Dysfunctional disclosure at the SFO

Disclosure failings lie at the heart of the criticism levelled at the SFO by Sir David Calvert-Smith in his independent review into the SFO’s handling of the Unaoil case. The review was commissioned after the Court of Appeal quashed the convictions of Ziad Akle and Paul Bond due to the SFO’s improper conduct in engaging with a US-based ‘fixer’, David Tinsley.

The review faults both the SFO’s attitude to and conduct of disclosure in the case, finding it to be incompatible with the requirements of the CPIA 1996. The following was specifically criticised:

• The Disclosure Strategy Document (DSD) never made any mention of David Tinsley as a ‘line of enquiry’ which was being pursued;
• A review of the Disclosure Decision Log (DDL) did not result in any information relating to contact with David Tinsley or with 5 Stones Intelligence [Tinsley’s company] being disclosed or entered on the schedule of unused material;
• No disclosure was made by the SFO, either before or after receipt of the defence statement, of the SFO’s contact with David Tinsley;
• The process of scheduling the records of contact with David Tinsley did not commence until after the receipt of an application on behalf of Ziad Akle under section 8 of the CPIA 1996;
• The SFO’s disclosure officer had been kept completely unaware of the nature and extent of the contact David Tinsley had with various members of the SFO’s senior management team until after Ziad Akle’s defence team had served a s.8 application.

Sir David Calvert-Smith stated in the review that in this case he had seen:

• A Director of the SFO using her personal mobile phone and failing to take contemporaneous notes of meetings and conversations;
• A Chief Investigator who failed to maintain complete and proper records of his contact with a third party non-legal representative and promptly share them with the case team;

The review found that there had been “an unfortunate focus on the effect that disclosure of the documents underlying the schedule might have on the Director of the SFO, the SFO or other individuals. […] in particular, the unease which would be felt by senior employees at the prospect of their ‘boss’ having to give evidence and be cross-examined on matters which, even if not ‘damaging’ to the case on trial, were ‘embarrassing’”

In examining the SFO’s ‘culture and practices’ the review found that at no point, even during the response to the section 8 application, was there anyone with a full understanding of the issues. This lack of effective assurance or understanding led in the end to the Court of Appeal’s decision to quash the convictions.

Daniel Chadwick