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31 May 2019
Article by: Fergus Harrington.

In this article Fergus Harrington, Solicitor at ABV Solicitors, reflects on the events that took place this week at Southwark Crown Court:

We represented one of eight individuals charged with conspiracy to defraud through the fraudulent selling of carbon credits and diamonds as alternative investments. They were charged following a five-year investigation conducted by the City of London Police. The value of the fraud was thought to be in excess of £3,500,000.

The Crown Prosecution Service were forced to offer no evidence against our client and the other seven defendants. This decision was made by senior Crown Prosecutors after a two day voire dire where the Crown’s Carbon Credit expert witness, Mr Andrew Ager, was cross examined at length by the defence teams.

During a pre-trial joint telephone conference with Mr Ager and the defence Carbon expert, Mr Ager had been found to have made a number of incredulous assertions. He had effectively set out to persuade the defence expert that he should not come to court and give evidence in support of the defence case. He attempted to deceive the defence expert by misrepresenting the extent of the evidence against the defendants in this case and by over inflating his own credentials.

The telephone call was recorded and a transcript was produced of the call. This was presented to the Court and the defence applied to exclude the evidence of Mr Ager.

While giving evidence it was apparent that Mr Ager was not a fit and proper expert, did not appreciate the extent of his duties to the court as an expert and did not properly understand the Crown Court trial process or the Criminal Procedure Rules.

It was also discovered that he had copied and pasted parts of his report from a previous case, in to his report served in this case. As a result the report in this case gave a misleading impression that the topics covered in the report had been provided by the investigating officers in this case, when in fact they had simply been copied and pasted from a previous report.

Following numerous disclosure requests made by the defence a number of emails were provided. These showed communication between Mr Ager and the investigating officers, which clearly assisted the defence case. Further emails revealed that police had withheld information about another prosecution expert in this case (a diamond expert) previously being discredited in another similar case. It also became apparent that the police in this case had been directing other expert witnesses what should be specified in their reports. None of these emails or correspondence had been provided to us previously.

In offering no evidence Prosecution counsel stated:

“There is no realistic prospect of conviction in this case, we will offer no evidence on this indictment and the Court will enter not guilty verdicts in respect of each of the defendants. The prosecution have a duty to continually review any prosecution case, taking in to account any developments, the result of any new enquiries and any information which comes to light that may undermine the prosecution case or assist the defence case. We take the view that it would not be right to continue with this case.”

The jury were subsequently discharged. In doing so HHJ Lorraine-Smith made the following observations:

“As a result of the evidence heard in the absence of the jury over the last few days the Prosecution have been forced to concede firstly that the witness they intended to call as an expert on carbon credits could not be called as an expert and secondly that the state of the disclosure in the case was such that it was incapable of being remedied. They have done what they had to do and have abandoned this prosecution.

An expert’s duties go far beyond that and it became glaringly apparent in the hearing in the jury’s absence that he had little or no understanding of what those duties were or why they were important.

He claimed to have read the ‘The Guidance Booklet for Experts’ a number of times but there was hardly any sign that he had followed that guidance or even understood it’s purpose. The three key actions in that Guidance which are described as ‘obligations’ are to ‘retain, record and reveal’. In this case Mr Ager had signed neither the Expert’s Declaration at the outset of the case nor the Expert Witnesses Self-Certificate as he was duty bound to do, nor did he compile an Index of Material. He took no notes of his instructions or of the meetings that he attended. He was not even able to say when some of them took place.”

Andrew Ager has been involved in approximately 20 previous trials and up to 50 police investigations in to the fraudulent selling of carbon credits.

A spokesperson from the Crown Prosecution Service said:

“We are considering past cases to identify any in which Andrew Ager appeared as an expert witness and will consider any action necessary once these have been fully reviewed. Mr Ager will not be used as an expert witness in any future cases.”

If you, or anyone you know has recently been convicted of fraudulently selling carbon credits you should contact our specialist fraud team on: 0344 587 9996.

After a number of high profile cases which have collapsed as a result of prosecution disclosure failures, this case has attracted wide spread media coverage:

BBC News

The Independent

The Times

The Telegraph

The Guardian

Evening Standard

The Metro

City AM

The Daily Mail

The Justice Gap

Montel News

Carbon Pulse

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