DE BOER AND IBORI v. THE UNITED KINGDOM (European Court of Human Rights)

FIRST SECTION
DECISION
Applications nos. 19823/19 and 21586/19
Lambertus DE BOER against the United Kingdom
and James IBORI against the United Kingdom

The European Court of Human Rights (First Section), sitting on 17 September 2019 as a Committee composed of:

AlešPejchal, President,
Tim Eicke,
Raffaele Sabato, judges,
and Renata Degener, Deputy Section Registrar,

Having regard to the above applications lodged on 9 April 2019 and 15 April 2019 respectively,

Having deliberated, decides as follows:

THE FACTS

1. The applicant in the first case, Mr Lambertus de Boer, is a Dutch national, who was born in 1946 and lives in Barcelona.

2. The applicant in the second case, Mr James Ibori, is a Nigerian national, who was born in 1958 and lives in Oghara, Nigeria. He was represented before the Court by Mr A. Mahmood, a lawyer practising in Wembley.

A. The circumstances of the case

3. The facts of the case, as submitted by the applicants, may be summarised as follows.

1. The convictions

4. In 2010 and 2012 respectively, the applicants pleaded guilty to assorted offences of fraud, money laundering and forgery. The prosecution case was that Mr Ibori had, while governor of the Delta State in Nigeria from 1999 to 2007, defrauded that state of almost 90 million United States dollars and that Mr De Boer had helped him launder money.

5. In 2010 Mr Ibori’s former lawyer, G, who had acted for him in respect of commercial transactions, was convicted of a number of money laundering, conspiracy to commit fraud and forgery offences. The prosecution case was that G had provided a client account for Mr Ibori through which the latter had laundered money, and had later conspired with Mr Ibori and others to commit fraud.

2. The police corruption allegations

6. In 2006, while the criminal investigation which led to the convictions set out above was underway, Mr Ibori hired a firm of private investigators (“RM”) as part of his defence team. C, a senior employee of the firm, was a former employee of the Metropolitan Police Service (“MPS”). He had previously worked with John, one of the MPS officers then involved in the Ibori investigation.

7. In 2007 the professional standards body of the MPS conducted a covert operation, codenamed Operation Limonium, into allegations of a corrupt relationship between RM and serving MPS police officers, in particular, John. Decisions taken during the operation were recorded in a number of decision logs (“D/L”). D/L 3 from September 2007 recorded that intelligence from a non-attributable source (“Source A”) indicated that C was in contact with MPS officers working on the Ibori investigation, and had recently met John and paid him for information. It went on to explain that there was no evidence to corroborate that any payment for information had been made or that further meetings had taken place. Similar allegations were raised and discussed in D/L 6. Limonium was later closed with no arrests made or charges brought.

8. Following his 2010 conviction, G alleged that there had been corruption within the MPS during the investigation. He claimed that MPS officers had received corrupt payments from RM, and that RM had passed confidential information to them. He subsequently sought leave to appeal his convictions on the basis that MPS officers in his case had been in receipt of corrupt payments.

9. During a prosecution review of the Limonium records in preparation for the appeal, the question arose whether there was a disclosure obligation in respect of Limonium. Prosecution counsel formed the view that information concerning the operation could be provided to G as “voluntary information” rather than “disclosure”. A form of words was agreed which disclosed the alleged contact between C and John but omitted any reference to the intelligence in D/L 3 and D/L 6 that C had paid John for information. A Note of Voluntary Information was accordingly provided in April 2014 (“the April 2014 Note”).

10. Meanwhile, a further MPS investigation, codenamed Operation Tarbes, was being carried out into the alleged police corruption. Following the investigation, the file was referred to the Crown Prosecution Service (“CPS”), which took the decision that there was insufficient evidence to charge John. However, in June 2014, the CPS took the decision to charge G for attempting to pervert the course of justice. The prosecution case was that the suggestion that there had been corrupt payments from RM to MPS officers was false.

11. In July 2014 the Court of Appeal refused G leave to appeal his 2010 convictions. It found that there was no arguable case of police corruption, and that at its very highest the evidence purported to record the passing of information from the MPS to RM, and not the other way around.

12. The criminal proceedings against G on the charge of attempting to pervert the course of justice progressed. On 11 January 2016, shortly before the trial was scheduled to commence, the judge asked to read the Limonium material. This prompted a meeting of the prosecution team the following day at which it emerged that “Source A” (see paragraph 7 above) was intercept evidence. Section 17 of the Regulation of Investigatory Powers Act (“RIPA”) prohibited both the disclosure of the contents of an intercept in circumstances in which it could be inferred that they had been obtained via an intercept, and any disclosure that there had been or might be a warrant to intercept communications (see paragraphs 30-35 below). SW, who was leading counsel for the prosecution, immediately stated that Source A was capable of supporting G’s case, that she had previously understood Source A to have been G himself making anonymous allegations, that the material fell to be disclosed, and that the fact that it was intercept evidence likely meant that it was the end of the case. SW subsequently provided advice to the Director of Public Prosecutions regarding the impending trial.

13. On 21 January 2016 the prosecution offered no evidence in respect of the charges against G. SW explained to the court that a matter had recently been brought to her attention for the first time. This matter had been the subject of careful scrutiny at senior level of the CPS and as a result of this consideration it had been decided that the prosecution would no longer proceed with the allegations against G.

14. Following these events, SW was replaced by JK as leading counsel for the prosecution and a review of disclosure in the Ibori cases took place. This resulted in almost 10,000 pages of further material being disclosed to the defendants in the Ibori cases, including D/L 3 and D/L 6.

3. The appeals against conviction

15. The applicants subsequently sought leave to appeal their convictions out of time. They argued that John had been corrupt and received payments; that the MPS had deliberately covered up that corruption and closed Limonium prematurely; and that there had been a failure to disclose material from Limonium prior to their guilty pleas or properly to investigate the corruption allegations.

16. The prosecution, represented by JK, conceded that there had been a failure of disclosure in the cases, in that the April 2014 Note (see paragraph 9 above) had been “inaccurate, incomplete and misleading”. However, it considered that the convictions were safe.

17. Witness statements by SW addressing previous disclosure and, in particular, her knowledge of Limonium, D/L 3 and D/L 6, and Source A, were before the court.

18. A hearing took place on 21-23 March 2018 during which the applicants advanced their submissions concerning the impact of the alleged police corruption and the failure to disclose on the safety of their convictions.

19. On 25 March 2018, before judgment was handed down, SW wrote to the Court of Appeal (“the SW Note”) to refute what she considered to be suggestions by JK during the appeal hearing that she, and not the police, had in fact been responsible for the serious errors in disclosure. In her note, SW referred to a paragraph of the CPS legal guidance. The reference given was to a chapter on dealing with intercept material. This effectively confirmed that Source A was indeed intercept material.

20. The court circulated the SW Note to the parties and invited their submissions on the note. Given the terms of section 17 RIPA, it also asked for proposals for “ground rules” for a further hearing on 21 June 2018 to discuss the issues arising. In his submissions, Mr Ibori’s counsel contended that a fair hearing was no longer possible, that the prosecution could offer no further opposition to the appeal and that the court had to allow the appeal. He does not appear to have suggested any ground rules for the hearing.

21. On 11 May 2018 the parties were informed of the ground rules set by the Court of Appeal. The ground rules were:

1. the intelligence should continue to be referred to as Source A;

2. no submissions should contain anything that tended to suggest that Source A intelligence had been or might have been obtained by anything referred to in Part I RIPA (i.e. through interception);

3. no submission should contain any reference to any part of the SW Note that tended to suggest that Source A intelligence had been or might have been obtained by anything referred to in Part I RIPA;

4. Source A was to continue to be treated as it had been treated in the proceedings so far (i.e. the prosecution were not allowed to rely on its nature in support of its argument as to who knew what when).

22. At the 21 June hearing, Mr Ibori’s counsel argued that he could no longer have a fair hearing because of the restrictions imposed by the ground rules. According to Mr Ibori’s application, counsel highlighted three issues at the hearing.

23. First, he submitted that if Source A was intercept product it had to be logged, handled, recorded and destroyed in a particular way. If it had not been, then the prosecuting authorities would be in breach of their specific duties with regard to the handling of intercept product

24. Second, he submitted that the prosecution and the court had to consider whether, if there was other relevant intercept material, it had been destroyed. If so, there was an arguable breach of other provisions of RIPA which required such material to be retained to ensure fairness.

25. Third, he submitted that if the relevant material was intercept product, it would mean that by its very nature it was likely to be more significant, more reliable and more cogent than information from any other source. This was relevant in so far as police witnesses might have downplayed the reliability and cogency of Source A to explain why it was overlooked, and in doing so given misleading or false reasons for non‑disclosure of the material.

26. Mr De Boer aligned himself with the submissions made by counsel for Mr Ibori.

27. The Court of Appeal gave judgment on 17 October 2018. Referring extensively to the evidence before it, the court found that Mr Ibori was fully aware of both the contacts between C and John and any payments passing from RM to John, if any such payments had in fact been made. The court further considered that if John was corrupt, then Mr Ibori was the instigator or at the very least intimately involved in any such corruption. He was therefore fully informed of the alleged police corruption well before entering his guilty pleas but chose, for understandable reasons, not to raise it. The court also found that although the non-disclosed material was relevant and should have been disclosed, it had not been deliberately suppressed. The disclosure failure did not render his conviction unsafe.

28. In respect of Mr De Boer, the court noted that there was no evidence that he was a party to or knew of any corrupt relationship between RM and the MPS. However, after considering in detail the counts to which Mr De Boer had pleaded guilty, the court was satisfied that his confessions could not sensibly have been affected by material suggesting misconduct on the part of John. It noted that his defence as outlined prior to his guilty plea would not have been assisted by the proposition that John was acting corruptly in the service of Mr Ibori and his former lawyer, G. His convictions were therefore also safe.

29. Finally, the Court of Appeal held that any actual or alleged breach of section 17 RIPA did not require that the prosecution abandon its opposition to the applications for leave to appeal or that the court allow the appeals. It declined to accept that the act of a third party outside the control or supervision of the prosecution could, in itself, breach section 17. It also considered that counsel for Mr Ibori was “in no way inhibited in the submissions he advanced”, a point which the court had already made in the course of oral argument. Referring to the defence submissions regarding the alleged deliberate attempt to mislead and assuming, in favour of the defendants, that Source A was intercept material and that stringent handling procedures had not been followed, the court remained of the same view expressed earlier in its judgment. Over and above Mr Ibori’s centrality to John’s corruption (if he was indeed corrupt) and both applicants’ guilty pleas, none of the conclusions reached regarding the nature of the disclosure failure and its impact on the safety of the applicants’ convictions called into question by the additional submissions made.

B. Relevant domestic law and practice

30. Section 17 RIPA covers the admissibility of evidence relating to or obtained from an interception warrant. Section 17(1) provides that:

“Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings which (in any manner)–

(a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or

(b) tends (apart from any such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur.”

31. Section 17(2) includes the issue of an interception warrant and the making of an application for such a warrant.

32. Section 18 RIPA sets out exceptions to section 17 RIPA. In particular it provides a procedure for making appropriate disclosure where necessary in criminal proceedings.

33. The Attorney General’s Guidelines for Prosecutors: Section 18 of the Regulation of Investigatory Powers Act 2000 (England and Wales) set out the approach to be taken by prosecutors in applying section 18 RIPA. At paragraph 2, the guidelines explained the long-standing Government policy that the fact that interception of communications had taken place in a particular case should remain secret:

“This is because of the need to protect the continuing value of interception as a vital means of gathering intelligence about serious crime and activities which threaten national security. The Government judges that if the use of the technique in particular cases were to be confirmed, the value of the technique would be diminished because targets would either know, or could deduce, when their communications might be intercepted and so could take avoiding action by using other, more secure means of communication.”

34. The guidelines noted that, in the context of legal proceedings, this policy was implemented via section 17 RIPA.

35. Further details of the regime which applied at the relevant time can be found in Knaggs and Khachik v. the United Kingdom (dec.) nos. 46559/06 and 22921/06, §§ 120‑136, 30 August 2011.

COMPLAINTS

36. The applicants complained under Article 6 § 1 of the Convention that the operation of section 17 RIPA in the unusual circumstances of their case resulted in a violation of their right to a fair trial.

37. Mr De Boer also complained that the failure to disclose information concerning the alleged corruption in the MPS resulted in a violation of Article 6 § 1 in his case.

THE LAW

A. Joinder

38. Given their similar factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

B. Alleged violation of Article 6 § 1 of the Convention

39. The applicants complained that the criminal proceedings against them were unfair. They relied on Article 6 § 1 of the Convention which provides, insofar as relevant, as follows:

“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”

1. The complaint in respect of section 17 RIPA

40. As is clear from Mr Ibori’s submissions, his allegation that his trial was unfair is based exclusively on the operation of section 17 RIPA and the ground rules in the circumstances of his case. His argument was summarised in his application to this Court as follows: the effect of the SW Note (see paragraph 19 above) was that it could reasonably be inferred that the key material under discussion (intelligence in D/L 3 and D/L 6) was the product of intercepted communications; the ground rules established in order to seek to ensure compliance with section 17 RIPA (see paragraph 21 above) created an “artificial situation of imposing a prophylactic rule against a prohibited disclosure contaminating the proceedings” after the said disclosure had already taken place; the applicants were thus unable to develop fully the submissions they were entitled to make about the nature of the material; as a result the process before the Court of Appeal was not sufficiently adversarial and the proceedings were unfair. He expressly refuted the Court of Appeal’s finding that counsel was in no way inhibited in the submissions advanced.

41. In his application to this Court, Mr De Boer stated that he adopted in their entirety the grounds outlined in Mr Ibori’s application as regards the impact of section 17 RIPA on the fairness of his trial.

42. The Court emphasises at the outset that the section 17 RIPA was not aimed at securing the fairness of criminal trials. Rather, it was a provision designed to protect the secrecy of interception of communications and the continued effectiveness of this technique in investigations into serious crimes and matters of national security (see paragraphs 33-34 above). Thus, the fact that a disclosure was made which may have been in breach of section 17 RIPA does not, in itself, have any impact on the fairness of the criminal proceedings. However, a fairness issue would arise if, as a result of section 17, the applicants were denied the opportunity of putting forward their defence. It therefore falls to the Court to examine whether the applicants have established that section 17 or the ground rules prevented them from advancing or developing pertinent submissions in their defence at the 21 June 2018 hearing.

43. The first submission advanced by Mr Ibori’s counsel at the hearing was that if Source A was intercept product it had to be handled in a particular way; if it had not been, then the prosecuting authorities would have been in breach of their specific duties with regard to the handling of intercept product (see paragraph 23 above). In his application to this Court, Mr Ibori contended that his counsel was not able to advance any breaches of procedure in how that material was handled and whether that revealed that it was deliberately suppressed. However, the Court observes that Mr Ibori has not suggested that he was aware of any such breaches in procedure that, in the absence of the ground rules, he would have been in a position to assert had, or may have, taken place. It is therefore difficult to see what additional submissions in this respect Mr Ibori would have wished to make during the hearing or how the ground rules precluded him from doing so. In light of the submissions he did make, it is further unclear why, if in his view breaches of handling procedures would have a bearing on whether the material was deliberately suppressed, he could not also have made that argument in general terms during the hearing.

44. Mr Ibori’s second submission before the Court of Appeal was that the prosecution and the court had to consider whether other relevant intercept material had been destroyed; if so, there had been an arguable breach of other provisions of RIPA which required such material to be retained to ensure fairness (see paragraph 24 above). In his application to this Court, Mr Ibori provided no details whatsoever of the further development of this submission which he wished to make and was allegedly prevented from making by the ground rules.

45. The third submission was that police witnesses might have downplayed the reliability and cogency of Source A to explain why it was overlooked and in doing so given misleading or false reasons for non‑disclosure of the material (see paragraph 25 above). In his application to this Court, Mr Ibori contended that his counsel could not submit that the way police officers had described their approach to the material was misleading because it was, in fact, intercept product. The Court fails to see how this brief submission differs in any significant way from, or develops in any way at all, the submission that counsel did make as to the conduct of the police. In particular, Mr Ibori does not claim that he wished to make specific submissions about identified MPS officers and their actual conduct in respect of disclosure, or indeed that he was in possession of any further information which would have enabled him to do so.

46. Aside from the submissions referred to above, the applicants have not suggested that there were any other submissions that they would have made at the hearing but for the ground rules.

47. In these circumstances, the Court finds itself in full agreement with the Court of Appeal. The applicants have failed to demonstrate that they were in any way inhibited from advancing or developing submissions in support of their appeal. On the contrary, it can be seen that counsel for Mr Ibori was able to and did alert the court during the hearing to his concerns in respect of the handling of the material in question and other potentially relevant material from the same source, and the increased possibility that disclosure had been deliberately suppressed.

48. There is accordingly no appearance of a breach of the fairness guarantees in Article 6 § 1 of the Convention as a result of section 17 RIPA and the operation of the ground rules. It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. The complaint of Mr De Boer regarding the failure to disclose

49. Mr De Boer also argued that had he been aware of the alleged corruption of officers involved in the Ibori investigation, he would not have pleaded guilty. He therefore contended that the disclosure failure denied him a fair trial and that there had been, as a result, a violation of Article 6 of the Convention.

50. For the reasons given by the Court of Appeal (see paragraph 28 above), the Court is satisfied that there is no evidence of any unfairness in this respect. The complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be declared inadmissible pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 10 October 2019.

Renata Degener                                         Aleš Pejchal
Deputy Registrar                                        President

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