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Bullying by Foreign States and the Rule of Law|戴啟思

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建立時間 (HKT): 0210 11:00

If you want to intimidate someone then all you need to do is make them afraid for their own safety or the safety of people to whom they are close. “We know where you live” is a common phrase used by thuggish types to put people in fear.

A person thus intimidated can choose to submit to the threat and then live for a long time with the fraying nerves that come with acquiescing in a threat or they can go to the police and seek help. That requires fortitude, especially if the intimidator is known to have associates who are ready and willing to make good the threat even if he is taken out of circulation.

Intimidation made in the context of actual or apprehended court proceedings is a crime in its own right. If you hint that there may be unpleasant consequences if you give the police a witness statement or offer to go to court to testify, you commit the offence of attempting to pervert the course of justice.

It does not matter whether what you have tell the police is directly relevant to an offence or whether what you say in court may be a wholly accurate account of events.

What matters is that a person is seeking to bring information to the attention of the authorities with a view to assisting with the investigation of crime or of being a witness in a court. The offence is directed against the loss information which might be relevant, crucial even, in clearing up a crime.

However, it is one thing for an individual to threaten harm to a potential witness and it is quite another for a country to intimidate another country order to secure its national interests. Something like this may be happening in the current three-way row between China, Canada and the U.S.A. involving the Huawei executive, Meng Wenzhou.

I make no comment on the rights and wrongs of that case. The court processes are still going on. However, it is interesting to see how one country, the United Kingdom, responded to threats by another country, Saudi Arabia, which, if committed by individuals would clearly amount to the offence of attempting to pervert the course of justice.

B.A.E. is a British arms company. It makes hundreds of millions of pounds selling arms and armaments to other countries. In the early 2000’s, acting on behalf of the UK Government, it began to negotiate a contract to sell Typhoon military aircraft to Saudi Arabia. (The contract was, ironically, given the name “Al Yamamah” or “the Dove”).

At this time the U.K.’s bribery laws were outdated and had not been enforced with any degree of enthusiasm by law enforcement bodies, particularly in respect to cases with a foreign element. However, reports of very serious fraud and bribery implicating B.A.E. and Saudi nationals began to circulate. In 2005 the Serious Fraud Office (SFO), a prosecuting agency under the supervision of the Attorney General, began to investigate these reports.

Sectional interests within the British Government became involved. The Ministry of Defence preferred to see the contract talks conclude without any embarrassing prosecution if possible, to preserve good defence and commercial relations with the kingdom. The Secretary to the Cabinet raised the question whether public interest questions were in play in continuing the investigation. The Attorney General collected these views and the views of other Government ministers in order to see if he should intervene to stop to the SFO further investigating the case.

The Attorney General’s view was that there was a case which could perhaps be prosecuted, and he decided not to stop the SFO investigation.

However, later in 2006 the SFO sought access to documents relating to Swiss bank accounts in order to see if payments had been made to Saudi nationals.

The Saudis responded by saying if the Al Yamamah investigation continued the kingdom would withdraw from the counter-terrorism co-operation arrangements with the United Kingdom, cease operation in relation to its strategic objectives in the Middle East and end the negotiations for buying the Typhoon aircraft.

Saudi Arabia was the chief source of intelligence on the militant Sunni group Al-Qaeda, which had been responsible for 9/11 and the Bali bombings in 2002.

The British Ambassador to Saudi Arabia said that if the investigation continued then “British lives on British Streets were at risk”, alluding to the possibility that without Saudi intelligence about , there could be terrorist bombings in the U.K., as in fact had occurred in London in 2005 when over fifty people were killed.

All this information, which included a note from the Prime Minister, was supplied to the Director of the SFO who had an unenviable decision to make: should he continue to investigate what seemed a viable bribery case and infuriate the Saudis and risk retaliation or continue with a view to bringing a case in accordance with ordinary prosecuting principles?

The Director SFO decided to drop the case at the end of 2006 citing national and international security interests. He said: “It has been necessary to balance the need to maintain the rule of law against the wider public interest.”

The story did not end there. There was concern that the U.K.’s national and economic commercial interests had played a part in the decision which, according to Article 5 of the Organization for Economic Co-Operation and Development (OECD) Convention on Bribery, should not be a reason to fail to follow up allegations of bribery. There was also the plain fact that the Saudi Government’s threats would have constituted an attempt to pervert the course of justice if done within the jurisdiction.

A non-governmental organization (NGO) concerned with environmental and social justice, the Corner House, sought judicial review of the decision of the Director of the SFO’S decision not to pursue the Al Yamamah case in 2007. All the details of the decision-making by the Attorney General and the Director came out in evidence.

The NGO succeeded at first instance. The High Court reviewed the Director’s decision and found it unlawful. The judges found the decision not to continue with the case damaging to the rule of law and that the Director had not fully appreciated this.

They also found that submitting to a threat is this situation is only lawful when there is really no alternative course open to the person making the decision. It was suggested that more of an effort should have been made to educate the Saudi Government that under the British constitution the executive authorities could not tell the Attorney General and the Director what they must do.

The House of Lords, the precursor to the U.K.’S Supreme Court, overturned the decision. The judges there were more hard headed. The threats of the Saudis were not personal. They were not directed at the Attorney General and the Director and their families. Unpleasant though such threats would be if made to them, they would have to be ignored.

What mattered was the public interest which was more about the public security and the possibility of bombings in the streets-rather than commercial interests. As one of the judges said, “The Director was confronted by an ugly and obviously unwelcome threat. He had to decide what, if anything, he should do.” The judges cleared the Director of giving up the case because of commercial interests.

So it seems that the lesson to be learned is that a country can flout the rule of law and achieve results because other countries hold the personal security of their own citizens as being more important than prosecuting viable cases. That is a hard lesson.

Some good did come out of the Al Yamamah case. The U.K. improved its bribery laws. Although the Law Commission had been looing at these laws for some time, the impact of this case doubtless hastened implantation of the Law Commission’s recommendations to radically overhaul bribery law and introduce measures that addressed acts of bribery overseas and the failure of companies to prevent bribes being paid by employees and agents.

The case also added weight to a move to make sure that the Attorney General did not become too closely identified with non-legal considerations about decisions to prosecute. Although the Attorney General had left the final decision to the Director of the Serious Fraud Office, there was a feeling in some quarters that there was not sufficient distance between him and ministers when seeking their views.

This led indirectly to the establishment of a protocol between the Attorney General and the three main prosecuting agencies in 2009 under which the Attorney General agreed not to become involved in individual cases to prosecute (or nor prosecute, as in the Al Yamamah case ) unless and until issues of national security were involved. Where a case contains a national security issue only then will the Attorney General and he will announce the fact to Parliament and explain the intervention so far as national security interests allow.

A protocol has been floated as an answer to our own Secretary of Justice’s recent problems concerning the decision not to prosecute the former Chief Executive, C.Y. Leung, because it removes the questions of conflict or apparent bias which have dogged her recently. Unfortunately, the Secretary of Justice is not enthusiastic about the idea and so the question of whether decisions to prosecute (or not prosecute) in high profile cases be made more transparent will have to wait until the next time such a case arises, as it surely will.

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About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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