Examination of Witnesses (Questions 94
- 99)
THURSDAY 20 MARCH 2008
MR OLIVER
SPRAGUE, MS
MARILYN CROSER,
MR ROY
ISBISTER AND
MR MARK
PYMAN
Q94 Chairman: Good morning and welcome.
Do have you a leader?
Mr Isbister: We are an egalitarian
group.
Q95 Chairman: Would you like to introduce
yourself and your colleagues.
Mr Isbister: We have Marilyn Croser
from Oxfam; Mark Pyman from Transparency International; Oliver
Sprague from Amnesty UK; and myself from Saferworld.
Q96 Linda Gilroy: You have suggested
that rather than relying exclusively on the criminal law to prosecute
breaches of export control the Government should amend the primary
legislation in the way that we were taking up with EGAD and the
former witnesses. One main stumbling block is obtaining evidence
from abroad which will not change if civil proceedings replace
criminal. How would you overcome that problem?
Mr Isbister: As far as I understand
it, that problem will still exist but the way around that is that
the burden of proof required by using the civil action is lower:
"balance of probability" rather than "beyond reasonable
doubt". That may provide for cases to still be brought where
they might fail that evidentiary test if they were for a criminal
prosecution.
Q97 Linda Gilroy: I understand what
you are saying but there is also the downside if you switch the
onus of proof from the State to proving guilt to the exporter
having too prove innocence, you then switch it to something that
we do not see very often in our law: they would have to prove
their innocence rather than prosecution prove guilt.
Mr Isbister: I am not a lawyer
but, as I understand it, it is "balance of probability"
rather than proving you are innocent. What we are talking about
would not be unique. There was an item on the Today programme
this morning about some financial impropriety and the questioner
was asking can you catch the people who did this and the answer
was if we can we will do it through a criminal process but if
that is too hard we will look at using a civil process. We are
talking about extending that into transfer controls rather than
inventing a whole new way of operating the law.
Q98 Linda Gilroy: Can you quote any
other countries who have this as a basis for such enforcement
in this area of law?
Mr Isbister: I am not sure how
widespread it is. I know, for example, Germany has it; Israel
has just introduced a new law that does have this; and the country
we hear most about is the US, to pick up on what was being said
before by the defence industry. I have recently been in touch
with officials in the US about this and what the implications
of this are, and they make the point that the lower burden of
proof is very helpful and that companies actually tend to dismiss
the likelihood of criminal prosecution and are much more wary
of civil procedures. The officials view this as a critical component
in ensuring compliance from industry. To pick up on what David
Hayes said before, our understanding is that the UK industry is
far more concerned about complying with civil law in the US than
it is about the law as it stands in the UK.
Q99 Sir John Stanley: Can we come
to extra-territoriality? You will agree that the Committee has
been commendably persistent, and equally commendably consistent,
in its position. It has been somewhat blood out of a stone stuff
for a long period. We get a straight no and then we got the principle
conceded but not the substance and it was only extended to handcuffs,
instruments of torture and long range missiles and nothing in
between. Now we have some further progress and we have an extension
to small arms and light weapons and unmanned air vehicles and
man-portable missiles. Where do you feel the most acute gaps are
still there to be exploited?
Mr Isbister: We very much welcome
the fact we have moved on and we are now at the point where the
Government has acknowledged that small arms and light weapons
will be included in this category. It is very gratifying that
UK industry seems to be comfortable as well. Obviously there are
still areas of contention and we do feel that the list of equipment
that needs to be covered by Category 2 needs to go wider. We have
a very recent example of this which has just come up, the case
which you may have heard about, where Victor Bout has been arrested
in Thailand. We have seen the sealed complaint that has been deposited
by the DEA[12]
in the US on this case and we would be happy to circulate that
to the Committee. To read through that there is some very interesting
information. For example, Victor Bout is reported to have stated
at one point that they could supply special helicopters that can
wipe out their helicopters, meaning the Columbian Government helicopters,
along with missiles and missile launchers for helicopters, armour-piercing
rocket launchers and surface-to-air missiles. It is also interesting
that the countries referred to in this complaint, in terms of
where the deal was being arranged, are Denmark, the Netherlands,
Antilles, Romania and Russia. There is no reference to the UK
here at all. What is perhaps less widely reported is that the
co-defendant in this case is a man called Andrew Smulian, who,
looking at the complaint, is just as involved in Victor Bout.
The complaint itself does not say what his nationality is but
he is reported in the press as being British. It is a very interesting
case and highlights that this is not just an issue of small arms
and light weapons. I do not think we would dispute that it is
more likely that there are more cases involving small arms and
light weapons but if you are talking about helicopters that can
take out other helicopters this is clearly a very serious case
and we think we need to go further.
12 Drug Enforcement Agency Back
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