RHODESIA (BINGHAM REPORT) (Hansard, 19 December 1979)

§ The Attorney-General (Sir Michael Havers)
With permission Mr. Speaker, I should like to make a statement.
In 1978 the then Secretary of State for Foreign and Commonwealth Affairs referred the Bingham report to the Director of Public Prosecutions to consider whether further inquiries should be undertaken with a view to possible criminal proceedings for breaches of the Southern Rhodesia sanctions order. Shortly thereafter leading and junior counsel were instructed by the Director to advise him whether, in the circumstances disclosed by the report, criminal offences appeared to have been committed and, if so, by whom. It will be appreciated that the Bingham inquiry was neither a police investigation nor a trial, and it was not, therefore, conducted within the constraints of the rules of evidence or procedure applicable in a court of law.
In February 1968, and again in February 1969, meetings took place between Her Majesty's Government and senior officers of Shell and BP. The outcome of those meetings—described extensively in the Bingham report—appeared to have been interpreted by the oil companies, rightly or wrongly, as giving them tacit, if not express, approval to operate what has become known as the "exchange" scheme, whereby oil and petroleum reached Southern Rhodesia. It was by no means clear whether and, if so, for precisely what length of time, the so-called "exchange" scheme was operated thereafter.
Against this background, the Director appreciated that much more factual information and research into the legal problems were required in order to particular rise offences, to identfy the principal persons acting on behalf of the oil companies and to collect the admissible evidence. Accordingly, a team of senior police officers was instructed to make further detailed inquiries, while counsel continued to review the material already available.
Steps were taken in April 1979 under schedule 1 to the 1968 sanctions order to require the oil companies to produce all the relevant documents in their possession or under their control.
628 It seems that there are over 20,000 files, of which at least 14,000are likely to be relevant. Bearing in mind the substantial amount of time and public money likely to be involved in analysing this mass of paper and investigating the evidentiary material available overseas, counsey were asked to give the DPP further advice. By the beginning of November 1979, in an opinion running to almost 50 pages, counsel advised the DPP of the great difficulties in the way of a successful prosecution.
The Director had to consider the following matters:
(1) The material disclosed by the Bingham investigation was wholly insufficient for the purposes of a criminal trial. Direct evidence by witnesses or from proved documents would be needed.

(2) There was abundant material in the report which showed that, in the period following the meetings in 1968 and 1969, oil and petroleum products had been supplied direct by railway wagon to Southern Rhodesia. The question which arose in an acute form, however, was whether it could be proved by the strict rules of evidence applied in the criminal courts of this country:

(a) which companies had in fact made these supplies;

(b) who, if any, among the officers, agents or employees of the companies during the relevant period were knowing parties to such supply.
It was also necessary to seek to determine whether these supplies had been made in contravention of the alleged "understanding" with Her Majesty's Government. (3) Furthermore, it was material to have regard to the fact—emphasised in the Bingham report—that many of the companies and their officials were subject to the laws of States deeply hostile to the sanctions policy and were liable to penalties for any refusal or failure to supply oil on demand. There is no power to compel the attendance of witnesses from abroad. The available material disclosed—and, indeed, the Bingham report investigation found—that many of the principal officials concerned in the contraventions of 629 the sanctions orders were not amenable to our jurisdiction. Some who appear to have been at the very centre of the operations had since died and others had retired. It was likely to prove difficult in the extreme to establish the complicity and knowledge of their successors.
Whilst the prosecution might confine criminal charges to the years 1971–77,the defence would investigate the entire history of events from 1966 onwards. Those events would cast their shadow over the whole case and this important factor would have a serious bearing on its outcome. Counsel were of the opinion that a jury might well be reluctant to convict if there appeared to be substance in the defence that those charged had acted in the belief that their conduct had the express or ostensible consent of the authorities.
Finally, it was apparent that as complex and prolonged an investigation as this would probably not reach the stage of a jury's trial in less than four years from now, particularly as the defence would be entitled to require full committal for trial proceedings and strict proof of the essential ingredients of the offences. Also, the trial itself might occupy a jury for as long as 12 months, with all the risks that attend such an extended hearing.
The Director has therefore reached the conclusion that further investigation and public expenditure would not be justified and the matter should proceed no further. I agree.

§ Mr. Russell Kerr
You want to pack it in, Michael.

§ Mr. John Morris
I am sure that the whole House, and the Opposition especially, will want to study with great care the important statement made by the Attorney-General. The right hon. and learned Gentleman is dealing with a matter of grave concern not only to the United Kingdom but to countries abroad, and to all those who have been concerned with clear breaches of law in this country. It is a matter of grave importance for those who are concerned with the rule of law—be it in our domestic matters or in international matters, and in the matters contained in the statement especially—that on the advice tendered to the Attorney-General it appears that we cannot now deal with these matters in the 630 proper way, which is in the courts. That is a matter of regret. Against that background we shall want further time to consider the issue.
How many companies and individuals have been prosecuted so far for breaches of sanctions, and what have been the penalties imposed? It there not a danger, as is manifest in the conclusions to which the right hon. and learned Gentleman has come, that the minnows have been dealt with and that it is not possible, for whatever reason, to deal with the big fish? Will the right hon. and learned Gentleman recall that the House resolved that there should be an inquiry into the whole affair and that a contrary view was taken by another place? What is the Government's view about a further inquiry?

§ The Attorney-General
I hope that the right hon. and learned Gentleman will forgive me when I say that I do not have with me the details of the other prosecutions. However, details have been given in a number of written answers in response to questions put to me by some of his hon. Friends. An inquiry is a matter for my right hon. Friends. I am unable to give the House any information.

§ Mr. David Steel
Is the Attorney-General aware that he has made an extraordinary statement? Surely the impression that he is leaving with the House is that justice and truth are commodities that we can no longer afford. That is not good enough. The Government have had months to consider this matter. That consideration has not been confined to the right hon. and learned Gentleman's ministerial responsibility. There was a debate and a free vote in the House in February. The other place disagreed with this place, but that is not an excuse for dropping the matter.
Is the right hon. and learned Gentleman aware that the whole table reflects sadly on the political and business ethics of this country? The matter cannot be allowed to drop because of legal technicalities. If the Government have come to the conclusion that they should close the book on the whole sorry subject, let that be proclaimed as their political decision, and let it not be clouded by legal technicalities.

§ The Attorney-General
The right hon. Gentleman has failed to appreciate the distinction. This is not a Government 631 decision; it is a decision of the Director of Public Prosecutions, acting within his proper duties. An inquiry, as I have said, is a matter for my right hon. Friends. The right hon. Gentleman says that the Government have had months to consider the matter. That is not so. Counsel's opinion was delivered to the Director of Public Prosecutions only at the beginning, or in the first week or so, of last month. Thereafter, he, in discussions with me, reached his conclusion. It is not fair to say that the Government should be in a position today, when I have just made this statement, to give a firm commitment, one way or the other, about an inquiry.

§ Mr. Maxwell-Hyslop
If I heard my right hon. and learned Friend aright, the Director of Public Prosecutions has enunciated what I understand to be an entirely new principle, namely, that if a malefactor has retired he is now to be immune from prosecution. The Attorney-General referred to people who "had died or retired".
I understand that people who are dead cannot be prosecuted, but is the same doctrine to apply to burglars if they have retired? This is a serious point. If retirement confers immunity from prosecution, is this to be a precedent across the whole field of criminal law?

§ The Attorney-General
I regret that my hon. Friend should treat what I consider a very serious matter in such a light-hearted manner. [HON. MEMBERS: "Oh." When he reads my statement, I think that he will understand that the major problem is that many individuals are simply not within the jurisdiction and some of the others have died.

§ Mr. Jeffrey Thomas
I join forces, for once, with the hon. Member for Tiverton (Mr. Maxwell-Hyslop), whose remarks go to the root of the problem and to the root of our fears on the Opposition side of the House. The rule of law is indivisible. The rule of law applies as much in this country as it does overseas. It is wrong for the Government party to be seen to be paying mere lip service to the rule of law.
Will the Attorney-General tell the House, for instance, what are the extraordinary factors that mean that this trial 632 could not be reached for something like four years? Will he also now publish the names of those persons listed in the Bingham report and the schedules thereto who, in the opinion of the authors, were vulnerable to criminal prosecution—both persons and companies?

§ The Attorney-General
The hon. and learned Gentleman asks why the matter would take four years. A huge amount of investigation would be necessary. Let us take, for example, Shell Mocambique. If one were to try to prove the movement of particular wagons of oil from Mozambique to Rhodesia it would be necessary to have the freight tickets and perhaps necessary to call some of the railwaymen. There is no power to enforce either the production of those documents or the attendance of those witnesses. I did tell the House in my statement that as a result of a request of the Director in April this year 14,000 files were obtained from the two oil companies. We are told that the number of documents in those files probably exceed a quarter of a million papers. All would have to be looked at.
Any lawyer in this House knows that the prosecution could not possibly go into court without having to consider, with a large team of lawyers and police officers, every one of those quarter of a million documents. It would simply not be right not to do that. That is only one of the grounds. I remind the House that the reasons that prompted the Director to come to the conclusion that he reached were the well known and recognised procedures involving the public interest aspect in prosecutions.

§ Mr. Gordon Wilson
Coming on the heels of the Blunt affair, many people in the House now believe that had President Nixon been Head of State in the United Kingdom and shielded by the establishment here, he would have got off scot-free. Bearing in mind the honourable role played by the courts in that affair, will the Attorney-General say whether he has consulted the Lord Advocate on the subject?
If the Attorney-General is not prepared to accept responsibility in England for offences committed against the United Kingdom as a whole, will he ask the Lord Advocate in Scotland, where court proceedings are generally shorter, if he will undertake this investigation?

§ The Attorney-General
These matters were referred by the then Foreign and Commonwealth Secretary to the Director of Public Prosecutions. It is, therefore, a decision for the Director to take. He has taken it and, as I have told the House, I agree with him.

§ Mr. Stokes
Cannot there be a sense of realism in this matter? Is this report not out of date and superseded by events? Is not criticism of those concerned, who acted on political direction, futile humbug?

§ The Attorney-General
There is no doubt that one of the matters that the Director would have to consider, as in every prosecution, is how old the offences, if they can be proved, are. There is no doubt here that some of the matters that might be the subject of prosecution go back more than 10 years.

§ Dr. Bray
In considering the need for further inquiry, will the Attorney-General and his right hon. Friends bear in mind the need to give civil servants and retired civil servants, who are named in the Bingham report and in the subsequent debate, an opportunity to clarify their own roles in the breach of sanctions? Is the right hon. and learned Gentleman aware, in particular, of the statement that I made in the debate that Mr. Angus Beckett, under-secretary of the petroleum division at the time of the breach of sanctions, was offered jobs by major oil companies on his retirement, that he was refused permission to accept them by the head of the Civil Service and that he subsequently accepted appointment to a consulting firm employed by those major oil companies from which he now enjoys a very large income? Is that an appropriate state of affairs that should be allowed to continue without explanation?

§ The Attorney-General
This cannot arise out of the matters referred to the Director of Public Prosecutions. Any other matter that might be relevant to the question whether an inquiry is set up will certainly be considered.

§ Mr. Jay
The right hon. and learned Gentleman said that the decision was that of the Director of Public Prosecutions. Surely, by saying that he agreed with that decision, the right hon. and learned Gentleman shares responsibility for it— 634 or is he disclaiming any responsibility for the decision?

§ The Attorney-General
I hoped that I had made absolutely clear by the last two words of my statement, having said that it was the decision of the Director and adding "I agree", that I was accepting the responsibility, equally with him, and accepting my responsibility to answer in this House for his decision.

§ Mr. Ronald Bell
Is there to be any reward to, or recognition of, those patriotic men who, through those difficult years, sustained the true British cause, all too often against British Governments.

§ Mr. Russell Kerr
Honorary traitors.

§ Mr. Alexander W. Lyon
May I remind the Attorney-General that Bingham was a lawyer, that he mounted in his report a very considerable case of conspiracy, not only by individuals but by companies, and that he based that report on his access to the records then available? Does it not happen that in many fraud cases one cannot prosecute the full compass of the fraud but selects specific ingredients that can be proved? On that basis, the judge is able to give an appropriate sentence.

§ The Attorney-General
Every case depends on its own effects. Having read Bingham with care, the hon. Gentleman, as a lawyer, will recognise that it was not a report based on evidence that one could produce in a court. In the end, what happens in every case is that, with the assistance of very experienced counsel who have spent a great deal of time on the matter, one has to examine the likely availability of evidence from overseas as well as domestically. I remind the hon. Gentleman of the difficulties that Bingham said that he found in trying to get any documentation from Mozambique.

§ Mr. Latham
On a point of order, Mr. Speaker. I distinctly heard an Opposition Member below the Gangway call my right hon. and learned Friend the Member for Beaconsfield (Mr. Bell) an honorary traitor. Surely that cannot be in order.

§ Mr. Speaker
Order. If that expression was used, the hon. Gentleman concerned will no doubt rise and agree that he said it.

§ Mr. Latham
It was the hon. Member for Feltham and Heston (Mr. Kerr) to whom I was referring.

§ Mr. Russell Kerr
I am afraid that there was some confusion. There was a general suggestion that people who had furthered the cause of Rhodesia in the recent squabble should get recognition in the House. I made what I hope was the helpful suggestion that they should have the title of honorary traitors.

§ Mr. Speaker
Order. It is clear that the remark was not addressed to the hon. and learned Member for Beaconsfield (Mr. Bell).

§ Mr. Robert Hughes
Has the Attorney-General not now made it clear that under British law the bigger the crime the more chance there is of getting off? Is this not a shameful end to a shabby episode in British history? What credit does one now give to the Prime Minister's call for an economic boycott of Iran?

§ The Attorney-General
I am afraid that I missed the last question posed by the hon. Gentleman.

§ Mr. Robert Hughes
I shall repeat it. However, I should be glad if the right hon. and learned Gentleman would answer the first two questions. What credit can the world now give to the Prime Minister's call for an economic boycott of Iran?

§ The Attorney-General
Dealing with the last question, it must be made clear to the hon. Gentleman that this decision is remote and divorced from any decision of the Government. It is a decision by the Director of Public Prosecutions. Any comment to the contrary is a direct and totally unjustified attack upon the integrity both of counsel and of the Director, who is totally impartial in these matters.

§ Mr. Dobson
Will the Attorney-General, in his new role as the Santa Claus of the Establishment, cast his mind back to the time when he was talking about the Clay Cross councillors and, as reported in The Times, said that no democracy could survive when people decided to obey only laws that suited them? Does he agree that the decision at which he and the Director of Public Prosecutions have arrived is a disgrace to our system of government, to our judicial system, and to himself?

§ The Attorney-General
The only consequence of that comment can be that the Director of Public Prosecutions and I have acted in a political rather than an impartial way. I totally reject it.

§ Mr. Speaker
Order. I propose to call five more hon. Members.

§ Mr. S. C. Silkin
Now that the decision has been taken by the Director of Public Prosecutions, and the Attorney-General agrees with it, is it possible for the chapter in the Bingham report that was withheld from publication whilst the matter was being considered by the Director to be made available for publication?

§ The Attorney-General
That is a matter for my right hon. and noble Friend, to whom the report was made.

§ Mr. Cryer
Does the Attorney-General accept that this is a totally disgraceful episode in the Government's history? Does he further accept that people outside will now believe that there are two standards, one for ordinary folk—the Conservative Government lose no opportunity legally to attack the trade unions when it suits their book—and another for people in high places? Will he confirm the clear fact from his statement that if the crime is big enough and complicated enough, and has sufficient documents, people in very high places and well connected either by marriage or relationship can get away with it?

§ The Attorney-General
Every case has to be approached by the Director, or any prosecuting authority, on the following bases: first, are the prospects for conviction more than 50–50? If not, it is rare for such a prosecution to be brought.
Secondly, in every case involving complexity, another matter to be considered is the huge expenditure of further public money with the strong likelihood, based on counsel's advice, that the end result would be an acquittal. In those circumstances, it is right that the expenditure involved should be a matter to which the Director should pay attention.

§ Mr. Rooker
Does the Attorney-General appreciate that the only reason given to the House for non-publication of the third appendix was that criminal 637 charges may follow? It is not good enough now, after his decision and that of the DPP, announced today, to say that publication of that third appendix is a matter for the Foreign Office. It should come automatically.
Will the right hon. and learned Gentleman confirm that following his statement it is abundantly clear that the instructions given to the DPP by my right hon. Friend the then Foreign Secretary about the matters referred in the preface to the Bingham report regarding Castrol Limited were never followed through and that, therefore, those instructions were totally ignored by the civil servants?

§ The Attorney-General
As is obvious to the House, since the reference was made by the then Foreign and Commonwealth Secretary, the attention of the Director, counsel and the police officers engaged in the investigation was concentrated on the main matters in the Bingham report. Only at the conclusion of that investigation could any further considertion be given to other matters, such as the passing reference to Castrol at the beginning of the report. In view of the difficulties that I have explained to the House there will be no further investigation of the matters involved and referred to in the report.

§ Mr. Whitehead
Does the Attorney-General understand that the lesson drawn by the public from what has been said will be that anyone accused of conspiracy stands to be all right provided that he has 20,000 files and can be guaranteed to occupy a jury for a year? What cost can be too high for asserting the principle of respect for the rule of law and the elected Government of the day?

§ The Attorney-General
The hon. Gentleman simply refuses to listen to what has been said. I have now three times said that one of the matters that has to be considered by any prosecuting authority is the likelihood of conviction. On the advice of counsel and the Director, particularly bearing in mind the events of 1968 and 1969 and the shadow that they cast over what happened afterwards, it was decided that the likelihood of conviction was not such as to justify going on.

§ Mr. Dalyell
Has not the Attorney-General had his middle stump knocked 638 out by his hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop) who asked how it was that retirement in some way grants immunity? Will the right hon. and learned Gentleman explain to us laymen why it is necessary for 14,000 documents to be examined? Is he saying that each of those 14,000 documents must be examined? Is he also, by way of example, saying that we would not get co-operation from Shell Mocambique if the Shell headquarters here and in the Netherlands did not ask for its co-operation? Is that the argument?

§ The Attorney-General
It is a matter not only of getting co-operation from Shell Mocambique but of getting the documents and the strict proof that I assume would be required of the actual movement of the vehicles from Mozambique into Rhodesia.
As for the 14,000 documents, if prosecuting counsel and his team did not go through all those documents, and if certain documents that were favourable to the defence were brought out for the first time by the defence in the middle of the trial—after six months—when they had been in the possession of the prosecution all the time, and such documents provided an entirely different aspect to the matter, just think how stupid the Crown would look.

§ Mr. Shore
Neither the House nor the country can accept the Attorney-General's statement as a fitting end to what has been a disgraceful and, indeed, damaging affair to the reputation of this country. Does the Attorney-General's statement mean that other cases now in the pipeline relating to sanctions are to be dropped? If they are not, how does the Attorney-General distinguish between those cases that will be prosecuted and those major offenders whom, apparently, it is too difficult to pursue further? Will he not agree that irrespective of the difficulties with prosecutions the situation enormously reinforces the case for the establishment of a joint special Committee of this House—such as was passed and voted upon on 1 February this year? Will the Attorney-General take this matter up with his right hon. Friend and make an early statement?

§ The Attorney-General
I made inquiries earlier this week to see how many other prosecutions were in the pipeline. 639 Many of them in the past have come through customs and excise, but there are no more from that source. There is one prosecution awaiting appeal and two others in the pipeline. What I said today covers only and exclusively the matters referred to in the Bingham report. Should an inquiry be necessary I shall make certain that what the right hon. Gentleman said is considered by my right hon. Friend.