House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Second Report

MR PENFOLD

38. We begin by putting on record our recognition of Mr Penfold's bravery in dealing with the rebels during the civil war. Many lives were saved in consequence, and he was rightly commended by the Prime Minister and Foreign Secretary. The latter spoke to us of "immense courage....great initiative....heroism."[131] Mr Penfold also developed an important and valuable relationship with President Kabbah, who described him as "a source of moral strength not only to me personally but to all patriotic Sierra Leoneans."[132] Sir John Kerr described that relationship as "greatly to [Mr Penfold's] credit."[133]

Problems of evacuation to Conakry

39. Mr Penfold's evacuation to Conakry and the establishment of a High Commission in exile was the only example since World War II of a British diplomatic mission following a government into exile.[134] It was made particularly difficult by the fact that Conakry was a capital with no resident British mission. Mr Penfold (who was not accredited to Guinea) therefore had to operate out of a hotel bedroom.[135] Mr Penfold rightly stressed the difficulties he had in operating in conditions such as these.[136] Though, as the Foreign Secretary told us,[137] the High Commissioner was away from Conakry for about two-thirds of the period between the start of September and the beginning of February, the conditions applied equally to his deputy. Communications were particularly poor, with Mr Penfold having to rely on the hotel fax machine[138] or the German Embassy. However, we were told that it would have been possible for him to be supplied earlier with the secure communications equipment which the military liaison officer was able to use—and to share with Mr Penfold—when he arrived in Conakry later.[139] We consider it was a serious failure not to have provided Mr Penfold and his deputy with secure communications equipment as soon as practicable after their move to Conakry.

40. The three reasons for evacuating Mr Penfold to Conakry: to confirm clearly HMG's view that President Kabbah's remained the legitimate government of Sierra Leone; to maintain responsibility for the 70 locally-supported staff; and to monitor the security situation and protect British interests,[140] were all understandable. Keeping Mr Penfold in Conakry also ensured the good will of President Kabbah, as the Foreign Secretary acknowledged.[141] It was clear from Sir John Kerr's evidence[142] that, in retrospect, the concept of a mission-in-exile was not one which he thought should readily be repeated. We believe that any future proposal for a mission-in-exile should be judged on its merits. In the case of Sierra Leone, we believe that the decision was sensible. However, lessons need to be learned, especially that more help needs to be provided from London for the Head of such a mission than is provided for an ordinary post. Mr Penfold's position, without proper back-up and means of communication, and dealing with a government without the trappings of power was almost bound to lead to misunderstandings. We believe it is unacceptable for any Ambassador or High Commissioner to operate in circumstances where they do not have the secure communications equipment or staff to operate efficiently. We recommend that the FCO takes all appropriate steps to ensure that overseas posts are fully and properly supported in future if obliged to move temporarily from their normal official premises.

Questions to be answered in respect of Mr Penfold

41. Mr Penfold was criticised by Legg for giving a "degree of approval" to Sandline's illegal plan to send a shipment of arms to Sierra Leone "which he had no authority to do." Legg also believed, however, that the High Commissioner did not know that the shipment would be illegal.[143] Whereas the first part of this conclusion was accepted by FCO witnesses, they appeared to have more difficulty with the second part. We shall examine in turn whether Mr Penfold should have known that arms supplies were illegal; whether his dealings with Mr Spicer were appropriate; whether he discharged his obligation to the FCO accurately to report on his dealings, and whether he was operating outside government policy—or "freelancing" as it was described by one of our witnesses.[144]

SHOULD MR PENFOLD HAVE KNOWN THAT ARMS SUPPLIES WERE ILLEGAL?

42. Mr Penfold explained that, when meeting Sandline in December 1997, he was not aware that what they were contemplating was illegal.[145] The Foreign Secretary shared Legg's view that Mr Penfold could have done more to acquaint himself with the true state of the law.[146] Sir John Kerr found it "very surprising" that Mr Penfold claimed that he did not know that it was illegal to send arms to President Kabbah, "particularly as, during the period when the Security Council Resolution was being drafted and negotiated and the Order in Council was being drafted and submitted and approved, [Mr Penfold] was in London."[147] His argument rested on the persuasive ground that a Head of Mission has a duty to understand thoroughly government policy as it affects the country to which he is accredited ("he should have made it his business to find out"),[148] though he did concede that "it was also the responsibility of the Department to make sure he came across all [relevant] information."[149] We are amazed that Sir John did not disclose, when making these comments that the practice of the Government was not to disseminate Orders in Council or summaries of them.[150]

43. Mr Penfold, by contrast, argued that he read the UN Resolution "in the context of what the situation was"; that he was not a lawyer himself; that his contacts in Sierra Leone and in the UN and FCO had led him to suppose that it was only arms supplies to the Junta which were embargoed; that he was not curious to see the Order in Council because he assumed that it would follow the UN Resolution; and that he had not indeed seen the Order in Council until 30 April—and had only seen the UN Resolution because it had been faxed to him at home by the Department for International Development.[151] He also told us that no-one in the FCO in the period December to February ever warned him that a breach of sanctions was about to occur[152] and he pointed out that AD(E) had not themselves seen the Order in Council.[153] He also pointed to the difficulties of his working conditions in Conakry.[154] In written evidence, Mr Penfold re-iterated these points; emphasised that a series of documents which he had read had all "clearly and specifically referred to a ban on arms against the Junta,"[155] and pointed out that he had never been instructed to inform President Kabbah that the President's interpretation of sanctions was wrong. He took particular exception to Sir John Kerr's suggestion that he was in the office in London frequently during the period from the beginning of September to mid November.[156] He told us that, in fact, he was engaged in other work, and that, on his occasional visits to the FCO he had no support facilities.[157] We also particularly note that, as Legg pointed out,[158] Mr Penfold's own minute of 2 February with its reference to arms supplies incriminated him in a way which would be unlikely if he had really known about the true state of the law.

44. The cavalier attitude shown by the FCO in not making sure that the Order in Council was brought to Mr Penfold's attention is inexcusable. Equally so, was the failure of FCO officials in London to tell Mr Penfold that his interpretation of the legal ambit of the arms embargo was incorrect even after this had become patently apparent from his minute of 2 February. We recommend that clear instructions are issued to FCO officials in London that it is their responsibility to inform the relevant overseas post immediately if there is any evidence of its staff wrongly construing the terms of a UK arms embargo. We note that Mr Penfold knew that Ministers' policy was that the problems of Sierra Leone should be resolved by peaceful means. He was obviously also aware that arms supplies to Nigeria (and ECOMOG were a largely Nigerian force) were embargoed both by the EU and Commonwealth.[159] Mr Penfold was also fully aware of the considerable concerns expressed by officials about arming President Kabbah's Kamajors. He had attended both the meetings of September 22 and December 3 when such concerns had been clearly stated, though on December 3 Mr Penfold saw Kamajor involvement as a positive development with Sierra Leoneans taking the lead instead of relying on an external force.[160] From these facts alone he should have deduced that British policy would have been to prevent all arms sales to Sierra Leone. We conclude by expressing our surprise at Mr Penfold's ignorance and his lack of due diligence in ascertaining the true legal position on arms supplies to Sierra Leone, and our equal surprise that the staff of AD(E) were not themselves clear on this matter and did not keep Mr Penfold informed.

WERE MR PENFOLD'S DEALINGS WITH SANDLINE APPROPRIATE?

45. Mr Penfold described his relationship with Sandline as typical of the sort of relationship he had with other British companies wishing to do business with Sierra Leone.[161] His initial introduction to the nexus of companies of which Sandline was a part was when he called upon Branch Energy at the suggestion of the FCO before he took up his appointment as High Commissioner.[162] Branch Energy is a British-based company involved in mining in Sierra Leone, and it was therefore entirely proper that he should have made this visit. While in Conakry, Mr Penfold had some dealings with Mr Rupert Bowen and a Brigadier Sachse, both associates of Sandline. He was present at an official meeting[163] in London on 3 December 1997 when intelligence reports concerning both the role of Executive Outcomes (another associated company) and the supply of arms to Sierra Leone were discussed.[164] Subsequently, he met President Kabbah on 19 December and was shown a draft contract involving Sandline which he surmised was for the supply of arms. It is disputed whether or not he advised President Kabbah to sign this contract. Mr Penfold says that he did not, and points out that President Kabbah himself corroborated this.[165] However, he agrees that he did not discourage President Kabbah from signing. Mr Spicer told us of a conversation with Mr Penfold in which he claims the High Commissioner told him that he had suggested to President Kabbah that "Sandline might be a suitable company."[166] Mr Murray claims that Mr Penfold told him that he had advised President Kabbah to "take on Sandline."[167] Subsequently, Mr Penfold was telephoned at home by Mr Spicer on 21 December;[168] lunched with him on 23 December; again telephoned by him after Christmas;[169] spoke to him from New York by telephone in mid-January, and again went to his offices on 28 January. In all of these later discussions and meetings, the existence of the contract between Sandline and the Kabbah government was known.

46. We believe that Mr Penfold showed a certain lack of caution in his dealings with Sandline. Mr Penfold accepted that Mr Spicer and his colleagues "may have taken it that I was giving the nod,"[170] though he argued that this was an incorrect inference on their part: "I firmly refute that," he told us. By accepting their hospitality or by meeting them in their offices unaccompanied by other officials, Mr Penfold left himself open to accusations of encouraging Sandline. We believe that it would have been reasonable for Mr Spicer to conclude that he had the tacit approval of the British Government from Mr Penfold for his deal with President Kabbah. We agree with the Foreign Secretary that this was "regrettable" and should not have happened."[171]

47. What is somewhat puzzling is that there was no clear policy laid down about dealings with Sandline for officials in the Africa Command. Mr Lloyd told us in no uncertain terms that there were no circumstances in which the Government dealt with mercenaries,[172] and Ms Grant was well aware of the suspect nature of Mr Spicer's business. He had asked to see her soon after she took over as Head of Department in August 1996,[173] but she had refused the meeting because she did not want him to be able to say that he had a friend in high places in the FCO. She had given a "very strong steer....that you dealt with Sandline with a very long spoon."[174] Mr Murray's predecessor, Mr Everard, while he had held regular telephone conversations with Mr Spicer[175] and met representatives of Branch Energy at the FCO on 10 December 1997,[176] had also been uncomfortable in his dealings with Sandline. Mr Penfold, however, received no guidelines or briefing for his dealings with Sandline.[177] Many of the problems which occurred would not have done so if Ms Grant had acted on her suspicions and instructed those who answered to her (including Mr Penfold and Mr Murray) to follow her example, and if Ministers had made their policy on dealings with mercenaries clearer to officials. We conclude that Mr Penfold's relations with Sandline were open to criticism.

DID MR PENFOLD PASS ON INFORMATION AS HE SHOULD HAVE?

48. Mr Penfold accepts that he had surmised that arms were to be supplied by Sandline to President Kabbah after his discussions with the President on December 19 and this was corroborated at his lunch with Mr Spicer on December 23.[178] He did not, however, properly report this information to the FCO. He himself accepts that his briefing ought to have gone further.[179] He told us that he "did not have the opportunity to make a written report" of the 19 December meeting,[180] although he accepted that it was an important meeting,[181] and there are disputes about whether he made an adequate oral report or any at all when he went into the FCO on 23 December before lunching with Mr Spicer.[182] Mr Penfold agrees that he did not draw the attention of the relatively junior officials he met to the fact that he believed that the contract was an arms contract, while they claim they have no recollection of any mention of a contract between Sandline and President Kabbah.[183] Mr Penfold said he was at a loss as to why officials in London had not reacted appropriately to the momentous news—what Sir John Kerr called the "bombshells"—he had brought.[184] Sir John told us that he did not know whether or not the meeting on 23 December had taken place, but he was clear that it was part of Mr Penfold's professional duty to produce a written report of the meeting with President Kabbah on 19 December.[185]

49. The conflicting accounts of the 23 December meeting in the FCO can only lead to one conclusion: someone is not telling the truth. We cannot ascertain what that truth is. However, we believe that Mr Penfold was seriously at fault for not ensuring that a written account of his meeting on 19 December with President Kabbah was immediately given to officials at the FCO. He ought not to have relied on an oral account. We accept Mr Penfold's claim that "the circumstances made it very difficult" to report in writing[186] so far as making a report immediately after the meeting was concerned. But on his return to London, he could have produced a written report. We believe that to rely on an oral report was very unsatisfactory and, in civil service terms, unprofessional.

50. After the lunch on 23 December, Mr Penfold did not telephone the Department with an immediate report. Instead his report was included in a hand-written letter which he told us that he posted from home in Abingdon before departing for holiday on 30 December. This letter never reached its intended recipients. Mr Penfold argued, in fact, that nothing new had been disclosed at lunch on 23 December which he had not already told the Department but that his letter was an opportunity to record a new fact—that the Sandline contract had been signed by President Kabbah, a fact reported to him by telephone by Mr Spicer after Christmas.[187] We are surprised that Mr Penfold was not more rigorous in his communications with his managers—perhaps by using recorded mail or faxing the letter to them or telephoning to ensure that it had arrived or even, in view of its importance, taking the letter personally to the FCO. Further, even given the Christmas break, the delay until 30 December was wrong. We also note that Mr Penfold's letter of December 30 did not make it clear, as his subsequent minute of February 2 did, that the Sandline deal involved the "purchase of arms."

51. Further meetings took place at the end of January. On 28 January, Mr Penfold met Mr Spicer and was given a copy of the document that outlined Sandline's planed military operations in Sierra Leone which they termed Project Python. He handed this to Mr Andrews the following day, when he also met Mr Murray and discussed his pre-Christmas meeting with President Kabbah. It was on this occasion, according to Mr Murray, that Mr Penfold said that he had advised President Kabbah to "take on" Sandline, and that force was the only practicable option for the restoration of legitimate government.[188] Mr Murray was very concerned by what he learned, (although he told us that he was not aware at this stage that the Sandline contract involved arms supplies).[189] In consequence Ms Grant asked Mr Penfold to come to see her on 30 January. Mr Murray told us that Ms Grant "laid down the law" to Mr Penfold at this meeting,[190] and Ms Grant herself corroborated this and spoke of "some heated and quite lengthy debate."[191] As a consequence of the meeting Mr Penfold was instructed to record his dealings with Sandline in writing. This was the genesis of the important minute of 2 February.[192] Again, we were told there was no mention of arms in the meeting on 30 January, despite Mr Andrews having been given a copy of Sandline's strategy document the previous day.[193]

52. Whatever problems or excuses there may have been in relaying information earlier, Mr Penfold had by 2 February clearly and unequivocally informed management in the FCO that Sandline had a contract to supply arms to President Kabbah.[194] He understandably expressed surprise that he received no response to that minute—and, in particular, no indication that Sandline was engaged in illegal activity.[195] Ms Grant explained this by the fact that she was away at the time, and had thereby lost the opportunity to speak to Mr Penfold directly.[196] Had an immediate and proper response been given to this key minute, subsequent embarrassments could have been avoided. We conclude that Mr Penfold did not pass on crucial information to the FCO during the period 19 December to 30 January in a way which was appropriate, though the fate of his minute of 2 February and of the Sandline military plan he had handed in on 29 January does not encourage us to believe that the Department would necessarily have reacted appropriately had he done so.

WAS MR PENFOLD OPERATING OUTSIDE GOVERNMENT POLICY?

53. There is some evidence of management concern in London about Mr Penfold's conduct. He was regarded by Mr Murray as an advocate of the use of force in Sierra Leone. Mr Penfold told us himself that the feeling that force would be needed was commonplace by the beginning of December 1997: "it was the view of people I spoke with in the Foreign Office," he said.[197] He was also reported at an official meeting on 3 December to favour the arming of the Kamajors.[198] By 23 December, Mr Penfold was able to tell Sandline representatives that the use of force was on the cards, though not "yet" an agreed view in the FCO.[199] On 30 January, as we earlier described, Mr Penfold was summoned to meet Ms Grant to answer the accusation that he was advocating the use of force to President Kabbah.[200] Mr Murray attempted in a minute of 3 February to persuade his managers that Mr Penfold ought to be recalled. This minute inter alia suggested that Mr Penfold had advised President Kabbah to go for a military option involving decisive military action by ECOMOG, backed by mercenaries.[201] The principal recipient of this minute, Mr Dales, noted that "our problem is in getting Mr Penfold....to pursue" official policy. Mr Murray described his subsequent conversation with Mr Dales, who had said that he "was aware of" the High Commissioner's tendency to freelance, which he thought might be a consequence of his previous service as Governor of the British Virgin Islands.[202]

54. We have already mentioned President Kabbah's high regard for Mr Penfold. FCO officials in London became concerned, however, that the relationship between the two was departing from a proper diplomatic relationship, and that Mr Penfold was becoming some sort of personal adviser to President Kabbah. Mr Penfold denied this,[203] and, of course, specifically denies advising the President to do business with Sandline.[204] The allegation made by Mr Murray and Ms Grant that he had done so is flatly contradicted by President Kabbah himself in his own evidence to the Legg inquiry.[205]

55. Ms Grant told us that Mr Penfold had argued that President Kabbah had listened to him because of his high regard for him, but that she had told him that "he could not know how President Kabbah was responding and he had to assume and behave as if all his communications, however informal, in whatever difficult circumstances, were in his capacity as British High Commissioner."[206] Mr Penfold was, in fact, in a very difficult position. It was in the interests of the United Kingdom that he trade within proper limits on his excellent personal relationships with President Kabbah. The Foreign Secretary told us that there was "no criticism" of Mr Penfold on account of the "very close and positive working relationship" he had established with President Kabbah.[207] It needs to be stressed that it was directly as a result of the relationship which Mr Penfold had established with President Kabbah that the FCO came to know of the Sandline contract following the meeting that President Kabbah had with Mr Penfold on December 19. However, he was remote from London and must have felt a perfectly understandable wish to get on with what he saw as important in the interests of the over-arching British policy aim—restoring President Kabbah and overturning the Junta. He might have felt a natural impatience at quibbles from inexperienced staff in London (there have been five heads of Africa Department (Equatorial) since he became High Commissioner).[208] We note Sir John Kerr's view that the personal relations developed by Heads of Mission are important, but that a degree of control is also important.[209] Like him, we have no wish to see Heads of Mission operating as automata. However, there is no room for alternative or non-official foreign policies being set by officials in the field who may think they know best. The Foreign Secretary was very firm on this.[210] We believe that Mr Penfold acted as he thought was in the best interests of the United Kingdom and of Sierra Leone, and that he did not consider that his actions went beyond government policy. Nonetheless, we believe they did. We hope that the Sandline affair will remind all diplomatic staff that they act only within the confines of policies set by Ministers, and the FCO must ensure that Government policy is made crystal clear to Heads of Mission and to the Departments concerned.