Narita Bahra QC and John Carl Townsend were instructed by Miss Guney in the case of R v Sulley 2019
Reference Article - "Fraud trial abandoned because expert witness had no expertise", The Gaurdian.
This was a prosecution brought against 8 defendants for an alleged fraud involving the sale of carbon credits for the purposes of investment. The defendants asserted that they believed that there was a viable market for carbon credits and that they believed that the value of the credits would rise.
The trial collapsed as a result of the prosecution’s reliance on a witness called Andrew Ager. The prosecution had asserted that Mr. Ager was an expert in the carbon credits market and had relied upon him to secure convictions in over 20 trials. Mr. Ager had repeatedly told juries that, amongst other things, that there was no secondary market in the sale of VER carbon credits.
The defence team identified and instructed Dr. Marius Cristian Frunza as an expert for the defence. He holds a PhD from Sorbonne University and lectures extensively in respect of the carbon credit markets. Mr. Ager improperly attempted to dissuade Dr. Frunza from giving evidence. This resulted in Mr. Sulley’s team applying to cross-examine Mr. Ager in a voir dire before he was permitted to give evidence to the jury.
During the course of that cross-examination, the following evidence was elicited:
Ager had no academic qualifications whatsoever. He had not obtained a degree. When asked if he had any A-Levels, he replied that he had sat 3, but couldn’t remember if he had passed.
Despite asserting that he kept abreast of the carbon credits market, he admitted that he had not read any books on the subject even though he accepted that Dr. Frunza’s books were widely available. He did, however, tell the court that he had once seen a documentary about credit credits.
He admitted that a number of the assertions he had made to Dr. Frunza, during a joint experts meeting, were either wholly untrue or substantially inaccurate.
He admitted that he did not consider it his duty to bring facts to the court’s attention which might assist the defence.
He admitted that he had kept no record whatsoever of the material that he had been provided with by the police and no notes of his workings.
He admitted that he had lost some of the sensitive material he had been provided with by the police as he kept it in a cupboard under the stairs and the material had been damaged by a “leak”. He did, however, assure the court that he now had better storage facilities as he kept confidential material in a “locked box on his balcony”.
Prior to Mr. Ager giving evidence, the defence had made targeted disclosure requests which revealed that the officers in the case had taken no notes of their meetings with Mr. Ager and no record of the material that they had provided to him. In light of Mr. Ager’s admissions, it was plain that his evidence was incapable of any independent review, quite apart from his evident unsuitability as an expert witness. At the conclusion of the voir dire the prosecution confirmed that they abandoned Mr. Ager and that he had been removed from the National Crime Agency’s list of approved experts. HHJ Loraine Smith commented that Mr. Ager should never be permitted to give expert evidence again.
Mr. Sulley’s defence team then sought a voir dire of the officers in the case and lawyers from the CPS in order to establish the extent of the disclosure failures. This resulted in the prosecution disclosing that the CPS and the police had been in possession of material that was potentially damaging to another prosecution expert called, Peter Buckie. Mr. Buckie had given evidence before the jury in respect of diamond sales prior to the voir dire of Mr. Ager. The evidence in respect of Mr. Buckie revealed that he had been abandoned as a prosecution witness in 2013 as a result of allegations of misconduct. That evidence did not appear on any prosecution disclosure schedule and was hidden from the defence until 28 May 2019, when it was revealed, for the first time, minutes before the prosecution offered no evidence and abandoned the case thereby avoiding the officers and CPS lawyers being subjected to cross-examination.
As a result of the cross-examination of Mr. Ager, the safety of the convictions in every previous carbon credits prosecution is now in question. Furthermore, it is apparent that there are systemic failures within the investigation and disclosure processes at City of London Police that are likely to impact upon all prosecutions undertaken in the last eight years.