Admissibility of foreign court convictions in English courts (Daley v Bakiyev)

Admissibility of foreign court convictions in English courts (Daley v Bakiyev)

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Is a conviction in a foreign court acceptable in subsequent English proceedings as proof of the facts on which the conviction was based? Joel Donovan QC, barrister at Cloisters, who appeared for the claimant, considers Daley v Bakiyev. 

 

The Queen’s Bench Division found that the claimant, a British businessman who had been shot while working in the Kyrgyz Republic, had failed to establish that the defendant, the son of the then president of the Kyrgyz Republic, had organised the shooting. Accordingly, the court dismissed his claim for damages in respect of his injuries.

What was the background to the case?

The claimant was a British businessman based in the Kyrgyz Republic (one of the former Union of Soviet Socialist Republics). He was lobbying on behalf of a British listed company, Oxus Gold plc, for the restoration of a mining licence for the Jerooy gold deposit, Oxus’s licence having been annulled in 2004 by President Akayev’s government.

In 2005, Akayev was overthrown and replaced by Kurmanbek Bakiyev. The defendant was Kurmanbek’s son, Maksim, who had become a prominent business figure.

In 2006, the claimant was shot outside his home in the Kyrgyz capital, Bishkek. He alleged that the shooting was an attempted murder arranged by the defendant to stop him from jeopardising a fraudulent scheme to give the Jerooy licence to a shell company, Global Gold Holding GmbH. The claimant’s case was that the beneficial owners of Global Gold were Bakiyev associates—the dead oligarchs Boris Berezovsky and Badri Patarkatsishvili—and that the Jerooy licence was repayment for their assistance in raising Kurmanbek to power.

The Bakiyev regime was overthrown in 2010, and the defendant fled to the UK. In 2014, he and his father were convicted in absentia in the Kyrgyz Republic of the claimant’s attempted murder, along with the defendant’s brother Marat.

What issues were before the court?

There was no dispute that the standard of proof was the ordinary civil standard, but that the character of the allegations meant that strong evidence was required to discharge it. As Lord Nicholls said in a well-known passage in H (minors) (sexual abuse: standard of proof), Re [1996] 1 All ER 1, the more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.

What was the court’s approach to the weighing-up of evidence and what inferences did it draw?

One of the key issues was the extent of the defendant and his father’s involvement in Global Gold and the licensing process. The court did not accept their evidence. It found that the defendant had greater involvement than he admitted to—similarly, the court had had little doubt that President Bakiyev was involved in the grant of the licence. A key part of the claimant’s case was therefore upheld.

Less helpful for the claimant, and prominent in the judgment, was the part played by his witness Bertii Sin Beti. Mr Sin Beti was an Israeli businessman who claimed in the Kyrgyz criminal proceedings to have been party to a confession by the defendant to having organised the shooting. This was the only direct evidence against the defendant. However, Mr Sin Beti refused to attend the trial, despite a witness summons. Although his evidence was admitted on a hearsay basis, the court did not accept it. Nor did the court accept on the evidence as a whole that the defendant was willing to use lethal force for financial gain.

What are the practical implications arising from this decision?

This was a highly unusual case, and I think it would be unwise to draw from it any wide-ranging implications. That said, it demonstrates that the rule in Hollington v Hewthorn is alive and kicking—subject to important exceptions, the findings of a court, tribunal or inquiry cannot be relied on as evidence in subsequent court proceedings. I am sure this is a point that will not be lost, for example, on potential litigants who had been wishing to rely on the Chilcot report in claims against Tony Blair and others.

What should practitioners advising in this area be mindful of in light of this judgment?

The judgment is a yet further reminder that the more distant in time from trial a disputed conversation took place, the more useful any record of that conversation made before a claim was in prospect.

Joel Donovan QC appeared with Nathan Roberts for the claimant in this case. 

Interviewed by Robert Matthews. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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