R v Forsyth & Mabey
| Jurisdiction | England & Wales |
| Judge | LORD BROWN |
| Judgment Date | 23 February 2011 |
| Neutral Citation | [2011] UKSC 9 |
| Date | 23 February 2011 |
| Court | Supreme Court |
[2011] UKSC 9
THE SUPREME COURT
Hilary Term
On appeal from: EWCA Crim 2437
Lord Hope, Deputy President
Lord Rodger
Lord Walker
Lady Hale
Lord Brown
Appellant (F)
John Kelsey-Fry QC
Jonathan Barnard
(Instructed by BCL Burton Copeland)
Respondent
Philip Mott QC
Peter Blair QC
Peter Finnigan QC
(Instructed by Serious Fraud Office)
Appellant (M)
Nicholas Purnell QC
Clare Sibson
(Instructed by Kingsley Napley)
Respondent
Philip Mott QC
Peter Blair QC
Peter Finnigan QC
(Instructed by Serious Fraud Office)
Heard on 6 December 2010
LORD BROWN, delivering the judgment of the court
The appellants await trial in the Crown Court at Southwark on three counts of an indictment. Count two charges them with "making funds available to Iraq, contrary to articles 3(a) and 11(4) of the Iraq (United Nations Sanctions) Order 2000 and section 1 of the United Nations Act 1946". The particulars of offence allege that the appellants "being directors of Mabey & Johnson Ltd, between 1 May 2001 and 1 November 2002, consented to, or connived in, the making of €422,264 available to the government of the Republic of Iraq, or a person resident in the Republic of Iraq, by Mabey & Johnson, without the authority of a licence granted by the Treasury."
Mabey & Johnson Ltd were in the business of exporting pre-fabricated bridges to developing countries and the essential allegation against the appellants is that they consented to the company's entering into an arrangement which facilitated the Iraqi Government's avoidance of international sanctions by allowing it indirectly to access funds held in a United Nations controlled account. The appellants have pleaded not guilty both to that count and to the other two counts, each of false accounting.
The appellants have sought to have count two quashed on the basis that the Iraq (United Nations Sanctions) Order 2000 (SI 2000/3241) was ultra vires section 1 of the United Nations Act 1946. In essence they say that such an Order cannot be made under the 1946 Act unless made "at or about the same time" as the Security Council Resolution which it is implementing is itself made. This Order was made 10 years after the relevant Resolution. The argument failed before Judge Rivlin QC, the Recorder of Westminster, at a preparatory hearing at Southwark on 18 June 2010 (conducted pursuant to section 7 of the Criminal Justice Act 1987). It failed again on an interlocutory appeal (brought by leave of the Recorder pursuant to section 9(11) of the 1987 Act) to the Court of Appeal (Criminal Division), (Hooper LJ, Owen and Roderick Evans JJ) on 22 October 2010: [2010] EWCA Crim 2437. The Court of Appeal refused leave to appeal but certified two points of law of general public importance:
"(i) May the power to create criminal offences granted to Her Majesty in Council by section 1 of the United Nations Act 1946 only lawfully be exercised at or about the time of the relevant Security Council Resolution?
(ii) If yes, are articles 3(a) and 11(4) of the Iraq (United Nations Sanctions) Order 2000 to the extent to which they create a criminal offence, ultra vires section 1 of the United Nations Act 1946 given that the relevant Security Council Resolution was adopted in 1990?"
The matter came before this court on 6 December 2010 when, at the outset of the hearing, the appellants were granted permission to appeal; at the conclusion of the hearing the appeal was dismissed for reasons to be given later. These reasons now follow.
It is convenient at once to set out the most material parts of the three instruments here calling for particular consideration, beginning with the Security Council Resolution ("SCR") referred to in the two certified questions.
( 1) SCR 661 (1990) ("SCR 661") was adopted by the Security Council under Chapter VII of the UN Charter on 6 August 1990 (four days after Iraq invaded Kuwait, an invasion condemned that same day by SCR 660 (1990)). The Council reaffirmed SCR 660; by article 2 they decided to take measures to secure Iraq's compliance with it; by article 3 they imposed an embargo on trade with Iraq and Kuwait; and by article 4 the Council:
"decides that all states shall not make available to the government of Iraq, or to any commercial, industrial or public utility undertaking in Iraq or Kuwait, any funds or any other financial or economic resources and shall prevent their nationals and any persons within their territories from removing from their territories or otherwise making available to that government or to any such undertaking any such funds or resources and from remitting any other funds to persons or bodies within Iraq or Kuwait, except payments exclusively for strictly medical or humanitarian purposes and, in humanitarian circumstances, foodstuffs".
(2) The United Nations Act 1946 (the 1946 Act) provides by section 1(1):
"If, under article 41 [in Chapter VII] of the Charter of the United Nations … (being the article which relates to measures not involving the use of armed force) the Security Council of the United Nations call upon His Majesty's Government in the United Kingdom to apply any measures to give effect to any decision of that Council, His Majesty may by Order in Council make such provision as appears to Him necessary or expedient for enabling those measuresto be effectively applied, including (without prejudice to the generality of the preceding words) provision for the apprehension, trial and punishment of persons offending against the Order."
(3) The Iraq (United Nations Sanctions) Order 2000, made on 13 December 2000 and coming into force on 14 December 2000 ("the 2000 Order"), recites:
"Whereas under article 41 of the Charter of the United Nations the Security Council of the United Nations have, by a resolution adopted on 6 August 1990, called upon Her Majesty's Government in the United Kingdom and all other states to apply certain measures to give effect to a decision of that Council in relation to Iraq:
Now, therefore, Her Majesty, in exercise of the powers conferred on Her by section 1 of the United Nations Act 1946, is pleased, by and with the advice of Her Privy Council to order, and it is hereby ordered, as follows."
Articles 3 and 11 (the two articles referred to in count 2 and in the second certified question) provide:
"3. Any person who, except under the authority of a licence granted by the Treasury under article 5 –
(a) makes any funds available to the Government of the Republic of Iraq or any person who is resident in the Republic of Iraq, or,
(b) otherwise remits or removes any funds from the United Kingdom to a destination in the Republic of Iraq,
is guilty of an offence.
11. (1) Any person guilty of an offence under article 3 … shall be liable –
(a) on conviction on indictment to imprisonment for a term not exceeding seven years, or a fine, or both …
(4) Where a body corporate is guilty of an offence under this Order, and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly."
Essentially the appellants' argument comes to this. The 1946 Act was enacted, and the government was thereby permitted to introduce by executive order highly restrictive measures including new criminal offences and sanctions without a parliamentary majority or even parliamentary scrutiny, specifically so as to enable urgent (prompt, hasty, speedy and immediate were other words used by the appellants in the course of argument) action to be taken to implement article 41 UN Resolutions. Urgency alone justifies such wide executive power and the bypassing of the ordinary parliamentary processes and safeguards. The power, therefore, must be construed as subject to there being a need for its immediate exercise and limited, therefore, to its being exercised within a very short time-scale. If not exercised "at or about the same time" as the Resolution being implemented, runs the argument, the power is lost by the effluxion of time. The appellants candidly acknowledge that they can find no example of any other power once given expiring by the effluxion of time (absent, obviously, legislation containing express sunset clauses). They submit, however, that, novel as their argument may be, there is support for it to be found in a number of the speeches made during the parliamentary debates leading to the passage of the 1946 Act and some support...
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