51. Subsequently Mr. Hibbert entered national politics. In 2002 he became a Member of the Jamaican Parliament as a Jamaican Labour Party member. When the Jamaican Labour Party were returned to government in the general election of 2007, Mr. Hibbert was appointed as Minister of State in the Ministry of Transport and Works. He remains in that position today.
52. As an official he occupied a position of influence in regard to the award of contracts relating to Jamaica’s transport infrastructure. Indeed it might be said that his appointment as Minister of State is testament to the influence he wielded in his capacity as an official.
53. What is plain beyond peradventure is that M&J paid Mr. Hibbert so that he would exercise his influence corruptly on behalf of M&J. M&J paid him directly from agreed commission payments earmarked for their Jamaican agent £100,134.62 between 20 November 1993 and 30 October 2001.
54. In fact the direct bribes evidenced in M&J’s schedules year on year from 1993 onwards would have approximated something in the order of his annual salary each year.
55. Deryck A. Gibson is a director and chairman of Deryck A. Gibson Ltd. (“DAG Ltd.”) which was incorporated in 1965, having originally traded as Deryck A. Gibson Commission Agent. He is a former vice-president of the Jamaican Chamber of Commerce and holds himself out to have been in business for over 50 years and to be “a well-known and well respected figure by the private and public sector leaders in Jamaica.” Mr Gibson acted as M&J's agent in Jamaica.
56. M&J paid commission of 12.5% of the contract price for a contract which was called Jamaica 1 (see below). M&J subtracted the direct payments to Hibbert from Gibson’s 12.5% commission. It is accepted by M&J that Mr Gibson was involved in corrupt activity with M&J within the indictment period and that Mr Gibson was in a corrupt relationship with Mr Hibbert. When appointing and permitting Mr Gibson to continue as an agent acting for M&J prior to 2002, M&J knew that there was a risk that Mr Gibson might pass further commission money to Hibbert.
57. Initially, Mr Gibson's commission was paid into accounts in his name. Later, however, Director E, agreed that payments could be made to an offshore vehicle, Montego Bay Enterprises Inc. for the payment of commissions to Mr Gibson. These payments were made to a Bahamas account with Barclays PLC in the name of Leadenhall Bank and Trust Company Ltd. These payments carry the reference “Montego Bay” on an M&J commission card.
58. Manager C was said to “have had the ear” of both Bevil Mabey and Director B, and was capable of overriding decisions made by other board members. In terms of global geography, Manager C’s duties were primarily concentrated in the Caribbean and Latin America, although he also had some dealings with countries in Africa and elsewhere.
(ii) M&J Jamaica Contracts
59. M&J have obtained contracts for the supply of flyovers and modular pre-fabricated bridges and associated technical services to the Jamaican Government.
60. M&J have conducted business with the Jamaican Government from approximately 1993 and work is ongoing in respect of a current contract.
61. Though M&J’s records are, because of the passage of time, sketchy in relation to the earliest of its contracts in Jamaica, there appear to have been a number of precursor contracts to a larger Priority Flyover Programme in Kingston, (the "Jamaica 1" contract).
62. Following Jamaica 1, there has been a subsequent, distinct, Jamaican project for rural bridges (the "Jamaica 2" project). Only “Jamaica 1” and its precursors are relevant to these, instant, proceedings.
63. M&J entered into a contract referenced “OX93/081” with the Ministry of Construction in 1993-1994 valued at £291,000. There were then two further contracts in 1997 referenced as “0282R” and “0298R” with values of £547,000 and £60,000 respectively.
64. These early contracts were for the supply of various spans of modular pre-fabricated bridging and spare parts for such bridging. The bridging equipment supplied under these “supply only” contracts would have been sited and used by the Jamaican Ministry of Construction at their discretion. M&J's business developed during the 1990's, so that in addition to this type of "supply only" contract of bridging equipment, M&J was able to complete larger projects for the supply and installation of more complex, flyover type, bridges, such as those provided on Jamaica 1.
65. On 17 February 1999 M&J and Kier International Ltd (“Kier”), a British based construction firm, entered into a Joint Venture, in order to facilitate both the construction and civil engineering aspects of what became known as Jamaica 1.
66. The Joint Venture ("JV") was conducted through an unincorporated vehicle called the Kier/Mabey (Kingston) Joint Venture. M&J and Kier agreed that overall revenue and profits from the JV in respect of Jamaica I would be divided 57% and 43% respectively. Under the terms of the JV a sponsor would have primary responsibility for representing the JV. Kier was nominated to act as the sponsor. There was a supervisory board of the JV comprising both Kier and M&J executives.
67. The project effectively began as an unsolicited approach to the Ministry by M&J. In December 1998 M&J made presentations to the Jamaican Ministry of Transport and Works for bridge projects in the Kingston area including: Three Mile Roundabout; Sandy Gully Bridge; Hagley Park Road/Maxfield Avenue and Half Way Tree Rd.
68. In January 1999 Mr Hibbert wrote back to the JV care of Deryck Gibson and asked M&J/Kier to make a bid. There was no competitive tendering exercise.
69. As the project developed the locations changed from the original plans and in the end the proposal related to flyover bridges at Three Mile Roundabout; Sandy Gully Bridge on Constant Spring Rd, Kingston and Montego River/NorthGully Bridge on Howard Cooke Boulevard in Montego Bay
70. Kier were responsible for the erection of the bridges and work of a general civil engineering nature. M&J provided the steelwork.
71. This was the only JV between Kier and M&J in Jamaica although there were other proposals over time for work, for example, in Hunts Bay and certain rural bridges.
72. The contract for Jamaica 1 was signed during December 1999. The contract was entered into by the Ministry of Transport and Works on behalf of the Government of Jamaica and Kier/Mabey (Kingston) Joint Venture. The contract was signed on behalf of both M&J and Kier International Limited. Its value was £13.9 million.
73. The Jamaica I contract was covered by a guarantee from ECGD.
74. A change order varying the scope of the contract was sent under cover of letter dated
19 May 2000 by the Estimating Director of Kier International Limited.
75. In the final contract the total value increased to £14,900,000. This price was broken down into the cost of the specific bridging projects and an employer contingency fund of nearly £1 million. The purpose of the employer contingency fund was to meet costs relating to third party works, land purchase compensation and other incidental costs arising during the building project.
76. Within the JV costs commissions were 12.5%. M&J were responsible for commission arrangements. In fact although the commission costs were 12.5% of the total contract price/revenue, M&J bore all of the costs from their proportion of revenue received, approximately £8 million, which represented 57% of the total revenue under Jamaica 1. Therefore in reality M&J paid more than 20% of received revenue in commission costs.
77. The SFO has investigated the relationship between Kier and M&J in respect of this contract. For the reasons given above, and all the evidence currently available to the SFO, there is no evidence that Kier were privy to these corrupt practices. Kier have co-operated with the SFO’s investigations.
78. Moreover, it appears that Manager C was able to secure from the Jamaican government an agreement to pay the ECGD premium on top of the contract price, when in fact M&J had already factored some of this cost into the overall contract price. In his memorandum to Director B of 30 June 2000, Manager C comments: “I am pleased to confirm that we have now received from the Jamaican Government £1,212,420 for the ECGD premium that has been paid in full. Please note that this was included in our offer but nonetheless we have managed to get them to pay this, which increases our profit on the contract by that amount.”
79. As the overall contract price was approximately £15 million, this represented an additional uplift on this contract for M&J and Kier. Prior to this memorandum, it appears that, of the £1,212,420, the Jamaican Government had already agreed to pay a contribution of £726,000 towards the premium amount, with M&J and Kier paying the remaining amount of £486,420. It is not clear why the Jamaican Government paid the full amount of the premium. M&J were evidently content to treat it as a windfall.
80. This windfall was again split between M&J and Kier according to the proportions of the JV agreement. As you will hear, M&J agree that their share of this sum should be properly paid back to the Jamaican Government.
81. The Jamaica 1 contract was won by M&J and Kier. M&J had behaved corruptly.
They had already corrupted an important person of influence over these matters, Mr. Hibbert.
82. Mr Hibbert received relatively modest advance payments in his own name both in cash and through bank accounts here in the UK. In addition, M&J made a payment to Mr Hibbert's niece, a Faith Jadusingh, of £3,000. There was a payment to cover the UK based funeral expenses for Mr Hibbert’s mother. Additionally, Mr. Hibbert received monies via his National Commercial Bank account in Jamaica.
83. M&J had corrupted Mr Hibbert from the time they first conducted business in Jamaica back in 1993. Payments began at around the same time as he was promoted to his position as Chief Technical Director in November 1993. M&J continued to cultivate this relationship by bribing him in relation to the subsequent contracts in 1997. M&J made payments to Mr. Hibbert intending to influence him to act corruptly in relation to those subsequent contracts and Jamaica 1. In short they had bought Mr. Hibbert and in making payments to secure Jamaica 1 were doing so, believing that they would have a corrupt effect.
84. Monies were paid on a number of occasions from 1993 by way of “Advance Commission”, and other such devices. Mr Gibson was connected with some of these payments, as was Manager C. The payments illustrate the malign and corrupt approach of both Mr. Hibbert and M&J: the request for payment and the willingness to pay speak of an assurance on both sides that their “relationship” would eventually bear significant fruit.
85. In particular payments were made to Mr Hibbert in 1998 when M&J and Kier were planning the project that Mr Hibbert later approved in January 1999.
86. By 1 July 1998 M&J, Kier and another British construction company4 had begun meetings discussing the prospect of work in Jamaica which ultimately became the Jamaica 1 project. The Minutes of the Consortium Progress Meeting was attended by Director E, Manager C and another representative for M&J and the Estimating Director of Kier.
87. The minutes note that some preparatory work had been done in drafting some outline plans for the various flyovers and that it was proposed that, “This material could then be presented to Joe Hibbert (MoW – Chief Technical Director) during his visit to UK in July – Manager C to arrange meeting”
88. An action point was left for Manager C, “ Manager C to arrange meeting with Joe Hibbert before he returns to Jamaica (but after next consortium meeting).”
89. The next consortium meeting was arranged for 15 July 1998 at 2.00pm at M&J’s offices in Twyford.
90. There is an Export Agents Commission Card in the name of Joe Hibbert which shows a cash payment of £10,000 being made on 7th July 1998.
91. This payment is supported by a memo of the same date from Manager C to Director
B, “re: Joe Hibbert – Jamaica As you are aware Mr Hibbert is presently visiting the UK with two other colleagues. He has requested £10,000 cash to be deducted from commission due to him. Recent commission statement is enclosed. Please could you initial this memo as authorisation for the payment to be made.”
92. The payment is authorised by Director B as requested by Manager C. Director B then in turn requests Director E to amend Joe Hibbert’s commission card accordingly. In a separate short letter, Manager C confirmed he received the £10,000 cash sum on Joe Hibbert’s behalf.
93. A further cash payment of £10,000 for Joe Hibbert during his visit to the UK was
requested for Director B’s authorisation by the Office Manager.
94. Evidently Joe Hibbert was still in the UK by the 23 July 1998. In a memo dated 22
July 1998 the Office Manager stated, “Please find attached the commission statement for J Hibbert for Jamaica which indicates a total of £15,449.62. As you are aware Mr J Hibbert is visiting the UK at the moment and he has requested via Manager C that he would like payment of commissions due as follows: The sum of £10,000 to be made available in cash (tomorrow 23/7/98) The remainder to be transferred to his account in Birmingham.”
95. These payments were made by M&J. In fact Director B and Director C authorized the cash payment and countersign an instruction to their bankers that, “In confirmation of instructions from the Office Manager we will require the sum of £10,000 in cash (£20 notes) to be provided Thursday 23 July 1998 at 1100 hours.”
96. This cash payment was made in person on the date of Joe Hibbert’s attendance at M&J’s factory at Twyford on 23 July 1998. A further payment of £5449.62 was paid on the same date to Joe Hibbert’s Birmingham account.
97. All the payments prior to, up to and including the signing of the Jamaica 1 contract, and following the contract’s delivery are recorded on an “Export Agents Commission Card” kept at M&J’s Head Office. By the time of the last payment, the Card had been re-named “Montego Bay” as opposed to “Joe Hibbert”. Montego Bay was a company which M&J understood was owned or controlled by Mr Gibson.
(iii) The role of M&J’s directors and management in securing Jamaica 1
98. As with many of M&J's contracts, including Jamaica Phase 1, commission was paid to a sales agent, and was integral to contract pricing. While commissions were capable of being paid at agreed stages of a contract, a typical contract for the supply of bridging equipment provided for payment of commission to be made pro rata to revenues received.
99. The majority of the payments made to Mr. Hibbert in his various accounts in various jurisdictions were authorised by Director B. On a memorandum dated 2 June 1999, Director B adds in relation to a payment to Mr. Hibbert of US$3,000 “This will be the last one in advance.” Whether by way of advance or otherwise, one particular payment followed the receipt of a memorandum from Manager C dated 30 June 2000 announcing that “Joe Hibbert, Technical Director of Ministry of Works, Jamaica is due to arrive in the UK in July”. The sums sought were £5000 to be paid into Mr. Hibbert’s Birmingham (UK) account, and £2500 to be paid to DAG Ltd to cover Mr. Hibbert's travel expenses. One earlier payment, of £10,000, was made on 23 July 1998 to Mr. Hibbert while he was visiting the United Kingdom, and, apparently at Mr. Hibbert’s request, consisted entirely of £20 notes. The M&J letter of instruction to its bankers, Barclays Bank Plc regarding this payment was signed by Director B.
100. Director C signed the approvals of the majority of payments to Mr. Hibbert relating to the two 1997 contracts, but apparently did not authorise any payments relating to Jamaica 1.
101. Director A signed approvals for payments in respect of both the 1997 contracts and Jamaica 1.
102. Director E authorised the entity Montego Bay Enterprises as the entity to which Mr Gibson's commissions could be paid, as referred to at paragraph 57 above. His status in the Company can be measured by the fact that on one document authorizing a payment of $20,000 to Montego Bay Enterprises, Director B writes “subject to Director E approval”. Director E then went on to sign the document approving the payment. His signature also appears on a number of approvals of payments to Mr. Hibbert and he met Mr Hibbert at least once in the UK when he visited M&J’s offices.
103. Manager C wrote memoranda to Director B (and to the Office Manager – see below) from 1996 onwards requesting payments be made to Mr. Hibbert, or DAG Ltd. on Mr. Hibbert’s behalf. In some cases reasons are given, such as funeral expenses for Mr. Hibbert’s mother (document dated 1 November 1998), or travel expenses.
104. The Office Manager, who has provided a witness statement to the SFO, has been employed by M&J for a considerable period of time in various capacities. The Office Manager was responsible for making sure that M&J were paid for the products and services the Company provided to its customers. Within that role he was responsible for transmitting “commission” payments when instructed to do so by those in authority above him. He provides important evidence for the prosecution in this case. That evidence shows that in relation to Jamaica, typically - though not exclusively - Manager C transmitted requests to M&J for payments to be made either to Mr. Hibbert or others, those requests were authorised by Director B and another signatory, and the Office Manager then implemented the instructions for payment. The Office Manager maintained and updated the “commission cards” for all of M&J’s overseas agents.
105. Other incidental payments were sought and paid - for example on 18 December 2000 Manager C wrote to Director B to the effect that M&J had been “approached” and invited to pay Deryk A. Gibson a contribution of US$10,000 for “local party funds”.
106. It is plain and apparent that the payments to a public official in the position of Mr Hibbert, often for expressed reasons which could have no conceivable legitimate commercial purpose, are nothing other than bribes, which bribes were paid to persuade Mr. Hibbert to use his influence in Jamaican government circles to secure the Jamaica 1 contract for M&J. M&J accept that these payments were made with a corrupt intent to so persuade Mr. Hibbert to act in a manner inconsistent with his duties as a public servant of the Jamaican Government.
VIII: THE GHANA CONTRACTS
107. M&J has conducted business with government departments in Ghana over a number of decades. From the mid 1980’s until approximately 1996, M&J’s interests in Ghana were represented by Kwame Ofori. During the early 1990's Kwame Ofori acted as M&J's agent in Ghana. He controlled a Ghanaian bridge building company, and apparently had influence within the ruling circles of the then ruling party in the Ghanaian government - the National Democratic Congress (“NDC”).
108. To promote its business transactions with government departments of Ghana, M&J paid commissions to its agent or agents in relation to the business it won in Ghana. It is accepted by M&J that through the creation of the GDF (the notional fund created by M&J known as the “Ghana Development Fund”), its executives facilitated corruption on behalf of M&J and that its executives were in (or sought to create) a corrupt relationship with a variety of decision making Ghanaian public officials with responsibilities affecting M&J’s affairs. These funds were purportedly for the development of M&J business in Ghana but, in truth and reality, were capable of and were understood to be capable of, being used for corrupt purposes.
109. When appointing and permitting its agents in Ghana to act on its behalf or for it, M&J knew that there was a risk that unknown proportions of the agents' commission totalling £750,000 might be used for corrupt purposes.
110. The budget representing the GDF was managed by Director D, an executive who later became a director of M&J. Whilst Director D had responsibility for different territories during his career, in particular he had responsibility for Ghana. Consequently during the material period, the affairs of M&J in Ghana were heavily influenced by his direction and control.
111. On 3 April 1996 Mr. Ofori and a relative attended a meeting at Twyford with the Office Manager. It appears that Director B and other Directors made their excuses for not attending. The Office Manager' note of the meeting records that Mr Ofori did not have control over the "total 15% commission". Mr Ofori complained that he had problems as he did not believe Director D had distributed 5% to the "relevant personnel" or “local personalities”. The note records Mr Ofori saying that had he been involved in the payment of the total amount of the 15% commission the present difficulties would not have existed and said that this aspect had been dealt with ably by him in the past.
112. On 14 March 1996 Mr. Ofori had sent a fax on “Danielli Mabey Ltd” headed notepaper (a Ghanaian company which was wholly unrelated to M&J and which is understood to have been owned by Kwame Ofori). The fax was marked for the attention of Mrs Margaret Ofori in Accra and appears to have been then passed to M&J. The fax detailed how it was that