Preko, R v

An earlier acquittal is generally irrelevant at a retrial. It does not prove innocence or establish which factual issues the first jury resolved in the accused’s favour. Admissibility depends on fairness and on avoiding distraction from the issues the later jury must decide.

A limited exception may arise where a witness’s credibility is directly in issue and the acquittal clearly shows that the earlier jury rejected that witness’s evidence. A trial judge may permit cross-examination on a served document where the defendant’s evidence makes it materially relevant. Directions and comments must be assessed in the context of the trial and summing-up as a whole.

After a retrial at Southwark Crown Court, Ellias Nimoh Preko was convicted of two money-laundering counts and sentenced to concurrent terms of four and a half years’ imprisonment. The Crown alleged that he knew or suspected that funds he helped to place in offshore trusts and accounts for James Ibori were criminal property.

Preko appealed against conviction. He challenged the exclusion of evidence of acquittals on other counts at his first trial, the use in cross-examination of a Goldman Sachs compliance document, aspects of the summing-up, comments concerning defence witnesses and lawyers, and the absence of a direction on delay. The central issue was whether any of those matters rendered the convictions unsafe.

1. Appeal dismissed. None of the seven grounds rendered the convictions unsafe.

2. The judge correctly excluded the earlier acquittals. The governing approach, stated in R v Joseph Robert H (1990) 90 Cr App R 440, is one of fairness, balanced against the need to keep the jury focused on the true issues. An acquittal is not conclusive evidence of innocence: Terry [2005] QB 996; Hui Chi-Ming v Reg [1992] 1 AC 34. The possible exception identified in Edwards [1991] 2 All ER 226 did not arise. The acquittals did not demonstrate that the first jury had disbelieved the relevant witnesses or had resolved the issue of Preko’s authority to sign investment management agreements in his favour.

3. Page 70a was permissibly put to Preko in cross-examination. It had been served long before the retrial and was capable of contradicting his repeated assertion that documentation would exist if the proposed account had been rejected. Whether late-emerging relevance permits cross-examination is a case-management assessment for the trial judge, who has the feel of the whole case: Grocott [2011] EWCA Crim 1962.

4. The isolated reference in the summing-up to Preko’s knowledge that an account had been refused did not misdirect the jury. Read in context, the summing-up made clear that the Crown had to prove his awareness of Ibori’s corruption. The judge was entitled to recount the relevant cross-examination and had expressly directed the jury not to draw an adverse inference from interview silence.

5. Any concern about comments on the absence of defence witnesses could not displace the clear direction that the Crown bore the burden of proof throughout. The remarks about lawyers were neither unfair nor prejudicial. Nor did the absence of a delay direction undermine safety in a heavily document-dependent case that had been skilfully presented.

• Court of Appeal (Criminal Division). Preko’s appeal against conviction was dismissed: [2015] EWCA Crim 42.
• Southwark Crown Court. Following a retrial, Preko was convicted of two money-laundering counts and sentenced to concurrent terms of four and a half years’ imprisonment.