But what was even the OSP’s logic?
It is also important to ask: What was the OSP’s long game if the freezing order had been granted? As showed above, a confiscation order was not possible, and any belief that one would be granted was neither reasonable nor called for by the circumstances that existed.
Section 40(2) of the OSP Act provides:
Where an investigation has commenced against a person for corruption or a corruption-related offence, and the property related to that offence is frozen, the court shall order the release of the frozen property if:
(a) The person is not charged with corruption or a corruption-related offence within 12 months after the issue of the freezing order, or
(b) The person is acquitted of corruption or a corruption-related offence.
A fair reading of Section 40(2) implies that an application to freeze property can only be brought following the commencement of an investigation against a person for corruption or a corruption-related offence. Also, that where the investigation has either concluded in a charge after 12 months or results in an acquittal after trial, the property shall be released back to the person concerned.
Therefore, even if the OSP had been successful in confirming the freezing of the properties purportedly belonging to Sir John after 12 months where there was no charge or conviction against Sir John, the property would have reverted back to his estate.
In the absence of the ability to charge and prosecute a dead man, the question that had to be asked by any rational OSP was: What is the point of freezing the property when, in any case, it would become the subject of a Section 40(2) application after 12 months?
The answer might not come swiftly. But whatever the OSP’s reasons might have been for pursuing this outlandish cause, and on the basis upon which it was ventured, the judgement in the case concerning Sir John was absolutely properly decided and is good law.
That explains why the OSP has filed a notice of appeal and left it on the file for more than one year without moving it—an abuse of process often engaged in by lawyers to save face following a defeat in court.
A fascinating case was decided by the Court of Appeal of England and Wales in 2018 called Wingate v Solicitors Regulation Authority. In that case, the Court of Appeal had to define the term ‘integrity’ in the legal profession.
The decision then established that integrity in the legal profession meant more than merely an absence of dishonesty. Instead, it meant ‘adherence to the ethical standards of one’s profession.’
The case further established that a lawyer’s integrity could be compromised if they did not work to the standard their clients expected. The decision has been essential to upholding the ethical standards of the legal profession.
It is an example to lawyers of the importance of conducting themselves with integrity in all their professional dealings. It also serves as a reminder to clients of the exacting standards of conduct expected of their lawyers. Beyond that, the principle established by the case has been widely adopted and is now seen as a cornerstone of the legal profession.
It ensures that lawyers act in their clients’ best interests and that their advice is based on the highest ethical standards. That helps to keep the trust and integrity of the legal system. At any point, therefore, a lawyer not adhering to the ethical standards of their profession would be acting without integrity.
The ethical rules for lawyers are broad, some arising from common law and others from statutes. But whether common law or statute, a common pattern runs through these rules. Members of the public must have confidence in the legal profession. As part of that aspiration, lawyers must act with a certain level of competence in their dealings, whether with clients, the courts, or members of the public.
That ensures that the public can rely upon the advice and services provided by lawyers. As such, disciplinary measures are in place to ensure that lawyers are held accountable for their actions. That is an important part of keeping public trust in the legal profession. A lawyer, therefore, cannot set out to deliberately mislead any of these groups.
It would be potential contempt if the lawyer misled the court; insufficient aid by counsel if they misled a client. In addition, there would be a breach of their duty to public confidence and the rule of law if they misled the public. That does not mean a lawyer cannot have a full view or opinion on matters.
Still, the difference is that, when it comes to the law, the lawyer’s view as it relates to the law must always be ‘considered’. The lawyer must always be ready to explain the applicable law, no matter what their opinion on the matter is. They should also be able to give advice on the best course of action based on the law. It’s the client who needs to decide on what to do. Their submission must not be merely arguable but must be well reasoned and backed by ‘authority’ of some probative value.
At that point, it is not what the lawyer thinks of the law. It is not whether they believe the law is useful or not. That is the province of academia, jurists, and legal theorists. It is about what the law says and what it means or should mean concerning the facts of a given case.
By Kofi Opare Hagan, Barrister,