Hammond & Anor, R v

The oath requirement in section 2(3) of the Prevention of Corruption Act 1906 applies only where criminal proceedings were in fact commenced by an information. It does not apply merely because an information may be imputed as a legal fiction following arrest. Nor is that requirement a prohibition on instituting proceedings which section 4(3) of the Criminal Law Act 1977 extends to a conspiracy charge.

Directions concerning a defendant who becomes unrepresented must be tailored to the circumstances. A conviction remains safe where the judge gives practical assistance and fair directions, and reasonably avoids an explanation that would invite jury speculation about counsel's dismissal.

Following a 64-day trial at Southwark Crown Court, Rybak was convicted of five counts and Hammond of four counts of conspiracy to corrupt in connection with confidential tender information in the international oil and gas engineering industry. Rybak received five years’ imprisonment and Hammond three years’ imprisonment.

Rybak appealed against conviction. He contended that the proceedings were a nullity because no oath had been taken under section 2(3) of the Prevention of Corruption Act 1906. He also alleged unfairness after he dismissed his counsel during the trial and represented himself. Hammond renewed his application for leave to appeal, relying principally on the alleged prejudice caused by Rybak’s self-representation.

The central issues were the scope of the statutory oath requirement and whether the trial judge’s management of an unrepresented defendant, and its effect on his co-defendant, rendered either conviction unsafe.

1. Rybak’s appeal was dismissed and Hammond’s applications for leave to appeal were refused. The convictions were safe.
2. Section 2(3) of the Prevention of Corruption Act 1906 required an oath only where a prosecution had actually been commenced by an information. The appellants had been arrested and no information was involved. A deemed or fictional information did not engage the provision. The court distinguished R v Nusrat Ghafar [2009] EWCA Crim 2270, which concerned a substantive offence and did not address that circumstance.
3. Section 4(3) of the Criminal Law Act 1977 extends a statutory prohibition on instituting proceedings to a conspiracy charge. The oath requirement in section 2(3) was not such a prohibition. It therefore did not apply to the conspiracy charges. It was unnecessary to decide whether section 123 of the Magistrates’ Courts Act 1980 would in any event treat a failure to comply with section 2(3) as a curable defect.
4. The trial judge had taken considerable care before allowing Rybak to act in person. She explained the consequences, supplied material and transcripts, addressed evidential questions outside the jury’s presence, and gave him time to prepare his closing speech. Directions for an unrepresented defendant must be tailored to the case: see R v De Oliveira [1997] Crim LR 600. The judge was entitled not to explain why counsel had been dismissed at that stage, since doing so could invite harmful speculation. Her summing-up correctly told the jury not to speculate or hold self-representation against Rybak.
5. Hammond had remained able to cross-examine Crown witnesses, present his own case and give evidence. The difficulties arising from Rybak’s self-representation did not differ in principle from those which may arise between co-defendants in a multi-handed conspiracy trial. They did not undermine the fairness of Hammond’s trial or the safety of his conviction.

• Court of Appeal (Criminal Division) — Rybak’s appeal against conviction was dismissed. Hammond’s renewed application for leave to appeal against conviction, including his fresh ground, was refused.
• Southwark Crown Court — after a jury trial, Rybak was convicted on five counts of conspiracy to corrupt and Hammond on four counts. Rybak was sentenced to five years’ imprisonment and Hammond to three years’ imprisonment.