PD & EB, R. v (Iraq Sanctions)

A court may correct an obvious drafting error only where the legislative purpose, the inadvertent failure to give effect to it, and the substance of the omitted provision are clear. That power cannot supply a substantial missing definition for a serious strict-liability criminal offence made by executive subordinate legislation without parliamentary scrutiny.

A provision in an Order under the United Nations Act 1946 which suspends or cancels the operation of a Security Council resolution, wholly or partly, may automatically alter domestic criminal liability. It takes effect according to its terms and does not depend on Gazette publication.

PD and EB were charged with supplying, agreeing to supply, or promoting the supply of military equipment to Iraq without a licence, contrary to Article 5 of the Iraq (United Nations Sanctions) Order 2003. The Article depended on a definition of restricted goods by reference to the Export of Goods (Control) Order 1994.

After that earlier export-control regime ceased to operate on 1 May 2004, no corresponding amendment was made to the United Kingdom Iraq Order. At a preparatory hearing, the Crown Court quashed the relevant counts. It later rejected the defendants’ separate argument that Security Council Resolution 1546 had altered the Order’s licensing requirement.

The Crown appealed the first ruling. PD and EB appealed the second. The central questions were whether the court could cure the missing definition by interpretation and whether Article 1(2) automatically gave domestic effect to the partial relaxation of the arms embargo.

1. The Crown’s appeal was dismissed. The court could not be satisfied that the Secretary of State had intended Article 5 of the Iraq (United Nations Sanctions) Order 2003 to continue creating the alleged offence after the definition of restricted goods, which referred to the 1994 Order, ceased to operate. There was therefore no foundation for inserting a replacement definition under Inco Europe v First Choice Destination [2000] 1 WLR 586.

2. In any event, the proposed correction would have exceeded permissible interpretation. It would have inserted a substantial ingredient into a serious strict-liability offence carrying up to seven years’ imprisonment. The Order had been made by executive action without parliamentary scrutiny. In those circumstances, correcting the omission would be inimical to the rule of law and constitutional principle.

3. PD and EB’s appeal on the second issue was allowed. Article 1(2) had to be given effect according to its terms. Gazette publication was only a means of publicising a Security Council decision; it was not a condition of the Article’s operation.

4. Security Council Resolution 1546 expanded the class of persons to whom arms could be supplied by adding the Interim Government of Iraq. It thereby partially cancelled the earlier prohibition for the purposes of Article 1(2). The Order consequently ceased to prohibit an unlicensed supply to that Government, although that conclusion was academic given the failure of the Article 5 counts.

5. The indictment was quashed. The court stated that there was no objection to an amended indictment under the export-control Orders, which covered the alleged conduct but required proof of intent to evade the licensing regime.

The court further observed that criminal legislation carrying lengthy imprisonment should not employ techniques which leave its scope uncertain or difficult to ascertain.

• Court of Appeal (Criminal Division): Dismissed the Crown’s appeal against the quashing of the Article 5 counts, allowed PD and EB’s appeal on Article 1(2), and quashed the indictment.
• Crown Court at Southwark: In October 2010, Judge Leonard QC quashed the Iraq Order counts. In May 2011, he rejected the defendants’ argument that the Order had been modified by the later Security Council resolution.