Abacha and Others v Secretary of State for Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TUCKEY |
| Judgment Date | 18 October 2001 |
| Neutral Citation | [2001] EWHC 787 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4708/2000 |
| Date | 18 October 2001 |
The Queen on the Application of
[2001] EWHC 787 (Admin)
The Right Honourable Lord Justice Tuckey and
The Honourable Mr Justice Silber
Case No: CO/4708/2000
CO/1942/2001
IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
Miss Clare Montgomery QC and Mr Julian B. Knowles
(instructed by Messrs Dechert for the Claimant)
Mr. Edmund Lawson QC and Mr Khawar Qureshi
(instructed by The Treasury Solicitor for the Respondent)
Mr. Philip Heslop QC, Mr David Perry and Mr Robert Miles
(instructed by Messrs Kingsley Napley for the Interested Party)
This is the judgment of the court to which both of us have contributed.
Introduction.
In the five years before he died in 1998 General Abacha was the military ruler of Nigeria. It is alleged that during his rule he stole more than US$4b. of the State's money from which his family, including his son who is the first Claimant in these proceedings and his friends who included the second Claimant, benefited. The present government of Nigeria (FGN) who have been in power since 1999 have sought to trace and recover the looted assets and prosecute those involved. Much of the money was taken in cash. The Claimants have admitted receiving US$750m. in cash, which was paid into Nigerian bank accounts and then laundered through European bank accounts controlled by them. They have paid this money back and contend that they were holding it for "State and security purposes". The FGN alleges that it was received dishonestly and that the Claimants were fraudulently involved in two other large transactions involving State money. They face criminal charges in respect of their receipt of the cash in Nigeria and in respect of the other two transactions in Switzerland. This court is concerned with requests for assistance in obtaining evidence in connection with those criminal proceedings made by the FGN and the Swiss authorities and by the FGN in connection with their criminal investigation of the other two transactions. The Secretary of State is empowered to give such assistance by section 4 of the Criminal Justice (International Co-operation) Act 1990, sub-section 2A of which says
…….. If the Secretary of State is satisfied –
(a) that an offence under the law of the country or territory in question has been committed, or that there are reasonable grounds for suspecting that such an offence has been committed; and
(b) that proceedings in respect of that offence have been instituted in that country or territory or that an investigation into that offence is being carried on there,
and it appears to him that the request relates to an offence involving serious or complex fraud, he may, if he thinks fit, refer the request …….. to the Director of the Serious Fraud Office for him to obtain such of the evidence to which the request …….. relates as it may appear to the Director to be appropriate for giving effect to the request ……..
As can be seen two formal requirements have to be met before assistance can be provided but, if they are, the Secretary of State still has a discretion as to whether he will do so. In practice this discretion will be exercised both at the stage when the Secretary of State decides whether or not to accede to the request and at the stage when he decides to transmit the evidence which has been gathered in accordance with the request.
The two applications for judicial review before the court challenge the Secretary of State's decision contained in a letter of 18 December 2000 to transmit the evidence gathered under the Swiss request and his decision contained in a letter of 8 May 2001 to accede to the FGN request. In the case of the Swiss request the Claimants' contention is that the Secretary of State should only have agreed to transmit the evidence on undertakings which ensured that it could not be used by the FGN who are a civil party to the Swiss criminal proceedings. In the case of the FGN request the contentions are that there was procedural unfairness because the Secretary of State refused to disclose the request or the FGN's replies to the Claimants' representations and that the first of the two statutory conditions was not satisfied and/or that in his discretion he should not have acceded to the request. The FGN has appeared as an interested party on the application relating to its request.
The FGN Request.
History.
There is a co-operation treaty between the FGN and the UK concerning the investigation and prosecution of crime. It prescribes how requests for assistance are to be made and executed and the grounds upon which they may be refused. Article 9 says that the parties:
shall to the extent requested use their best efforts to keep confidential a request and its contents.
The requesting party is not to use the information obtained for purposes other than those stated in the request without the consent of the requested party. There are similar provisions in the scheme for mutual assistance in criminal matters agreed by members of the Commonwealth (the Harare Scheme).
The FGN request was made on 23 June 2000. They have made similar requests to Switzerland (where they also made a criminal complaint), Luxembourg and Liechtenstein. Each of these requests seeks evidence about the cash (referred to as the "security votes affair") and the other two transactions to which we have referred.
The first of these other transactions has been called "Ajaokuta". Put shortly, a company of which the Claimants were the beneficial owners bought a number of bills of exchange which had been guaranteed by the Central Bank of Nigeria which were then bought back by the Ministry of Finance on the instructions of General Abacha, leaving the Claimants' company with a profit of about DM500m. The allegation, which is denied, is that this was a corrupt transaction. A third party claimed an interest in the bills and the FGN claimed the profit in proceedings in the English commercial court. A preliminary issue as to whether these claims had been settled was tried by Rix LJ over six months. He upheld the FGN's contention that the Claimants had agreed to settle their claim for DM300m. In the course of his judgment Rix LJ made findings about the credibility of the Claimants, both of whom he found to be unreliable and dishonest (the first Claimant gave evidence by video link from the prison in Nigeria where he is being held awaiting trial for murder) and the former Attorney General of Nigeria whose evidence he felt unable to rely on.
The second transaction has been called "Vaccines". Here, an English company beneficially owned by the Claimant sold vaccines to the Nigerian family support programme, of which General Abacha's wife was the President, at an alleged profit of US$80m. Again, the allegation, which is denied, is that this was a corrupt transaction.
The Claimants learnt of the FGN's request to the UK through the press. Their solicitors asked for a copy of the request but this was refused by the Secretary of State because the FGN would not consent. Nevertheless within four days the solicitors submitted detailed representations as to why the Secretary of State should not accede to the request. Among the many points taken was that by a 1999 decree (Decree 53) the FGN had made it clear that no criminal proceedings would be brought in respect of any of the matters with which we are concerned. The nine page letter was followed by three files of documents. This material was referred to the FGN for its response, but, as the Claimants contended that most of the matters they had raised would be resolved by Rix LJ's judgment, the FGN's response was deferred until after a draft of this judgment was released at the end of February 2001. The substance of the response was conveyed to the Claimants' solicitors by the Treasury Solicitor on 17 April 2001. After unsuccessfully trying to obtain the FGN's actual response, the Claimants' solicitors made detailed representations in an eighteen page letter accompanied by a further three files of documents.
The Secretary of State's letter of 8 May 2001, which is the subject of these proceedings, followed. The six page letter states that the Secretary of State was satisfied that the Section 4 statutory conditions, to which we have referred, were met and that there was no reason why he should not exercise his discretion to accede to the FGN's request. The Claimants were told of their right to make representations before the Secretary of State decided whether to transmit the material obtained by the SFO. The letter then went on to deal in detail with the principal contentions made in the representations and further representations.
A number of things have happened since the decision letter which have been relied on in the parties' submissions to us, so we should refer to them.
Firstly, there has been a good deal of legal activity in Switzerland directed to restricting the use which the FGN can make of the evidence gathered in the Swiss investigation. It is not necessary to refer in detail to what has happened other than where relevant to the challenge to the Swiss request. But, in summary, the Claimants contend that the FGN have misused the Swiss evidence in their requests for assistance to other European countries and that by maintaining their request to the UK, relying on some of this material, they are in breach of an order of the Swiss Court of Appeal made on 4 July 2001. This is denied by the Secretary of State who...
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