Quashing of Unaoil Convictions Prompts Investigation into the Serious Fraud Office

15th June 2022 Business Crime

Two bribery convictions against individuals have been overturned by the Court of Appeal following an investigation and prosecution by the Serious Fraud Office (SFO) into Monaco-based company Unaoil. This has cast doubt on the investigation as a whole, prompting a review of the SFO by the Attorney General, and JMW Solicitors will be representing a third appellant to challenge his own bribery conviction.

A summary

On 10 December 2021, the Court of Appeal quashed the conviction of Ziad Akle, having found that there was “a material failure of disclosure which significantly handicapped the defence”. In addition, even if the trial Judge had the full picture in relation to why one defendant decided to plead guilty (having been contacted by an individual who was also in close contact with the SFO), “the defence would have been in a significantly stronger position when applying to adduce evidence relevant to the reliability of those convictions”.

In similar terms, when the Court of Appeal quashed the conviction of Paul Bond on 24 March 2022, the following was stated in relation to the non-disclosed material: “The failure of the SFO to disclose the new material to the applicant was therefore as serious as the SFO's failure to disclose it to Akle. It is in our view unrealistic to think that the non-disclosure had no material effect on the applicant's ability to present his case in its best light”.

As a result, the Attorney-General has ordered an independent review into the SFO’s handling of the Unaoil case. This article provides some further detail as to the overturning of the convictions arising from one of the SFO’s largest investigations and prosecutions for bribery and corruption.  

The trial

Mr Akle, Mr Bond and Stephen Whiteley faced a trial at Southwark Crown Court on an indictment relating to alleged bribery and corruption connected to the reconstruction of the Iraqi oil industry in the years that followed the overthrow of Saddam Hussein in 2003.

The charges concerned two projects relating to the installation of Single Point Mooring (SPM) systems and pipelines. Both involved a competitive contract tendering process and it was alleged that the conspirators had given corrupt payments as inducements or rewards to obtain confidential information, and further that they had then manipulated the tender process to ensure multi-million-pound contracts were secured. 

Following a trial that lasted 66 days during the peak of the pandemic, Mr Akle and Mr Whiteley were convicted of conspiring to give corrupt payments. Mr Akle was convicted of two of the three counts that he faced and Mr Whiteley was convicted of one count of the two that he faced. The jury could not reach a verdict in respect of Mr Bond, but he was later convicted following a second trial. Mr Akle was sentenced to a period of five years’ imprisonment, Mr Whiteley three years and Mr Bond three-and-a-half years. 

The appeal

On 10 December 2021, the Court of Appeal heard the appeal against the conviction of Mr Akle, which included three grounds of appeal.

Ground 1 – Failure to stay the proceedings as an abuse of process

During the trial, Mr Akle made an application to stay the proceedings for an abuse of process on the basis that he could not have a fair trial. The application stated that the SFO had been party to an improper and unlawful attempt by an unregulated operative, David Tinsley, to approach defendants in the absence of their lawyers in an attempt to persuade them to change their pleas to guilty. It was submitted that the conduct of the SFO amounted to malpractice to such an extent that it would undermine public confidence in the criminal justice system and bring it into disrepute. The trial Judge rejected the defence application to stay the proceedings and the Court of Appeal held that, on the evidence available to the trial judge, it is impossible to conclude that he erred in law in rejecting the application to stay the proceedings. This ground was therefore refused. 

Ground 2 – Disclosure failings

It was asserted by the defence that the prosecution had failed fundamentally to comply with its disclosure obligations in relation to the material capable of supporting the application to stay. It was said that the SFO had deliberately failed to disclose material, namely materials detailing the SFO’s conduct and dealings with Mr Tinsley, as it was embarrassing to them. Furthermore, it was claimed that the trial judge had erred in refusing to order further disclosure concerning the SFO’s dealings with Mr Tinsley. It was further suggested that compliant disclosure would have provided the court with evidence that should have led to a stay of the proceedings. 

In response, the prosecution accepted that the disclosure decisions may not have been well judged; however, it was submitted that there was no bad faith or deliberate failure to make proper disclosure. 

In passing judgement, the Court of Appeal highlighted the prosecution’s duties under the Criminal Procedure and Investigations Act 1996. Investigators are required to pursue all reasonable lines of enquiry, retain and record all material, and must schedule all non-sensitive relevant unused material. Any unused material that may reasonably be considered to undermine the prosecution case or assist the defence case must be disclosed. 

The Court held that the materials sought by the defence were clearly relevant to the abuse of process application and the discussion regarding the exclusion of the evidence of Basil Al Jarah’s guilty pleas. It was highlighted that the disclosure requests specifically raised Mr Tinsley’s conduct and consequently there was no justification for the failure to provide the documents. The provision of summaries within the unused material schedules was deemed to be insufficient.

The Court concluded that the material requested by the defence should have been provided and the refusal to do so was a serious failure by the SFO. The Court noted that ‘the failure was particularly regrettable given that some of the documents had a clear potential to embarrass the SFO in their prosecution of this case’. The Court accepted that the result of limiting disclosure was that neither the defence nor the trial judge had a complete picture. They therefore concluded that Mr Akle was unable to have a fair trial, allowed the appeal and quashed Mr Akle’s convictions. 

Ground 3 – Refusal to permit the adducing of evidence to undermine the guilty pleas of Mr Al-Jarah 

At trial, the prosecution successfully applied to adduce the guilty pleas of Mr Al-Jarah as proof of the existence of a conspiracy in accordance with section 74 of the Police and Criminal Evidence Act 1984. On appeal, the defence submitted that the trial judge had erred in refusing to permit the defence to adduce evidence to prove the contrary. 

During the trial, the defence had applied for further disclosure concerning the circumstances surrounding Mr Al-Jarah’s pleas. It was submitted that the SFO had failed to provide the full picture, as they had merely summarised relevant material in a schedule of unused material rather than disclosing the underlying documentation. These applications were unsuccessful as the trial judge accepted the SFO’s assurances that there was nothing further to disclose. 

The Court of Appeal held that, had the prosecution fulfilled their disclosure obligations and provided the material sought by the defence, those acting on behalf of Mr Akle would have had significantly stronger arguments available to them on the issue of the introduction of Mr Al-Jarah’s guilty pleas. 

The Court described how it was striking that, in resisting the application to exclude the guilty pleas, the SFO had relied upon the fact that Mr Al-Jarah was legally represented at the time that he decided to plead guilty. It was highlighted that, had the relevant materials been disclosed, the SFO would have been unable to advance such an argument as it would have been clear that the SFO were aware that ‘Tinsley was deliberately operating behind the backs of Mr Al-Jarah’s lawyers’. 

The Court therefore concluded that the defence were denied the stronger position to which they were entitled. Whilst they were unable to say whether the trial Judge would have admitted the guilty pleas of Mr Al Jarah, it was noted that even if the guilty pleas were adduced, the defence would have been in a stronger position to question the reliability of such convictions before the jury. 

The Court therefore concluded that the failure to disclose the relevant materials placed the defence in a weaker position when arguing for the exclusion of Mr Al-Jarah’s pleas, and consequently resulted in Mr Akle being refused a fair trial. This ground of appeal was therefore allowed and Mr Akle’s convictions quashed.

On 24 March 2022, Mr Bond appealed against his convictions. The Court of Appeal held that the logic of the decision in Mr Akle’s case applied equally to Mr Bond, that he was prevented from presenting his case in the best light, and consequently held that the convictions were not safe. 

Prosecution application for retrial

Following the quashing of Mr Akle’s convictions, the prosecution made an application for a retrial under section 7(1) of the Criminal Appeal Act 1968. The prosecution submitted that it was in the interests of justice for Mr Akle to be retried for the following reasons: 

the seriousness of the charges; 

  • that the documentary nature of the evidence meant that the passage of time would not have any adverse impact upon the quality of the evidence; 
  • that the strength of the evidence had been largely unaffected by the allowing of the appeal; and 
  • the fact that part of the sentence remained to be served. 

In response, the defence highlighted the following: 

  • that the convictions had been quashed because of the misconduct of the SFO; 
  • the time that had passed since the relevant events; 
  • the anxiety caused to Mr Akle as a result of the proceedings; and 
  • the deterioration of his health. 

The Court of Appeal ruled that the general public interest did not outweigh the legitimate interests of Mr Akle and did not order a retrial. 

The future of the SFO

The quashing of these convictions represents a serious failing on the part of the SFO, and JMW Solicitors will now be representing Mr Whiteley in challenging his own conviction through a similar appeal process.

The investigation into Unaoil commenced in 2016 and the Court of Appeal ruling may have significant adverse costs and consequences for the prosecuting authority. This ruling highlights the importance of the prosecution’s ongoing duties of disclosure and the possible outcome when such duties are not properly satisfied. 

Following the quashing of the convictions of Mr Akle, the Attorney-General, Suella Bravermen, ordered an investigation into the SFO. Sir David Calvert Smith and Brian Altman QC were tasked with investigating the failings and advising on the changes required to improve the culture, policy and procedures of the prosecuting authority. 

Many have criticised Lisa Osofsky, director of the SFO, for the failings; others, however, have suggested that the issues are unlikely to be resolved by a change in leadership. Instead, they attribute the difficulties to the resource constraints and reliance on whistle-blowers and corporate admissions of guilt. 

The findings of the investigation are expected towards the end of June and is most likely to present difficult reading for the SFO. Given the level of criticism by not only the trial Judge but also the Court of Appeal, there are likely to be many questions in relation to the future of the prosecuting agency.

What can we do to help? 

The authors of this blog, Sam Healey and Sadie Thomson, have extensive experience representing individuals and companies being prosecuted by the SFO at all stages of the investigation. For further information about the services that can be offered, please do not hesitate to contact JMW on 0345 241 5305 or enquiries@jmw.co.uk

We're Social

Sadie Thomson is an Associate Solicitor located in London in our Business Crime & Regulation department

View other posts by Sadie Thomson

Sam Healey is a Partner located in Manchester in our Business Crime, Regulation & Serious Driving Offences department

View other posts by Sam Healey

Let us contact you

*
*
*
*
*
*
View our Privacy Policy