Macur LJ: jury “should not have been allowed to return verdict”
A solicitor’s convictions for money laundering have been overturned by the Court of Appeal in a case involving corrupt payments linked to a multi-million dollar UN medical aid contract for the Democratic Republic of Congo.
Patrick Orr was convicted despite the judge finding him unfit to be cross-examined due to the state of his mental health – having given his evidence in chief for three days.
He appealed on the basis that if he was unfit to be cross-examined, the judge should have ruled that he was unfit to be tried.
Counsel for Mr Orr argued that the trial judge should then have discharged the jury from returning verdicts and proceeded with a determination by the jury as to whether the solicitor had done the act or made the omission charged against him in accordance with section 4A(1) of the Criminal Procedure (Insanity)Act 1964.
Lady Justice Macur said that “the capacity to be cross examined is part and parcel of the defendant’s ability to give evidence in his own defence”.
She agreed with the defendant’s submission that the provision in the 1964 Act was a “statutory mandatory requirement which cannot be avoided by the court’s general discretion to order proceedings otherwise, however beneficial to the defendant they may appear”.
She went on: “It follows that, in this case, the jury should not have been allowed to return a verdict, other than a verdict of acquittal if they were not satisfied on the evidence already given in the trial that the appellant did the act charged against him.”
The court heard in R v Orr [2016] EWCA Crim 889 that Mr Orr acted for two Dutchmen, Mr Scheffer and Mr Bakker, who negotiated an agreement with Danish pharmaceuticals company Missionpharma.
Under the agreement, the two men would receive a percentage of payments if Missionpharma was successful in securing the medical aid contract, and $1.2m was paid to them in 2006 and 2007.
Macur LJ said Mr Orr, then working in private practice, drafted the agreements, set up HC Consultants (HCC) to receive the payments and became sole director and signatory on the company’s bank accounts.
Missionpharma accepted that the company was guilty of an offence of bribery in connection with the contract in 2011. Mr Bakker and Mr Scheffer were convicted of receiving corrupt payments the following year.
The court heard that at his trial in October 2014, Mr Orr gave his evidence in chief over three days, but when the prosecution was due to cross-examine him, he was found to be unwell and the judge adjourned the trial.
Following expert opinion that he was unfit to be cross-examined, Mr Orr was convicted of being concerned in a money-laundering arrangement.
He was sentenced to two years’ imprisonment, suspended for 12 months, in 2015.
Macur LJ said: “The prosecution case was that the appellant was knowingly engaged in laundering the corrupt monies on behalf of his co-accused and that the appellant knew of the corrupt relationship between the co-accused and Missionpharma prior to 27 May 2007; the HCC company had been set up specifically to receive and channel the corrupt payments from Missionpharma; his executive and sole control of the funds evidenced the relationship between the co-accused and the appellant.”
She went on: “The defence case was that the appellant had not known of the corrupt relationship and at no time had known or suspected that he was dealing with the proceeds of corruption.
“Rather, he had acted perfectly properly in his professional capacity at all relevant times and had understood that HCC had been set up as a means to minimise tax liabilities of legitimate funds.
“The documents relied upon by the prosecution could equally show that the relationship was of solicitor and client and revealed no knowledge of the offending. The appellant did not always follow instructions of his clients.”
Macur LJ allowed Mr Orr’s appeal. Mr Justice Flaux and the Recorder of Liverpool, Judge Goldstone QC, contributed to the judgment.
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