Case Comment: R v Mabey; R v Forsyth  UKSC 9
04 Friday Mar 2011
The appellants were criminal defendants charged with offences relating to trading in breach of sanctions connected with Iraq. They hoped to have those offences declared ultra vires, by extending the reasoning of the Supreme Court from a different case. They failed.
In HM Treasury v Ahmed, the Supreme Court had considered section 1(1) of the United Nations Act 1946 Act. That provision allows the government to give effect to UN Security Council resolutions simply by executive order, rather than by the more lengthy process of an Act of Parliament. The Supreme Court held in that case that the power under section 1(1), although stated in broad terms, was subject to some limitation. The government could not impose measures seriously infringing the fundamental rights of terrorist suspects merely by executive order, even if it was giving effect to a UN Security Council resolution when doing so. Parliament, in giving the power under the 1946 Act, could not have presumed that an order would extend to draconian content of that kind. Therefore he orders in that case were ultra vires.
In this case the defendants sought to extend that principle beyond the content of executive orders, to the timing of such orders.
The defendants were not terrorist suspects and were challenging an entirely different order from that in HM Treasury and Ahmed. They were businessmen and were charged with criminal offences pursuant to the Iraq (United Nations Sanctions) Order 2000. The essential allegation was that they consented to their company entering into an arrangement which facilitated the Iraqi government’s avoidance of international sanctions.
However, the 2000 order containing the offences with which they were charged gave effect to a UN Security Council resolution adopted in 1990. Surely, the defendants argued, if the 1946 Act allows government to impose laws by avoiding Parliament, the UK government must make that order within a reasonable time. 10 years between the UN Security Council resolution and the order was too long. The government should have either acted more quickly, or enacted the criminal offences in the ordinary way. Their failure to do so made the offences under the 2000 order ultra vires.
Those submissions failed in both the Crown Court and the Court of Appeal. The question of public importance which the Court of Appeal certified for the Supreme Court was this:
“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?”
The defendants might have been forgiven for thinking that the Supreme Court would take a sympathetic view. In HM Treasury v Ahmed Lord Rodger had specifically contemplated that if an order had particularly serious consequences it may be acceptable provided “that it had only a limited life-span and was replaced, as soon as practically possible, by equivalent legislation passed by Parliament.” It therefore appeared that the acceptability of an order may have a time sensitive dimension.
However, after hearing argument the Supreme Court took the unanimous view that the defendants’ attempt to draw an analogy between the draconian content of an order in HM Treasury v Ahmed and the timing of the order in this case, was false.
There may be many instances in which government would need to take some time before making an order. There may also be a need for amendments and adjustments. With that in mind, there was nothing in the 1946 Act that suggested Parliament had contemplated that executive orders giving effect to UN Security Council Resolutions would only be permissible if implemented on an urgent basis, or within a limited time. If the content of an order was permissible, it did not have to be made quickly.
Moreover, there may be good reasons why it could take several years to give effect to a UN Security Council resolution. At the end of his judgment Lord Brown set out how a delay of several years may occur, by reference to the making of the 2000 Order itself.
For those reasons, the decision of the Supreme Court was a straight forward endorsement of the courts below. However, there were two additional interesting features about this case.
First, this is one of only a handful of criminal cases that have been heard by the Supreme Court since it was opened in 2009. In reality, the Court of Appeal is now the forum of final determination for all but a very small number of criminal cases. Of course, the Court of Appeal has always had greater power to determine which criminal cases the Supreme Court hears. Unlike in civil cases, the Court of Appeal can prevent a losing appellant from even petitioning the Supreme Court by refusing to certify that the case involves a question of public importance. Anecdotally, some criminal practitioners suggest that the Court of Appeal is certifying fewer questions than it used to, thereby ending any prospect of further appeal.
Perhaps in fear of the Supreme Court having a reduced role in criminal jurisprudence, the Court of Appeal’s refusal to certify a point was recently challenged in the case of R v James Lee Dunn. The challenge was unsuccessful. There is no rightto petition the Supreme Court and Article 6 contains no requirement to be afforded a second layer of appeal. In practical terms the Court of Appeal is the final tier of appeal for all criminal cases – the only exception being the rare instances when the Court of Appeal itself feels that guidance from the Supreme Court may be appropriate.
Second, the Court’s decision in this appeal was given in a single judgment by Lord Brown. He did so in only 19 paragraphs. Obviously, not every case lends itself to having the facts and principles stated so succinctly by one justice. But for those of us now becoming used to reading judgments of well over 100 paragraphs on a regular basis – often with seven or even nine judgments to compare – this was a particularly welcome read.