PD & EB, R. v (Iraq Sanctions)

The two issues in this appeal relate to the manner in which Security Council Resolutions relating to the arms trade are implemented in the domestic law of the United Kingdom under the United Nations Act 1946. The first issue is whether the court can write into subordinate legislation a definition to correct what is said to be an obvious drafting error by applying the principles of statutory interpretation set out in Inco Europe v First Choice Destination [2000] 1 WLR 586. The second issue concerns the effect of a standard provision in an Order implementing Security Council Resolutions under the United Nations Act 1946 which is intended to amend the original Order automatically, if the Security Council Resolution is amended without a further amending Order.

We are most grateful to all counsel for their industry and the help that they have given to the court. It became necessary to ask counsel at the conclusion of the oral hearing to conduct some further research, as no one could be sure that all the relevant subordinate legislation had been found and whether such as had been found was in force at the material time. The work done has revealed serious and significant deficiencies in the system that the Executive branch of the State employs for the making and recording of the type of subordinate legislation in issue in this case.

The Crown alleges that PD and EB in a period between 2005 and 2007 supplied or agreed to supply or were involved in the supply of military equipment to persons in Iraq without the authority of a licence granted by the Secretary of State. The Crown have made clear that, if necessary, it will allege that the conduct of PD and EB was carried out with intent to evade the requirements that a licence be obtained. It also alleges against them fraudulent conduct in respects that are not relevant to this appeal. It is not necessary to set the facts out in any more detail as the two issues are issues of law relating to the Orders under which they have been charged.

The charges relevant to the appeal are all charges of breach of Article 5 of the Iraq (United Nations Sanctions) Order 2003 (SI 2003 No.1519) (the Iraq Order 2003) made under the United Nations Act 1946 to give effect to a Security Council Resolution 1483 (2003) passed on 12 June 2003. These are strict liability offences which carry a sentence on conviction after trial on indictment of up to seven years imprisonment. The Crown is not required to prove an intent to evade the licensing provisions.

PD and EB could have been charged on the conduct alleged against them with offences under Article 3 of The Trade in Goods (Control) Order 2003 (2003 SI No 2765), (TIGO Order 2003) or Article 3 of The Export of Goods Transfer of Technology and Provision of Technical Assistance (Control) Order 2003 (2003 SI No 2764) (EGTT Order 2003), both of which were made under the Export Control Act 2002. Although there are offences of strict liability with a level 3 fine under these Orders, the offence which carries a sentence of up to 10 years requires proof of an intent to evade the licensing regime.

When counsel was instructed on behalf of the Crown he identified the fact that, as a result of complex legislative changes which we will describe, the Iraq Order 2003 no longer defined a central ingredient of the offence. The defence were notified. PD and EB contended in consequence that the Iraq Order 2003 ceased for that reason to specify the offence alleged. In response, the Crown contended that the Court could rectify the Order under the principles of statutory interpretation set out in Inco Europe. In the alternative PD and EB contended that the provisions of the Iraq Order 2003 had been modified by a further Security Council Resolution passed on 4 June 2004 to enable arms to be supplied to the new interim Government of Iraq. The Crown contended that the Iraq Order 2003 had not been modified and a licence was still required.

After a preparatory hearing at Southwark Crown Court in October 2010 Judge Leonard QC held that PD and EB’s contention that the charges were invalid was correct and quashed the counts in the indictment relating to the Iraq Order 2003; he said he would consider sympathetically an amended indictment preferring charges under the TIG Order 2003. After a further preparatory hearing in May 2011, the judge rejected PD and EB’s contention that the provisions of the Iraq Order 2003 had been modified by the further Security Council Resolution passed on 4 June 2004. Both rulings were succinctly and elegantly expressed.

The Crown seeks leave to appeal from Judge Leonard’s decision in October 2010; we grant leave. PD and EB appeal with the leave of the judge against the decision given in May 2011. The trial is scheduled to take place in early 2012.

To understand the issues that arise, it is first necessary to set out as briefly as possible the history of the legislation as it relates to both issues.

In the complex history, subordinate legislation plays a central role. However, we cannot be sure that the history is complete because of the way in which the Executive Branch of the State makes, amends and records the subordinate legislation which Parliament authorises it to make.

Each Department of State is responsible for the legislation it “owns” in the sense either that it originated the legislation or has responsibility for it. The division of responsibility is not clear cut, as legislation might be “owned” by one Department, but another has responsibility for an aspect of it (for example legislation relating to the Channel Islands). We set out the responsibility for the relevant legislation at the time the original Order was made and when the subsequent error is said to have occurred at paragraphs 22 and 32 below.

There is no central repository for subordinate legislation or for recording what is made under each Act. Individual departments are responsible for the subordinate legislation that they “own”. Each Department either keeps its own records or uses the records of another Department. The Department for Business, Innovation and Skills (the Department for BIS), the successor to the Department for Trade and Industry, does not hold copies of its own subordinate legislation, but relies on the Home Office and The Stationery Office which provides it with the originals or copies of the originals. Departments also rely on the private databases established by commercial organisations such as Westlaw or Lexis.

When a new piece of subordinate legislation is drafted, Departmental lawyers are responsible for checking what impact it may have on other subordinate legislation.

In 1990 the United Nations Security Council imposed by Resolution under Article 41 of the Charter sanctions against the regime of President Saddam Hussein; the sanctions included the prohibition of the supply of a large range of goods. The Security Council passed further resolutions relating to sanctions in the period after 1990. The Iraq (United Nations Sanctions) Order 2000 was one of the Orders made to give effect to the resolution passed in 1990 and subsequent resolutions.

The United Kingdom gives effect in the domestic law to its obligations under Security Council Resolutions through s.1 of the United Nations Act 1946. This authorises Her Majesty in Council to make such provision as appears necessary to give effect to resolutions of the Security Council. The process for making such orders in Council was analysed in the judgment of Lord Hope in Ahmed v HM Treasury [2010] 2 AC 534, [2010] UKSC 2 at paragraphs 5, 13-15 and 47-51. He pointed out that the Order in Council procedure enables the Executive branch of the State to make Orders without any kind of Parliamentary scrutiny; the Order is simply laid before Parliament. It is distinct and different from the procedure made under other Acts of Parliament which are subject to Parliamentary scrutiny and by the affirmative and negative resolution procedure. R v Forsyth and Mabey [2011] UKSC 9 affirmed these observations.

A number of other Orders have been made under the Act relating to various states (including Zimbabwe, the Democratic Republic of the Congo and Afghanistan) and Al Qaida and the Taliban to give effect to similar Security Council Resolutions. The significance of these other Orders to the first issue is considered at paragraph 48 below. The significance of other Orders for other states to the second issue is considered at paragraph 82 below.

In parallel with the regime which could be exercised through Orders in Council under the United Nations Act, control could be exercised over the export of equipment under the Import, Export and Customs Powers (Defence) Act 1939 (the 1939 Act). This was enacted on 1 September 1939 as a temporary measure to deal with the emergencies of the time, but was not repealed until 1 May 2004.

The controls under the 1939 Act were exercised through a licensing regime under Orders in Council; the relevant Order in force after May 1994 was the Export of Goods (Control) Order 1994 (the 1994 Export Control Order)

Deficiencies and limitations in that Act were exposed in the course of the Enquiry by Sir Richard Scott into the Export of Defence Equipment and Dual Use Goods to Iraq and Related Prosecutions; the enquiry arose out of the Matrix Churchill proceedings. In his comprehensive Report, various recommendations were made by Sir Richard Scott. Among the limitations that he identified was the lack of Parliamentary scrutiny of secondary legislation made under the 1939 Act.

The Government brought forward legislation to replace the 1939 Act which as the Export Control Act 2002 received the Royal Assent on 24 July 2002. S.1 of the Act gave the Secretary of State order-making powers to control the export of any goods subject to Parliamentary scrutiny under the affirmative resolution procedure. S.15 of the Act repealed the provisions of the 1939 Act relating to the export of goods. The Act was not immediately brought into force.

The Explanatory Notes to the Act made clear that the Secretary of State for Trade and Industry would use the powers under the Act to consolidate existing secondary legislation on export control, including the 1994 Export Control Order.

Before steps had been taken to bring the Export Control Act 2002 into force, the Allied Powers took action which resulted in the removal of the regime of Saddam Hussein in March 2003; the Allied Powers then established the Coalition Provisional Authority in April 2003 as a transitional authority to govern Iraq. In consequence of these events, the United Nations Security Council had to revise the sanctions regime imposed under earlier resolutions, including those referred to in paragraph 12 above. On 22 May 2003 it passed Resolution 1483 (2003). Paragraph 10 of the Resolution provided that prohibitions relating to trade with Iraq should be revoked with the exception of the supply of arms and related material; there was an exception to the exception prohibiting the supply of arms so that arms required by the Coalition Provisional Authority could be supplied.

In consequence of that resolution, acting under the powers conferred by the United Nations Act, Her Majesty in Council made four Orders in Council on 12 June 2003 which were laid before Parliament on 13 June 2003 and came into force on 14 June 2003. One related to the United Kingdom; the other three to other parts of Her Majesty’s domain. Some of the previous Orders relating to Iraq were revoked.

At that time the responsibility for drafting Orders relating to all aspects of UN sanctions rested with the Foreign and Commonwealth Office (FCO) and it drafted all of the Orders. The first was the Order with which this appeal is primarily concerned, the Iraq Order 2003 which related to the UK. Article 5 provided as follows:

The other three Orders in Council, SI 2003 Nos. 1516, 1521 and 1522, were in materially the same provisions but applied to the overseas territories of the Crown (including Bermuda, the Cayman Islands and Gibraltar), the Channel Islands and the Isle of Man. In particular each contained the same definition of restricted goods as the one we have set out in paragraph 22.

At that point in time there was no difficulty with the way in which the Orders would operate. Each created an offence which was one of strict liability and the definition of restricted goods was set out in the 1994 Export Control Order which contained detailed definitions of military equipment.

In about September 2003, responsibility for the implementation of UN Security Council resolutions changed. The Department for Trade and Industry became responsible for the export of arms and for the UK’s responsibility for implementing UN Security Council sanctions in relation to arms control. The FCO remained responsible for all other aspects of implementing UN Security Council resolutions imposing sanctions, including implementation for the Overseas Territories, the Isle of Man and the Channel Islands

On 8 October 2003 the Secretary of State for Trade and Industry made the Export Control Act 2002 (Commencement & Transitional Provisions) Order 2003 (SI 2003 No 2629) under s.16 (2) of the Export Control Act 2002, bringing that Act into force on 1 May 2004 (including s.15 which repealed the relevant provisions of the 1939 Act) and making transitional provisions under s.16 (3) of that Act. The transitional provisions in Article 3 of the Order were as follows:

The effect of the Commencement Order, as was common ground, was that, save to the limited extent specified, the 1994 Export Control Order would cease to have effect on 1 May 2004. It was therefore necessary to make an Order under the Export Control Act 2002 to replace the existing Order.

This was done on 30 October 2003 by the Secretary of State for Trade and Industry making the EGTT Order 2003 to which we have referred at paragraph 3. Schedule 1 to that Order contained an extensive list of military equipment which was subject to the licensing regime. Although there was considerable similarity between the two lists, they were not the same. For example, the list under the EGTT Order, not unsurprisingly in the light of technological advances, contained items not listed in the 1994 Export Control Order. Although we were very helpfully and diligently provided by counsel for PD and EB with a detailed schedule illustrating this, it is not necessary to set out the differences.

The combined effect of the two orders made under the 2002 Act, the TIG Order 2003 and the EGGT Order 2003 was to provide a new regime for the control of exports in arms and related materials.

On 27 July 2004, three new Orders in Council were made under the United Nations Act 1946, respectively the Iraq (United Nations Sanctions)(Channel Islands)(Amendment) Order 2004 (SI 2004 No. 1978), the Iraq (United Nations Sanctions)(Isle of Man)(Amendment) Order 2004 (SI 2004 No. 1982) and the Iraq (United Nations Sanctions)(Overseas Territories)(Amendment) Order 2004 (SI 2004 No. 1983). These Orders amended the Orders made in 2003 to which we have referred in paragraph 23 above by amending the definition of restricted goods. Article 2 of each Order amended Article 4 of the original order to substitute the definition in the Orders made in 2003 by the following definition:

As we have explained at paragraph 25, responsibility for the drafting of these Orders remained with the FCO, as they related to the Dependent Territories, the Channel Islands and the Isle of Man. It drafted the amendment to each of the Orders so that there was a definition of restricted goods referable to the new EGTT Order. It should be noted that there was a gap of nearly three months between the lapsing of the definition set out in the 1994 Order and the making of new Orders, but at least in respect of the three Orders applying to territories other than the United Kingdom, a new definition was substituted and, as was common ground, the offences under Article 5 of the Iraq Order 2003 continued to create a criminal offence properly defined.

The responsibility for the Iraq Order 2003 had passed to the Department for Trade and Industry. No corresponding amendment was made to the Iraq Order 2003 which was the Order applicable to the United Kingdom. It was that failure that has given rise to the first issue.

In October 2004 a further Order relating to Overseas Territories, the Iraq (United Nations Sanctions) (Amendment No 2) Order was made; the Explanatory Note stated:

So far the history we have set out relates to the first issue. The events relating to the second issue can be more briefly described.

As a result of developments in the governance of Iraq and the formation of an Interim Government in Iraq in place of the Coalition Provisional Authority and in anticipation of that Interim Government assuming full responsibility on 30 June 2004 and the Coalition Provisional Authority ceasing to exist on the same date, the Security Council of the United Nations passed a new resolution on 8 June 2004, Resolution 1546 (2004). It made various provisions as a result of the anticipated change in the government of Iraq. Paragraphs 8 and 16 welcomed the development by the Interim Government of its own security forces, police and other law enforcement services and called on Member States to assist. Paragraph 9 noted the continued presence of the armed forces of the Allied Powers as a multi-national force. Paragraph 21 provided that the UN Security Council:

The Iraq Order 2003 and the Order made in respect of the other territories had anticipated that Resolution 1483 (2003) might be affected by subsequent resolutions of the Security Council. Article 1(2) of the Order had provided as follows:

It was the contention of the Crown that a criminal offence continued to subsist under Article 5 of the Iraq Order 2003, despite the fact that there was no definition of restricted goods applicable to the Order after 1 May 2004. It was its contention that it had plainly been the intention of the Secretary of State for Trade and Industry as the person in effect entrusted with the relevant legislative authority after September 2004, that an offence should continue to subsist under Article 5 of the Iraq Order 2003, that the need to provide a new definition of restricted goods had been overlooked and that the court could, on well-established principles of interpretation, correct that obvious mistake.

The applicable principles

As the task of the court is an interpretative one, our starting point must be the judgment of Lord Bingham in R v Z (Attorney-General for Northern Ireland’s Reference) [2005] 2 AC 645, [2005] UKHL 35. The issue in that case was whether a provision proscribing the Irish Republican Army included proscription of the Real Irish Republican Army. At paragraph 17 Lord Bingham made clear that:

We have set out the context of the legislation and can therefore turn to the principles of statutory interpretation in Inco Europe set out in the judgment of Lord Nicholls at p.592. He held that the court must be able to correct obvious drafting errors as opposed to engaging in a task which might have the appearance of judicial legislation. Before it did so, the court had to be sure of three matters:

The intended purpose of the statute or provision in question;

That by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question and

The substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error been noticed.

Illustrations of the application of the principles can be seen in three cases relating to legislation on criminal procedure and evidence. In R v C [2008] 1 Cr.App.R. 22, [2007] EWCA Crim 2581, this court held that Parliament had intended that the restrictions on cross examination of complainants in sexual offence cases under s.41 of the Youth Justice and Criminal Evidence Act 1999 applied to all trials after the coming into force of the provision. In CPS v Inegbu [2008] EWHC 3242 (Admin) the court filled a lacuna in the statutory regime relating to proof of railway bye-laws. In Haw & Tucker v City of Westminster Magistrates Court [2008] QB 888, [2007] EWHC 2960 (Admin) the court was prepared to write into legislation relating to routes of appeal one word, an indefinite article. As we set out at paragraph 64, we were referred to no case where the principles had been applied to the ingredients of a criminal offence.

It is convenient to consider the first and second of Lord Nicholls principles together - whether there was a common and clear intention on the part of the Secretary of State Trade and Industry (as the person in effect having the relevant legislative power) which had not been carried into effect through error.

As there is no direct evidence before us, we must therefore look at what happened in 2003 and 2004. It is first necessary to explain the legislative routes that would have been open to the Secretary of State and which were advanced by the Crown before us as routes that the court could follow.

The first route, and the one advanced before the judge, was that the Secretary of State for Trade and Industry could, at the time she made the Commencement Order on 8 October 2003 (to which we have referred at paragraph 26 above), have made an order or a provision similar to the three amending orders applicable to the Channel Islands, Isle of Man and Overseas Territories to which we have referred at paragraph 30, which would have provided a definition by reference to the EGTT Order.

It became common ground that the Secretary of State had power to do this under two provisions:

S.13 of the Interpretation Act 1978 gave the Secretary of State what are described as anticipatory exercise powers so that at the time of commencing the 2002 Act in October 2003 she could have exercised the anticipatory power so that on 1 May 2004 the definition of restricted goods under the EGTT Order could be applied.

Secondly, the 2002 Act contained in s.7(2)(b) a provision commonly known as a Henry VIII clause. The Secretary of State was given power by Order to:

An alternative legislative route would have been for the Secretary of State to have added a third saving provision to paragraph 3 of the Commencement Order in addition to those we have set out at paragraph 26 so that it would have read:

A second alternative would have been that she could have made an amending order in 2004 similar to the three amending orders drafted by the FCO and made by Order in Council in July 2004.

The question we must consider therefore, is whether it is clear that there was a mistake and it was obvious that one of those routes should have been followed.

As we have mentioned at paragraph 14, other Orders had been made under s.1 of the United Nations Act giving effect to Security Council Resolutions imposing sanctions in respect of other states, Al Qaida and the Taliban. Counsel identified 19 of these which (a) appear to have remained in force after 1 May 2004, (b) which contained a definition of restricted goods by reference to the 1994 Export Control Order and (c) which were not amended. They were:

The Democratic Republic of the Congo (United Nations Sanctions) Isle of Man Order (2003 SI No 2614) and a corresponding Order for the Channel Islands (2003 SI No 2616)

Al Qaida and Taliban (United Nations Measures) Order 2002 (2002 SI No 111) and corresponding Orders for the Overseas Territories (2002 SI No 112), Channel Islands (2002 SI No 258) and Isle of Man (2002 SI No 259)

Somalia (United Nations Sanctions) Order 2002 (2002 SI No 2628 and corresponding Orders for the Overseas Territories (2002 SI No 2631), Channel Islands (2002 SI No 2629) and Isle of Man (2002 SI No 2630)

Eritrea and Ethiopia (United Nations Sanctions) Order 2000 (2000 SI No 1556) and corresponding Orders for the Channel Islands (2000 SI No 1559) and Isle of Man (2000 SI No 1558)

Federal Republic of Yugoslavia (United Nations Sanctions) Order 1998 (1998 SI No 1065) and corresponding Orders for the Channel Islands (1998 SI No 1072) and Isle of Man (1998 SI No 1073)

United Nations Arms Embargoes (Somalia, Liberia and Rwanda) (Channel Islands) Order 1996 (1996 SI No 3154) and the corresponding Order for the Isle of Man (1996 SI No 3153)

United Nations Arms Embargo (Liberia, Somalia and the Former Yugoslavia) Order 1993 (1993 SI 1787)

No example has been found of a Sanctions Order (a) applying to the United Kingdom (b) being in force after 1 May 2004 and (c) containing a definition of restricted goods by reference to the 1994 Export Control Order being amended to apply the definition in the EGTT Order. The Liberia (United Nations Sanctions) Order 2004 (2004 S.I. 348) (which used the definition of restricted goods in the EGTT Order 2003) was not an amending order, but a free standing order.

This was powerful evidence that no mistake could have been made, as there had been a consistent approach to Orders in respect of sanctions that had become the responsibility of the Department of Trade and Industry.

We have referred at paragraph 30 above to the amendments made on 27 July 2004 to the Orders applying to the Overseas Territories, the Channel Islands and the Isle of Man which changed the definition of restricted goods to that in the EGGT Order.

It appears that in addition to those three amending Orders in Council, amendments were made to two other sanctions regimes to apply the definition in the EGTT Order to the earlier orders in place of the definition of restricted goods in the 1994 Export Control Order.

The sanctions regime in respect of Zimbabwe was amended in 2004 by the Overseas Territories (Zimbabwe) (Restrictive Measures) (Amendment) Order (2004 SI 1111), such order being made on 14 April 2004 and coming into effect on 16 April 2004

The sanctions regime in respect of the Democratic Republic of the Congo was amended by the Democratic Republic of the Congo (Restrictive Measures)(Overseas Territories) (Amendment) Order (2005 SI 1988), such Order being made on 19 July 2005 and coming into force on 21 July 2005.

Thus in contradistinction to the sanctions Orders applying to the United Kingdom, where no change was made and therefore the definition of restricted goods lapsed, changes were made to at least five of the Orders in Council applying to Overseas Territories.

The EGTT Order did not apply to Overseas Territories until December 2004 when the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Overseas Territories Order 2004 (2004 SI No 3101) was made.

There is therefore powerful evidence of a different policy applying to the Overseas Territories in contradistinction to the United Kingdom.

The Crown accepted that given that the Export Control Act 2002 was the responsibility of the Department of Trade and Industry and that it had taken over responsibility in September 2003 for UN sanctions relating to arms in respect of the United Kingdom, the absence of an amendment to the Iraq Order 2003 suggested that there was no mistake. However, it was contended that that pre-supposed that the Department did appreciate what the effect was on the Iraq Order 2003 of the bringing into force of the Export Control Act 2002 in the manner in which it was brought into force. It was submitted that there was nothing in the report by Sir Richard Scott or any of the other documents relating to the Export Control Act 2002 which suggested that the full implementation of that Act was to supplant the regime under the sanctions Orders. As the Iraq Order 2003 had not been repealed and the Export Control Act only had effect on that Order indirectly, there was nothing to suggest that the impact on that Order was anything other than an unintended consequence. The Explanatory Note to the Iraq (United Nations Sanctions) (Amendment No 2) Order (set out at paragraph 33 above) showed that the draftsman presupposed that the Iraq Order 2003 had validity in the United Kingdom.

It was contended on behalf of PD and EB that the proper inference to be drawn was that a deliberate distinction had been drawn between the Overseas Territories and the United Kingdom.

Paragraph 61 of the explanatory note to the Export Control Act 2002 had made it clear that when the Export Control Act came into force it would replace entirely the Export Control Provisions of the Import, Export and Customs Powers (Defence) Act 1939.

The TIG Order 2003 and EGTT Order 2003, as is set out in paragraph ii) above drew a careful distinction between offences of strict liability which carried a level 3 fine and an offence which carried a sentence of imprisonment. The maximum sentence of imprisonment had been increased to 10 years but required proof of an intent to evade the licensing regime. It could be inferred that the Secretary of State had decided that an offence of strict liability carrying a sentence of seven years imprisonment was no longer appropriate.

The regime under the Export Control Act 2002 did not extend to the Overseas Territories save in certain very limited respects. It was therefore explicable that it had been necessary to continue the operation of the sanctions Orders by the Amendment in 2004 for the Overseas Territories, but it was unnecessary to do so in respect of the United Kingdom because the comprehensive regime established under the Export Control Act 2002 would sufficiently punish those who evaded the licensing regime.

As the regime under the Export Control Act 2002 provided a comprehensive control over the export of arms, that regime would cover the international obligations of the United Kingdom arising under Security Council Resolution 1483 (2003).

It was difficult to see how a mistake had been made in relation to the Iraq Order 2003 because as set out in paragraph 49 above, no amendments had been made to any other sanctions Orders relating to the UK.

It is clear from the authorities that we would have to be satisfied of the fact that it was the intention to continue the offences under Article 5 of the Iraq Order 2003 which through that error had not been carried into effect.

We accept, given the way in which subordinate legislation was prepared at the material time (which counsel for PD and EB described as “a chaotic and incoherent basis for sensible law making”), it is possible that a mistake was made and that it was intended that the Iraq Order 2003 should continue to make it an offence to export arms to Iraq. It might have happened when the responsibility for the implementation of the UN sanctions regime for arms in relation to the United Kingdom was transferred from the FCO to the Department of Trade and Industry. Given the lack of control over subordinate legislation exercised by the Executive branch of the State that the enquiries carried out by Counsel for the Crown have revealed, error is definitely a possible explanation.

It might appear inexplicable, despite the diligent work carried out by Counsel for the Crown, that nothing could be found which casts light on what the intention was or how the error had arisen or what the policy in fact was. The only matter drawn to our attention was statements during a debate on the Bill that became the Export Control Act 2002; it showed that the Executive had in mind using the powers under the Bill to implement UN sanctions. That apart, as from that work it is clear that Departments of State do not keep proper records of subordinate legislation, the lack of any contemporaneous documentation is explicable as the inevitable consequence of such disorder.

Thus, far from being satisfied that there was an error or at least evidence of an error, it seems to us that there is a real possibility that no error was made. Given the fact that other Orders were not amended and the implementation of the Export Control Act 2002 provided for a regime with commensurate penalties which would apply to a breach of the prohibition imposed by the Security Council Resolutions, the change might well have been deliberate. The fact that the change came about indirectly is explicable by reference to the way in which Orders made under the United Nations Act are left in force long after they have ceased to have effect, as we explain in relation to the argument on the second issue.

We can do no more than to conclude that it is impossible to say what happened and therefore cannot be sure what the intention was or whether there was an error. Despite the diligent work done by counsel, the inevitable consequence is that there is no foundation on which we could consider adding a provision to cure the absence of a definition.

Although for the reasons given we cannot be satisfied that there was an error in expressing the intention of the Secretary of State, we will set out our conclusion on whether, if there had been a clear intention to continue with making it a criminal offence under Article 5 to export arms to Iraq and there had been an error in carrying through that intention, it would have been possible for the court to have rectified the error.

We accept the submission made on behalf of PD and EB that, on the assumption that it had been intended to continue the offences under Article 5 of the Iraq Order 2003 and there had been a mistake, what the Crown sought to do in the present case went well beyond anything in the earlier cases. C, Inegbu and Haw were cases relating to criminal procedure and evidence. We were referred to no case where an error in a relation to a substantive criminal offence had been corrected using the principles in Inco. There is a plain difference between curing an error relating to procedure and evidence and one that relates to the substance of a criminal offence, particularly one that carries such a heavy sentence of imprisonment. In R v C, this court observed that the extension was to cover a procedural matter: Sir Igor Judge said at paragraph 25:

In R v A (Prosecutor’s appeal) [2005]EWCA Crim3533 [2006] 1 Cr App R 28, this court declined to interpret the Sexual Offences Act 2003 to provide a transitional regime in cases where it could not be proved whether an offence took place before or after the coming into force of the Act.

In our view, although we cannot rule out the application of the principles in Inco in relation to a substantive criminal offence, this is certainly not a case where the principles could be applied even if the intention of the Secretary of State for Trade and Industry had been clear.

First what we would have to write in would have been a substantial provision.

Second, it would not be right to have put individuals at risk of the loss of their liberty, except under clear authority of the law: see for example the observation of Toulson LJ in Dorset County Council v House [2011] 1 WLR 727, [2010] EWCA Crim 2270 at paragraph 44.

Third, where subordinate legislation is made by the Executive without Parliamentary scrutiny, as in the case of the Order in issue, the courts should not countenance errors by a Secretary of State in the exercise of such broad Executive power, particularly where such severe penal consequences can be imposed.

Fourth it is difficult to see how it can be consistent with principles of good governance and the rule of law to permit the principles in Inco to be used where, as is apparent in relation to the subordinate legislation in issue, there was no proper control by the Executive branch of the State over the making of subordinate legislation in relation to criminal offences carrying significant sentences of imprisonment.

Conclusion

It seems to us that even if we had been satisfied there had been a clear intention and an error in giving effect to that intention, what was sought by the Crown went well beyond what a court has power to do by way of interpretation. We have to bear in mind that what we would be doing would be rectifying a penal provision. Although it is not necessary to decide that that can never be done and that the role of the courts in relation to criminal matters is confined to procedure and evidence, what would be required here would have been inimical to the rule of law and constitutional principle in the respects we have identified.

The second issue on the appeal raises a short, but important, point of construction of Article 1(2) of the Iraq Order 2003 as a result of the passing of UN Security Council Resolution 1564 of 8 June 2004. We have set the Resolution and the Article out in our account of the history of the legislation at paragraphs 34 and 36 above.

The legislative technique employed in Article 1(2) of the Iraq Order (set out at paragraph 36 above) was one that was used from time to time in Orders made under the United Nations Act to give effect to Security Council Resolutions. The Article was intended to ensure that the domestic law of the United Kingdom stayed in line with its international obligations which might arise as a result of Security Council resolutions, without the relevant Department of State in the United Kingdom having to amend the relevant Order.

The provision intended to have this effect was not in an invariable standard form. We were referred to the Afghanistan (United Nations Sanctions) Order 1999 (1999 SI 3133) which contained a similar but not identical provision to Article 1(2) of the Iraq Order 2003. It referred to the subsequent UN Security Council decision as one “which has the effect of cancelling, amending or suspending the operation of the resolution...” with the consequence that the Order should be “amended, cease to have effect or its operation suspended, as the case may be in accordance with that decision”. A subsequent Order in respect of Afghanistan which revoked the Order made in 1999, the Afghanistan (United Nations Sanctions) Order 2001 (2001 SI 396), contained a further variant in the wording which referred to the subsequent decision as one which had “the effect of cancelling, postponing or suspending..” with those words being repeated in relation to the consequences to the Order.

We fully understand the desirability of such provisions set out in Orders in Council made to implement UN Security Council resolutions under the United Nations Act, but the legislative technique presents an obvious difficulty. Security Council resolutions are drafted in the language of diplomacy which is in sharp contrast to the more traditional parliamentary style of draftsmanship used in the Orders in Council. This presents obvious difficulties where Orders in Council create criminal offences carrying severe criminal sanctions, particularly where those offences are offences of strict liability.

As is apparent from Article 5 of the Iraq Order 2003 (set out at paragraph 22 above) the supply of restricted goods was prohibited to any person in Iraq; therefore, even though Resolution 1483 (2003) permitted supply to the Coalition Provisional Authority, it would have been an offence under the Article 5 to supply restricted goods to the Authority without a licence after the coming into force of the Order.

It was therefore contended by the Crown that the amendment made by Security Council Resolution 1546 (2004) made no difference, as a licence would still be required. The Crown submitted that the licensing system was a proportionate measure as it enabled the Department of Trade and Industry to superintend the delivery of arms to a state in which British troops were present.

We entirely understand the desirability of a licensing system in such circumstances and it would have been entirely in accord with that policy to use the licensing system to deal with any changes to the UN Security Council Resolutions. Furthermore, if and when the Security Council ended the embargo on the supply of arms, it would have been a relatively simple matter to revoke the Order.

However that is not what the Department did. It included Article 1(2) and it must be given effect. It would follow that, if the UN Security Council had passed a Resolution that suspended Resolution 1483 (2003) for a period of time, then giving that Article effect, the Order would be suspended and it would not have been an offence under the Order to supply arms to Iraq without a licence during the period of suspension, even if it were an offence under the TIG Order 2003 and the EGTT Order 2003.

The Crown further contended that it was necessary that there be publication in the London, Belfast or Edinburgh Gazettes. That is not what the Article says. Publication in these Gazettes is no more than one of the means provided to the public of finding a decision of the Security Council. Nor does the fact that there was no publication in those Gazettes support the contention that Resolution 1546 (2004) did not have the effect specified in Article 1(2).

Thus, if Resolution 1546 (2004) had the effect of cancelling or suspending the operation of Resolution 1483 (2003), it is irrelevant that there was in existence a licensing regime or that the decision was not published in the Gazette. The issue is whether Resolution 1546 (2004) had that effect.

It is, in our view, clear that the effect of the Security Council Resolution 1546 (2004) was to expand the category of persons to whom arms could be supplied. Under the Resolution 1483 (2003), the supply of arms to everyone in Iraq was prohibited except for the Coalition Provisional Authority. Under Resolution 1546 (2004), the exception was expanded to include not only the allied armed forces but also the new interim government of Iraq.

The Crown contended that the words in Article 1(2), “which has the effect of cancelling or suspending” referred to a temporal suspension or a permanent cancellation, not to a modification of the scope of what was permitted or prohibited. Resolution 1546 (2004) did not have the effect of cancelling or suspending in that ordinary sense of the word. If the draftsman had intended that an amendment to the Resolution could affect the order, then the type of wording used in relation to the Afghanistan Order (set out at paragraph 70) would have been used.

It was contended by PD and EB that the effect of Resolution 1546 (2004) amounted to a partial cancellation of the earlier resolution. It was wrong to distinguish between a partial cancellation and an amendment in a penal provision.

It might have been possible to derive some assistance from the way in which this provision has been operated. Diligent work was again done in relation to the Serbia and Montenegro (United Nations Sanctions) Order 1992 (1992 No. 1302) giving effect to UN Security Resolutions in 1992 which remains in force as an Order in such records as the Executive Government holds. The Order provided by Article 10 that it is an offence to make a payment to anyone in Serbia or Montenegro without the consent of the Treasury; that offence was punishable by 7 years imprisonment. Other Articles contain extensive prohibitions in dealing with Serbia and Montenegro. Article 1(2) of that Order is identical to Article 1(2) of the Iraq Order 2003. No amendments have been made to the Order, but it would appear the Executive branch of the State in the United Kingdom has relied on Article 1(2) to give effect to successive Security Council Resolutions modifying the original Order. All the subsequent resolutions to which we were referred were all resolutions that suspended, cancelled or terminated the prohibited acts in the earlier Resolutions. Thus although it appears that the Order no longer has any effect, little assistance can be derived in relation to the issue before us.

It appears from the diligent work done by the Crown after the hearing and recorded in two extensive schedules supplied to the court listing some 444 Orders that a number of sanctions Orders made under the United Nations Act relating to other states remain in force, including Haiti (1994), Eritrea and Ethiopia (2000), Somalia (2002), Sudan (2006), Ivory Coast (2005), Lebanon and Syria (2005), North Korea (2006) and Iran (2007) as well as a measure in respect of Al Qaida and the Taliban (2002). We were told by Counsel for the Crown that the schedules were not necessarily a complete list, since by provisions identical to or similar to Article 1(2), the status of Orders containing such provisions would be affected by Security Council Resolutions. Without an examination of the Security Resolutions, it was not possible to say whether they remained in force. The Crown had used the database maintained by Westlaw, but there were discrepancies between that database and that of others such as Lexis. As we have set out in paragraph 10, we were informed by Counsel for the Crown that the successor to the Department of Trade and Industry, the Department of BIS, did not hold their own copies of the orders and relied on other Departments of State; some of the instruments in the comprehensive schedules supplied to us were difficult to find.

Counsel for PD and EB examined the schedules and pointed out some errors. They pointed out that the Orders in respect of Haiti had ceased to have effect in accordance with Resolution 994 (1994), as had that for Eritrea and Ethiopia by a Resolution on 17 May 2001. We have therefore concluded that the difficulty of ascertaining the position in respect of other Orders has meant that little assistance can be derived from them.

We see some force in the argument advanced by the Crown that Article 1(2) could only apply to Resolutions that had the effect of a temporal suspension by a Security Council Resolution (as it appears to have been the case in relation to some resolutions in respect of Serbia and Montenegro) or a permanent cancellation. However, we must read this Article in the context of an Order which has the effect of criminalising conduct to the extent of making a person liable to a term of seven years imprisonment.

There is, in our view, no reason why as a matter of ordinary English and giving Article 1(2) a generous construction, a Resolution that amends the scope of what is covered by the Order to permit goods to be supplied to more persons cannot be said to have “the effect of cancelling” “the operation of the Resolution” “in part”. What was cancelled was the prohibition on the supply of weapons to the new Interim Government of Iraq.

We have therefore reached the conclusion that PD and EB should succeed in their appeal on the second issue, academic though this is in the light of our decision on the first issue.

We would wish to make it clear that it is wrong in principle and inimical to the rule of law that legislative provisions which carry such long sentences of imprisonment should be the subject of such legislative techniques which leaves the operation of the scope of the law so uncertain and which, even with the significant resources available to the Crown, is difficult to find. There is no good reason why the Executive Government cannot amend Orders so that the position under the criminal law is clear.

We therefore dismiss the appeal on the first issue and allow the appeal on the second issue. It follows that the present indictment must be quashed.

There can be no objection to the indictment being amended so that it includes counts against PD and EB under the provisions of the TIG Order and EGTT Order which covers the very conduct alleged against them but which requires an intent to be proved.

It could not be right to permit HM Revenue and Customs or the Crown Prosecution Service to pursue a prosecution of such conduct against PD and EB and subject them to the risk of lengthy sentences of imprisonment for offences of strict liability under legislative provisions that were not subject to Parliamentary Scrutiny and where the Department of Trade and Industry had failed to put its legislation in order. It is difficult to understand why, once the deficiencies in the legislative provisions were identified in the manner we have described, HM Revenue and Customs did not simply seek to amend the indictment in the way that they must now do, even though this involved proof of knowledge.

It must be for Parliament and the relevant Departments of State to consider the issues raised in this appeal. They may consider it necessary to take steps to ensure that proper public records are kept of subordinate legislation, particularly that which imposes penal sanctions, and to reconsider the way in which changes to Security Council Resolutions are made compatible with UK domestic law.