Communicated on 20 March 2014

FOURTH SECTION
Application no. 49964/11
Raj Arjandas BHOJWANI
against the United Kingdom
lodged on 5 August 2011
STATEMENT OF FACTS

The applicant, Mr Raj Arjandas Bhojwani, is an Indian national, who was born in 1957 and is currently detained at HM Prison La Moye in Jersey. He is represented before the Court by Carey Olsen, a law firm based in Jersey.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The background facts
(a) The contracts
Between 1996 and 1997 the applicant secured two contracts to supply vehicles to the Nigerian Government, under the rule of General Abacha, through a Panamian shelf company named Tata Overseas Sales and Services Ltd (“TOSS”). He was paid 148,940,000 US dollars (“USD”) for the first contract and USD 28,961,192 for the second. He paid all sums into two accounts in the Bank of India in Jersey (“BOIJ”).
The applicant subsequently paid approximately USD 100 million to accounts in Switzerland and elsewhere connected with General Abacha and Colonel Marwa, Abacha’s “right hand man”.
(b) The Nigerian investigations
On 8 June 1998 General Abacha died. Following his death a Special Investigation Panel (“SIP”) was set up in Nigeria to investigate the use of Government monies during Abacha’s regime and to recover misappropriated funds. The Panel was chaired by the Deputy Commissioner of the Nigerian Police Force, Peter Gana.
(c) The alleged money laundering
On Friday 20 October 2000 a British newspaper, the Financial Times, published a special report on the alleged looting of USD 4 billion by General Abacha. The article reported that the Jersey authorities had frozen an account that they had identified on their own initiative and continued:
“The British authorities have been lethargic and unhelpful to those investigating claims that London has been used to launder huge sums stolen from Nigeria ... in disturbing contrast with the actions taken in Switzerland, Luxembourg, Lichtenstein and Jersey.”
On Monday 23 October 2000 the applicant, then resident in London, converted the balance of the two BOIJ accounts into six bankers’ drafts totalling approximately USD 43.9 million, and closed the accounts. On 25 October 2000 he couriered the bankers’ drafts to London.
The bankers’ drafts were subsequently returned to Jersey. On 2 November 2000 the applicant deposited them into three different named accounts at the BOIJ.
At some point, the applicant left the United Kingdom.
(d) The Jersey investigation and assistance from Nigeria
On an unknown date the Jersey police commenced a criminal investigation into money laundering in respect of the applicant’s actions in converting the sums held by the BOIJ into bankers’ drafts and depositing them in new accounts at the BOIJ nine days later.
On 17 June 2002 the Attorney General of Jersey sent a letter of request to the Nigerian Government under Article 4 of the Criminal Justice (International Cooperation) (Jersey) Law 2001 (see “Relevant domestic law and practice”, below) asking for assistance with the money laundering investigation in respect of the applicant. The request identified material that would provide relevant evidence and included a request for witness statements. The Nigerian authorities instructed Mr Gana to liaise with the affected ministries to gather the relevant evidence.
On 11 November 2002 Mr Gana took statements from the applicant and a number of other witnesses, including Colonel Bako, a retired army officer who had worked closely with General Abacha (“the witness statements”). He also gathered various documents from three further individuals: Mr Nda, Mr Al Hassan and Mr Bawa (“the documentary evidence”).
On 21 January 2003 Mr Gana signed a States of Jersey police statement headed to which he attached the witness statements and documentary evidence gathered by him. He explained his role and ended his statement by confirming that the documents had been produced in response to the Jersey Attorney General’s letter of request.
By letter dated 18 January 2006, the Attorney General of Nigeria provided an undertaking that the Government of Nigeria would use its best endeavours to ensure that the necessary witnesses, including Mr Gana and Colonel Bako, travelled to Jersey to give evidence at any future criminal trial against the applicant.
(e) The indictment
On 8 February 2007 the applicant was arrested in transit at Heathrow airport in London. He was transferred to Jersey the following day and subsequently charged with two counts of converting the proceeds of criminal conduct and one count of removing the proceeds of criminal conduct from the jurisdiction contrary to Article 34(1)(b) Proceeds of Crime (Jersey) Law 1999 (“the 1999 Act” – see “Relevant domestic law and practice”, below). The indictment was subsequently amended to provide greater detail of the particulars of the offences alleged.
The “criminal conduct” in question was stated in the amended indictment to be the dishonest inflation of true prices for motor vehicles sold by the applicant and associated false representations as to the genuine nature of the prices quoted; and the “kick-backs” paid to Nigerian public officials. The indictment clarified that such conduct, had it occurred in Jersey, would have constituted the offences of misconduct in public office, fraud, conspiracy to commit fraud, fraudulent conversion and conspiracy to commit fraudulent conversion.
The counts of converting the proceeds of criminal conduct concerned the closure of the BOIJ accounts and the obtaining of the bankers’ drafts; and the subsequent deposit of the bankers’ drafts in three different accounts at the BOIJ.
The count of removing the proceeds of criminal conduct from the jurisdiction concerned the removal of the six bankers’ drafts from Jersey.
2. The court proceedings
(a) The preparatory hearings and preliminary matters
A number of preparatory hearings took place before the Royal Court, constituted of a Commissioner sitting alone, and several legal rulings were issued.
On 15 October 2009 the applicant obtained declarations from the Federal High Court of Nigeria that the SIP was unconstitutional and that all investigatory actions undertaken by it in respect of the applicant were “null and void, and lacking any valid or legal effect whatsoever”. Mr Gana interpreted this ruling as an injunction preventing the attendance of the Nigerian witnesses at the applicant’s trial in Jersey.
(b) The rulings on the admissibility of the documentary evidence
The defence subsequently made two applications to exclude the documentary evidence obtained pursuant to the letter of request. In the first, they contended that the attempt by the Attorney General of Jersey to use the evidence was an abuse of power and that the evidence had been obtained for an “investigation” only so there was no consent to its use at trial. In the second, they relied on Article 66 of Police Procedures and Criminal Evidence (Jersey) Law 2003 (“the 2003 Law” – see “Relevant domestic law and practice”, below”), which allows the court to exclude evidence “in the interests of justice”. They argued that since the case was focused on alleged corruption at the highest level of government in Nigeria at the relevant time, it should not be assumed that the documentary evidence was reliable.
On 9 November 2009 the Royal Court delivered its ruling on the first application. It held that the evidence had been gathered in good faith and that there was no evidence of an abuse of power. It further held that the evidence had clearly been gathered for a criminal investigation involving the applicant, and that since the purpose of an investigation into a criminal offence was to prosecute that offence there would be little point in providing the information for the former but not the latter.
On 23 November 2009 the Royal Court delivered its ruling on the second application, allowing the admission of the evidence. It noted that there was nothing on the face of the documents to indicate that they were not authentic and that there was no extraneous evidence to support an allegation that they were forgeries. It further noted that although the evidence-gathering process had recently been declared unlawful by a Nigerian court, the evidence had been gathered in good faith. Finally, while the defence had raised specific concerns about Colonel Bako given his proximity to the Abacha regime, it was noteworthy that none of the documents in question had come from Colonel Bako. Even if the defence concerns about Colonel Bako were justified, they could not reasonably be allowed to colour the whole of the evidence gathering process undertaken by Mr Gana. In any case, the Commissioner did not consider it likely that any of the documents had been fabricated, having regard to their nature and source.
In conclusion, the Commissioner accepted that the applicant would not be able to challenge the documents, but considered that it was necessary to balance the “competing interests”. There were a substantial number of documents that the applicant could challenge and he was also able to give evidence as to the nature of his involvement with General Abacha and Colonel Marwa. It was therefore in the interests of justice that the documentary evidence be admitted.
(c) The correspondence between the Jersey and Nigerian authorities
Meanwhile, at the invitation of the Royal Court, the Attorney General of Jersey wrote to the Attorney General of Nigeria by letter dated 13 November 2009 requesting that Mr Nda, Mr Al Hassan, Nr Bawa, Mr Gana and Colonel Bako attend in Jersey to give their evidence. He specifically asked whether any injunction was in place preventing the witnesses from travelling to the trial and, if there was, whether there had been any application to lift it. In the event that no injunction was in place, he requested the Nigerian Attorney General to use his best endeavours to procure the attendance of the witnesses on specified dates.
By letter dated 19 November 2009 the Attorney General of Nigeria replied that the Nigerian authorities were ready to cooperate with a view to reviewing the evidence to see if there were sufficient grounds for the applicant to be prosecuted in Nigeria. However, he explained that he was:
“unable to oblige your request for any Nigerian witnesses to testify at the trial in Jersey as the crux of the matter is centred on the national interest and I have a Constitutional duty to protect the judicial integrity of the Federal Republic of Nigeria.”
He indicated that all evidence gathered in Nigeria and transmitted to Jersey by the SIP should now be returned.
On 17 December 2009 the Jersey Attorney General replied to the Attorney General of Nigeria confirming that he intended to use the Nigerian evidence as it was permitted under Jersey law and that he proposed to provide certified copies of the evidence for use in any Nigerian investigation.
By letter dated 8 January 2010 the Attorney General of Nigeria clarified that he did not consent to the use of the documentary evidence and witness statements in Jersey and that he sought the return of all the evidence. He indicated that a decision had been reached to prosecute the applicant and was of the view that prosecution was more appropriate in Nigeria than in Jersey.
By letter dated 25 January 2010 the Attorney General of Jersey refused to accede to the request to return the original evidence. He referred to the fact that the Nigerian authorities had previously supported the prosecution of the applicant in Jersey and to the fact that the trial was scheduled to start that very week after length investigations. In the circumstances, he concluded that it was not in the interests of the proper administration of justice to have the proceedings transferred to Nigeria.
(d) The ruling on the admissibility of the witness statements
Meanwhile, the prosecution applied under Article 64(2)(b) of 2003 Law to read witness statements by Mr Gana and Colonel Bako. The defence argued that further steps should be taken by the prosecution before the judge could conclude that it was “not reasonably practicable” to secure the attendance of Mr Gana and Colonel Bako. They suggested that the prosecution write directly to Colonel Bako offering to pay his reasonable expenses to attend the hearing or that a request be sent to the Attorney General of Nigeria for the witnesses’ evidence to be heard on commission in Nigeria. They also sought disclosure of redacted copies of emails between the prosecution and the Nigerian authorities to determine what steps the prosecution had taken to procure the attendance of the witnesses.
On 6 January 2010 the Royal Court delivered its ruling on the application, holding that the witness statements were admissible. In the face of such a categorical statement from the Nigerian Attorney General concerning the request to secure the attendance of the witnesses, the Commissioner did not accept that the prosecution should take any of the further steps suggested or that the disclosure sought was appropriate. He noted that the witness statements had been prepared for the purposes of the criminal proceedings against the applicant. He was therefore satisfied “to the criminal standard” that it was not practicable to secure the attendance of the witnesses.
The Commissioner further rejected the applicant’s argument that the admission of the statements would breach his rights under Article 6 §§ 1 and 3 (d) of the Convention. He recognised the conflict between the approach of the English courts, as outlined in R v. Horncastle and others [2009] UKSC 14, with the approach of this Court in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011. He concluded that the “sole and decisive” test had no application in Jersey and that the application of Articles 64 and 67 of the 2003 Law would not breach the applicant’s defence rights.
The defence complained in particular that they would be unable to challenge the evidence of Mr Gana as to the handwritten annotations on some of the documentary evidence or the policy for approval of high-value contracts at the relevant time. Were Mr Gana present at trial, they would wish to cross-examine him on the extent to which he was familiar with the signatures and handwriting and about the basis upon which he referred to the approval policy. The Commissioner held:
“Whilst the defendant may not be in a position to controvert the evidence of [Mr] Gana, the latter’s position as chairman of the Special Investigation Panel investigating the activities of the Abacha regime over many years and his familiarity therefore with the central figures of that regime, lead me to conclude that the risk of unfairness to the defendant if the statements are read is minimal.”
In respect of Colonel Bako, the Commissioner acknowledged there were some aspects of his evidence which related to his private dealings with General Abacha and Colonel Marwa. However, a large proportion of his evidence related to his dealings with the applicant and the applicant’s company, which the applicant would be in a position to challenge. In particular,
“... At the centre of the case against the defendant is the alleged dishonest inflation of the prices at which his company sold the vehicles to the Nigerian government. Colonel Bako’s evidence in this respect is again certainly something which the defendant is in a position to controvert.”
The Commissioner accepted that there was documentary material to found a cross-examination of Colonel Bako. However, in his absence, that documentary material could still be placed before the court, with an invitation to draw the necessary inferences. The Commissioner therefore concluded that the applicant:
 “is in a position to controvert much of the evidence of Colonel Bako and to the extent that he is unable to do so, the risk of unfairness can be counter-balanced by the defence leading relevant documentary evidence under Schedule 4 of [the 2003 Law] and by appropriate directions to the Jurats [lay members of the court].”
Turning to consider other relevant circumstances, the Commissioner noted the prosecution’s argument that the applicant was responsible for the non-attendance of the witnesses and was therefore not entitled to complain about the admission of the statements. He accepted that in bringing the proceedings in Nigeria, the applicant was exercising his legitimate rights under Nigerian law. He continued:
“However, I must consider the position under Jersey law and, whether or not the defendant or his advisers could have foreseen this outcome, it is as a direct result of his bringing the Nigerian proceedings that [Mr] Gana and Colonel Bako will not now attend this trial ... I determine that in the context of the Jersey proceedings this is an outcome for which the defendant is responsible and in balancing fairness between prosecution and defence, this is a circumstance which I should and do take into account.”
Finally, the Commissioner considered that there was nothing inherently unreliable on the face of the witness statements and indicated that a suitable direction would be given at trial as to the appropriate weight to attach to them. He therefore concluded that the statements of Mr Gana and Colonel Bako should be admitted in the interests of justice.
(e) The further application for exclusion of the Nigerian evidence
On 21 January 2010 the applicant applied to have the Nigerian evidence excluded and his prosecution stayed on grounds of breach of international law and comity.
On 26 January 2010 the Commissioner, having considered the letter of the Attorney General of Jersey of 25 January (see above), refused the applications He also rejected an application for adjournment to allow the applicant to pursue other possible proceedings to have the evidence excluded, noting that the trial had already been delayed enough.
(f) The trial and conviction
On the same day, the trial commenced before the Commissioner and two Jurats (lay members). It lasted for six weeks.
On 5 March 2010, the applicant was convicted of all three counts of money laundering.
On 25 June 2010 he was sentenced to a total of six years on each count, to run concurrently.
(g) The appeal
The applicant sought permission to appeal against his conviction and sentence. He raised twelve grounds of appeal, including a challenge to the decision to admit the documentary evidence and witness statements from Nigeria.
On 10 February 2011 the appeal was refused by the Court of Appeal.
The court addressed and rejected the multiple arguments against the admission of the Nigerian evidence. Concerning the objection to the admission of the witness statements because the applicant could not cross-examine Mr Gana and Colonel Bako, the court considered the Commissioner’s finding that the applicant had been responsible for the absence of the witnesses to have been a finding of fact open to him. It held that the admission of hearsay evidence was a matter for the Commissioner’s discretion which there was no basis to impugn.
The court noted the Attorney General’s contention that a prosecution would have been brought even without the Nigerian evidence. He had argued that there was evidence of the false contract and the forgeries involved; the true price of the vehicles; a 1996 visit to lawyers asking for advice on the confidentiality of Jersey banks; and payments to bank accounts in Switzerland. The court saw the force in the argument, without resolving the issue.
The applicant was advised by his counsel against lodging an appeal to the Privy Council.
B.  Relevant domestic law
1. The Proceeds of Crime (Jersey) Law 1999
Article 34(1) of the 1999 Law provides that a person is guilty of an offence if he:
“(a) conceals or disguises any property that is or in whole or in part represents the person’s proceeds of criminal conduct; or
(b) converts or transfers that property or removes it from the jurisdiction,
for the purpose of avoiding prosecution for an offence specified in Schedule 1 [i.e. an offence liable to imprisonment for a term of one year or more under Jersey criminal law] or the making or enforcement in the person’s case of a confiscation order.”
Pursuant to Article 1(1), “criminal conduct” means conduct that:
“(a) constitutes an offence specified in Schedule 1 [i.e. an offence liable to imprisonment for a term of one year or more under Jersey criminal law]; or
(b) if it occurs or has occurred outside Jersey, would have constituted such an offence if occurring in Jersey.”
2. The Police Procedures in Criminal Evidence (Jersey) Law 2003
The 2003 Law deals with the admissibility of evidence in criminal proceedings. Article 64 is concerned with first-hand hearsay and provides that a statement made by a person in a document shall be admissible in criminal proceedings as evidence if the requirements of one of the sub-paragraphs of paragraph (2) are satisfied; or the requirements of paragraph (3) are satisfied.
The requirements in Article 64(2) are relevant for the purposes of the present application. They are:
“(a) that the person who made the statement is dead or, by reason of the person’s bodily or mental condition, unfit to attend as a witness;
(b) that the person who made the statement is outside of Jersey and it is not reasonably practicable to secure the person’s attendance; or
(c) that all reasonable steps have been taken to find the person who made the statement, but that the person cannot be found.”
Article 65(1) provides that a statement in a document shall be admissible in criminal proceedings as evidence of any fact of which oral evidence would be admissible, provided that certain conditions are satisfied. The conditions are:
“(a) the document was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office; and
(b) the information contained in the document was supplied by a person ... who had, or may reasonable be supposed to have had, personal knowledge of the matters dealt with.”
Article 66(1) provides that if a court is of the opinion that in the interests of justice a statement which is admissible by virtue of Article 64 or 65 ought not to be admitted, it may direct that the statement should not be admitted. Article 66(2) provides that the court must have regard:
“(a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic;
(b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available;
(c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and
(d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused.”
3. The Criminal Justice (International Cooperation) (Jersey) Law 2001
Pursuant to Article 4(4) of the 2001 Law, evidence obtained by virtue of a letter of request cannot be used for any purpose other than that specified in the letter, unless the authority that supplied it has consented.
Article 4(6) provides that evidence obtained by a letter of request shall, without being sworn by a witness, be admissible in evidence. In exercising any discretion to exclude evidence otherwise admissible in relation to a statement contained in evidence gathered pursuant to a letter of request, the trial court must have regard:
“(a) to whether it was possible to challenge the statement by questioning the person who made it; and
(b) if proceedings have been instituted, to whether local law allowed the parties to the proceedings to be legally represented when the evidence was taken.”
COMPLAINTS
The applicant complains under Articles 6 §§ 1 and 3 (d) that he was denied a fair trial because hearsay evidence obtained unlawfully in Nigeria was admitted in evidence and he was unable to cross-examine the witnesses.

QUESTIONS TO THE PARTIES
1 (a)  Was there a good reason for the non-attendance of the Nigerian witnesses at the applicant’s trial (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 122‑125, ECHR 2011; and Gabrielyan v. Armenia, no. 8088/05, §§ 81-84 and the references therein, 10 April 2012 )? In particular, did the domestic authorities take adequate steps to procure the attendance of the witnesses?

(b)  If not, was there, by that fact, a violation of Article 6 §§ 1 and 3 (d) (see Al-Khawaja and Tahery, cited above, §120 and the references therein)?

2 (a)  Was the Nigerian evidence the sole or decisive basis on which the applicant was convicted (within the meaning of Al-Khawaja and Tahery, cited above, § 131)?

(b)  Were there sufficient counterbalancing factors, including strong procedural safeguards, to ensure that the applicant’s trial, judged as a whole, was fair within the meaning of Article 6 §§ 1 and 3 (d) (Al-Khawaja and Tahery, cited above, § 147)?

3.  Please provide a copy of all directions given to the Jurats at trial concerning the Nigerian evidence.