Home Affairs CommitteeSupplementary written evidence submitted by Mike Schwarz, http://www.bindmans.com/ . See biography submitted separately. I specialise in criminal defence work, including the principles of a fair trial and due process. I do not profess to be an expert in the regulation of solicitors or of private investigators. Bindmans LLP [PI16]

Solicitor of Bhadresh Gohil, private investigators and the criminal justice system—case study, Bhadresh Gohil, James Ibori and RISC Management Limited.

Introductory Comments

1. The theme of what I can contribute to the Committee’s enquiries is that where private investigators are allowed to work, unregulated, at that heart of the criminal justice system, there is a real danger, that:

at best, its careful checks and balances built up over centuries will be unsettled and that this may occur undetected and uncorrected; and

at worst, police corruption and miscarriages of justice will occur, due process will be thwarted and the public’s confidence in the criminal justice system will be undermined.

2. My contribution is based principally on my knowledge of the case of Bhadresh Gohil “BG”.2 Since early 2012 I have been instructed to advise and represent him about a proposed appeal against his criminal convictions from 2010. These in turn arose from the investigation by the Metropolitan Police Service’s (“MPS”) specialist Proceeds of Corruption Unit into the financial and criminal activities of James Ibori (“JI”), a powerful and high profile Nigerian politician and his associates. My evidence to the Committee is based principally upon my review of the case papers.3

3. My contribution should be read in the light of submissions made to the Committee on his behalf but before I was instructed—a document dated 10 January 2012, with 10 attachments. To those attachments I add the following:

11.E-mails dated 24.4.07, 6.7.07, 20.8.07, 23.8.07, 13.9.07, 10.3.08;

12.Agenda for conference on 1.3.12;

13.RISC invoice to AS 24.4.07;

14.Article—“Scotland Yard detectives identified in UK bribing scandal…”

4. The case has been characterised by the active and widespread involvement of a firm of private investigators—RISC Management Limited (“RISC”),4 in particular Keith Hunter “KH” and Cliff Knuckey “CK”. RISC appear to have played a role in three particular respects.5 First, RISC were, instructed by the solicitors Speechly Bircham “SB”6 who in turn were instructed by “JI”, the key target of the police investigation.7 Second, RISC also worked for Arlington Sharmas solicitors “AS”, the firm at which BG was an equity partner, specialising in commercial/private work. Third, RISC were heavily involved in advising BG personally about his position and assisting in the preparation of his case, before and after his arrest and before and after he was charged. The relevant proceedings, stemming from police “Operation Tureen”, included restraint proceedings, police investigations, followed by a number of separate, but interlinked criminal prosecutions for financial offences such as fraud and money laundering (“the Ibori litigation”). Regulation of solicitors.

5. As the Committee knows, those affected by the criminal justice system are normally represented by lawyers, solicitors (and barristers). Solicitors play a pivotal role in the preparation and presentation of criminal cases—advising their client, identifying key evidence for and against their client, including proofing defence witnesses, liaising with the police and Crown prosecutors, liaising with their client’s co-accused or his/her lawyers, instructing counsel. The smooth running and integrity of the trial process is dependent on the performance of all parties, in particular those engaged in the nuts and bolts of its preparation—defence solicitors and investigating police officers.

6. Solicitors are, as the Committee also knows, heavily regulated. They are regulated by the Solicitors’ Regulation Authority “SRA”8 and bound by its handbook, its 10 key “principles” and its code of conduct (“the Code”).9 I shall refer to relevant rules, below.

7. All citizens are, of course, bound by the criminal law and may be prosecuted for offences such as obstructing a police officer, perverting the course of justice, corruption, bribery. I shall not develop these points, but obviously those considerations apply to many of the points I make, below.

RISC

8. In the Ibori litigation, RISC played many of the key roles, outlined above, of solicitors. So far as their role as agents for SB and JI is concerned this was perhaps partly because SB, primarily a commercial firm (in particular the individual solicitors involved10) did not have the expertise or experience in criminal matters and the legal issues and procedures raised by the Ibori litigation. However, this does not explain how or why RISC managed to work, apparently independently of SB and JI, on so many other aspects of the litigation and for so many other parties.

9. In doing so, RISC’s performance appears, in many aspects, to have breached many of the key standards required of solicitors. I shall now refer to the relevant standards and summarise the features of the Gohil case which give grounds for concern.

Conflicts of Interest

10. Chapter 3 of the SRA Code requires solicitors properly to handle conflicts of interest. The SRA describe this as “a critical public protection”. Conflicts may arise between the solicitor’s interest and their client’s (“own interest conflict”) or between the interests of two of the solicitor’s clients (“client conflict”). Solicitors must “never” act where there is “significant risk of” an “own interest conflict”. Such a conflict may arise if a solicitor’s ability to act in the best interests of the client is impaired by, among other things, “a personal relationship”, “appointment ….to public office”, or “employment”. They must not normally act where there is a “client conflict”.

11. Features of the Gohil case relevant to this standard include the following.

12. Both KH and CK were, before joining RISC, police officers working at New Scotland Yard. KH “was involved in high-profile investigations of national and international organised crime during his career at New Scotland Yard”.11 CK was “Head of Metropolitan Police Money Laundering Investigation Team (MLIT)”.12

13. They maintained close connections with the police, including officers involved in and during the Gohil investigation also based at New Scotland Yard. “As a former police officer [KH] enjoys many …genuine friendships with currently serving and retired police officers”.13

14. DI Gary Walters “GW” was the senior investigating officer in the Gohil team and an officer involved in interviewing BG. CK knew GW outside the Ibori case.14 I understand that before the Ibori case GW was close friends with KH and since the Ibori case, and after GW retired from the police, he has worked with RISC.15

15. I understand that CK was a former police colleague of DC McDonald “DCM”. He played a pivotal role in the Gohil investigation. He was a “disclosure officer”,16 an interviewing officer and a leading investigating officer. I have seen evidence that RISC had significant contact with DCM during the course of the Gohil investigation.17

16. I understand that Martin Woods “MW”, a former police officer who, after leaving the police, worked as a consultant for RISC18 and worked within AS’s offices to support the preparation of BG’s defence.

17. RISC played a significant role in the preparation of BG’s case—during the police investigation and, after charge, preparation for trial.

Client Confidentiality

18. Chapter 4 of the Code deals with the protection of solicitors’ clients’ confidential information and also the disclosure by solicitors of material information to their clients. The Code confirms that the protection of confidential information is a “fundamental feature” of solicitors’ relationship with their clients and where a solicitor is unable to observe these rules, a conflict of interest may arise. So, for example, the Code advises (O(4.4)) that “you do not act for A in a matter where A has an interest adverse to B, and B is a client for whom you hold confidential information which is material to A in that matter”. In relation to SB’s role I should also quote this from the Code (IB(4.3)) “you only outsource services when you are satisfied that the provider has taken all appropriate steps to ensure that your clients’ confidential information will be protected”.

19. Features of the Gohil case relevant to this standard include the following.

20. RISC acted formally and informally for a number of separate parties in the Ibori case: for JI through SB; for AS (including BG in his capacity as a partner in AS); for BG personally; and for other parties to the Ibori litigation whom I cannot name for reasons of confidentiality. I assume that RISC acquired confidential information about JI’s case. RISC did acquire confidential information about AS and about BG.19 I have little doubt that RISC would have had confidential information about JI material to BG and about BG material to JI. RISC did not convey JI’s information to BG. I cannot say, at the moment, whether RISC conveyed BG’s information to SB or to JI or to both.

21. I can say that, in accordance with the Code, had RISC been a solicitors’ firm, they would have been under an obligation to pass material information about one client to another and had principles of confidentiality applied to prevent them from doing so, a conflict of interest would have arisen meaning that they should have stopped acting for the conflicted clients. A solicitors’ firm should not have put itself in a position where such a risk would have arisen and would have stopped acting for the conflicted clients as soon as the risks became apparent. It does not appear that RISC took any of these precautions. They do, however, appear to have denied that they had acted for AS, though there is evidence to suggest the contrary.20

22. I also am concerned that RISC appeared to have provided the police with confidential information about AS to the police, without my client’s consent.21 I am also concerned that it appears RISC passed confidential information about BG’s own case to other “sources”, presumably including the police.22

Obligations to the Court

23. Chapter 5 of the Code regulates solicitors conducting litigation. Solicitors must not mislead the court. They must not offer payments to witnesses dependent upon their evidence or the outcome of the case. They must not act in litigation where they or anyone within their firm will be called as a witness. Obviously, no one should commit criminal offences, such as obstructing the police, perverting the course of justice, corruption and bribery.

24. Features of the Gohil case relevant to this standard include the following.

25. CK may have given evidence for the prosecution. He gave a statement to the police.

26. Further his statement to the police does not appear to be accurate. He said that RISC did not invoice AS direct for their work, implying that AS were never a client of RISC. A RISC invoice to AS appears to contradict this.23

27. CK could have been a witness for BG in his defence. He could have given evidence on a critical and contentious issue at trial—whether BG had breached anti-money laundering rules and procedures.24

28. There is evidence which suggests that RISC had regular meetings and close dealings with police officers involved in the Ibori litigation and/or others close to the operation. There is evidence which suggests that RISC obtained confidential information about the police investigation. There is evidence which suggests that RISC passed on confidential information about suspects’ defences or instructions, including BG’s, to their contacts.25

29. If any of this is true then it is entirely possible that not only was the SRA’s Code breached but the proper course of justice was affected. For example obvious lines of police enquiry may not have been followed up or may have been thwarted; full disclosure of relevant material—supporting the defence case or undermining the prosecution’s—may not have been made to defence lawyers; defence cases may have been prejudiced; inaccurate evidence may have been presented to the court at trial or at pre-trial hearings; requests for mutual legal assistance may not have been made or granted on the correct basis.

Regulation

30. Chapter 10 of the Code is about solicitors’ co-operation with their regulators and ombudsmen, primarily the SRA and the Legal Ombudsman. It includes the obligation (IB(10.10)) to have a “whistle-blowing” policy. I understand that the regulation of private investigators is covered, if it is covered at all, by the Private Security Industry Act 2001 which set up the Security Industry Authority.

31. Features of the Gohil case relevant to this standard include the following.

32. RISC’s activities are obviously not covered by the SRA or Legal Ombudsman, though their activities may be subject to scrutiny indirectly through SB’s accountability to these bodies.

33. I do not believe that RISC are members of the SIA, a largely voluntary arrangement.

34. Concerns about RISC’s activities and the police officers have been brought to the attention of the Independent Police Complaints Service, “IPCC”. I have a number of reservations, including the following, about this mechanism in so far as it might address concerns about RISC.

35. First, the IPCC is principally responsible for investigating the activities of serving police officers rather than private security firms.

36. Second, the IPCC do not appear to be conducting an effective or speedy investigation into the allegations. For example, first, it has decided simply to supervise the MPS’ own anti-corruption unit’s investigation.26 Given the gravity of the issues raised and the concerns expressed, I think that this is an investigation which the IPCC should conduct in house Second, there is the question of delay. I understand that although allegations about RISC’s and police officers’ conduct were relayed to the IPCC in August 2011, the police have still not contacted RISC. Recent activity appears to have been prompted by enquiries on behalf of BG of the IPCC of the progress it was making and press interest. Third, in an earlier case—connected to the Gohil case only in the sense that there were allegations that KH and RISC’s predecessor company (“ISC”) had made corrupt payments to a police officer at New Scotland Yard27—concerns were also expressed that the police were not properly conducting their investigations into those allegations.

37. For completeness the Committee should be aware that I raised my concerns about apparent police misconduct with the Director of Public Prosecutions personally. I wrote to him on 30 March 2012. It was the gravest of concern to me that the DPP appeared, in response, to have done no more than to pass my letter to the very prosecution team (a team including among others DCM) about whom concerns have been expressed. I have subsequently (27 April 2012) referred the DPP to an article with explicit allegations about that team.28 I await a reply to that latest correspondence.

Relations with Others

38. Chapter 11 of the Code is designed to ensure that solicitors do not take unfair advantage of those they deal with and that they “act in a manner which promotes the proper operation of the legal system”. For example (IB(11.4)) requires solicitors not to communicate with another party when they are aware that the other party has retained a lawyer in a matter, except in limited, defined circumstances.

39. At least two features of the Gohil case are relevant to this standard—RISC’s contact with my client and their contact with other suspects—all of whom were represented by lawyers at the time RISC had contact with them.

40. As to BG, from November 2007, when he was arrested, he instructed lawyers to represent him and this was the position until his convictions. RISC continued to communicate with him about key issues connected with his case and played an active role in preparing his defence, sometimes with but often without BG’s lawyers’ involvement. This appears to have occurred over a significant period of time. While there may be an argument that consent was implied for this to occur, the hybrid position of RISC (acting on behalf of Ibori, but not being solicitors) and the non-disclosure of information from JI material to BG leads me to conclude that the stronger argument is that RISC (and SB) should not have put themselves in this position and, after it did arise, should not have allowed it to continue. Above all, it was not known to BG or his lawyers, until JI was sentenced, that JI was making allegations against BG’s interests.

41. As to other suspects, SB instructed RISC to contact others co-accused with JI and BG—Udoamaka Okoronkwo, Christine Ibori-Ibie and Adebimpe Pogoson—even though they were represented by their own solicitors. Further, the apparent aim of that contact was to ensure that these three women gave responses to police questions in an interview which would be to JI’s advantage, and not necessarily to the advantage of the three women.29

Conclusion

42. The rules regulating the conduct of solicitors are rigorous, and rightly so, particularly when it comes to the criminal trial process, this being such a fundamental and visible part of the constitution.

43. While I am sure the Committee shares these views, the following selected extracts from the SRA’s principles and Codes, and its explanatory notes to them, bear quoting.

“Those involved in providing legal advice and representation have long held the role of trusted adviser. There are fiduciary duties arising from this role and obligations owed to others, especially the court”. “You [solicitors] must: uphold the rule of law and the proper administration of justice; act with integrity; not allow your independence to be compromised; …behave in a way that maintains the trust the public places in you and in the provision of legal services”.

“Members of the public should be able to place their trust in you. Any behaviour either within or outside your professional practice which undermines this trust damages not only you, but also the ability of the legal profession as a whole to serve society”.

44. The unregulated unsupervised and invisible participation of private investigators within the heart of the criminal justice process has the potential to undermine all of this.

13 May 2012

1 http://www.bindmans.com/ . See biography submitted separately. I specialise in criminal defence work, including the principles of a fair trial and due process. I do not profess to be an expert in the regulation of solicitors or of private investigators.

2 These submissions should not be interpreted as a waiver of my client’s legal privilege.

3 I also rely on other material, some referenced in these submissions, some not: such as the findings of fact by Mr Justice Tugendhat in Flood v The Times ([2009] EWHC 2375 (QB)); newspapers articles. It is important to record that the veracity of some of this material on the basis of which I express my views is vigorously contested by those affected by it.

4 www.managingrisc.com

5 Client confidentiality rules prevent me from identifying other parties who appear to have been assisted by RISC in connection with the proceedings.

6 speechlys.com.

7 For example RISC assisted SB with restraint proceedings. JI was represented by other solicitors, CLP solicitors, when he was prosecuted.

8 sra.org.uk/home/home.page

9 http://www.sra.org.uk/solicitors/handbook/intro/content.page; see in particular the 10 “principles”:
http://www.sra.org.uk/solicitors/handbook/handbookprinciples/content.page; and the Code of Conduct itself, http://www.sra.org.uk/solicitors/handbook/code/content.page.

10 Ian Timlin “IT” and Julie Thrower “JT”.

11 See KH’s profile at http://www.managingrisc.com/RISC_Management_Team.aspx.

12 See his statement, 7.9.09, attachment 5 to the January submissions for BG to the Committee.

13 Finding of fact by Mr Justice Tugendhat, para 116 of Flood v The Times, a case in which it was alleged that Mr Hunter made corrupt payments to a Detective Sergeant in the Metropolitan Police Service’s Extradition Unit.

14 See e-mail 13.9.07 from CK, attachment 11, “I know Gary WALTERS”.

15 Extract from seminar timetable on 1.3.12 at which “Gary Walters, RISC Management Limited, London” was a speaker at 9.10, attachment 12.

16 “Disclosure officers” are crucial in collating all evidence emanating from a police investigation and providing relevant material to the defence, as well as the Crown Prosecution Service. See Criminal Procedure and Investigations Act 1996.

17 See below and comments in e-mails, attachment 11.

18 He now works with CK at Hermes Forensic Solutions—see http://hermesforensicsolutions.com/aboutus.php.

19 See CK’s statement, 7.9.09, attachment 5. CK also gave a statement to the police, dated 7.5.08 which, for legal reasons, I may not be able to present to the Committee. See also RISC invoice to AS dated 24.4.07, attachment 13.

20 Statement by CK to police 7.5.08 and RISC invoice attachment 13.

21 CK statement to the police, dated 7.5.08

22 See attachment 1, RISC invoices

23 Statement by CK to police 7.5.08 and RISC invoice attachment 13

24 See CK’s statement, 7.9.09, attachment 5.

25 See RISC invoices, attachment 1. See e-mails in attachment 11—e-mails dated 24.4.07, 6.7.07, 23.8.07, 13.9.07, 10.3.08. See press reports with January submissions—such as attachment 8, Evening Standard article. Note—these allegations are firmly denied by RISC.

26 DPS—Anti Corruption Command, DCC8 Specialist Investigations.

27 See Times article by Michael Gillard dated 2.6.06, attachment 7, and Flood v The Times, litigation concluding with Supreme Court judgement [2012] UKSC 11.

28 Article entitled “Scotland Yard Detectives Identified in UK Bribing Scandal…” attachment 14.

29 See attachment 11, e-mail 20.8.07 from IT of SB.

Prepared 5th July 2012