[2025] EWHC 2243 (KB)

In light of my conclusion at stage 1, I consider that it is inherently improbable that there would be any prosecution in the Netherlands of Glencore or Mr Glasenberg (or anyone associated with them) in relation to section 184(1) of the DCC, and as such that there is no real risk of prosecution or indeed any risk of prosecution.

However, given that there is a difference between the Claimants, and Glencore and Mr Glasenberg (and indeed their respective experts) as to whether or not there is a real risk of prosecution in the event of disclosure of the three FIOD Documents and the MLAT Request, in the context of section 184(1) of the DCC (which is not limited to the question of whether there is or may be a violation of the DCC), and given that I have heard full argument on the same, I will address the risk of prosecution in this Section.

I bear well in mind the applicable principles that I have already identified, including that “real” means actual risk of prosecution in the foreign state, and is a risk that is more than “purely hypothetical” (Morris at [71] (Neuberger J), applied in Bank Mellat at [72]). The Court is concerned with the risk of prosecution, rather than the risk (or gravity) of subsequent sanction if prosecuted and convicted (Bank Mellat at [33], [64], [69]; Tugushev [2021] per Butcher J at [32]) although as has already been noted, and as is common ground, the likely sanction will be of relevance not only at stage 3 but also at stage 2 as it impacts on the likelihood of a prosecution (such as if the sanction is likely to be modest (for example a modest fine)). The party must show that the criminal law relied on is not merely a “text, or an empty vessel” (Tugushev at [33]), but the past may or may not be a safe guide to future performance or risk (Joshua v Renault SA at [78]). In addition, the applicant bears the burden of showing the reality of the risk of prosecution, and absence of evidence of any prosecution in the circumstances will weigh against the application: Tugushev at [49], and as was said by Henshaw J in PIFSS at [44], “It is for the disclosing party to show that the foreign law is regularly enforced so that the threat to that party is real”.

Comity is also important at stage 2 as well as stage 3. In this regard, where an order for inspection is made by the Court, considerations of comity may not unreasonably be expected to influence the foreign state in deciding whether or not to prosecute the foreign national for compliance with the order of this Court (Bank Mellat at [63(vi)]), and as such, “Comity is capable of playing a free-standing part in the judicial decision-making process, and … does not arise for consideration solely when a real risk of prosecution has been shown” (PIFSS, per Henshaw J, at [51]).

I consider that there are a very large number of reasons why there is no real risk of prosecution even if (contrary to my finding above) disclosure of such documentation would (or might) constitute violation of the second limb of section 184(1) of the DCC.

Firstly, if there is no breach of section 184(1) of the DCC, then it is inherently unlikely that there would be a prosecution – prosecuting authorities do not prosecute where no offence has been committed. However, even if (contrary to my findings) there was any real doubt as to whether an offence was committed, as Henshaw J stated in PIFFS at [156], prosecution may be “relatively unlikely if there is real doubt about the law”.

Secondly, and even leaving aside my finding that there has not been any violation of section 184(1), the fact is that the DPPO has not itself expressed the view that there is or might be any violation of section 184(1), and on the contrary, it has expressed the view that it does not share Glencore’s view that the sharing of information from the criminal file constitutes a violation within the meaning of section 184 of the DCC. It would therefore require a change of view on the part of the DPPO for a prosecution to result, and it is difficult to see any basis for such change of view hereafter, not only given its own existing stance but also the fact that other factors, as identified below, would also militate against any change of stance.

Thirdly (and relatedly), the DPPO’s very stance in the correspondence would, I am satisfied, in all likelihood lead to affirmative defences being available to Glencore and Mr Glasenberg in relation to any prosecution under section 184(1) of the DCC, and in such circumstances no prosecutor would be likely to commence a prosecution if affirmative defences were available – the affirmative defences therefore also go to reduce the already infinitesimal risk of prosecution yet further.

Unfortunately, in this area as well the experts are not (at least anymore) ad idem as to the existence of affirmative defences arising out of the correspondence with the DPPO. I say anymore, as it appeared from Nelemans 1 that Professor Nelemans, like Professor Brouwer, initially did contemplate affirmative defences arising (albeit he understated what the DPPO had indicated in correspondence).

Thus in Nelemans 1 he stated (at paragraph 96) in relation to the DPPO’s answer in its email of 14 February 2025:-

“At least, the ambivalence of the DPPO’s statement would make it more difficult for the DPPO to prosecute under section 184 DCC, as a prospective defendant that disclosed the FIOD Documents and was prosecuted under section 184 DCC would raise the defence of absence of any culpability (also known as an AVAS-defence) and argue that they relied on the earlier statements by the DPPO on the applicability of section 184 DCC”.

This is consistent with Professor Brouwer’s evidence (in paragraphs 138 and following of Brouwer 1). As he explains in paragraph 138:-

“138.

If the accused can rely on an affirmative defence, he cannot be convicted for the offence with which he has been charged. Dutch law recognises written and unwritten affirmative defences. The written defences can mostly be found in sections 39 to 44 of the DCC. The unwritten defences have been developed in the case law of the Supreme Court”.

Professor Brouwer considers that in relation to section 184 of the DCC, one such unwritten defence presents itself and considers the DPPO email of 14 February 2025 to be particularly relevant in this regard. After setting out the question and the DPPO’s response (as already quoted and addressed above) he expresses his view as follows:-

“I agree with Nelemans 1 [para. 96; 137; 148(a)] that this second statement would raise the defence of absence of any culpability (also known as an AVAS-defence) for the first offence in section 184(1) DCC. It is my opinion that a judge, in prosecution under the first offence in section 184(1) DCC, would accept such a defence. Nelemans 1 [para. 96; 137; 148(a)] is ambivalent as to whether the second statement by the prosecutor would also support a defence of AVAS as to the second offence of section 184(2) DCC. It is my opinion that both quoted passages taken together, the wording of the prosecutor’s email is broad enough to also encompass the second offence of section 184(1) DCC. From this, it is my opinion that in a prosecution under the second offence of section 184(1) DCC this defence may be raised by all possible defendants (GIAG, Glencore, Mr Glasenberg). It is my opinion that a judge will then probably – more likely than not – accept that defence”.

As addressed below (and to which I will return), Professor Brouwer also considers that the fact that Glencore and Mr Glasenberg would not be giving disclosure voluntarily but as a result of an English Court order would also give rise to an affirmative defence (see Brouwer 1, paragraphs 143 to 144).

However, having read Professor Brouwer’s report, far from maintaining his existing view, Professor Nelemans back-tracked on the existence of an affirmative defence (it would seem as part of his firming up on risk of prosecution), now concluding that the chances of successfully invoking an affirmative defence “are slim” (Nelemans 2, at paragraphs 156 and 200(c)).

I consider that Professor Nelemans’ change of stance has all the hallmarks of being “lawyered” or, at the very least, a change of expert opinion that is lacking in any convincing justification and which is, perhaps, reflective of a recognition that the existence of affirmative defences torpedoes any real risk of prosecution:-

As for the purported justifications for such change of stance on the part of Professor Nelemans, I do not find them convincing. By way of example, Professor Nelemans states at paragraph 155 as follows:-

“It may also be in the DPPO’s interest to use this case to obtain a ruling in principle on the enforcement of orders issued by foreign courts. As Brouwer 1 (paragraphs [71], [94], [122], [123] and [134]), rightly points out, there is no case law in this area yet. However, the DPPO regularly brings cases where the law is uncertain and where there is a social need to clarify the law, ranging from participation in criminal organisations to assisted suicide cases. The expediency principle offers room for the DPPO to follow a policy-based, instrumentalist application of criminal law”.

Quite apart from the fact that this would seem to be speculation on Professor Nelemans’ behalf, it is difficult to see why the DPPO would wish to choose this case to obtain clarity in the law when, on any view, it has itself stated in writing to Glencore that it did not share Glencore’s view that “the sharing of the information from the criminal file constitutes a violation within the meaning of Section 184 of the Dutch Criminal Code”, and in an email in which, despite identifying that disclosure would be harmful to the criminal investigation, it has not even asserted that Glencore would be committing any criminal offence, and goes so far as to contemplate that Glencore “will have to weigh the importance of sharing information with third parties against the importance of confidentiality in view of the criminal case that is still pending”, which is inconsistent with the commission of any criminal offence and redolent of it being a balancing exercise for Glencore.

In the above circumstances I prefer the evidence of Professor Brouwer (which is consistent with the views initially expressed by Professor Nelemans in Nelemans 1) to the evidence of Professor Nelemans in Nelemans 2. I consider that the DPPO’s very stance in the correspondence would, in all likelihood, lead to affirmative defences being available to Glencore and Mr Glasenberg in relation to any prosecution under section 184(1) of the DCC, and in such circumstances no prosecutor would be likely to commence a prosecution if affirmative defences were available, As already noted, the affirmative defences therefore also go to reduce the already infinitesimal risk of prosecution yet further.

This is also true of the further affirmative defences of “acting pursuant to an authorised court order” and/or “necessity/emergency” (in the context of compliance with any English Court order), as addressed by Professor Brouwer, which also apply in relation to any alleged offence under section 272 of the DCC (in the case of Mr Glasenberg). In this regard, Professor Brouwer states as follows at paragraphs 143 and 144:-

“143.When it comes to both section 184 and section 272 DCC it must be noted that any disclosure would not be voluntary but would be the result of a UK court order. I have already stated as my opinion (para. 120) that in a Dutch domestic case there could be no doubt that any confidentiality obligation of section 7 DPDA and/or section 52 DJDCRA would be set aside under the working of a domestic judicial disclosure order. This means that under a domestic judicial disclosure order, there would be no offence to prosecute under section 272 DCC. Although this would be different for section 184 DCC, in a prosecution under this section the defendants Glencore – as addressee of the court order – and GIAG as its subsidiary could – in my opinion – rely on the affirmative defences of acting pursuant to an ‘authorised official order’ (bevoegd gegeven ambtelijk bevel – section 43 DCC) 89 and/or the defence of ‘necessity/emergency’ (overmacht noodtoestand), both of which I will discuss in more detail below. In my opinion, in such a prosecution a judge would accept these defences.

144.

In the present case, whether a UK judicial order in a civil disclosure proceedings has the exact same effect as a Dutch judicial order in relation to the applicability of section 272 DCC has not yet been decided by the Dutch Supreme Court. As discussed above, it is my opinion that a UK judicial order requiring disclosure in civil proceedings does not have the exact same effect as a domestic order, and therefore cannot be regarded as automatically overriding the confidentiality obligation in section 7 DPDA and/or section 52 DJDCRA. It is my opinion however that such a UK judicial order would give rise to affirmative defences in a prosecution under section 184 DCC or section 272 DCC”.

Professor Brouwer further addresses and justifies such opinions in paragraphs 145 to 147. I consider that the sentiments he expresses in paragraph 147 have particular resonance on the facts of the present case:-

“147.

The HR has accepted defences of ‘necessity/emergency’ on a regular basis albeit infrequently, for example in cases of – briefly put – private growth and medicinal use of cannabis by MS patients. In the present case, the “clash of interests” between the Dutch obligation of confidentiality and a UK court order will need a resolution, which can only exist in choosing one interest over the other. It is my opinion that a Dutch judge would consider the extensive debate that would have preceded a UK court order and would acknowledge that the defendants Glencore – as addressee of the court order – and GIAG as its subsidiary had done everything in their power to avoid the conflict of interests in the first place. It is my opinion that under these circumstances a Dutch judge would not want to find fault with the defendants having decided to give precedence to a concrete judicial order over an abstract legal requirement. It is therefore my opinion that it is probable – more likely than not – that a judge will accept one of these defences, either by recognising the UK judicial order as an ‘authorised official order’ (bevoegd gegeven ambtelijk bevel) or by recognising the conflict of interests as the defence of ‘necessity/emergency’ (overmacht noodtoestand)”.

I have already touched upon the paragraphs in which Professor Nelemans addresses such matters (Nelemans 2, paragraphs 153 to 154). It will be recalled that in relation to an affirmative defence in relation to compliance with an authorised/valid official order, Professor Nelemans opined at paragraph 153 that, “the defence will not automatically be granted given the conflicting norms and the implications of breaches…” (emphasis added) whilst at paragraph 154, when addressing the affirmative defence of necessity/emergency, he identifies Supreme Court authority which he quotes as follows:-

“154.

The same holds for an appeal to the affirmative defence of necessity/emergency (overmacht noodtoestand), which requires (i) that there must be a state of emergency while it can be questioned whether this is indeed an immediate emergency, and (ii) that there will be a balancing act between the conflicting norms, i.e. that someone has given “precedence to the most important interest”: “Since the ruling in the case of the helpful optician (Supreme Court 15 October 1923, NJ 1923, p. 1329), cases in which there is no life-threatening situation are also classified under section 40 DCC. In this context, we generally speak of force majeure in the sense of an emergency: these are cases involving a serious conflict of interests in which a choice is unavoidable. In the words of the Supreme Court: exceptional circumstances may, in an individual case, mean that conduct which is punishable by law may nevertheless be considered justified, inter alia if the person acted in an emergency, i.e. — generally speaking — if the perpetrator, faced with the need to choose between conflicting duties and interests, gave precedence to the most important ones (Supreme Court 16 September 2008…”.

(emphasis added)

I consider that the passage highlighted is apt to cover compliance with any English Court order (which itself carries with it the possibility for committal for contempt and sequestration of assets) not least in circumstances where it is doubtful that any criminal statute has been violated in the first place.

The existence of such further potential affirmative defences further militates against any risk of prosecution in the first place under either section 184(1) of the DCC (Glencore and Mr Glasenberg) or section 272 (Mr Glasenberg).

Yet further, and even if there could not be certainty that affirmative defences would succeed, as Professor Brouwer states (Brouwer 1, at paragraph 167):-

“But even if the DPPO would be of the opinion that a UK judicial order would not qualify as an affirmative defence, the DPPO will very likely decide that the fact that the defendants were acting pursuant to a foreign court order would render the case so much of a borderline or fringe case that prosecution would be disproportionate (dismissal ground #42, see above)”.

Related to any possible affirmative defences in the context of an English Court order (but separate therefrom) is the relevance of compliance with an English Court order to a reduction in the risk of prosecution. I consider that the fact that Glencore and Mr Glasenberg would be acting under the compulsion of an English Court order would in and of itself reduce, if not obviate, any, or any remaining, risk of prosecution in the Netherlands.

This is an important, free-standing point, which in and of itself, carries great weight in the assessment of any risk of prosecution. It is at this stage that comity very much comes into play at stage 2 (in addition to at stage 3 if such stage is reached), as was common ground before me. In this regard, the English Court may reasonably expect considerations of comity to influence the foreign state in deciding whether or not to prosecute the foreign national for compliance with the order of this Court: “Comity cuts both ways” (Bank Mellat at [63(vi)]). This is also consistent with the views expressed by Professor Brouwer that (in addition to giving rise to affirmative defences), an English Court order, “would furthermore be a weighty element in the prosecutor’s decision whether or not to prosecute any alleged violation of the confidentiality obligation” (Brouwer 1, at paragraph 124).

It is important to appreciate (and for the Dutch prosecution authorities to understand), that failure to comply with an English disclosure order and provide inspection of the documents as ordered by the English Court could led to an application for committal for civil contempt of court which, if proven, can led to imprisonment in the case of individuals (such as Mr Glasenberg) and fines and sequestration of assets (in the case of a company such as Glencore). This is an important consideration which I consider reduces the risk of prosecution in the Netherlands given that there would be serious financial, reputational, and personal consequences for each of Glencore and Mr Glasenberg if they failed to comply with an English Court Order.

It is also important for the Dutch prosecution authorities to appreciate that each of Glencore and Mr Glasenberg have gone to considerable lengths and considerable expense to advance the Disclosure Restriction Applications and have taken every possible point it is possible to take in support of their applications and in opposition to their being held to their disclosure obligations in the existing orders of the English Court, resulting in a hard fought hearing over two and a half days. Neither Glencore nor Mr Glasenberg could have done any more than they have to avoid being in potential breach of any provisions of Dutch law, and to avoid having to give disclosure of the four documents in question, and if they are ordered to do so they are blameless and not blameworthy for finding themselves in the position they find themselves, and such lack of culpability is itself a further factor militating against prosecution which I consider that Dutch prosecuting authorities would take into account.

In this regard, and whilst what Professor Brouwer states is in the context of an affirmative defence, I consider the following aspect of his evidence would also have resonance at the time when consideration was being given by the prosecuting authority whether to prosecute at all (see Brouwer 1, paragraph 147):-

“It is my opinion that a Dutch judge would consider the extensive debate that would have preceded a UK court order and would acknowledge that the defendants Glencore – as addressee of the court order – and GIAG as its subsidiary had done everything in their power to avoid the conflict of interests in the first place. It is my opinion that under these circumstances a Dutch judge would not want to find fault with the defendants having decided to give precedence to a concrete judicial order over an abstract legal requirement”.

The terms of the English Court Order can also bring home to the Dutch prosecuting authorities such matters, both in appropriate Recitals, and in the operative paragraphs of the Order which, in and of themselves would also reduce any risk of prosecution. It is for this reason (as recognised by the parties during the course of the oral hearing) that I directed that the parties should provide me with either an agreed draft, or the parties’ respective drafts, of an Order containing such recitals and operative paragraphs as would bring home such matters to the Dutch prosecution authorities upon sight of such Order. In the event they were able to do so in the form of a joint Order containing those provisions they would wish to be included with a view to reducing the risk of prosecution, which was provided to me, subsequent to the hearing, on 11 July 2025.

In contributing to this draft Order, Glencore and Mr Glasenberg acknowledged that their contribution of such recitals and paragraphs would be with a view to reducing the risk of prosecution, but the inevitable consequence of such recitals and paragraphs, is that this will also go to reduce the chances of them proving that there is a real risk of prosecution and obtaining the relief sought on the Disclosure Restriction Application. Whilst recognising this, I understand that they considered (rightly in my view) that the most important consideration is to reduce the risk of prosecution in the Netherlands, should the English Court be minded to maintain its existing Order and require inspection.

I set out at Annex A the joint draft Order provided to me by the Claimants, Glencore and Mr Glasenberg amended only so as to reflect the Order that I propose to make, and which incorporates their suggested wording for both recitals and operative paragraphs. I am in no doubt whatsoever that such recitals and operative paragraphs will have a profound effect, and should any risk of prosecution otherwise remain (contrary to the other findings I have made) will, in and of themselves, remove the same. I should make clear that I consider that the terms of the Order will, in and of itself, negate any real risk of prosecution.

As part of the Order, I would also impose a confidentiality club which would restrict who would see the documents in the English Proceedings, and which would prevent the public having access to such documents. Whilst the possibility of such a confidentiality club did not immediately assuage the concerns of the DPPO in the correspondence, I consider that the reality is that the imposition of such a confidentiality club would alleviate any risk of harm to the ongoing Dutch Investigation, and in such circumstances the risk of a prosecution would be further reduced (not least once the DPPO were aware of the rigorous restrictions imposed by such confidentiality club). This is a well-established measure that an English Court will put in place, whereby the English Court will fashion the order to reduce or minimise concerns under foreign law by imposing confidentiality restrictions in respect of the documents inspected (see Bank Mellat at [63(v)]).

Once again, I invited the parties to agree the wording of such a confidentiality club, and they supplied their draft to the Court on 23 July 2025. Whilst there remain certain differences between the parties on the precise wording (in relation to which I will hear submissions at the time of hand-down in order to finalise the same) I am satisfied, having had sight of the parties’ draft wording, that the confidentiality club will further reduce the risk of prosecution as it will further reduce the risk of any harm to the ongoing Dutch Investigation which itself will further reduce the risk of a prosecution ensuing.

Whilst the relevant risk is the risk of prosecution not the risk of the sanction imposed, the sanction can be of relevance at both stage 2 and stage 3. In the context of the balancing exercise at stage 3, in Byers, Fancourt J took into consideration (at [107(viii)]), in refusing to revoke an order for disclosure, that “Even if prosecution does result, the risks of severe punishment of the Bank or its employees are significantly overstated by the Bank’s witnesses and the most likely consequence is a fine, not imprisonment or revocation or suspension of the Bank’s licence”.

The parties recognised that the likely sanction is also relevant at stage 2 for the obvious reason that it is likely to be an operative relevant factor considered by a prosecuting authority as to whether to prosecute at all (a fortiori if there are other difficulties and potential affirmative defences in relation to such prosecution) which when weighed against the costs of prosecution strongly militate against any prosecution.

In the present case (and as is common ground), the likely sanction for a first time offender in relation to section 184 of the DCC (or section 272 of the DCC in the case of Mr Glasenberg) would be modest, and might be a modest fine or at most (where available) some form of community order.

As identified by Professor Brouwer at Brouwer 1 paragraphs 168 to 170:-

“168.The offences in question can be considered relatively minor, both in a formal sense and a material sense of the word.

169.Formally, the sections in question carry very light penalties compared to the vast majority of the offences in the DCC. Section 184 DCC is punishable by imprisonment of up to three months, community service of up to 240 hours or a fine of up to EUR 5,150. The Court Guidelines for sentencing (Oriëntatiepunten voor straftoemeting en LOVS-afspraken) suggest a fine of EUR 100 or 20 hours of community service for a conviction under this section.

170.The DPPO has the authority to impose an ‘out-of-court penalty’ (strafbeschikking) for all offences that carry a maximum penalty of up to six years imprisonment. This authority has been subjected to published DPPO guidelines. The applicable DPPO Directive for failure to comply with an official order or behavioural instruction (Richtlijn voor strafvordering niet opvolgen ambtelijk bevel of gedragsaanwijzing) prescribes a fine of EUR 350 for first offenders violating section 184 DCC. Since these guidelines have been published, the DPPO will apply these guidelines on all cases, except when special circumstances apply. This means that in the present case, assuming all individuals and entities concerned qualify as first offenders, we may expect a criminal prosecution under section 184(1) DCC to be in the form of an out-of-court fine of no more than EUR 350”.

Standing back, it defies belief that there is a real risk of prosecution given the likely sanction when weighed against the background of the DPPO correspondence, the uncertainty as to whether any offence has been committed, and the possibility of affirmative defences all for an outcome of a modest fine even were a (costly) prosecution to be successful. That is not a scenario likely to appeal to any prosecutor, or which is likely to lead to them instigating a prosecution.

There is a lack of evidence of any prosecution (ever) under the second part of section 184 of the DCC. This is itself an important consideration. As was said in Tugushev at [33], it will ordinarily need to be shown that the foreign law is not just a text or an empty vessel but is regularly enforced so that the threat to the party is real. The burden is on the applicants to show that the criminal provisions “are regularly enforced” (EuroChem at [15]), and the Court expects to see examples where a party has been prosecuted for disclosing documentation such as that under consideration (see EuroChem at [16]). There is no evidence of the same in the present case, and this is a further reason why the risk of prosecution is not real.

It is not certain that the Dutch Courts would even have jurisdiction in the context of section 184(1), although it appears that they probably would on the expert evidence before me. This point therefore does not add anything in relation to the risk of prosecution in the context of the Glencore Disclosure Restriction Application.

The position is different in the context of section 272 of the DCC which I address separately in relation to the Glasenberg Disclosure Restriction Application.

Whilst the risk of prosecution is ultimately a matter for assessment by the Court on all the material before the Court, assisted by the views of the experts on those matters on which they can opine, I note that my concluded view is consistent with those expressed by Professor Brouwer who concludes at paragraph 180 of Brouwer 1 (and for the reasons set out in Brouwer 1 which accord with my own) that:-

“My opinion therefore is that the risk of prosecution of GIAG, Glencore, Mr Glasenberg or any of the law firms involved in connection with any theoretical violation of either section 272 DCC or section 184(1) DCC is extremely remote”.

I have already noted that Professor Nelemans has expressed very different opinions and, once again, his opinion has shifted between his first and second report, with what appears to be an unjustified “firming up” on risk of prosecution, and a dilution of the chances of the Defendants being able to advance successful affirmative defences (which themselves impact on the risk of prosecution as already addressed above).

Thus, in Nelemans 1 there is no concluded view on the level of risk of prosecution expressed in relation to disclosure of the FIOD Documents (see at 148(a)), yet in contrast in relation to the DPPO/FIOD Correspondence Professor Nelemans expresses the view that it is “more likely than not that the DPPO will prosecute GIAG … for disclosing the DPPO/FIOD Correspondence to Glencore. Such statement relates to section 272 DCC although he adds, “potentially also on the basis of the second part of section 184 DCC”. Yet, in Nelemans 2, Professor Nelemans ultimately opines in his conclusion paragraph 200(c), “that a prosecution is more likely than not and that the chances of successfully invoking an affirmative defence are slim” (though this seems to be a general conclusion which covers the DPPO/FIOD Correspondence and the FIOD Documents and is not specific to the FIOD Documents). Once again, I do not consider that the matters set out in Nelemans 2 justify such change of stance.

I also consider his reasons (in both Nelemans 1 and Nelemans 2) to be lacking in credibility. By way of illustration, I do not consider that the DPPO would consider that the present case would set a precedent or would undermine any future investigation. As is repeatedly recognised, this is a unique and unprecedented case. Equally, I do not see how the absence of prosecution would damage the Netherlands’ standing in the international fight against corruption (not least given that disclosure in the English Proceedings will promote, and be part of, the fight against international corruption, and further its exposure). Nor do I consider this case to be an apposite one to settle presently uncertain aspects of Dutch law or establish the DPPO’s and FIOD’s “autonomy”, not least given the statements the DPPO has made in the correspondence that militate against prosecution in the context of affirmative defences.

Even more fundamentally, I consider that in Nelemans 1 and Nelemans 2, Professor Nelemans fails to give any, or any proper, weight to all the factors identified above which go to reduce or eliminate the risk of prosecution.

I also note that one of the cases that Professor Nelemans refers to in Nelemans 2 at paragraph 139 would actually appear to illustrate the unlikelihood of a prosecution. The Court of Appeal case referred to (12 December 2012, ECLI:NL:GHARL:2017:10905) concerned 2 prosecutors who had provided information (recordings of suspect interviews) to journalists – a clearly serious matter. But the DPPO declined to prosecute the outcome, dismissing the complaint on policy grounds. The reported case concerned an appeal by the injured party against that DPPO decision. The court again held that the case was to be dismissed on policy grounds.

In the above circumstances, I prefer the views expressed by Professor Brouwer (which are also consistent with the matters I have identified above as to why I do not consider there to be a risk of prosecution) to those of Professor Nelemans. In this regard, not only do I consider that the unjustified “firming-up” in Professor Nelemans’ evidence calls into question the reliability of his evidence, but I, in any event, consider that Professor Brouwer is far better placed to opine on the likelihood of prosecution given his greater practical experience of criminal law and dealings with the DPPO as a practitioner, as opposed to Professor Nelemans’ experience as an academic.

Finally, I would only add by echoing the view expressed by other judges before me that where (as here) the parties’ experts express different views as to the risk of prosecution it does not follow from disagreement that there is a “real risk” of prosecution, and indeed to the contrary, there is force in the view that prosecution is relatively unlikely if there is real doubt about the law. As Sir Nigel Teare stated in O v C at [22(iv)], quoting Henshaw J in PIFFS at [156]]:-

“Where the parties’ experts express a different view about the risk of prosecution, the Court should exercise care when approaching the issue of foreign law, but it does not follow from the disagreement that there is a ‘real risk’: “[t]o the contrary, there is force in the view that prosecution is relatively unlikely if there is real doubt about the law”: [PIFFS] at [156] per Henshaw J”.

For all the above reasons I do not consider that there is any risk of prosecution under section 184(1) of the DCC, still less a real, or actual, risk of prosecution.

Strictly speaking, it suffices for me to find (as I do find) that Glencore has not discharged the burden that is upon them to prove that there is a real risk of prosecution.

In such circumstances, stage 3 and the balancing exercise is not reached, and the Glencore Disclosure Application stands to be dismissed.

However, as I have heard full argument on stage 3, and lest there be any possibility of a violation of the DCC, and any risk of prosecution, I will also address stage 3 for completeness.