Unaoil: A practical rebuke to the SFO, but no abuse

The behaviour of the Serious Fraud Office (SFO) in its Unaoil investigation was “wholly inappropriate” found the Court of Appeal last week, in a judgment which quashed the convictions of former Unaoil employee Ziad Akle, and refused to order a retrial. The judgment, and this criticism in particular, has been headline grabbing, and has prompted the Attorney General to commission an independent review into the SFO’s failings. The inappropriate behaviour, the focus of the controversy surrounding this case, was a series of interactions between the SFO and a man called David Tinsley (about which more below). However, whilst attention has unsurprisingly been focused on these communications, they are not themselves the reason given by the court for allowing the appeal. Instead, the grounds on which the conviction was quashed relate to the prosaic and well worn topic of prosecutorial disclosure failings. In doing so the court shied away from taking a stand against the sort of prosecutorial misconduct which occurred in this case.

The relevant background can be explained shortly. Mr Akle was an employee of Unaoil, and it was in connection with this employment that he faced a number of charges of conspiracy to give corrupt payments. In each of these charges, the persons named as co-conspirators included three members of the Ahsani family (the owners of Unaoil), and Basil Al Jarah (Unaoil’s Iraqi partner). None of these individuals stood trial alongside Mr Akle. Two of the Ahsani brothers had entered plea deals with the Department of Justice in the USA, following which the SFO discontinued its investigation into them. Mr Al Jarah had entered guilty pleas in England prior to the trial.

It is in relation to Mr Al Jarah’s plea of guilty that the Tinsley controversy is most relevant. Mr Tinsley was, in effect, an adviser to the Ahsanis, working with them and their US lawyer. In this role Mr Tinsley had a number of meetings and phone calls with individuals at the SFO. His aim was to assist the Ahsanis, both by ensuring that they were dealt with for their crimes in the USA only, and by inducing other accused individuals to plead guilty. In doing so he became a self-appointed mediator between the SFO and Mr Al Jarah / Mr Akle, , despite their interests plainly being in conflict with the Ahsanis, and despite the fact that they had their own legal representation. This came to a head in a number of conversations in May 2019, where the SFO case team appeared to encourage Mr Tinsley as he attempted to persuade Mr Al Jarah to enter a guilty plea to the existing indictment, in return for which the SFO would not pursue other potential charges against him. Mr Al Jarah duly pleaded guilty, and that guilty plea was admitted as evidence in Mr Akle’s trial.

Given these facts, it is notable that the Court of Appeal did not rule that the trial should have been stayed as an abuse of process. This was one of the grounds of appeal before the court, an abuse application contending for both limbs of abuse of process (absence of fair trial, and that it would be unfair to try him) having been made and refused at the start of the trial. However, this ground was rejected. Instead, the appeal was allowed because of a failure to comply with disclosure obligations in relation to this contact, and its consequent impact on the use made by the SFO at trial of Mr Al Jarah’s guilty plea. At trial, the full extent of the contact with Mr Tinsley, and in particular the detail of the phone calls was not revealed. Instead the SFO disclosed a schedule summarising the contact, with the Court of Appeal finding that “the result of limiting disclosure to the summaries in the schedules was that neither the defence nor the judge had anything like the full picture”. The result of this was the defence was “significantly handicapped” in arguing both for the exclusion of Mr Al Jarah’s plea from evidence, and in trying to adduce evidence to suggest that his pleas might not be reliable evidence of guilt.

So, the Court of Appeal made a choice to overturn the conviction not because of the way the SFO behaved in its contact with Tinsley, but instead because of its failure to properly inform the defence about this contact. However, their reason for making this choice is not made plain within the judgment itself. The argument that the contact with Tinsley merited the trial being stayed is given short shrift, with the judgment stating: “A stay of proceedings is always an exceptional remedy. On the evidence and information available to the judge at the time of the trial, we find it impossible to say that he erred in law in rejecting the application for a stay.” However, it is not a complete answer to state that the judge did not have the full picture. He did not have the full picture when ruling on the admissibility of Mr Al Jarah’s plea either. On that point, the judgment states “We find it impossible to say that the judge, if addressed by counsel in possession of all relevant information, would inevitably have made the same decision on the application to exclude evidence of BAJ’s guilty pleas”. It was open to the Court of Appeal to take the same position on the abuse application (i.e. to consider whether the judge would have reached the same conclusion if the full position had been disclosed, having determined that the documents were “relevant to the issue of abuse of process”), but it chose not to do so.

A “limb two” abuse argument (as this one was) will succeed where a stay is necessary in order to protect the integrity of the criminal justice system. It is well established that such a situation can include serious misconduct by the law enforcement agency. This case provided a clear opportunity for the court to make plain that the way the SFO dealt with Mr Tinsely was sufficiently egregious to amount to an abuse of process. It is striking that in this case the Court of Appeal was prepared to make damning criticisms of the SFO, whilst sidestepping the question of abuse of process.

It is a particularly striking absence given the decision to refuse the SFO’s application for a retrial for Mr Akle. When considering whether the interests of justice required a retrial, one of the court’s key considerations was “that the application for a retrial is made in the context of the appeal against conviction being allowed on grounds relating to fault on the part of the prosecutor”. This is a highly unusual step where the reasons for finding the conviction unsafe are capable of remedy. In this case the relevant material has now been disclosed, and issues such as the admissibility of Mr Al Jarah’s plea could have been considered afresh. The refusal therefore reveals just how disapproving the Court was of the SFO’s reluctance to disclose the full picture of its improper dealings with Tinsley. Whilst the Court incanted the maxim that the abuse jurisdiction should not be used to discipline or sanction the prosecution for its failings, the refusal amounts to that. .

On the topic of prosecutorial misconduct, the Court of Appeal has therefore chosen to express its disapproval through refusing a retrial, rather than (potentially) describing its conduct as abusive. In a case involving such inappropriate behaviour, which the court plainly viewed as egregious, the court’s unwillingness to state in terms that such behaviour undermines the integrity of our justice system, is conspicuous. It must have been a deliberate choice, to deliver a rebuke to the SFO strictly on the facts of this case without creating any new law (with the potential to set a precedent) in the arena of abuse of process.