, holding that any unfairness arising as a
result
of the absent DMWs must and should be dealt with as part of the trial process. Accordingly, the acts and declarations of Mr Kaelin and Mr Lainé in furtherance of the alleged conspiracy were admissible to prove the conspiracy and the guilt of others, in accordance with the applicable principles
relating
to conspiracy.
Ruling
of 28 July 2016 ("the 28 July
Ruling"):
In
R
v
A
Ltd.,
X and Y [2016]
EWCA
Crim 1469, a different constitution of this Court entertained an appeal by the SFO under s.58 of the Criminal Justice Act 2003, from a further
Ruling
by the Judge ("the 8 June
Ruling"),
holding that
various
notebook entries of Mr Kaelin and AIL emails were inadmissible. The SFO appeal was successful and both the notebook entries and the emails were held admissible. The Court's detailed
reasoning
on those issues, comprising the
ratio
of the 28 July
Ruling,
is irrelevant for the purposes of this appeal – save to note the central importance of the "identification" principle to the prosecution case against AIL.
Ruling.
First, as there
recorded,
there was no dispute that Mr Kaelin was a DMW of AIL. Likewise, there is and has been no dispute that Mr Lainé was also a DMW of AIL.
Ruling
contains, with
respect,
a concise and helpful summary of the "identification" principle and the
reliance
placed on it by the prosecution. Giving the judgment of the Court, Sir Brian Leveson P said this (at [26]):
"The 'identification' principle is a well-established principle of law whereby corporate bodies are deemed to act and acquire knowledge through those individuals who can be identified as 'the directing mind and will of the corporation' perViscount
Haldane LC in Lennard's Carrying Company Limited
v
Asiatic Petroleum Company Limited [1915] AC 705, at page 713; and see Tesco Supermarkets
Ltd
![]()
v
Nattrass [1972] AC 153 in which
Viscount
Dilhorne stated the test at page 187:
'…a person who is in actual control of the operations of a company or of part of them and who is notresponsible
to another person in the company for the manner in which he discharges his duties in the sense of being under his orders…."
After consideration of other authority, Sir Brian underlined (at [27]) that the test for determining those individuals whose actions and state of mind are to be attributed to a corporate body
remains
that established in Tesco
v
Nattrass.
"The prosecution deployed the 'identification' principle to prove the guilt of ALtd.
It alleged that BK (a director of A
Ltd)
was a (or the) 'directing mind and will' of A
Ltd
and pointed to the guilty acts and knowledge both of BK and X (both directors of A
Ltd)
to prove the company's guilt: in that
regard,
it is not in issue that each is properly to be
regarded
as 'the directing mind and will' of A
Ltd.
Thus, the prosecution sought to
rely
on BK's diary or notebook entries to prove BK's guilty state of mind and, ergo, the company's guilty state of mind. In this
regard,
the prosecution's approach was entirely orthodox and unobjectionable."
"…we ought to address what was Mr Cameron's underlying argument namely that it was unfair for ALtd
to have to address allegations of its criminality when its controlling mind whose behaviour was
relied
upon as proving its guilt was not also charged with crime and had been unwilling to assist in the preparation of its defence. These facts were at the forefront of the argument that evidence
relating
to BK should be
ruled
inadmissible pursuant to section 78 of PACE. In
reality,
however, a corporation can only operate through its directing mind or minds and their knowledge is, and must
remain,
the knowledge of the corporation. The presence or otherwise of a directing mind at the trial is irrelevant. Were it otherwise, as the judge observed, had the directing mind died, become incapacitated (as well as one whose attendance at trial could not be secured, perhaps because he had deliberately absented himself), it would not be possible to prosecute the
relevant
corporation however egregious the conduct. The description of BK's diary entries as 'musings' which may or may not be difficult to interpret could indeed be correct; that, however, should be a matter for the jury after careful direction by the judge."
Rulings
of 2 May and 17 October 2017 ..."the 2 May 2017
Ruling"
and "the 17 October 2017
Ruling"):
For completeness if no more,
reference
should be made to the 2 May 2017 and 17 October 2017
Rulings.
It appears that AIL made further applications to the Judge (HHJ Pegden QC) seeking to exclude evidence
relating
to Mr Kaelin and Mr Lainé pursuant to s.78 PACE, alternatively that the proceedings should be stayed as an abuse of process by
reason
of the absence from the trial of Messrs Kaelin and Lainé. Suffice to say that neither application succeeded; all concerned felt themselves inhibited by this Court's 28 July
Ruling;
while Mr Cameron QC, for AIL, was
realistically
economical in pursuing the matter, it is plain that AIL's objections were not abandoned and were left open for further challenge – now indeed forming the subject of this appeal.
re-trial:
Between 23 May and 27 July 2017, AIL was tried on a different indictment (the "Phase 3 trial"), concerning a CA in Hungary, in which the prosecution alleged that AIL was guilty
via
Mr Lainé as its DMW. Mr Lainé was a defendant in that trial and gave evidence. In the event, the jury was unable to
reach
verdicts
on any defendant and was discharged.
re-trial
of the Phase 3 trial, AIL and Mr Lainé were both acquitted.
renewed
application for leave to appeal took place between January and April 2018, thus post-dating the Phase 3 trial but prior to the Phase 3
retrial.
THE
RIVAL
CASES
repeat
what we said at the hearing as to our gratitude for the quality and economy of the Bundles. In brief outline, the
rival
cases before us were as follows.
remaining
submissions were, in effect, "without prejudice" to that first and principal submission. Secondly, the summing-up had failed to direct the jury adequately as to the absence of the DMWs. Thirdly, the structure of the summing-up exacerbated the unfairness to which the first two submissions were addressed.
views
expressed by this Court in the 28 July
Ruling
(at [36]) on the irrelevance of the attendance of the DMWs at trial were simply wrong and should not be followed.
recording
of a "cartel" meeting. There were a
variety
of matters with which only Mr Kaelin and/or Mr Lainé could have dealt – but they were not there to do so. Further difficulties arose, given that Mr Kaelin and Mr Lainé were not (directly) involved in the operation of the contracts; that was the
responsibility
of the transport division of
Alstom.
Still further, both Mr Kaelin and Mr Lainé were absent involuntarily; AIL had wanted them to be present at the trial. Mr Kaelin's attendance could not be secured given his Swiss
residency.
Mr Lainé's absence was attributable to the prosecution's own case management decision. In these circumstances and on these specific facts it was unfair to proceed against AIL in the absence of Messrs Kaelin and Lainé. Crucially, AIL's corporate liability hinged on the personal liability of Mr Kaelin and/or Mr Lainé. Their absence gave
rise
to an insoluble problem; a fair trial of AIL could not take place – and it mattered not in what legal pigeonhole this submission was placed, whether that of abuse of process or any other. This case was different from the familiar authorities concerned with abuse of process; none of those authorities involved (the absent) Y's guilt comprising X's guilt.
variety
of matters telling in favour of the Defence.
rejected
by this Court in the 28 July
Ruling
– that
rejection,
though obiter, was nonetheless persuasive and had been about this
very
case. He submitted forcefully that expressions of concern as to the trial and conviction were of no use; AIL needed (in effect) to make good a case of abuse of process to succeed. That AIL singularly failed to do. Even had a DMW been present at trial, he could not have been compelled to give evidence. There was nothing unfair about the trial and nothing unsafe about AIL's conviction. Given the expanding territorial
reach
of serious corporate crime, it would not always be possible for prosecuting authorities to ensure that individual directors (and DMWs) would be tried alongside the
relevant
corporate defendant.
reason
to think that AIL could not defend itself properly; abundant evidence had been available from sources other than the DMWs to permit it to do so.
raised
by the absence of the DMWs was insoluble. In any event, the Judge's conduct of the trial and his summing-up had been scrupulously fair and the jury had been
repeatedly
warned not to hold the DMWs' absence against AIL.
ISSUE I: TRIAL IN THE ABSENCE OF THE DMWs
reason
to prosecute AIL, provided only the evidential test for doing so was satisfied (which it clearly was, it being common ground that at the conclusion of the SFO case there was a case for AIL to answer). We agree with Mr Farrell's submissions in this
regard,
already outlined. In any event, unless the decision to prosecute AIL could be said to constitute an abuse, the question of whom to prosecute is one for the prosecutor, not the Court.
renewed
application for leave to appeal conviction is not whether we would have
reached
the same decision as the jury on the evidence before it; the mere fact (even if it had been the fact) that we might not have done so, would be irrelevant. Nor is it material that it would no doubt have been preferable for the trial process had Messrs Kaelin and Lainé been present and given oral evidence.
view
that there is an arguable case that, absent the DMWs, a fair trial could not be conducted in
respect
of the Tunisian contract. We agree with Mr Farrell: effectively, the AIL case has to go so far as demonstrating unfairness, akin to an abuse of process, in order to succeed. As is too well-known to
require
citation of authority, there are two categories of case where the Court has power to order a stay of proceedings; namely: Category 1 - where the defendant cannot be fairly tried; Category 2 - where, although the defendant can
receive
a fair trial, it would be unfair to try him, i.e., where a stay is necessary to protect the integrity of the criminal justice system. We are here concerned with Category 1. Such a stay is a
remedy
of last
resort
and caters for, and only for, those cases which cannot be accommodated with all their imperfections within the trial process: Blackstone (
2019),
at paras. D3.67, 3.68 and 3.87. That is a high hurdle.
Ruling.
right
to underline the importance of the DMWs to the case before us. Simply put, the guilt of AIL turns on the guilt of one or both DMWs. That was in any event made clear in the Judge's "Notes on the Law" and "Steps to
Verdict",
documents which we understand were supplied to the jury.
right,
so far as it goes, that a corporate defendant is as much entitled (under common law and the ECHR) to a fair trial as is an individual defendant. The argument breaks down at the point where it seeks to formulate the equation just described. The matter does not bear over-elaboration. An individual defendant has the
right
to be present at his trial and to defend himself in person or by instructing counsel to
represent
him:
R
v
Jones [2002]
UKHL
5; [2003] 1 AC 1, at [21], per Lord Hutton. If an individual defendant is involuntarily absent, prima facie, at the
very
least, his
right
to be present at and participate in his trial is infringed. However important the DMW, a company is and
remains
a separate legal entity from the person or persons constituting its DMW. As Mr Farrell put it, the fact that the DMW is absent from the trial does not mean that the company is absent. In the present case, AIL was
very
much present and enjoyed the benefit of powerful legal
representation;
there can be no doubt that AIL participated effectively in its trial. Decisions such as Jones, and the principles underlying them, are somewhat far
removed
from the present issue and do not advance AIL's argument.
ramifications.
As a matter of principle and policy, we are unable to accept his core proposition.
recognised
(ibid), in such a case there would be, in all likelihood, a plea
rather
than a trial. Orally, Mr Cameron
realistically
accepted that absence of the DMW as a
result
of collusion with the corporate defendant would be a
very
different matter – and so it would be; plainly, the corporate defendant could not complain of the trial proceeding in such circumstances. But it does not at all follow that a trial of a corporate defendant in the absence of the DMW can only proceed in such
restricted
circumstances. Any
rule
of law to that effect would be inimical to sound policy and "considerations of practical justice" (Lord Bingham, in Jones, at [12]).
reason
for the trial against one or some of them not proceeding. Even if there are only two alleged conspirators, the fact that one of them is absent without any fault on the part of the conspirator facing trial is not, without more, a good ground for the trial against the "present" conspirator not proceeding. If all this is good law in the case of individual co-conspirators, as we think it is, we are not at all persuaded that there is any justification for a different
rule
in the case of alleged corporate conspirators.
rule
of law would give
rise
to perverse incentives. It would become necessary to investigate whether a DMW was conveniently absent; whether there had been any nod or wink, even without demonstrable collusion. A DMW might make himself unavailable, without collusion on the part of the company but in the hope of subsequent
reward.
An international dimension, as might be expected in cases of this nature, would add complexity. The scope for satellite litigation on such an issue would be as considerable as it would be unwelcome and unhealthy.
resolve
the difficulty of which AIL complains. The DMW, if indicted, cannot be compelled to give evidence. While any
resulting
adverse inference (from the DMW's silence) may be confined to the individual DMW (not the corporate defendant), it would certainly be of no assistance to the corporate defendant. Conversely, if the DMW does give evidence, there can be no assumption that he will emerge unscathed from cross-examination and that his evidence will ultimately assist the corporate defendant; it might but it might not.
reasons,
we would, with one modification (below)
respectfully
adopt the obiter observations of Sir Brian Leveson P in the 28 July
Ruling,
at [36] set out above, with which we agree. We particularly emphasise that, were it otherwise and were AIL's submissions well-founded in principle, then:
"…had the directing mind died, become incapacitated (as well as one whose attendance at trial could not be secured, perhaps because he had deliberately absented himself), it would not be possible to prosecute therelevant
corporation however egregious the conduct."
We are wholly unable to accept that so unfortunate an outcome is suggested, still less
required,
by any
rule
of law, principle or policy. We modify Sir Brian's observations in one
respect
only; insofar as this Court then said (ibid) that the "…presence or otherwise of a directing mind at the trial is irrelevant" (emphasis added), we
respectfully
think that the Court went too far. The presence or absence of a DMW may well be
relevant;
but, without being at all prescriptive, it can only be in a
very
rare
case that the absence of a DMW would itself be determinative of the question whether a corporate defendant could
receive
a fair trial.
receive
a fair trial.
relatively
high
remuneration.
As to Mr Lainé, they included his understanding of the email
referring
to a "Mr T…of Tunisia" and why he intervened to provide the information he did concerning the payment of consultants outside the project country to an
Alstom
Transport SA employee hitherto apparently
reluctant
to authorise the second invoice. The short answer, however, is that, as made clear by the
Respondent's
Notice, there were other
Alstom
employees who could have given evidence – as to the
relationship
with and knowledge of Nevco, the identity and significance of the
reference
to "Mr T" in the email in question and the authorisation of the second payment to Nevco. Further, at least on the question of the second Nevco payment, there was a documentary
record
available for the jury to consider.
robust
defence of his position and honesty, together with an explanation of his
role
and that of AIL for the jury to consider. As to Mr Lainé, extracts of his evidence in the Phase 3 trial were made available to the Court at the trial. Likewise, these extracts contained a clear denial of any wrongdoing and details of Mr Lainé's efforts to improve compliance generally. By its nature, hearsay evidence suffers from disadvantages compared to first-hand oral evidence but, of course, the maker of the hearsay statement is not exposed to cross-examination with its attendant
risks.
respect
of Count 3 had Mr Kaelin and/or Mr Lainé given evidence. But, even assuming that the presence of one or both of Messrs Kaelin and Lainé would have been helpful to AIL, it falls a long way short of demonstrating, even arguably, that the trial was unfair and the conviction unsafe.
"There is norule
of law or practice which
requires
the directing mind of a corporation to be indicted with the corporation or in some other way to be available at the trial of the corporation to give evidence. A case can be proved against a corporation in the same way as a human defendant, i.e., by any form of admissible evidence. This might be evidence from the directing mind or about the directing mind but the directing mind need not be present at trial. Although you seek to make the point specific to this case….underlying your application is the general submission that a trial of a corporation in the absence of the company's directing mind is unfair. This is an untenable proposition and, in any event, was dealt with by the Court of Appeal in
R
![]()
v
A
Ltd,
X and Y. It was not unfair to try the corporation in this case in the absence of its directing minds. Moreover, the judge admitted evidence from Kaelin and Lainé which was exculpatory of the corporation and there were other sources of evidence available to the corporation about the Tunisian contracts and the conduct of the directing minds had it wished to
rely
on them."
Suffice to say that we
respectfully
agree with and adopt these succinct observations of the Single Judge which entirely accord with the
reasons
we have already given. We are, accordingly, unable to accept Mr Cameron's submissions on Issue I. With no
real
hesitation, we answer the question posed at the
very
beginning of the judgment "yes".
ISSUE II: THE ADEQUACY OF THE JUDGE'S DIRECTIONS
"The absence of the directing minds of the corporation was arecurring
topic at trial and one which had been brought to the attention of the jury on
repeated
occasions. In his summing-up the judge gave the jury clear, detailed and emphatic directions on how they should address the absence of Kaelin and Lainé. He emphasised the need to guard against allowing their absence, together with the absence of documents and non-conspirator witnesses, to work injustice against the corporation. His directions were fair and comprehensive and I am unable to identify any direction which he has omitted or which he could have added."
Again, we agree and only brief elaboration is
required;
it is unnecessary to
re-trace
the summing-up at any length.
renewed
complaint, if such it was, as to the failure of the s.78, PACE application – a point which, had it any force, belonged more appropriately under Issue I. The essence of the AIL argument turns, in
reality,
on the submission that the Judge's directions were not sufficiently strong or specific.
respect,
be advanced of the Judge's treatment of the hearsay nature of the evidence of Mr Kaelin and Mr Lainé. Given the particular facts of this case, it may have been unnecessary for the Judge to focus as he did on the weight to be given to hearsay evidence (Bundle B/15B/p.385). But that only goes so far. However, and more significantly, the Judge
repeatedly
made it plain that the absence of Mr Kaelin and Mr Lainé was not to be held against AIL. Thus, following
very
closely on the passage as to the weight to be given to hearsay evidence, the Judge said this (Bundle B/15B/pp. 386-7):
"And again, you must certainly beware of any unfairness to the defendants, and do not hold…absence of these witnesses against the defendants in any way at all. You may consider, quite to the contrary, and it is for you to say, that their absence, through no fault of these men, has put the defendants at a considerable disadvantage."
respect,
difficult to see what more the Judge could
realistically
have said on this topic. Notably, he emphasised the good character of Mr Kaelin, Mr Lainé and AIL itself. Furthermore, the Judge warned the jury against holding the absence of documents against AIL. In the circumstances, we are not at all persuaded by the AIL submissions under Issue II. In any event, had we entertained any doubts on this Issue, they would have been comprehensively put to
rest
by the Judge's directions to the jury, dealt with under Issue III, to which we next turn.
ISSUE III: THE STRUCTURE OF THE SUMMING-UP
representatives
were concerned that the defence case had been inadequately summarised. As the jury had only been deliberating for a short time before the end of the Court day, a written submission was prepared overnight.
Very
courteously, the submission set out the AIL concerns with clarity and brevity.
Very
fairly, the submission acknowledged that the Court's "…determination to seek to be even-handed in its summing-up is manifest". If we may say so, the submission gained in force by
reason
of its courtesy and fairness – while, in terms, preserving
Alstom's
principal submission that the absence of the DMWs gave
rise
to an insoluble difficulty.
right
– and duty bound - to draw the Judge's attention to the perceived omission/s in the summing-up. We can state emphatically that where a legal
representative
is of the
view
that there is a significant omission in a summing-up, we would deprecate a course of saying nothing and preserving the point for an appeal. That would be conduct, in our judgment, falling at least well below professional best practice.
reminders
to the jury, of
relevance
to Count 3, that:
i) Mr Lainé had only been in post for a matter of days and with no previous involvement in the transaction, when the "Mr T" email arrived. Moreover, the Judge corrected his earlier
remarks
and
reminded
the jury that the email only
referred
to "Mr T"; it did not identify him as Mr Trabelsi.
ii) It was Mr Lainé who had stopped further payments being made to Nevco.
iii) The Tunisian funds could not be traced beyond the Lebanon.
iv) On the defence case, there were documents dealing with the provision of services by Nevco and that anyone looking at those documents might well have believed that they were completely genuine.
v)
In
respect
of what was known as the "blocking my deal" email, there was an innocent and understandable explanation for the consultant in question
refusing
to do more work on other deals until the latest invoice had been paid.
vi)
Mr Kaelin's and Mr Lainé's accounts had each contained firm denials of any wrongdoing whatsoever.
reduced
to the jury being unprepared for the further direction when it was given; jurors did not have notebooks and pens with them to note the directions including page
references.
Moreover, the impact of this further direction was weakened by the Judge's
reference
to Mr Cameron having prompted it.
respect,
there is nothing in this ground of complaint and we did not call on Mr Farrell orally to answer it. The direction was given at an important time, when the jury was starting its first full day of deliberations. It stood out, as it was the only matter of substance dealt with by the Judge that morning. Accordingly, it was bound to strike the jury with force. Its essence could easily be
recollected
and there is no
reason
to doubt, if any juror/s had wanted page
references,
that these would have been
requested.
If anything, far from exacerbating any unfairness under Issues I and II, this direction could only have been of assistance to AIL. We dismiss AIL's complaint under Issue III.
OVERALL DISPOSAL
refuse
this
renewed
application for leave to appeal. However, as we have dealt with the matter in detail, this judgment can be
reported.