Home / Articles & Publications

Acquitting Co-Conspirators - How 'Blowing Hot And Cold' May Lead To Abuse

by David Aaronberg

R v Gibbins, a first instance ruling by Mr. Justice Field on 21st July 2004 at Southwark Crown Court, brings an extraordinary saga to an abrupt end. The judgment is extremely helpful in establishing a number of novel and important points of law, and clarifying an area of confusion. The most important matters which may be distilled from the judgment appear to be the following:

• A defendant who has been acquitted may (in appropriate circumstances) be entitled to locus to make submissions in relation to ongoing proceedings against a co-defendant;
• Such a defendant (notwithstanding his acquittal) may yet be regarded as a ‘person charged with a criminal offence,’ where there is a subsequent proceeding following his acquittal which is closely linked to the prior decision;
• In such circumstances, an acquitted defendant remains entitled to the protection of Article 6(2) of the European Convention on Human Rights;
• Article 6(2) precludes the state (whether in the form of the Court or the Crown) from being able to allege that a person who has been acquitted is in fact guilty;
• Accordingly, the Crown is prohibited from alleging that a defendant who has been acquitted is a co-conspirator with a defendant who remains to be tried;
• The Crown may call evidence of the actions of the acquitted defendant (in so far as they are relevant) but must not impute dishonest motives;
• Where the Crown’s ability to prove a case against a remaining defendant is dependent upon being able to allege that a defendant acquitted at the behest of the Crown is in fact guilty, the case should be stayed as an abuse – such a course of conduct is “so seriously improper as to bring the administration of justice into disrepute.”

A full transcript of the ruling may be downloaded here [PDF Format].

Background to the Case

The case was a Serious Fraud Office prosecution of massive proportions. Five defendants were originally in the dock, charged with an $80 million conspiracy to defraud investors. Mr. Gibbins was the main defendant. Three of the other defendants (one of whom was a Mr. Barnett) were solicitors through whose accounts monies had passed. The case featured a vast quantity of documentation.

Following a PII hearing, the Judge had ruled, on 21st April 2004, that a particular document, containing “information of a secret and sensitive character” should be disclosed to the defence, but in redacted form.

On 12th May, the Crown began its opening of the case to the jury but, on 13th May, for unconnected reasons, it was necessary to discharge a juror (and – ultimately – the entire panel.) It was intended to begin the case afresh on 17th May.

In the meantime, the court sat on 14th May to hear legal submissions on an unrelated matter. On this day, a bundle containing copies of various items of unused material was distributed to Counsel for all defendants. As a result of an error, that bundle included a copy of the sensitive document in unredacted form. The mistake was quickly realised and the Crown requested the return of the copies. By then, however, the document had been read by Counsel and solicitor for Mr. Gibbins and by Counsel only for Mr. Barnett. None of the lay defendants saw the document and no other solicitors or Counsel did so.

As a result of this accidental disclosure, Mr. Justice Field made orders restraining those legal representatives who were “in the know” from divulging the sensitive information to lay and professional clients and barring them from making any use of the information whatsoever.

Those orders were perfected on 19th May in what the Judge declared to be a ‘preparatory hearing’ within section 7 of the Criminal Justice Act 1987, thereby permitting an interlocutory appeal to the Court of Appeal. The Crown maintained that the Judge had no power to order such a hearing, the preparatory hearing having concluded when the first jury was sworn.

The Hearing in the Court of Appeal

The Court of Appeal convened a hearing as a matter of urgency. On 27th May, the Vice-President gave the judgment of the court, reported as R v B & G, [2004] EWCA Crim 1368; [2004] Crim. Law Week 21 §§ 4 & 6. The Court of Appeal held that:

(a) Mr. Justice Field had been right to declare a preparatory hearing. Nothing said in R v Gunawardena, 91 Cr.App.R. 55; R v Moore & others, CACD transcript 4th February 1991, or R v Hedworth, [1997] 1 Cr.App.R. 421 should be construed so as to prevent a judge, after a jury has been discharged, from holding a preparatory hearing, in a case of serious and complex fraud, for the purpose of assisting him in the management of the trial within section 7(1)(d) of the 1987 Act – see paras. 9 & 10 of the judgment;

(b) Mr. Justice Field did have jurisdiction to make appropriate orders ancillary, and giving effect to, his original PII order. A trial judge having concluded that disclosure is not in the public interest, he is entitled to give effect to that conclusion by making appropriate, supportive, ancillary orders. Section 45(4) of the Supreme Court Act 1981 gives the Crown Court High Court powers in relation to contempt of court, the enforcement of its orders and all other matters incidental to its jurisdiction – see para. 11 of the judgment, but

(c) it was inappropriate, in the circumstances which had arisen in this case, for the trial Judge to have made the orders which he did – see paras. 13-19 for the detailed reasons. In short, the situation was said to be indistinguishable from that in R v Davis, Johnson and Rowe, 97 Cr.App.R. 110, in which Lord Taylor CJ commented, at page 113, that:

"It would wholly undermine counsel's relationship with his client if he were privy to issues in court but could reveal neither the discussion nor even the issues to his client."

That observation was said to be equally apt to the circumstances of the present case.

Accordingly, the Court of Appeal indicated that, if the trial was to proceed, not only should those counsel who were “in the know” be free to tell their lay clients and their instructing solicitors what they had learned, but also the other defendants and their legal representatives should be given the mistakenly disclosed information. Mr. Justice Field’s orders were continued pro tem, to allow the prosecution to consider its position.

The Offering of No Evidence

On 21st June, the Crown announced that it proposed to call no evidence against all defendants other than Mr. Gibbins. This was so

“despite the nature of the evidence against [them], and despite the fact there [was] an accepted prima facie case against them.”

The Court was invited to direct that ‘not guilty’ verdicts should be entered, pursuant to Section 17 of the Criminal Justice Act 1967, and did so. By virtue of the wording of that section, those not guilty verdicts had the same effect as if the acquitted defendants had been tried and acquitted on the verdict of a jury.

The Proposed Trial of Mr Gibbins

As a result of the Crown indicating that it intended to try Mr. Gibbins on his own, the judge ordered the prosecution to serve a revised opening note and fresh indictment. The original indictment had alleged that Messrs. Gibbins, Barnett and the three other defendants had conspired with persons known (listed on the indictment) and unknown to defraud. The new indictment, served on 25th June, alleged that Mr. Gibbins had conspired with the four acquitted defendants and the other persons listed on the original indictment (and persons unknown).

The revised opening note was essentially the same as the original opening note, containing many allegations to the effect that the four acquitted defendants had dishonestly participated in the conspiracy to defraud investors.

Mr. Gibbins applied to stay the prosecution on the ground of abuse of process.

Exceptionally, Mr. Justice Field gave leave for the acquitted defendants to intervene in Mr. Gibbins’ application.

How were the Acquitted Defendants still Defendants within Article 6(2) of the European Convention on Human Rights?

It will be appreciated that it was arguable whether the four defendants who had been acquitted on 21st June at the behest of the Crown had any locus in the proposed trial of Mr. Gibbins.

Article 6(2) provides that:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty.”

However, a person who has been acquitted of a criminal offence self-evidently does not remain charged with it! How were the acquitted defendants able to argue that they were entitled to the protection of Article 6(2)?

Mr. Justice Field was referred to a number of authorities of the European Court of Justice, in particular Sekanina v Austria (1993) 17 E.H.R.R. 22; Rushiti v Austria (21st March 2000); Allenet de Ribemont v France (10 February 1995, Series A no. 308) and Minelli v Switzerland (21st February 1983.) From those authorities, he was willing to deduce the proposition that for the purposes of Article 6(2), a person should be regarded as still being charged with a criminal offence where there is a subsequent proceeding following an acquittal which is closely linked to the prior decision.

He found that the trial of Mr. Gibbins was sufficiently linked to the proceedings that had given rise to the acquittal of the four for the four to be regarded as persons still charged with a criminal offence. There was a sufficient link because: (a) the case against Mr. Gibbins was a continuation of the proceedings that were originally brought against the four and Mr. Gibbins; (b) the court which returned the not guilty verdicts against the four was the same court in which Mr. Gibbins was due to be tried; and (c) continuation of the case against Mr. Gibbins depended both on the four being acquitted (this being the inevitable result of offering no evidence against them) and on the Crown controverting those acquittals and alleging that the four dishonestly conspired with Mr. Gibbins.

What was the Effect of Article 6(2) on this Case?

The European authorities cited above were regarded by Mr. Justice Field as plainly establishing that, once an acquittal has been entered, the state should not undermine that verdict. A public authority, such as the SFO, could infringe Article 6(2), as well as a court.

He held that (a) the prosecution, as a public authority, must comply with Article 6(2); (b) the four acquitted defendants had not been proved guilty of the charges contained in the original indictment, and (c) an allegation by the prosecution that the four were guilty of the original charge would be directly contrary to the presumption of the four’s innocence. Accordingly, to allege in the trial of Mr. Gibbins that the four acquitted defendants were guilty of the conspiracy alleged against them in the original indictment would be to act in breach of the right conferred on each of them by Article 6(2).

At para. 19 of the judgment, Mr. Justice Field said:

“I regard the intention of the Crown to controvert the not guilty verdicts against the four, verdicts which by s. 17 of the Criminal Justice Act 1967 have the same effect as if the four had been tried and acquitted on the verdict of a jury, as being an abuse of process which should not be permitted. To adopt the language of Lord Nicholls in R v Looseley [2001] 1 WLR 2060 at 2069, for the prosecution to blow hot and cold as they propose to do is “so seriously improper as to bring the administration of justice into disrepute.”

The Mistaken Approach of the Crown

The Crown had attempted to rely on R v Z [2000] A.C. 483 (in which the House of Lords held that similar fact evidence of previous incidents which had led to acquittals of a defendant for rape could be adduced against him in a trial for a separate rape even though in adducing such evidence the prosecution would be contending that it showed that the defendant had been guilty in the previous trials.) The Crown also cited Hui Ching Ming v Regina [1992] 1 A.C. 34, a case in which it had been conclusively determined that the trial of a secondary offender can proceed although the alleged principal has been acquitted in an earlier trial.

In R v Z, the House had considered the famous dictum of Lord MacDermott in Sambasivam v Public Prosecutor, Federation of Malaya [1950] A.C. 458 @ 479:

“The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim “Res judicata pro veritate accipitur” is no less applicable to criminal than to civil proceedings. Here the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any steps to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant to his defence.”

In R v Z, Lord Hutton (with whom the rest of the House agreed) had held that the principle of double jeopardy did not operate as widely as might appear from the dictum above and that, provided a defendant was not placed in double jeopardy, evidence relevant on a subsequent prosecution would not be inadmissible because it showed or tended to show that the defendant was, in fact, guilty of an offence of which he had been acquitted.

Mr. Justice Field held that, despite its inroad into Lord MacDermott’s dictum, R v Z did not preclude a finding that the course proposed to be adopted by the prosecution in the instant case was an abuse of process. The position in Hui Ching Ming was easily distinguishable from the instant case.

The Crown further relied on R v Dyer, Lowry and Field (also known as R v Mitchell) [1964] Crim.L.R. 297; The Times 12 February 1964. In Archbold [2004 edn. @ §34-60a], the editors cite this case as authority for the proposition that, “where a person has been acquitted at an earlier trial or on appeal…the Crown may, at a subsequent trial of co-conspirators, assert that the acquitted person was a party to the agreement.” Insofar as the Criminal Law Review report might lead to such an understanding, it is wrong. The full judgment of Mr. Justice Finnemore makes it plain that, although the Crown was free to adduce evidence of the actions of the acquitted defendant, he could not be alleged to be a conspirator because he was protected by his previous acquittal.

As Mr. Justice Field said, in giving his judgment:

“there is all the difference in the world between adducing evidence as to what an acquitted man did and alleging that he was guilty of the offence of which he has been acquitted. In the case before me it is not disputed that the four participated in the transactions and they and Mr. Gibbins do not suggest that the Crown should be debarred from proving what they did in respect of those transactions. However, that is not what the Crown proposes to do, for to secure the conviction of Mr. Gibbins it has to allege that he dishonestly conspired with the four which necessarily involves the allegation that the four dishonestly conspired with Mr. Gibbins.”

Since the Crown did not suggest that the case against Mr. Gibbins could be presented in any way that did not involve alleging that the four had dishonestly conspired with Mr. Gibbins, the judge held that a stay of the proceedings against Mr. Gibbins would be the only way of preventing what he had held amounted to an abuse of the court’s process and a breach of the four’s Article 6(2) rights.

23 July 2004

Top of page