By  Harry Fanon 

SENATOR Ike Ekweremadu is remanded in custody and will on August 4, 2022 appear at Central Criminal Court (The Old Bailey) London, where the hearing is transferred from Westminster Magistrate Court as they pleaded not guilty. He and his wife, Beatrice, who was also remanded before being released on bail on Tuesday, are both charged with conspiracy to arrange and facilitate travel of another person with a view to exploitation, namely: organ harvesting of one David contrary to section 2 of the Modern Slavery Act (UK) 2015.

The United Kingdom Modern Slavery Act which came into being on October 29, 2015 is a piece of complex legislation. The complexity stems from the definitional nuances and hermeneutics of the operating terms which are broader in scope and meaning. The Act is an attempt to domesticate by way of bringing home The Palermo Protocol into the UK jurisprudence. The Palermo Protocol is a UN Convention to prevent, suppress and punish trafficking of vulnerable persons. The Protocol supplemented the UN Convention against Transnational Organised Crime, TOC.

The charge of conspiracy against  Senator Ekweremadu and wife was a detailed thinking and crafting by the Prosecution. Human trafficking, conspiracy and organ harvesting charge under the Modern Slavery Act, 2015 section 2 is sui generis – a special case of its own kind. For this reason, it involves other UK agencies- Serious Organised Crime Agency, SOCA, UK Human Trafficking Centre and the Vulnerable Persons Team.

Read Also: Alleged Organ Harvesting: UK court grants Beatrice bail, denies Ike Ekweremadu

These three agencies jointly have the responsibility for investigating, evidence gathering and providing advice and guidance to Crown Prosecution in making sure that the correct charge(s) is identified. In addition, the Single Competent Authority, SCA, will make trafficking assessment to determine whether David was trafficked and exploited.

On the July 7, 2022 hearing, the Prosecution informed the Westminster Magistrate Court that from the information they elicited from the Ekweremadus’ cell phones, they have enough cogent and compelling evidence to bring about a conviction. Upon hearing the sagacious audacity of the Crown Prosecution, I was mentalising what could be this evidence from the Ekweremadus’ phones? In the same token, I was also mentalising the arsenals of defence available to Ekweremadus’ Counsel in advising them not to plead guilty as charged.

As it were, the Crown Prosecution must consider the defence argument on how it is likely to affect the prospects of conviction. As a practice, any case which does not pass the evidential stage test cannot proceed, no matter how serious or sensitive the perceived offence may be.  The essence of these mechanisms is to make sure the Crown Prosecution does not waste the court and jury’s time. The Crown Court trials cost about £150 per minute (equivalent to N113,000 per minute).

A 20 minutes Old Bailey’s court session will cost the UK tax payers in the region of £3,000.00. As a rule and policy, before the Crown Prosecution can charge any suspect, there must be a realistic prospect of conviction. The evidence must be compelling and beyond reasonable doubt. At the Westminster Magistrate the Crown Prosecution boldly informed the court that given the information obtained from the Ekweremadus mobile phones, he is very sure of conviction. In silence I recited the prayer: Mea culpa mea maxima culpa: an expression of what is left of my Catholic belief. My face winced and became awry; an expression only reserved for funeral events.

The audacity and certainty of the Crown Prosecution made me mentalise on the nature and quantum of evidence extracted culminating to the conspiracy charges. As a jurisprudence attorney, I was not particularly happy that Ike Ekweremadu and wife missed the irredeemable opportunity to plead guilty at the Magistrate court. The reason is, at the Magistrate court they were summarily charged which is a lesser degree of criminal charge/offence when compared to possible indictable charges at the Old Bailey, a superior court.

The maximum conviction at the Magistrate court for summary offence is 12 months and/or option of fine, while Crown Court’s sentencing is a maximum of life imprisonment. In as much the jury is impartial; the composition of the jury may not be in their favour. It appears that the defence counsel for the Ekweremadus did not avert their mind that at any time before judgement is entered, the Crown Prosecution, if permitted, can vary their charges to a more serious offence.

It is against this background I weep for Mr. and Mrs. Ekweremadu for not accepting culpability at the Magistrate level. David had admitted that he lied about his age; he is not a minor aged 15 but 21 years old. The effect of this confession is that David is not a person of good character. His is not a credible witness and as such cannot be believed. David’s credibility will substantially and materially be a contestable issue at the Crown Court. David will no longer enjoy anonymity. He will have to appear in court unless the Crown Prosecution is able to demonstrate that David is fearful to give evidence in person and that he is at risk under sections 88 and 89 respectively of Coroners and Justice Act 2009.

David’s initial age 15 and later 21 did not categorically vitiate the conspiracy charges against the defendants. Max and Keira’s Law – The Organ Donation (Deemed Consent) Act 2020, exempted all visitors to England from organ donation irrespective of age. By law, the donor’s family is involved in the consent process before David’s organ is harvested. Clinicians will never proceed with the procedure without evidence of consent from the donor’s family.

We are yet to be informed whether David’s family consented. Persons who lack the mental capacity to understand the new organ donor arrangements and to take necessary action are also exempted from organ donation. To assist the jury in making an informed verdict, it is likely David’s specific mental capacity in this area will have to be assessed. It is exciting to see how the Crown Prosecution and Defendants will navigate through the legal webs in this case.

The legal ingenuity of both the Crown Prosecution and Defence lawyers will significantly determine how the jury will be persuaded to think in returning their guilty or not guilty verdict. Remember, it is not the office of the judge to convict but the jury. The judge is a facilitator directing the jury on issues of law. When this happens, the defendants will step out of the court for the judge to give legal directions to the jury.

Issues for determination before the jury: Whether at all material times Ike and Beatrice Ekweremadu intended (mens rea) to exploit David? For the jury to arrive at the intention of the suspects, consideration will be given as to whether David was at all material times coerced, induced, deceived, manipulated into the UK for the purpose of his kidney being harvested to the advantage of Ms Sonia.

Another tranche of intention exemption is: Did the Ekweremadus intend to commit a criminal act given that in Ike Ekweremadu’s letter to the British High Commission in Abuja he disclosed the purpose of David’s travel to the UK? Why did the British High Commission not inform him or refuse the visa? Can it be said that the British High Commission lured and induced them into committing the offence as charged? Can entrapment be adduced? In English law, entrapment is not a substantive defence available to the defendant. It is, however, considered to be an abuse of the court process for government agents to lure persons into committing illegal act and then seek to prosecute them for doing so.

In R v Sang [1980] AC 402, a criminal offence does not cease to be a criminal offence just because the defendant has been incited, induced, and lured into committing the offense as charged. The jury will be inundated with English law and principles leading to this case. Before and after David withdrew his consent, did the Ekweremadus isolate him from making contact with outside world or held him in captivity?  The fact of David’s escape to lodge a complaint at the police will be explored and any other conditions of his existence in the UK. Surrounding clues whether David’s passport was withheld by the suspects will be another significant factor to infer exploitation, coercion, slavery and servitude.

 Furthermore, since conspiracy is an offence of agreement or meeting of defendants’ minds, the court will direct the jury to consider whether there was a meeting of minds between Ike, Beatrice and their agents to commission an offense of organ harvesting (albeit inchoate). It is an established English law principle and it is irrelevant or immaterial that the defendants failed or did not carry out the planned agreement as seen in decided cases: O’Connell v. R. (1844) 5 St.Tr.(N.S.), R. v. Aspinall (1876) 2 Q.B.D. 48. and R. v. Bolton, 94 Cr. App .R. 74, CA et cetera. On the contrary and upholding the same English principle of law, husband and wife are not guilty of conspiracy if they are the only parties to the agreement.

The court will direct the jury to acquit Ike and Beatrice Ekweremadu, if the jury is satisfied that there are no other parties or agents involved in the conspiracy. The ruling in R v Lovick [1993] Crim.L.R 890, CA, will prevail. Be that as it may, in R v Chrastny 94 Cr.App.R. 283, CA a wife may conspire with her husband contrary to s.1 (1) of the Criminal Law Act 1977 if, she is aware that her husband was involved with other agents in a conspiracy to commit an unlawful act and she agreed with her husband to join that conspiracy, notwithstanding that the only person with whom she concluded the agreement was her husband. The above complexities, technicalities and interactions of English law principles on conspiracy will mean that the jury has an onerous verdict to make and as such would need to upskill their cognitive attainment.

Based on the forgoing, the Crown Prosecution may amend their charges to engage Human Organ Transplants Act, 1989, section 1 (a-d) that is, commercialisation of organs against persons who are not genetically related. In conclusion then, the act of trafficking and exploiting any person for the purpose of harvesting the organ is not only Statutorily wrong, but also ethically and morally wrong.

It is a reification of the human person from a subject to an object to be used and manipulated as a tool which demeans the value of human life. It is against this bioethics and the theological essence of being, that the law was fashioned to preserve the sanctity of human organ. The commercialisation and marketeering of human organ will certainly lead to a bizarre bazaar for the rich at the exclusion of the vulnerable poor individuals of any society.

Fanon, a philosopher and a jurisprudence attorney, wrote from his Ahiazu Cave via: [email protected]

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