Sunday

26th Sep 2021

Opinion

The human cost of whistleblowing

  • Jonathan Taylor has been separated from his family for months (Photo: Jonathan Taylor)

Jonathan Taylor is a British national who, as a lawyer for Dutch firm SBM Offshore in Monaco, uncovered an enormous bribery and corruption scandal that resulted in criminal investigations in five jurisdictions, resulting in fines of more than $800 million, and the imprisonment of a number of individuals.

Despite this, to date, the authorities in Monaco have failed to initiate a single criminal investigation into SBM Offshore or any of its executives.

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This is hardly surprising considering SBM Offshore is the largest private employer in Monaco and the small tax haven has created an impenetrable environment based on banking secrecy and surreptitious offshore companies that sits oddly outside the close scrutiny of the European Union and its legal framework.

Jonathan has the status as a whistle-blower and a protected witness and ought to receive all the procedural safeguards that a such witness would ordinarily receive.

Regrettably, he has not. He has been exposed and discarded and that must change.

We rely on people like Jonathan to make the world a better (and safer) place and we need to show whistleblowers and investigative journalists that our fundamental protections and safeguards actually mean something.

On 30 July, Jonathan was arrested on an Interpol Red Notice, issued by Monaco, at Dubrovnik international airport, where he had just arrived for a short holiday with his family.

The Croatian authorities were waiting for him as his flight landed. We do not know who tipped them off, but tipped off they were.

The warrant for his arrest alleged he was guilty of bribery and corruption, offences he was alleged to have committed whilst negotiating his departure from SBM Offshore, after having disclosed details of widespread bribery and corruption by oil executives.

The allegation is that he attempted to extort sums of money from SBM Offshore to prevent disclosures, despite the fact that those disclosures had already been made. The logic is hard to follow for his legal team, let alone a lay person.

Following his arrest in Dubrovnik, SBM Offshore responded to the media confirming that they had dropped their complaint against Jonathan and the Monégasque Prosecutor confirmed that it was not pursuing a charge of bribery and corruption against him.

This was odd, to say the least, as these were precisely the charges set out in the arrest warrant.

Jonathan was held in detention in Dubrovnik, being treated like a common criminal, for several days before being released on stringent bail conditions that now prevent him from leaving the city of and a number of additional conditions, such as reporting to the police twice per week.

Ping pong


On 1 September, a Court in Dubrovnik, ignoring the abundance of material that we submitted as to his status as a whistleblower and the real risk that he faced if Croatia, ignoring the protections under the European Court of Human Rights (ECHR) in Strasbourg and the EU Whistleblower Protection Directive (2019/1937), ordered his extradition.

On 12 October, our appeal to the Supreme Court was partially upheld and returned the matter to the Dubrovnik Court for reconsideration.

The Supreme Court ruled, rather illogically, that the UK should be requested to provide a statement as to whether it sought his surrender pursuant to an European Arrest Warrant and if not the lower Court should rule on the extradition request de novo.


On 30 October, the UK authorities responded confirming that they "will not be making a request" for his extradition.

The Court in Dubrovnik is expected to rule imminently and, if it again refuses to consider the substantial arguments previously submitted, then it will likely order extradition a second time, with the matter then returning to the Supreme Court on appeal, again, the case being pushed back and forth like a game of ping pong.

The UK foreign office has been urged to intervene on the ground that Jonathan is a whistleblower and that he is cooperating with the UK Serious Fraud Office and providing evidence of corruption within SBM Offshore.

On 9 November, the issue was the subject of a parliamentary question to the foreign secretary, Dominic Raab, in the House of Commons, raised by Jonathan's MP, Caroline Nokes, and an additional 18 cross-party MPs. Nokes, a former Conservative party minister, asked the foreign office what steps the UK was taking.

The parliamentary under-secretary of state, Wendy Morton, standing in for the foreign secretary, absent due to Covid-19 self-isolation, was confronted with a barrage of questions that she was not prepared to appropriately address.

She responded to each and every question with the same government line, there was no evidence to suggest that the arrest was connected to whistleblowing and that the Vienna Convention on Consular Relations prevented them from interfering in the internal affairs of other countries.

UK debate

On 10 November, it was discussed in the House of Lords, where similar concerns were raised.

The position advanced by the foreign office is wholly unsustainable and entirely disingenuous.

It claims there is no evidence to suggest that the arrest was connected to his whistleblowing.

Quite apart from our 40-page submission to Interpol and the 47-page submission to the UN, both provided to the foreign office, it would have had to have been an extraordinary coincidence that Jonathan was arrested on the basis of a criminal complaint by the very organisation that he has blown the whistle on for bribery and corruption to the tune of $800m, and that the two were not connected.

Secondly, the UK minister's reliance on Article 55 of the Vienna Convention is flawed.

The requirement is that members of a diplomatic mission respect domestic law and not interfere in the internal affairs of the host state.

This does not mean that the foreign office is prohibited from engaging in dialogue with a foreign state on its treatment of a British national, nor is it precluded from raising concerns about a judicial process.

If it did, the foreign office would have breached it on at least 12 occasions in the past and, indeed, on what basis then did the foreign secretary, this week, call for China's campaign of harassment of the political opposition to stop, for there to be new free and fair elections in Belarus, or for a de-escalation of the situation in Ethiopia.

The Vienna Convention was seemingly not considered an obstacle to those interventions. Further, respecting the law means the domestic laws that govern the host state and laws from which international treaty obligations stem, such as the ECHR rulings and EU directive.

Jonathan is whistleblower. He is a protected witness. He has taken extraordinary steps, putting his own personal safety and the economic security of his family at risk, in order to ensure that those persons who have engaged in corrupt practices on a truly unprecedented scale are brought to justice.

There is no evidence to justify the bringing of criminal charges and, if he were to be extradited, there is a very real risk that he would be the victim of a flagrant denial of justice in Monaco.

Wider meaning

The EU directive prohibits precisely this type of retaliatory action.


Notably, Monaco has failed to initiate a single criminal investigation into highly credible and well documented allegations against SBM Offshore.

In fact, in 2018, it refused to extradite an oil executive to the United Kingdom on the very same charges on which it now seeks Jonathan's extradition.

Finally, we must highlight the fact that it is not just Jonathan's fate which hangs in the balance, it is the very existence of the protections afforded to whistleblowers and investigative journalists the world over.

Author bio

Toby Cadman is co-founder and head of Guernica 37 International Justice Chambers, a law firm in London

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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