R v Forsyth & Anor

The power conferred by section 1 of the United Nations Act 1946 to implement a United Nations Security Council decision by Order in Council does not expire merely through the passage of time. Although prompt implementation was ordinarily envisaged, the statutory language imposes no temporal limit.

A restriction of that kind cannot be inferred from parliamentary references to urgency, particularly where Parliament prescribed neither a deadline nor a means of determining one. Security Council measures may require further domestic implementation as circumstances develop. The principle that general statutory language does not authorise interference with fundamental rights without clear words governs the permissible content of an order, but does not support an unwritten time limit on the statutory power.

The appellants, directors of Mabey & Johnson Ltd, awaited trial on false-accounting counts and a count alleging that they consented to or connived in funds being made available to Iraq contrary to the Iraq (United Nations Sanctions) Order 2000. They sought to quash the sanctions count on the ground that the Order was ultra vires section 1 of the United Nations Act 1946.

The Recorder of Westminster rejected the challenge at a preparatory hearing. The Court of Appeal (Criminal Division) dismissed an interlocutory appeal in [2010] EWCA Crim 2437, but certified questions asking whether the statutory power could be exercised only at or about the time of the relevant Security Council resolution and, if so, whether the offence-creating provisions of the 2000 Order were ultra vires because the relevant resolution dated from 1990.

The Supreme Court granted permission but dismissed the appeal at the conclusion of the hearing, reserving its reasons.

1. The appeal was dismissed. Section 1 of the United Nations Act 1946 did not require the implementing Order in Council to be made at or about the time of the relevant Security Council resolution. Articles 3(a) and 11(4) of the Iraq (United Nations Sanctions) Order 2000 were therefore not ultra vires merely because the Order was made ten years after the resolution.

2. Lord Brown, delivering the judgment of the Court, held that the suggested analogy with A v HM Treasury [2010] 2 AC 534 was unsound. That case concerned the permissible content of orders which interfered with fundamental rights. The present appeal concerned an alleged temporal limit on an otherwise permissible exercise of the power. The 1946 Act had not expressly or by necessary implication authorised the extreme interference considered in A, but that reasoning supplied no basis for imposing an unwritten expiry period.

3. The parliamentary material showed that speedy implementation was ordinarily contemplated. It did not demonstrate a clear legislative intention to confine the power to urgent use. The statute contained no temporal restriction and provided no ascertainable deadline by which the executive or a court could determine that the power had expired. Had Parliament intended such a limitation, particularly one affecting the creation of serious offences, it would have stated it.

4. Section 1(3), which permits an Order in Council to be varied or revoked by a subsequent Order, also pointed away from the proposed construction. Variations might lawfully occur years later. The Court rejected the attempt to distinguish later variations creating serious criminal offences because the statutory language contained no such limitation.

5. The history of the sanctions regime reinforced the conclusion. Security Council resolutions are capable of continuing operation, and changing conditions during their enforcement may require further domestic measures. The development of the oil-for-food programme and reported Iraqi surcharges illustrated why implementation might properly occur after a substantial interval. Confining the power to an artificial period would stultify its operation.

6. After the judgment had been written, the appellants were convicted on the sanctions count. The Court lifted the anonymity order previously imposed in the proceedings.

1. United Kingdom Supreme Court: Permission to appeal was granted. The appeal was dismissed, and the Court held that the Order-making power under section 1 of the United Nations Act 1946 had not expired through lapse of time: [2011] UKSC 9.
2. Court of Appeal (Criminal Division): The interlocutory appeal was dismissed. Permission for a further appeal was refused, but two points of law of general public importance were certified: [2010] EWCA Crim 2437.
3. Crown Court at Southwark: At a preparatory hearing, the Recorder of Westminster refused to quash the sanctions count as ultra vires.