R v Forsyth; R v Mabey

Allegation against the appellants was 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.

Count two of the indictment charged 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 alleged that the appellants being directors of Mabey & Johnson Ltd, 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.

The appellants sought to 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 argued 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 was implementing was itself made. The Order in question was made 10 years after the relevant Resolution. Appellants contended that 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 action to be taken to implement article 41 UN Resolutions. 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.

Rejecting the submissions of the appellants, the Supreme Court held that the 2000 Order did not override anyone’s fundamental human rights or was otherwise ultra vires the order-making power conferred by the 1946 Act (save as to the delay in the Order being made). After discussing the history of 2000 Order, the Supreme Court held that the Security Council Resolutions were not simply one-off measures requiring immediate implementation by member states and then receding into history, and that situations could develop in the course of their subsequent enforcement which call for further measures to be taken, sometimes with considerable urgency, to meet emerging problems. Thus the Supreme Court held that it would not stultify the power conferred under the 1946 Act by confining its exercise within an artificially restricted time-frame. The appeal was dismissed.