Dans un premier jugement, la High Court (comme son nom ne l’indique pas, il s’agit du tribunal de première instance, compétent en matières civiles, commerciales, pénales et administratives, le Royaume-Uni en général et l’Angleterre et le Pays de Galles en particulier n’ayant pas plusieurs ordres juridictionnels, comme la France ou (hélas) le Maroc) a ainsi ordonné la reprise d’une enquête administrative du Serious Fraud Office sur les pots-de-vin d’un milliard de livres sterling versés au prince Bandar Bin Sultan lors d’une série pharaonesque de vente d’armes britanniques à l’Arabie séoudite. Ce scandale avait défrayé la chronique, et surtout la décision du gouvernement britannique d’ordonner la fin de l’enquête administrative pour "raisons diplomatiques". Des ONG britaniques avaient alors décidé d’initier une action en justice contre la décision de ne pas enquêter sur le scandale – et la High Court leur a récemment donné raison.
Le jugement de la High Court du 10 avril 2008 dans l’affaire The Queen on the Application of Corner House Research and Campaign Against Arms Trade v. The Director of the Serious Fraud Office and BAE Systems PLC est dévastateur pour le gouvernement, et plus encore pour le régime cleptocrate et théocratique séoudien. Pour ce dernier, il est révélé qu’il fît des menaces directes contre le Royaume-Uni, ne menaçant non seulement de représailles commercialles, ce qui est de bonne guerre, mais aussi sécuritaires – en clair, la fin de la coopération sécuritaire et la perspective d’attentats terroristes sur le sol britannique ("if the investigation was not stopped, there would be no contract for the export of Typhoon aircraft and the previous close intelligence and diplomatic relationship would cease" – point 4 du jugement). Imaginons un instant que ces menaces aient été proférées par la Syrie, l’Iran, le Vénézuela ou la Corée du Nord… Enfin, sortons de notre songe et poursuivons notre lecture:
Ministers advised the Attorney General and the Director that if the investigation continued those threats would be carried out; the consequences would be grave, both for the arms trade and for the safety of British citizens and service personnel. In the light of what he regarded as the grave risk to life, if the threat was carried out, the Director decided to stop the investigation. (pt. 5)
Face aux menaces séoudiennes, qui mettaient en danger la vie de citoyens britanniques, le gouvernement britannique s’est couché de bonne grâce. C’est ce que constate Lord Justice Moses (rejoint par Mr Justice Sullivan) dans son jugement:
The defendant in name, although in reality the Government, contends that the Director was entitled to surrender to the threat. The law is powerless to resist the specific and, as it turns out, successful attempt by a foreign government to pervert the course of justice in the United Kingdom, by causing the investigation to be halted. The court must, so it is argued, accept that whilst the threats and their consequences are "a matter of regret", they are a "part of life".
So bleak a picture of the impotence of the law invites at least dismay, if not outrage. The danger of so heated a reaction is that it generates steam; this obscures the search for legal principle. The challenge, triggered by this application, is to identify a legal principle which may be deployed in defence of so blatant a threat. However abject the surrender to that threat, if there is no identifiable legal principle by which the threat may be resisted, then the court must itself acquiesce in the capitulation. (pts. 6 & 7)
Lord Justice Moses rappelle que les questions de politique étrangère sont généralement exclues de la compétence des tribunaux:
The separation of power between the executive and the courts requires the courts not to trespass on what Lord Phillips CJ described as one of the forbidden areas, a decision affecting foreign policy (R on the application of Abbasi v Secretary of State for Foreign and Commonwealth Affairs  EWCA 1598 § 106). In a case touching foreign relations and national security the duty of decision on the merits is assigned to the elected arm of government. Even when the court ensures that the Government complies with formal requirements and acts rationally, the law accords to the executive an especially wide margin of discretion (R (Al Rawi) v Foreign Secretary  2 WLR 1219 § 148). The courts are under no less an obligation to respect and maintain the boundary between their role and the role of government than the executive. (pt. 56)
Mais il rappelle que dans le cas présent, il ne s’agit pas de considérations de politique étrangère, mais de réaction de soumission à des menaces:
The essential point, as we see it, derives from the threat uttered, it is said, by Prince Bandar to the Prime Minister’s Chief of Staff. The nature and implications of that explicit threat have a significant impact on this application. The challenge was originally resisted, in part, on the basis that the Director was entitled to discontinue the investigation as a result of the very grave threats to national and international security (see e.g. Detailed Grounds of Resistance § 10). But there is an ambiguity in the use of the word threat in that context. Threat as used in response to the claimants’ original challenge meant no more than risk. The Director’s decision was taken after assessment of the risk to security. But the grounds of resistance did not mention the fact that representatives of a foreign state had issued a specific threat as to the consequences which would flow from a refusal to halt the investigation. It is one thing to assess the risk of damage which might flow from continuing an investigation, quite another to submit to a threat designed to compel the investigator to call a halt. When the threat involves the criminal jurisdiction of this country, then the issue is no longer a matter only for Government, the courts are bound to consider what steps they must take to preserve the integrity of the criminal justice system. (pt. 57)
Voilà donc la distinction faite par la High Court: si le gouvernement peut parfaitement prendre en compte les conséquences diplomatiques d’une décision d’enquêter sur une affaire de corruption et, sur cette base, décider de ne pas poursuivre l’enquête, il ne peut cèder à une menace directe et spécifique sans menacer l’intégrité du système de la justice pénale. Suit ensuite des développements sur les rôles respectifs du gouvernement et des tribunaux dans le système constitutionnel britannique:
The constitutional principle of the separation of powers requires the courts to resist encroachment on the territory for which they are responsible. In the instant application, the Government’s response has failed to recognise that the threat uttered was not simply directed at this country’s commercial, diplomatic and security interests; it was aimed at its legal system. (pt. 57)
Had such a threat been made by one who was subject to the criminal law of this country, he would risk being charged with an attempt to pervert the course of justice. The course of justice includes the process of criminal investigation (R v Cotter  2 Cr App R. 29 at § 30 and 31). But whether or not a criminal offence might have been committed, the essential feature is that it was the administration of public justice which was traduced, it was the exercise of the Director’s statutory powers which was halted.
Threats to the administration of public justice within the United Kingdom are the concern primarily of the courts, not the executive. It is the responsibility of the court to provide protection. (…) The rationale for the court’s intervention is its responsibility to protect the rule of law. Simon Brown LJ’s words were obiter but the sources to which he referred establish a well-settled principle. The surrender of a public authority to threat or pressure undermines the rule of law (see Lawton LJ’s emphatic response to those who sought to frustrate the exercise of statutory powers in R v Chief Constable of Devon and Cornwall Constabulary, ex p. CEGB  QB 458,472-3, cited by Simon Brown LJ at p.61). That principle must apply with even greater force where the exercise of statutory powers in relation to the administration of justice has been halted by threats. (pts. 59 & 60)
La leçon de droit constitutionnel devient plus incisive:
The Government’s answer is that the courts are powerless to assist in resisting when the explicit threat has been made by a foreign state. Saudi Arabia is not under our control; accordingly the court must accept that there was nothing the Director could do, still less that the court can do now. Mr Sales said, as we have already recalled, that whilst it is a matter of regret, what happened was a part of life. The court cannot intervene but should leave the Government to judge the best course to adopt in response to the threat.
This dispiriting submission derived from the uncontroversial proposition that the courts in England will not adjudicate upon acts done abroad by virtue of sovereign authority (see Buttes Gas v Hammer AC 888 at 931G-932F and R v Bow Street Magistrate ex p. Pinochet(no.3)  1 A.C. 147 at 210).
The legal relationships of the different branches of government, and the separation of powers depend on internal constitutional arrangements. They are of no concern to foreign states (see Lord Millett in R v Lyons  1 AC 976 at § 105).
Mr Sales’ submission appears to us not to be one of principle but rather one of practicality: resistance is useless, the judgement of the Government is that the Saudi Arabian government will not listen and the authorities in the United Kingdom must surrender. That argument reveals the extent to which the Government has failed to appreciate the role of the courts in upholding and protecting the rule of law.
The courts protect the rule of law by upholding the principle that when making decisions in the exercise of his statutory power an independent prosecutor is not entitled to surrender to the threat of a third party, even when that third party is a foreign state. The courts are entitled to exercise their own judgment as to how best they may protect the rule of law, even in cases where it is threatened from abroad. In the exercise of that judgment we are of the view that a resolute refusal to buckle to such a threat is the only way the law can resist.
Surrender deprives the law of any power to resist for the future. In ex p. Phoenix Aviation, Simon Brown LJ criticised the public authorities who failed to consider what he described as the awesome implications for the rule of law, and the inevitable impact upon the ever more enthusiastic future conduct of the protesters [p.62]. The context of the threat, in the present case, was the investigation of making bribes to foreign public officials, an offence introduced in 2001. If the Government is correct, there exists a powerful temptation for those who wish to halt an investigation to make sure that their threats are difficult to resist. Surrender merely encourages those with power, in a position of strategic and political importance, to repeat such threats, in the knowledge that the courts will not interfere with the decision of a prosecutor to surrender. After all, it was that appreciation which, no doubt, prompted the representatives of the Saudi Arabian government to deliver the threat. Had they known, or been told, that the threat was futile because any decision to cave in would be struck down by the courts, it might never have been uttered or it might have been withdrawn.
Certainly, for the future, those who wish to deliver a threat designed to interfere with our internal, domestic system of law, need to be told that they cannot achieve their objective. Any attempt to force a decision on those responsible for the administration of justice will fail, just as any similar attempt by the executive within the United Kingdom would fail. (pts. 73 à 75, 77 à 80)
Les juges critiquent ensuite la soumission lâche du gouvernement britannique, qui n’a même pas essayé de résister aux menaces séoudiennes:
There is no evidence whatever that any consideration was given as to how to persuade the Saudis to withdraw the threat, let alone any attempt made to resist the threat. The Director did not himself consider this issue. His assessment of the threat and its consequences relied on the advice of others. There is nothing to suggest that those advising him on this issue had made any attempt to resist the threat. They merely transmitted the threat to the Director, and explained the consequences if it was carried out. When this question was raised, in argument, Mr Sales responded that that issue was not one which the defendant had come to court to meet. Moreover, he suggested the court should assume that due consideration had been given as to whether the Saudis might be persuaded to withdraw their threat and as to how its consequences might be avoided.
We are not prepared to make any such assumption. It is not implicit in Mr Wardle’s statement. The defendant and Government were well aware that the accusation was that they had surrendered too readily; it was for them to show not only that the consequences of the threat were dire but that the threat itself could not be mitigated or withdrawn. (…)
No-one suggested to those uttering the threat that it was futile, that the United Kingdom’s system of democracy forbad pressure being exerted on an independent prosecutor whether by the domestic executive or by anyone else; no-one even hinted that the courts would strive to protect the rule of law and protect the independence of the prosecutor by striking down any decision he might be tempted to make in submission to the threat. If, as we are asked to accept, the Saudis would not be interested in our internal, domestic constitutional arrangements, it is plausible they would understand the enormity of the interference with the United Kingdom’s sovereignty, when a foreign power seeks to interfere with the internal administration of the criminal law. It is not difficult to imagine what they would think if we attempted to interfere with their criminal justice system. (…)
The Director failed to appreciate that protection of the rule of law demanded that he should not yield to the threat. Nor was adequate consideration given to the damage to national security and to the rule of law by submission to the threat. No-one took any steps to explain that the attempt to halt the investigation by making threats could not, by law, succeed. The Saudi threat would have been an exercise in futility, had anyone acknowledged that principle. We are driven to the conclusion that the Director’s submission to the threat was unlawful. (pts. 87, 88, 90 et 102)
La conclusion de la High Court est sans appel – au figuré seulement, puisque le Serious Fraud Office a annoncé sa décision de saisir la House of Lords, qui est la cour suprême en Angleterre et au Pays de Galles (et en Ecosse en matière civile):
The claimants succeed on the ground that the Director and Government failed to recognise that the rule of law required the decision to discontinue to be reached as an exercise of independent judgment, in pursuance of the power conferred by statute. To preserve the integrity and independence of that judgment demanded resistance to the pressure exerted by means of a specific threat. That threat was intended to prevent the Director from pursuing the course of investigation he had chosen to adopt. It achieved its purpose.
The court has a responsibility to secure the rule of law. The Director was required to satisfy the court that all that could reasonably be done had been done to resist the threat. He has failed to do so. He submitted too readily because he, like the executive, concentrated on the effects which were feared should the threat be carried out and not on how the threat might be resisted. No-one, whether within this country or outside is entitled to interfere with the course of our justice. It is the failure of Government and the defendant to bear that essential principle in mind that justifies the intervention of this court. We shall hear further argument as to the nature of such intervention. But we intervene in fulfilment of our responsibility to protect the independence of the Director and of our criminal justice system from threat. On 11 December 2006, the Prime Minister said that this was the clearest case for intervention in the public interest he had seen. We agree.
Affaire à suivre donc, et il n’est pas dit que la House of Lords, si elle décide de juger l’affaire, prenne une décision identique à celle de la High Court.
Dans une autre décision récente, la House of Lords a par contre rejeté l’action initiée par les familles de deux soldats britanniques morts en Irak, invoquant par ricochet l’article 2 de la Convention européenne des droits de l’homme (CEDH) protégeant le droit à la vie afin d’obtenir la création par le gouvernement d’une commission d’enquête indépendante sur les conditions de l’entrée en guerre du Royaume-Uni, et tout particulièrement sur la légalité de cette guerre. La House of Lords a donc décidé dans l’affaire Regina (on the application of Gentle (FC) and another (FC)) v The Prime Minister and others, à l’unanimité des neuf juges, que l’article 2 de la CEDH n’imposait pas l’existence d’un mécanisme permettant de déterminer la légalité d’une participation à une guerre préalablement à celle-ci. Le raisonnement implicite des Law Lords est en fait que la décision d’aller en guerre n’est pas une décision qui est de la compétence des tribunaux, mais d’autres organes constitutionnels – parlement et gouvernement – c’est donc un exemple proche de la théorie dite de l’acte de gouvernement, bien connue en droit administratif français. Une décision qu’on peut difficilement qualifier de décevante, car on ne pouvait raisonnablement s’attendre à autre chose.
Filed under: "I support your great war of terror", actualité internationale, Droit comparé Tagué: | arabie séoudite, état de droit, bandar bin sultan, blair, corruption, droit anglais, irak, jus ad bello, royaume-uni