This morning, the Court of Appeal Criminal Division handed down its decision in the appeal of Ziad Akle, former Unaoil employee, against his convictions for offences of bribery. The Court quashed Mr Akle's convictions and refused the SFO's request for a retrial. The Court invited further submissions on whether the SFO should be ordered to pay the costs of Mr Akle's trial and appeal, on the basis that those costs were incurred as a result of the SFO's improper acts.

The basis of the Court of Appeal's decision was that there had been improper conduct by the SFO in engaging with a US-based fixer, David Tinsley, who was acting for the Ahsani family. The SFO had engaged with Tinsley as he offered to assist the SFO by securing guilty pleas from others charged by the SFO whom he did not represent. Not only had the SFO not "attempted to discourage" Tinsley from "interfering in the cases of accused persons", they had "certainly enabled, and arguably encouraged" him to convey to a co-accused that "if he pleaded guilty to the indictment the SFO might 'take a view' about other potential charges." The Court noted that it was "clearly inappropriate" for the SFO to have any dealings with Tinsley in relation to the pleas of Akle and his co-accused. The Court observed that "we simply do not understand how any of their SFO colleagues could have thought it appropriate to take any other approach..." 

The Court agreed that at trial there had been a serious breach of the prosecution's fundamental duty of disclosure in relation to the material recording that conduct. As the Court noted, the very material which was wrongly withheld had the potential to embarrass the SFO. As a consequence of its non-disclosure, the defence were prevented from putting their case in its best light both in relation to an application to stay the proceedings and in relation to the admission of and use of the convictions of a co-accused. Accordingly the trial had not been fair and the convictions were unsafe. 

Perhaps the most striking feature of the judgment is the Court's approach to the question of a retrial. In refusing the SFO's request, the Court expressly relied on the fact that the convictions had been quashed as result of the behaviour of the prosecutor. The Court accepted the defence submission that "the convictions are being quashed because of the misconduct of the SFO" (§114), noting that one of the "key considerations," was the fact that "the application for a retrial is made in the context of the appeal against conviction being allowed on the grounds relating to fault on the part of the prosecutor..." Such a finding by the Court of Appeal in relation to a prosecuting authority (as opposed to officers of an investigating body such as the police) is almost unheard of. 

Mr Akle was represented on appeal by Adrian Darbishire QC and Mark Aldred of QEB Hollis Whiteman, together with Duncan Jones (25 Bedford Row) and instructed by Joanna Dimmock and Fred Kelly of Paul Hastings LLP. 

A full copy of the judgment can be located here. 

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