B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE TUCKEY
and
THE HONOURABLE MR JUSTICE SILBER
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| | THE QUEEN ON THE APPLICATION OF
(1) MOHAMMED SANI ABACHA
(2) ABUBAKAR BAGUDU
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Claimants
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| |
- and -
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| |
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
|
Respondent
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| | - and -
THE FEDERAL REPUBLIC OF NIGERIA
| Interested Party
|
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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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)
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Judgment
As Approved by the Court
Crown Copyright ©
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LORD JUSTICE TUCKEY :
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 say that all the Claimants complaints of abuse of process have so far been rejected by the Swiss courts.
There has also been legal activity in Nigeria. In July 2000 the second Claimant asked the Federal High Court to restrain the FGN from pursuing criminal and other proceedings against him. No such order was made, but some sort of stay (the effect of which is in dispute) was granted, which has now lapsed. In March 2001 the Claimants applied for a declaration that Decree 53 precluded criminal proceedings against them. The Nigerian Court of Appeal is due to hear this application next month. In the meantime however, the second Claimant started proceedings in Lagos asking for declarations that the various letters of request were unconstitutional and of no effect and an injunction to restrain the FGN from proceeding with them. At a hearing on 12 September 2001, at which the government was not represented, a High Court Judge made an order that the “status quo ante bellum” be maintained until hearing of the motion for the interlocutory injunction. The Claimants say that this order prevents the FGN from maintaining their request; the Secretary of State and the FGN say it does not.
Section 4 (4) of the 1990 Act says that :
For the purpose of satisfying himself as to the matters mentioned in sub-section 2A (a) and (b) above the Secretary of State …….. shall regard as conclusive a certificate issued by such authority in the country or territory in question as appears to him to be appropriate.
On 13 September 2001 the Attorney General and Minister of Justice of the FGN issued a certificate relating to the charges which the Claimants face in Nigeria (Section 4 (2A) (b), about which there is no longer any issue) and in relation to Section 4 (2A) (a) stated:
that the Ajaokuta steel project matter and the vaccines matter (as described in the letter of request dated 23 June 2000) are the subject of criminal investigations in Nigeria and disclose the commission of criminal offences in Nigeria or reasonable grounds for suspecting that such offences have been committed in Nigeria ……..
Finally, on 17 September 2001 the Claimants’ solicitors were provided with a redacted version of the FGN request without prejudice to the Secretary of State’s contention that there was no obligation to provide this document
Procedural Unfairness.
Miss Montgomery, QC for the Claimants conceded in the light of the treaty and the Harare Scheme that there can be no general obligation to disclose the existence or contents of letters of request to the parties who are the target of such a request. The reasons for this are obvious : the investigative or prosecution process might be prejudiced by, for example, evidence and/or the proceeds of crime being destroyed or hidden or suspects absconding. But, Miss Montgomery submits, on the facts of this case fairness demanded disclosure. There was no confidentiality in the request because its existence was reported in the press. The Claimants had already seen similar requests made to other European countries. No reason has been advanced why they should not see the request made to the U.K. The background to the whole affair is complex and goes back a number of years. It was possible therefore that the request contained manifest errors which could easily be corrected. The request was to be dealt with by the SFO so was not to be dealt with by the courts to which the Secretary of State refers requests which do not involve serious fraud (see Section 4(2)). Having agreed to consider representations the Secretary of State had assumed an obligation of procedural fairness. In a number of instances the Secretary of State merely said that the FGN had denied the allegations made by the Claimants in their representations. Fairness demanded that they should have been able to see the actual response.
Miss Montgomery supported her submissions by reference to Article 8 of the ECHR. Article 8, she says, is engaged because the implementation of the request would be an interference with the Claimants’ private (which she says includes business) life and correspondence. Although Article 8 contains no explicit procedural requirements the ECtHR has said that the decision making process involved in measures of interference must be fair such as to afford due respect to the interests safeguarded by Article 8 (see TP and KM –v- UK at para.72 – application no : 289435/95).
Miss Montgomery also relied on a number of English and Privy Council cases to illustrate what fairness demands in other situations. The only case which deals with the present situation is the decision of this court on costs in Zadari (unreported 11/3/98) where Lord Bingham C.J. said that he was by no means satisfied that if the application for judicial review (based on the Secretary of State’s refusal to provide the request) had been fully argued it would have led to a decision in favour of the applicant. Shortly before the hearing the applicant had been provided with the substance of the request. In the course of his judgment Lord Bingham said :
The 1990 Act provides for co-operation between different states in investigating and prosecuting serious international crime. Some of the suspects who are likely to be the subject of investigation and prosecution will be powerful, rich ruthless, sophisticated criminals …….. It is…….. quite plain that the process envisaged by section 4 is not a trial; it is the process of gathering evidence. The use to be made of the evidence so gathered is a matter for the requesting state. If the evidence taken in an English court is to be used as primary evidence in the requesting state, then one would ordinarily expect, if the requesting state’s legal system is at all analogous to our own, that the requesting state would recognise the need for the suspect to have a full and fair opportunity to contest the evidence either here or in its own court. If the evidence taken in England was not to be used in evidence in the requesting state then the need for a full and fair opportunity to contest that evidence in this country would be much less and might not exist at all. It seems to me entirely appropriate for the United Kingdom, requested to act by a foreign state, to pay regard to the wishes of that state when responding to a request by someone in the position of the applicant for details of the case against him.
In the light of the way in which Miss Montgomery put her case, we only have to decide whether there was procedural unfairness in this case. For this purpose we are prepared to assume without deciding that implementation of the FGN request will or may involve some interference with the Claimants’ Article 8 rights bearing in mind that such interference may be justified if it is in accordance with law and necessary for the prevention of crime or the protection of rights and freedoms of others. We bear in mind also two general points. First, as Lord Bingham said, the section 4 process is not a trial. It leads only to the transmission of evidence to the requesting State where, if it is to be used, one can assume that the criminal defendant will have the opportunity of answering it. Secondly, such requests are made by friendly, foreign countries with whom we have treaty or similar obligations of mutual co-operation. The expectation must therefore be that we will comply with the request unless there are compelling reasons for not doing so and that we will do so as quickly as possible. Any requirement for procedural fairness must be fashioned with those considerations firmly in mind.
Looking at what happened in this case we have no hesitation in rejecting the complaint of unfairness. The history to which we have referred shows that the Claimants had an ample (some might say more than ample) opportunity to make representations to the Secretary of State as to why he should not accede to the FGN request. Those representations were obviously carefully considered by the Secretary of State in the light of the FGN’s response to them before he came to his decision. One can infer that the request did contain confidential information from its redacted form, so there was a good reason for not disclosing it to the Claimants. More importantly however, the Claimants knew which transactions the Nigerian authorities were investigating and were able to make a prompt response to put their case. It does not seem to us that they suffered any real prejudice by not seeing the request or by not seeing the FGN’s actual responses to their representations, the substance of which they were given by the Treasury Solicitor. The exercise which the Secretary of State has to perform should be simple. He is not required to conduct a criminal trial on paper or to decide disputed questions of foreign law before making his decision. Here the process which led to his decision was, in our judgment, entirely fair.
The Merits of the Decision.
Miss Montgomery submits that as Article 8 is engaged the court must subject the decision to a greater intensity of review than the traditional Wednesbury approach. She relies on the already well-known speech of Lord Steyn in R (Daly) -v- The Home Secretary [2001] 2WLR 1622, 1634 – 1636. We will follow this approach, bearing in mind, as Lord Steyn observed, that “context is everything”. We have already referred to the context.
Miss Montgomery submitted that in relation to the Ajaokuta and Vaccines transactions the Secretary of State should not have been satisfied that offences had been committed or that there were reasonable grounds for suspecting that they had. As to the security votes affair, she conceded that the statutory conditions were met but said that in his discretion the Secretary of State should have refused to accede to the request because any prosecution of the Defendants would be an abuse of process. She also relied on the FGN’s conduct generally in support of the discretion argument.
Dealing first with the security votes affair Miss Montgomery accepted that Decree 53 did not prohibit the prosecution of the Claimants so we no longer need to consider the arguments based on that measure. However, she relied on a chronology in which she listed statements made by various representatives of the FGN at various times which she says shows quite clearly that those who returned money (as the Claimants did with the security votes cash) were promised that they would not be prosecuted in respect of their receipt of such assets.
All we need to say about this is that we think the statements relied on are ambiguous. The Secretary of State was asked to deal with this on the basis that Decree 53 meant that there could be no prosecution. He was right to accept the FGN’s contention that this was not the case and to say anyway, as he did, that this was a matter which was already before and should be decided by the Nigerian courts. So also, we think, should the abuse of process argument now advanced by Miss Montgomery. It does not afford any ground for challenge to the Secretary of State’s decision.
We can deal with the Ajaokuta and Vaccines transactions together. The recent certificate issued by the Attorney General is conclusive of the statutory requirements (Section 4 (2A) (a)). Miss Montgomery submits that the certificate does not save the position because the Secretary of State still has to be satisfied himself that the case is one of serious fraud before he can refer the request to the Director of the SFO. We do not accept this submission. Once the requesting State has identified the offence and certified that it has been committed or that there are reasonable grounds for suspecting that this is so, we think the statute confines the Secretary of State’s role to considering whether the nature of the offence identified involves serious or complex fraud, about which there can be no doubt in this case. The Secretary of State does not have to go behind the certificate to satisfy himself of the statutory conditions.
In any event we do not think there is any ground for challenging the Secretary of State’s conclusion in the letter of 8 May 2001 that offences had been committed or that there were reasonable grounds for suspecting that this was the case. In relation to Ajaokuta Miss Montgomery relies on certain statements recorded by Rix LJ in his judgment by Mr. Gana (the police officer in charge of the Nigerian investigation into these transactions) that he had not alleged that there was any fraud involved in the transaction. As to the Vaccines transaction Miss Montgomery relies on a letter which was delivered anonymously to the Claimants’ solicitors shortly before the hearing before us. This letter is dated 21 August 2001 and purports to be from the office of the FGN’s DPP to the Assistant Inspector General of the police. It explains the difficulties which are being experienced in finding evidence to support the allegation that the English company’s profit margin on the sale of the vaccines was so great as to lead to an inference of fraud. The FGN did not have time to take instructions on this letter.
However, the answer to the points now made in relation to both these transactions is, we think, to be found in paragraph 27 of FGN’s English solicitor’s statement, where he says :
Mr. Gana assures me that his investigations are continuing and informs me that they cover, amongst other matters, the Ajaokuta steel project and the Vaccines matter. To date he has interviewed about 120 witnesses and recorded statements from 37 of those witnesses. He has also approached approximately 20 banks in Nigeria in the course of his investigation. The investigation is proceeding on the basis that the Claimants’ conduct was dishonest or otherwise an offence under Nigerian law. There is no basis whatsoever for the Claimants’ suggestion that the Nigerian authorities concluded that there was no evidence of dishonesty in relation to the matters under investigation.
In the face of this statement we are quite unable to conclude that the Secretary of State’s decision is susceptible of review.
In support of her general argument on discretion Miss Montgomery relies on the alleged breach of Swiss and Nigerian court orders and the misuse of documents to which we have referred. She also alleges that the authorities in Switzerland, Luxembourg and Liechtenstein were misled by the FGN into invoking their procedures for freezing accounts and assets by the assertion that there were similar procedures in existence in Nigeria, when in fact the decree which contained such powers was repealed in May 1999. This is an allegation which has only recently been made and the FGN have had very little time to deal with it.
We have considered each of these general points but they do not lead us to conclude that the Secretary of State’s discretion was wrongly exercised or that he should be required to reconsider the matter. Each of the allegations made does or is likely to raise issues of foreign law or procedure which the Secretary of State cannot possibly be expected to resolve. If there is anything in these allegations they should be raised with and considered by the courts or authorities in the countries concerned. They cannot be used as the basis for further delaying the implementation of the Secretary of State’s decision (which we consider to be lawful) to provide the co-operation which the requesting State is entitled to receive and the United Kingdom is obliged to provide.
For these reasons the challenge to the Secretary of State’s decision in relation to the FGN’s request fails.
The Swiss Request:
History
On 14 August 2000 Magistrate Zecchin of the Canton of Geneva submitted a request for mutual assistance to the Secretary of State asking for details of specified deposits of money made at banks in London between 2 April 1996 and 12 January 1998. The request asked in respect of each deposit for information concerning (i) the account debited, (ii) the owner or beneficial owner of the debited account, (iii) the payer, (iv) the third party giving the transfer order and details of the account debited and (v) the holder and beneficial owner thereof.
The request said that the Magistrate was in charge of conducting an investigation for offences committed by, among others, the Claimants of forming a criminal organisation contrary to Article 260 Swiss Civil Code, of money laundering contrary to Article 305 of the Swiss Criminal Code and of fraud contrary to Article 146 of the Swiss Criminal Code
A copy of the request was passed to the Claimants who made submissions to the Secretary of State that he should decline to provide the information sought because the offences alleged were not committed within Switzerland or the Swiss jurisdiction, because first that the letter of request was essentially a duplication of an earlier letter sent by the FGN in respect of which assistance had not been granted and second that Article 2 and the reservation to Article 2 of the European Convention on Mutual Assistance in Criminal Matters (“the Convention”) permit the Secretary of State to refuse assistance where the person who is a subject of the request had been the subject of a final decision not to prosecute in a third state which was the case in respect of the Claimants. It was also said that as the FGN was a party to the proceedings before the Magistrate in Switzerland, the Secretary of State should seek an undertaking from the Magistrate to ensure that any information supplied under the letter of request would not be used whether directly or indirectly in any investigation or proceedings outside Switzerland.
On 13 October 2000 the Treasury Solicitor replied on behalf of the Secretary of State that he was satisfied that the offence alleged was committed in Switzerland as there was a certificate from M. Zecchin to that effect, that Article 2 did not apply and even if it did, the Secretary of State would still regard it a proper exercise of his discretion to comply with the letter and that in any event he was satisfied the letter of request was separate from any other request made by the FGN.
On 16 October 2000, the Secretary of State referred the letter of request to the Director of the Serious Fraud Office under Section 4 (2A) of the 1990 Act which enabled the Director to use her powers under the Criminal Justice Act 1987 to give effect to this request. With the encouragement of the Secretary of State, the Claimants’ solicitors made a number of representations to the Treasury Solicitor concerning the terms on which the material obtained as a result of the Swiss request should be transmitted and a particular concern was the position of the FGN in the Swiss Criminal proceedings; it was a civil party to the proceedings and therefore on the face of it entitled to full access to the Investigating Magistrate’s file. The Treasury Solicitor explained in a letter dated 27 November 2000 that as the FGN was a civil party to the criminal proceedings it was entitled to have access to materials supplied pursuant to the Swiss request subject to the fact that “what, if any use could thereafter be made of any documents supplied is governed by Swiss law”
On 13 December 2000, the Treasury Solicitor informed the Claimant’s solicitor that the Defendant was considering whether to transmit the material gathered by the SFO. In reply, the Claimant’s Solicitors sought, by letter of 14 December 2000, an assurance that the material would not be transmitted for reasons previously given.
The letter of 18 December 2000, which is the subject of these proceeding followed. In it, the Treasury Solicitor informed the Claimants that the Secretary of State had decided to transmit the materials to Switzerland but would not do so pending the hearing of any application for judicial review. In early December 2000, the Swiss authorities submitted two further requests for mutual legal assistance seeking banking documents and the interviewing of witnesses. The Claimants made representations in respect of these requests, which were the same as those in respect of the first request. The second and third Swiss requests were therefore acceded to by the Secretary of State and passed on to the SFO for implementation. The relevant materials are now in the process of being gathered. A similar position applies to a fourth request made by the Swiss authorities on 19 March 2001.
The Claimants’ Submissions
As we have said, the thrust of the case for the Claimants on the Swiss request is that the Secretary of State, should, before transmitting the documents to Switzerland have sought and obtained an undertaking to prevent their use by the FGN. In exercising his discretion as to whether or not to transmit material to the requesting state it is said that the Secretary of State must weigh all the competing interests for and against transmission so as to act as a safeguard against an abuse of the international mutual assistance process by foreign Governments (see Zadari v. Secretary of State [2001] EWHCA ADMIN 275 Paragraphs 24- 26 and 29 – 30).
The Claimants submit that, in the context of this case, before transmission could be permitted, the Secretary of State and the Director of the Serious Fraud Office were obliged to ensure that the documents would only be supplied for the purpose of an investigation into the actual criminal charge which was the subject of the Swiss request. It is pointed out that the Secretary of State sought and received an undertaking from the Swiss Magistrate in a letter dated 3 October 2000 (“the October 3 undertaking”) stating that :
No document or other information obtained will be used other than in criminal prosecutions in Switzerland arising from investigations set out in the Letter of request without the prior consent of the Secretary of State for the Home Department.
The Claimants say that this undertaking was largely worthless as it bound only the Swiss Magistrate and it did not affect the FGN’s status as a civil party entitled to have access to and take copies of any transmitted material. The danger of that according to the Claimants is that the transmitted material could then be used in criminal proceedings against the Claimants in Nigeria or for that matter in any criminal investigation in Nigeria or elsewhere. The significance of this according to the Claimants is that the 1990 Act and the Convention envisaged the provision of assistance only in respect of the offences specified in the letter of request. Thus it is said it would be contrary to the purpose of the scheme if material provided pursuant to it was to be used for any other purpose in the requesting country or in a third country. As the Secretary of State is bound to have regard to relevant treaty obligations in the exercise of his discretion under the 1990 Act (R v. Secretary of State ex parte Fininvest [1997] 1WLR743, 747), it would be irrational for him to exercise his discretion in a way which would frustrate or undermine those treaty obligations by, for example, refusing to seek undertakings necessary to enforce them or to grant assistance where it is foreseeable that a breach of a treaty obligation is going to take place. It is said by the Claimants to be significant that if the Swiss Government gives assistance under the Convention, it is only on “the express condition of the result of investigations made in Switzerland and the information contained in the documents or files transmitted are used solely for the purpose of examining and trying the offences in respect of which mutual assistance is provided”. (This is because of the reservation of the Government of Switzerland to Article 2 [b] of the Convention). By the same token, requests made by the United Kingdom to a foreign country are subject to the statutory provision that any evidence obtained “shall not without the consent of such an authority as is mentioned Section 4 [b] above [i.e. the requested foreign authority] be used for any purpose other than that specified in the letter [of request]”. (Section 3 (7) of the 1990 Act).
Thus, it is said by the Claimants that there is no reason for a person to be in a worse position in relation to mutual assistance, where the United Kingdom is transmitting evidence rather than receiving evidence because the Secretary of State has an obligation to ensure so far as is possible that there is parity of treatment of persons affected by requests for mutual assistance. In consequence, the Claimants contend that the refusal by the Secretary of State even to consider seeking a further undertaking from the Swiss Magistrate to guard against transmitted material being made available to the FGN, was unlawful and irrational.
It is also submitted that the prospect of the Claimants being prosecuted and imprisoned in Switzerland is in reality remote, and the likely venue of any criminal trial is Nigeria. In order to show that the Secretary of State has acted irrationally, the Claimants also point out that they are worse off than if there had been direct assistance provided to the FGN as a result of a request for assistance to the British Government from the FGN, because the Cooperation Treaty and the Harare Scheme to which we have referred require the requesting country not to use any information or evidence obtained in response to a request for assistance, other than for the purposes specified in the request without the prior consent of the requested country.
The Secretary of State’s contentions
The Secretary of State contends first that he had no legal obligation to obtain an undertaking from the FGN, second that in any event in the light of the 3 October undertaking, he was entitled to authorize transmission and finally that events since December 2000 mean that any injustice has now disappeared.
Was there a legal obligation for the Secretary of State to obtain an undertaking concerning the use of the transmitted material?
Neither section 2 of the Criminal Justice Act 1987 nor the 1990 Act require the Secretary of State to obtain such an undertaking about the use to which the transmitted material can be put before transmission can be authorised. This is in sharp contrast with the provisions in other schemes for the supply of information, which limit the use to which the transmitted material can be put - see Section 3(7) of the 1990 Act and the Co-operation Treaty and Harare Scheme (which do not apply to the Swiss request) to which we have already referred. It is also noteworthy that Section 2 (8) of the 1987 Act provides that a statement given by a person in response to a requirement imposed by virtue of that section may only be used in evidence against him on a prosecution for knowingly or recklessly making a false or misleading statement in compliance with the requirement under that Section or on a prosecution for some other offence where in giving evidence he makes a statement inconsistent with it.
Significantly, no such specific obligation arises in respect of the use to which the material supplied under the Swiss request can be put. The case for the Claimants is dependent on showing an implied obligation but there is a powerful argument against this because Section 4 (2A) contains two express pre-conditions which have to be met before information can be supplied, so it is difficult to see why if parliament intended that undertakings about the use of the material requested should be obtained as a pre-condition to transmission, this was not expressly stated in the legislation as well
In the absence of any sign of a parliamentary intention to the contrary, it must be assumed that the legislature did not intend that an undertaking had to be given by the requesting party. This point is fortified by the fact that other regimes for the transmission of evidence contain, as we have shown, specific limitations on the use to which the transmitted material could be put. Thus, we conclude that there was no legal obligation for the Secretary of State to obtain an undertaking in this case. Nevertheless we add that the absence or presence of such an undertaking might in appropriate cases be a relevant matter to the exercise of the Secretary of State’s discretion.
Can the December 2000 decision to transmit be justified on the basis of the 3 October undertaking and other matters?
Even if in the circumstances of this case some form of undertaking had to be sought before transmission could be authorized, the Secretary of State obtained the 3 October undertaking by which the Swiss Magistrate undertook that no document or other information obtained as a result of the request would be used other than in criminal proceedings arising from the investigation set out in the letter of request without the prior consent of the Secretary of State. Mr. Lawson QC for the Secretary of State submits that the Secretary of State was entitled to rely on this undertaking and upon the Swiss Courts to police and enforce these restrictions. It has not been contended (and certainly not established) that the Swiss authorities would not have done all in their power to prevent the undertaking being broken. Miss Montgomery attaches particular importance to the fact that the FGN would have a right of access to the material supplied, but, as the Secretary of State said, the mere fact that the FGN might be permitted access to the file would not mean that there would be a breach of the undertaking not to use and it would be for the Swiss authorities to ensure that the undertaking was not broken.
There is nothing unusual in a legal system proceeding on the assumption that documents disclosed in an action will not be misused by a party who receives them and that there will be policing by the courts of the country in which the proceedings are being conducted. Indeed, the English legal system has a regime of disclosure, which provides that parties who receive information will not use it for any purpose other than for the litigation for which it is disclosed, except with the consent of the court. So our courts are given the task of policing the use of information disclosed to a party in the course of proceedings. As we have explained, in this case the Secretary of State had told the solicitors for the Claimants that the use of the documents transmitted was a question for Swiss law and there is no reason to believe that they would not perform their duties properly. We are fortified in coming to this conclusion by the fact that the Swiss authorities have themselves obtained a reservation to the Convention, which precludes the use for collateral purposes of any information transmitted by it under the Convention.
The Claimants contend that the policing powers of the Swiss Court is of limited if any use especially as it can only be enforced after the collateral use has occurred and might not cover breaches that occur outside Switzerland. But as Mr. Lawson correctly points out, the weakness of the Claimants’ position is shown by the fact that they would have been content if the FGN had unequivocally undertaken not to use the documents or, if this Court ordered that any transmission pursuant to the Swiss request would be subject to a condition to that effect. In either of those events, it could only have been the Swiss authorities who could have policed such an order and the Claimants were implicitly accepting that they would have been ready, willing and able to let them do so. By parity of reasoning, the undertaking given by the Magistrate will also be effectively policed.
In order to determine if the Secretary of State was entitled to reach his decision, we have considered with care the correspondence between the Treasury Solicitor and the solicitors for the Claimants. They took advantage of the opportunity given by the Secretary of State to comment on whether he should accede to the Swiss request and set out the Claimants’ case in a detailed letter of 15 September 2000 and other correspondence. After the Secretary of State had decided to accede to the request, the solicitors for the Claimants indicated that they wished to make further representations on whether the information gathered ought to be transmitted to Switzerland. The Treasury Solicitor invited them to do so and the comments of the Claimants’ solicitors were expressed in detailed correspondence. The Treasury Solicitor and the Secretary of State then duly considered them including the objection that there should be no transmission or that the FGN be refused access to any material supplied to the Swiss authorities or the FGN be excluded as a civil party.
Before reaching his decision, the Secretary of State considered the matter carefully and there is no evidence that he failed to take into account any matters that he should have considered or that he has relied on matters that he should have not taken into account. There was no allegation at that time that the FGN had abused its position by misusing documents from the Swiss file in connection with requests made in any other jurisdiction. In addition, there is no evidence that the Secretary of State misunderstood his powers or duties. His decision was one that he could reasonably have reached after consideration of the relevant material.
In any event, it will be recalled that Lord Bingham CJ explained in the passage already quoted that it would normally be expected that a suspect would have the right to contest evidence in the requesting country and for the United Kingdom “to pay regard to the wishes” of the requesting country. Simon Brown LJ considered that in an extradition case, a court “should not shut its mind entirely to considerations of comity” (R v. Secretary of State for the For Home Department [1988] QB 994 at 1004). These comments support the approach of the Secretary of State that the question of misuse of material by the FGN in the light of the October 3 undertaking was a matter for the Swiss authorities.
For those reasons, we do not believe that the Secretary of State’s decision in relation to the Swiss request can be faulted. Nevertheless, it is desirable to look at subsequent events, because if the initial decision of December 2000 was flawed, subsequent events could be relevant as removing any perceived unfairness to the Claimantss with the result that they should militate against any discretion being exercised in favour of granting the relief sought.
If the December 2000 decision was erroneous, do subsequent events ensure that no injustice would be caused to the Claimantss if the material specified in the Swiss request were now transferred?
In answer to a letter from the Treasury Solicitor, Mr. Monfrini of Hauchmann, Monfrini (“HM”) the Swiss lawyers acting for the FGN stated in a letter of 29 January 2001 (which was incorrectly dated 29 January 2000), that the FGN undertook :
not to seek to file in the Nigerian criminal proceedings any material which was accessed or made available to the FGN pursuant to its civil party status in Swiss criminal proceedings, in particular the documents transmitted to the Swiss authorities by the United Kingdom authorities.
The Treasury Solicitors duly wrote to the Claimants’ Solicitors on 30 January 2001 informing them of this undertaking and asked if in the light of it the Claimants would withdraw their application for judicial review of his decision. The proceedings were not withdrawn as the Claimants’ solicitors did not accept the authority and capacity of HM to bind the FGN. They also asserted that even if M.Monfrini “is capable of giving an undertaking on behalf of FGN this would not prevent use of the material in a prosecution by one of the states of Nigeria”.
On 7 March 2001, the Nigerian High Commissioner in London on behalf of the FGN gave the same undertakings as had been given by HM upon the understanding that the documents requested by the Swiss court were “exclusive to the Swiss request” and “that the Swiss request is not directly concerned with the accused persons charged to court in Nigeria and the FGN will not necessarily need to make use of the documents as such”. On 14 July 2001, the Attorney General and Minister of Justice for the FGN confirmed that the FGN would not seek to use documents from the Swiss court file obtained as a result of the transmission from the United Kingdom in the absence of formal transmission by the Swiss authorities to the FGN. The October 3 undertaking restricted the prospects of the Swiss authorities permitting such transfer to the FGN unless the Secretary of State agreed. As the Claimants were concerned about the use that the FGN would make of the transmitted material, it is difficult to see why these undertakings from the FGN did not provide an adequate safeguard for the Claimants or, at least, an effective response to their concerns.
On 29 August 2001, the Swiss Chambre D’Accusation gave a ruling to the effect that the FGN remains entitled to have access to and take copies of documents on the Swiss Court file but (in the words of the Claimants’ chronology) “a restriction is imposed (to last to closure of the mutual assistance proceedings) that the material may not be used directly or indirectly within the criminal proceedings which led the FGN to make its request for mutual assistance on 20 December 1999”.
Even if we thought there was anything wrong with the Secretary of State’s decision to transmit documents to Switzerland, we would not have granted the Claimants any relief because of these subsequent developments. The High Commissioner has given an undertaking not to use materials on the Swiss Court file and this is fortified by the Swiss court’s decision of 29 August 2001.
For these reasons, the application in relation to the Swiss request also fails.
Conclusion
Both these applications are dismissed.
Postscript
After we had prepared this judgment the Claimants applied for it to be stayed. The reason for this is that on 27 September 2001 the First Claimant (and 19 companies and legal entities said to be “affected”) made an application in Abuja similar to the one made by the Second Claimant in Lagos to which we have referred in paragraph 11. An application for an interlocutary injunction to restrain the FGN from proceeding with the various letters of request was heard by a High Court Judge on 8 October when the FGN were represented, although we are told that the Judge refused to listen to submissions on their behalf. The judge adjourned the application to 1 November 2001 and made an order restraining the Defendants from “proceeding, continuing, causing to be continued or assisting in any way whatsoever in the letters (of request) to the detriment or disadvantage of the Plaintiffs”. The Claimants argue that this order is clear in its effect and that we should defer giving our judgment at least until after 1 November in the interests of international comity. The Secretary of State and the FGN oppose this application. We see no good reason for staying or deferring our judgment. This judgment is concerned with the Claimants’ challenges to the Secretary of State’s decisions, not with the wider question of whether the FGN should be permitted to proceed with their letters of request and, if they do, whether this will be a breach of the recent order of the Nigerian court, which, with its reference to “detriment or disadvantage to the Plaintiff” is, we suspect, of debatable effect. But that is a question for the Nigerian courts to decide if necessary. We have to say that the Claimants’ recent litigation in Nigeria smacks of tactical maneuvering. We do not think any question of comity between courts arises. On the contrary, for the reasons given in paragraph 27 we think other questions of comity demand that we should give judgment sooner rather than later. This is why we have rejected the Claimants’ latest application (which the parties agreed we should deal with on paper) and proceeded to hand-down this judgment.
