Case No. CO-934-2005-&-CO-3620-2005

61.Now I may turn to the judicial review challenge to the Director’s decision not to open an investigation under s.1(3) of the 1987 Act. Before considering whether that subsection provides the answer to the question I have just posed I will deal with certain narrower points advanced by Mr Jones. Wednesbury 62.Mr Jones submits that the Director, in responding to the request to investigate, has made a number of factual errors which render his decision irrational and thus susceptible to challenge on conventional Wednesbury grounds ([1948] 1 KB 223). Four such alleged errors were identified at the application for permission. These remain the core of this part of the case, though they have been somewhat elaborated and expanded in Mr Jones’ skeleton argument of 31 August 2005. The four primary points are:i)The Director apparently believes that the crime alleged was a conspiracy to defraud Enron, or Enron and the Bank: see the Vetting Note of 22 September 2004 and the Director’s letter of 23 December. In fact the accusation was of a conspiracy to defraud the Bank only. It is also now said that when they decided in 2002 not to investigate or prosecute here, the City of London Police made the same mistake; and the Director has failed to appreciate the fact.ii)It is said to be implicit in the Director’s letter of 23 December 2004 that he believed that Southampton K Co was an American company, whereas it is in fact a Cayman Islands company. The thrust of the point is that this belief provided, or went towards providing, a false basis for having the case tried in the United States. That is reflected in the more general submission now made at paragraph 26(d) of the skeleton: “[t]he [Director] has failed to take into account that the substance of the conduct alleged, and the most important evidence, is in the United Kingdom”.iii)The Director wrongly asserted, again in the letter of 23 December 2004, that “[w]ithout the evidence provided by the United States there would be insufficient grounds for an investigation in this Country.” The submission is, first, that this ignores the fact that most of the material had been sent to the US authorities by the FSA, who had received it from the defendants. Secondly, it is said that the Director pays no heed to what were referred to as the “powerful investigative tools” available by statute to the SFO. This argument is closely related to the fourth point:iv)As it was originally put this point concerns the statement in the Vetting Note that “Fastow and Kopper are to be tried in the United States and are able to give evidence against the three above [sc. in that jurisdiction]”. It was first asserted that Fastow and Kopper were not to be tried; they had pleaded guilty and entered into plea agreements. That is a trivial point. The substance of the submission is that it would be perfectly possible for them to give evidence in England or by video-link. Mr Jones referred to provisions contained in the treaty of 6 January 1994 between the United Kingdom and the United States of America on Mutual Assistance in Legal Matters, which I will not set out.It is also submitted, under the Wednesbury banner, that the Director has failed to appreciate that no delay would be caused by a decision to investigate now, or would have been caused by a decision to investigate taken either in 2002 or 2004; and that he appears to have concluded (it is said unreasonably) that the advanced stage of the US investigation made it inappropriate to order an investigation in 2004.63.I entertain considerable reservation as to the propriety of the courts embarking at all on a challenge to the Director’s decision framed in such terms as these. There is much authority to the effect that the jurisdiction to conduct a judicial review of a public authority’s decision to launch or not to launch a prosecution, though it undoubtedly exists, is to be exercised sparingly. Where the decision is to prosecute, this admonition of restraint arises in part at least out of the imperative that criminal proceedings should not be the subject of satellite proceedings which have the effect of delaying the trial: R v Director of Public Prosecutions, ex parte C [1995] 1 CAR 136, especially per Kennedy LJ at 141; R v Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326. Where the decision is not to prosecute, there cannot I think be a different rule; in any event there will have been expert assessments of weight and balance which are so conspicuously within the professional judgment of the statutory decision-maker that there will very rarely be legal space for a reviewing court to interfere.64.Here, of course, the decision sought to be reviewed is a decision not to investigate. The position as regards the judicial review jurisdiction is in my judgment a fortiori a decision whether to prosecute. The authority’s (here, the Director’s) discretion is even more open-ended. It will involve consideration of the manner in which available resources should be deployed and whether particular lines of inquiry should or should not be followed: Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 per Lord Keith of Kinkel at 59 D-F, summarising R v. Commissioner of Police for the Metropolis, Ex parte Blackburn [1968] 2 QB 118. It is submitted for the Director that absent bad faith or other exceptional circumstances a decision to investigate or not to investigate an allegation of crime is not subject to review. That is not quite right. It looks like an argument to limit the court’s jurisdiction of judicial review; but the jurisdiction is as wide or as narrow as the court holds. The true proposition is that it will take a wholly exceptional case on its legal merits to justify a judicial review of a discretionary decision by the Director to investigate or not.65.In this case there are particular considerations against review. The request to investigate in effect invited the Director to constitute himself the judge of the proper forum for the defendants’ trial and to decide the issue in favour of trial here and not the United States: and thereby to pre-empt the statutory extradition process. Such a function cannot conceivably be found in s.1(3) of the 1987 Act. 66.In those circumstances I will deal with Mr Jones’ Wednesbury points shortly, though I doubt whether it is the court’s duty to deal with them at all. I will follow the numbering I have used in paragraph 61 to enumerate the points.i)Wrong identification of loser. The point depends upon a precise and literal reading of the indictment. Obviously such precision has its place. But in the context of the Director’s discretion under s.1(3) of the 1987 it is important that on the prosecution case the benefit received by the defendants and their alleged co-conspirators was derived from funds paid by Enron on the strength of a false representation made to that company by Fastow; Enron was deceived into parting with US $20,000,000. What the Director thought about the views of the City of London Police in 2002 is in my view neither here nor there.ii)Whereabouts of the conduct alleged. Only Michael Kopper and Andrew Fastow give direct evidence of the scheme to defraud. The prosecutor says that their testimony is critical to the success of the prosecution. That finds strong support in the witness statement of Rosemary Fernandes (paragraphs 36 and 37) of the Crown Prosecution Service, made on the prosecutor’s behalf. They are in a position to testify as to the meeting in Houston on 22 February 2000. Kopper gives (or may or will give) evidence of the defendant Bermingham’s visit to New York when the option to purchase 50% of Southampton LP was created. It is to be noted that the material given by the defendants to the FSA contains no admission of wrongdoing. The particular point about Southampton K Co is based upon a quotation (set out in the Director’s letter of 23 December 2004) from the District Judge’s judgment of 15 October 2004 which cannot bear the weight placed on it. In my judgment the Director was entitled to conclude that critical evidence in the case was in the United States.iii)Mistaken conclusion that US evidence was essential for an investigation here. See (ii) above. Other potential testimony emanating from the United States includes that of Konrad Kruger, former Co-Chief Executive of GNW. He can speak to the sale of the Bank’s interest in Swap Sub and describe admissions made to him by the defendant Mulgrew in 2001. iv)Fastow and Kopper can give evidence here. It is the evidence of Ms Fernandes for the prosecutor that neither of these witnesses can be compelled to testify in the United Kingdom, pursuant to their plea bargains or otherwise. Consideration of the potential for the use of measures such as the treaty on Mutual Assistance in Legal Matters cannot begin to generate a judicial review of the Director’s discretionary decision.The points about delay and the stage reached in the US investigation go to the Director’s broad judgment of the matter and do not begin to make a case for judicial review.67.I conclude that the arguments advanced based on the Wednesbury principle are wholly unsustainable, and I turn to what may be called Mr Jones’ more strategic arguments. Here we will find the answer to my earlier question so far as it may be directed to the Director in the judicial review: does s.1(3) of the 1987 Act constitute a provision by which the decision-maker – here the Director – is to reach a conclusion as to place of trial, as the means of protecting the defendant’s Convention rights in fulfilment of his duty under s.6(1) of the 1998 Act? Criteria for a Decision under s.1(3) of the 1987 Act; Human Rights 68.Mr Jones, however, would cast a wider net. He submits that under s.1(3) the Director is obliged to formulate criteria for the instigation of an investigation – criteria which would, in effect, establish a framework for deciding issues of forum conveniens. This is an attempt to lay on the Director the burden of what I have called Mr Jones’ overarching theme: to find in s.1(3), where a potential criminal case is triable in either of two jurisdictions, a positive duty to decide which is the more appropriate venue. Mr Jones marshalled a formidable array of material, including the European Convention on the Transfer of Proceedings in Criminal Matters of 1972, the institution Eurojust (established by the European Union in 2002), the 1972 UK – USA Extradition Treaty, the European Convention on Extradition 1957, the Council Framework Decision of 2002, and an assortment of cases and statutory materials. At paragraph 102 of his skeleton he submits:“At the heart of this matter, and the associated extradition proceedings, is the absence of any statutory or other mechanism for determining in which jurisdiction an allegation of crime should be investigated and tried where more than one jurisdiction has power to bring the allegation to trial.”69.None of the materials Mr Jones assembled, and none of his arguments, began to demonstrate that such a “mechanism” might be supplied by s.1(3) of the 1987 Act properly construed. Just as with the 2003 Act, so with the 1987 Act, Mr Jones’ overarching theme is met at once with the difficulty that it looks for a statutory regime which Parliament has chosen not to provide. However there remains the question I have formulated, which would put the case on a somewhat narrower basis. Is the Director required by s.1(3) to reach a conclusion as to place of trial, as the means of protecting the defendant’s Convention rights in fulfilment of his duty under s.6(1) of the 1998 Act?70.As I have said the Director in his letter of 23 December 2004 acknowledged a duty to take the ECHR into account in making any decision. To the extent that action taken by him might touch the Convention rights of any affected person – most obviously, anyone the subject of an investigation instituted by him – he was clearly right to do so. It is I suppose possible to envisage circumstances in which that would arise in practice, perhaps where the effects of an investigation upon an especially vulnerable person would be particularly severe. Indeed in such a case the Director’s duty would not merely be to have regard to the ECHR but to take a decision which would vindicate the Convention right in question. I cannot, however, envisage any circumstances in which a decision not to investigate might offend the relevant person’s Convention rights. At all events, given we are dealing only with investigation, I apprehend that cases in which the director’s decision might touch Convention rights would be very rare, and exhibit very special facts. And this is not the basis of what is suggested here. My question can only be answered in the affirmative, and thus in the defendants’ favour, if s.1(3) is construed so as to impose a positive obligation on the Director to embark upon an investigation so that he might pre-empt the potential trial venue in favour of this jurisdiction (by proceeding to prosecute here) if it appears that the Convention rights of a suspected person might be violated by trial elsewhere.71.This would be an entirely fanciful construction of s.1(3). It obviously cannot be got out of the subsection’s words, which only confer a power to investigate. More than this: it would usurp the role of the District Judge under ss.21 and 87 of the 2003 Act. As I have shown those provisions impose on the judge an express obligation to decide whether the relevant person’s extradition would be compatible with his Convention rights, and to order his discharge if he concludes that it would not. Thus Parliament has distinctly allocated the task of determining complaints under the ECHR to the courts. As is submitted at paragraph 1.5 of the skeleton argument for the Director prepared by Mr Burnett QC and Mr Perry, the defendants’ argument, if correct, “would enable a request to be made… when the extradition process was well advanced, with a view to halting it or interrupting it with collateral challenges to the decisions of investigating or prosecuting bodies”. In my judgment that would be a wholly unacceptable state of affairs. I shall address s.87, and the judge’s consideration of it in this case, when I come to the statutory appeals. But I may state at this stage that it is in the material provisions of the 2003 Act that all necessary protection of a defendant’s Convention rights in the extradition context is in my judgment to be found. 72.There is, moreover, a frank unreality in Mr Jones’ case. It would require the Director not only to consider but to consult the suspect, in order to make a fully informed and even-handed decision on what and how much to investigate in light of the suspect’s potential Article 8 rights. He would have to respond to representations, if advanced, before any investigation were begun. It is wholly implausible and inappropriate that obligations of that kind should be required of him in the name of a statutory function of investigation.73.These conclusions do not mean that the question of forum is necessarily irrelevant to the Director’s consideration of any and every case. Far from it; it is plain that he had regard to just such a question in this case. It will be recalled that the Vetting Note of 22 September 2004 stated: Those points figured in the Director’s judgment; but not as a means, advisedly chosen, of protecting the defendant’s Convention rights. No doubt he had to consider the practical prospects of a prosecution here rather than there in order to reach a decision as to the utility of a s.1(3) investigation. But that is of no assistance to Mr Jones. As a matter of judgment it seems to me plain that the Director was entitled to take the view he did. It is not without interest that the Eurojust “Guidelines for Deciding which Jurisdiction should Prosecute”, issued following a seminar in November 2003, contain this:“In cases where the criminality occurred in several jurisdictions, provided it is practicable to do so, prosecutors should consider dealing with all prosecutions in one jurisdiction. In such cases prosecution should take into account the effect that prosecuting some defendants in one jurisdiction will have on any prosecution in a second or third jurisdiction. Every effort should be made to guard against one prosecution undermining another.When several criminals are alleged to be involved in linked criminal conduct, whilst often it may not be practicable, if it is possible and efficient to do so, prosecutors should consider prosecuting all those involved together in one jurisdiction.” 74.There are some other matters I should address before proceeding to the statutory appeals. First, it is to be noted that Mr Jones did not merely submit that the Director’s task under s.1(3) was conditioned by the ECHR. He submitted in the alternative that the Director must “consider the interests” of the defendants. This was, as I understood him, another route to the imposition on the Director of a broad duty in effect to foreshadow and pre-empt the issue of choice of trial venue through the medium of his power to investigate. The argument is no better for being founded on an appeal to the common law than in its ECHR guise. It is unreal and inapt however it is put. 75.With permission granted by myself in advance of the hearing the organisation Liberty intervened in the proceedings by way of written submissions prepared by Miss Harrison of counsel. She has much to say as to the importance of the rights conferred by ECHR Article 8, which in general terms is of course uncontentious. There is some discussion of the circumstances in which a public authority may be obliged to take positive steps to assure the protection of Article 8 rights, and an acknowledgement that that is what is contended here vis-à-vis the Director. Generally Miss Harrison supports Mr Jones’ broad argument: she makes no submissions on the Wednesbury points. I hope it will not appear discourteous if I merely indicate that there is nothing from first to last in Liberty’s submissions that to my mind begins to demonstrate that Mr Jones can get what he seeks out of s.1(3) of the 1987 Act.76.It will be recalled that in their letter to the Attorney General of 26 October 2004 the defendants’ solicitors referred to a newspaper article, referring to the Abu Hamza case, in which it was stated, “[the Attorney General] is understood to favour trials in the British jurisdiction if the evidence justifies them”. I should indicate that Mr Jones has not, as I followed his argument, submitted that this material amounted to a policy statement giving rise to an enforceable legitimate expectation, or anything of the kind. Nor could he sensibly have done so. The Attorney’s comment was made in the context of a wholly different case and (as is submitted on his behalf) could hardly be said to constitute a policy in any event.77.I should add that both Mr Jones and Miss Harrison advanced arguments, fashioned in the light of recent authority of the House of Lords in Ullah [2004] 2 AC 323 and Razgar [2004] 2 AC 368, as to the nature and reach of the Article 8 rights in a case where the hurt complained of arises from the complainant’s being compulsorily taken out of the United Kingdom. But since I have concluded that Mr Jones’ case on ECHR in the judicial review is misconceived in principle, I will not with respect take time with those points. I shall have to return to Ullah and Razgar in dealing with the statutory appeals.78.I should say by way of postscript that on 23 January 2006 the defendants’ solicitors drew our attention to a memorandum from the European Commission on Conflicts of Jurisdiction, which had been published three days previously. It refers to a Green Paper to which was attached a lengthy annex. I have not found this documentation of any assistance.79.I would dismiss the application for judicial review.