ZIAD AKLE and PAUL BOND v THE CROWN

Disclosure under the Criminal Procedure and Investigations Act 1996 must enable an accused to present a tenable case in its best light. The prosecution must not restrictively analyse the parties’ cases, and material capable of assisting a challenge to the admissibility or reliability of evidence must be disclosed.

A material failure to disclose documents may make a conviction unsafe where it deprives the defence of a proper opportunity to seek exclusion of a co-conspirator’s guilty pleas and to challenge their evidential reliability. On a retrial application, the court must balance the public interest in prosecution against the defendant’s legitimate interests. Prosecutorial fault, delay, ill health and time already served may justify refusing a retrial.

The appellants were tried at Southwark Crown Court for conspiracies to give corrupt payments contrary to section 1 of the Prevention of Corruption Act 1906. Akle was convicted on two counts after a 66-day trial. Bond was convicted on two counts at a retrial after the first jury could not reach verdicts in his case.

Akle challenged his convictions principally because the Serious Fraud Office had withheld underlying documents concerning its contacts with David Tinsley, an adviser to other alleged conspirators. The prosecution had relied on Basil Al Jarah’s guilty pleas under section 74 of the Police and Criminal Evidence Act 1984 to prove the conspiracies. Bond challenged only his sentence.

1. The court granted Akle leave to appeal on disclosure and evidential grounds, allowed his appeal, and quashed his convictions. It rejected his separate abuse-of-process ground because, on the information available to the trial judge, the refusal of a stay was lawful.

2. The Serious Fraud Office committed a serious disclosure failure. The underlying documents concerning its dealings with Tinsley were relevant both to abuse of process and to the admission or exclusion of Al Jarah’s guilty pleas. Nothing, including the precise terms of the defence request under section 8 of the Criminal Procedure and Investigations Act 1996, justified refusing access to them.

3. The undisclosed documents would have enabled the defence to advance materially stronger arguments under section 78 of the Police and Criminal Evidence Act 1984. They could also have supported a challenge to the evidential reliability of Al Jarah’s convictions under section 74. The defence was prevented from presenting its case in its best light. The court could not conclude that the trial judge, if fully informed, would inevitably have admitted the guilty pleas or excluded the proposed defence evidence. Akle therefore did not receive a fair trial and his convictions were unsafe.

4. Applying the retrial principles in R v Graham and others [1997] 1 Cr App R 302, the court declined to order a retrial under section 7(1) of the Criminal Appeal Act 1968. The public interest in prosecuting serious corruption was outweighed by Akle’s legitimate interests, particularly the prosecutorial fault, the delay, his poor health, and the substantial time already spent in prison in difficult conditions.

5. Akle’s sentence appeal consequently fell away, although the court stated that it would have dismissed it. Bond’s renewed application for leave to appeal against sentence was refused. The sentencing judge was entitled to use the Bribery Act 2010 guideline as a tailored guide, and the concurrent sentences of three years and six months were not manifestly excessive.

• Court of Appeal (Criminal Division) — In [2021] EWCA Crim 1879, Akle’s conviction appeal was allowed on disclosure and evidential grounds; his convictions were quashed and no retrial was ordered. Bond’s renewed application for leave to appeal against sentence was refused.
• Southwark Crown Court — Akle was convicted on counts 1 and 2 on 19 June 2020 and sentenced to concurrent terms of five years’ imprisonment on 23 July 2020. Bond was convicted at a retrial on counts 2 and 4 on 24 February 2021 and sentenced to concurrent terms of three years and six months’ imprisonment on 1 March 2021.