The judge who presided over the Mabey and Johnson (M&J) case at the Southwark Crown Court in the United Kingdom had earlier advised counsels for M&J and the Serious Fraud Office (SFO) against mentioning the names of some Ghanaian public officials in court in the case brought by the UK SFO.
“It is quite possible that individuals may be prosecuted, certain it is that they are being investigated. May I make it clear that I, myself, have no intentions at all of referring to any of those individuals by name and it is for the crown to open the case in any way it thinks appropriate, but for my part, given the fact that individuals are in the process of being investigated, I cannot see any need for individuals in that category to be referred to by name,” Judge Rivlin QC had pointed out to Mr. T. Langdale, who appeared in court on behalf of M&J.
Mr Langdale affirmed the judge’s position but later went on, together with the SFO counsel, to mention the names of the Ghanaian officials in court while shelving the identities of the Directors of M&J.
Dr Yankey resigned as Health Minister to contest allegations of corruptions made against him and other Ghanaian public officials by M&J at the Southwark Court at which M&J pleaded guilty to corruption. According to Judge Rivlin, individuals who were not before the court were entitled to have their names left out of the courts proceedings. The position of the UK judge is contained in a transcript of the court’s proceedings on the matter.
Supporting Judge Rivlin’s observation, Mr. David Owen, Queen’s Counsel (QC) in an independent opinion on the matter, confirmed that the requirement not to mention the names of individuals who were not before court arose from Section 708 of the Code of Conduct for Barristers of the UK conducting proceedings in court.
Section 708 states that barristers, while conducting proceedings before court, “must, if possible, avoid the naming in open court of third parties whose character would thereby be impugned”.
Explaining the rationale for the crafting of that provision, Mr. Owen, who is also a member of the Privy Council Panel, said it arose from outrageous allegations made in court by counsel against a former British Prime Minister, Mr. Edward Heath, then not party to the case in court during a trial at the Old Bailey, which sensational allegations received widespread publicity in the British media.
Even though Mr. Heath was later cleared of the charges, the scurrilous allegations so widely publicized earlier did a lot to damage his hard image and reputation, hence the introduction of that safeguard in Section 708 of the Code of Conduct for Barristers to protect third parties who are not before British courts.
According to the QC, who also qualified to try serious crimes, the reference was made by the UK SFO and the prosecution to the effect that a payment had been made in Dr George Yankey’s name by M&J to an account in London.
“There is an implication that this was in furtherance of corruption. However, there is no suggestion of whether Dr Yankey was ever asked to explain whether and in what circumstance the payment was made. Neither is it evident to me why a payment to a Director of the Legal and Private Sector Department of the Ministry of Finance and Economic Planning would in any way facilitate a contract for the building of bridges,” he said.
Referring to the portion of the prosecution’s case before the court alluding to the conviction of Dr Yankey and others in Ghana on charges of conspiring to willfully cause financial loss to the state, Mr. Owen said, “It relates to a matter wholly unconnected to the allegations in the prosecution.
It relates to an offence in Ghana that we would not recognize as a criminal offence here under the double criminality rule in extradition law. It seeks to put the conduct alleged against Dr Yankey in the context of that misleading description of the conviction to show that the sums allegedly paid to him were to further corruption.”
“An impartial observer would be entitled to express skepticism of the prosecution’s assertions against unrepresented persons in the way that they were depicted here. Such an observer might also think that the remarks made about Dr Yankey were downright unfair,” he said.
“There is good reason why the code of conduct for Barristers forbids references to third parties in open court who are said to have engaged in misconduct. In fact, the purpose of the rule is to prevent persons being smeared when they are unable to defend themselves, wherever they happen to be,” he pointed out.
He said any adverse findings relating to criminal conduct in the case before the Southwark Crown Court were strictly confined to those which M&J chose to accept without contest.
According to Mr. Owen, who, since 1999, has been a recorder of the Crown Council, “What the proceedings did not and could not do was to determine criminal liability of any one not party to the proceedings.”
“No one other than M&J was being tried or had an opportunity to receive and consider evidence and then comment on it or seek to traverse it with other evidence,” he noted.
Mr. Owen also questioned the rationale for the SFO and M&J to make the document, which should have been restricted, public, saying, “Such a document is not generally a document which comes into the public domain but I am instructed that it has since come into the public domain in this instance.”
It would be recalled that in reaction to clarifications sought on behalf of Dr Yankey by his solicitors, the UK SFO, in a correspondence date November 2, 2009 said of the case, “The hearing proceeded on the basis of facts agreed between the prosecution and the defence. There was no oral evidence leading to a determination of the facts by the judge.”
The QC pointed out that neither the judge nor the jury was asked to rule upon the truth or otherwise of any of the assertions made in court. The SFO also added that Dr Yankey and the others had not appeared before the court and could, therefore, not have been found guilty and convicted. The QC, therefore, concluded, “The proceedings before the English court in regard to M&J do not, as a matter of law, established the guilt of Dr Yankey in respect of any criminal offence anywhere.
“Neither did the fact upon which the persecution and defence in M&J proceeded constitute findings of fact and any action taken by the court is binding only on the parties in that case; that is, the SFO and M&J.”
Mr. Owen added that there was no discernible reason for departing from the requirements of the Code of Conduct for Barristers not to attribute misconduct of third parties not before the court.
Source: Daily Graphic/Ghana
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