| CRIME — Investigation — Serious fraud — Investigation of allegations of alleged corruption by Serious Fraud Office — Foreign state’s threat as to consequences if investigation pursued — Effect on national security — Director of Serious Fraud Office discontinuing investigation — Whether entitled to do so — Criminal Justice 1987, s 13
R (Corner House Research and another) v Director of the Serious Fraud Office (JUSTICE intervening) [2008] UKHL 60; [2008] WLR (D) 267
HL(E): Lord Bingham of Cornhill, Lord Hoffmann, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood: 30 July 2008
Where, following threats by a foreign state as to the consequences, affecting national security, if he pursued an investigation into alleged corruption, the Director of the Serious Fraud Office had discontinued it, he had been entitled in his discretion to do so.
The House of Lords so held in allowing an appeal by the Director from the Divisional Court of the Queen’s Bench Division (Moses LJ and Sullivan J) [2008] EWHC 714 (Admin) which had allowed an application for judicial review by Corner House Research and Campaign Against Arms Trade and quashed his decision.
LORD BINGHAM OF CORNHILL said that in July 2004 the Director had launched an investigation into allegations of corruption against BAE Systems plc. One aspect of the investigation had concerned a valuable arms contract between the Government and the Kingdom of Saudi Arabia for which BAE was the main contractor. In the autumn of 2006 the SFO had intended to investigate Swiss bank accounts to ascertain whether payments had been made to an agent or public official of Saudi Arabia. That had provoked a threat by the Saudi authorities that if the investigation continued Saudi Arabia would, inter alia, withdraw from counter-terrorism co-operation arrangements with the UK. On 14 December 2006 the Director, taking the view that to continue the investigation would risk harm to the UK’s national and international security, had decided to discontinue it. He had said that “it has been necessary to balance the need to maintain the rule of law against the wider public interest”. The Divisional Court had held that the Director, in yielding to the Saudi threat, had ceased to exercise the power to make the independent judgment required of him by s 1(3) of the Criminal Justice Act 1987. The question was whether, in deciding that the public interest in pursuing an important investigation was outweighed by that in protecting the lives of British citizens, the Director had made a decision outside the lawful bounds of his discretion. He had not, on the evidence, surrendered his discretionary power of decision to any third party. His decision had been one that he had been lawfully entitled to make. It was unnecessary to answer a question arising on art 5 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997). The Director would had made the same decision even if he had believed that it was incompatible with art 5.
LORD HOFFMANN agreed with Lord Bingham.
LORD RODGER agreed with Lord Bingham and Lord Brown.
BARONESS HALE delivered an opinion concurring in allowing the appeal.
LORD BROWN delivered an opinion agreeing with Lord Bingham. |
Appearances: Jonathan Sumption QC, Philip Sales QC, Vaughan Lowe QC, Hugo Keith, Karen Steyn and Rachel Kamm (Treasury Solicitor) for the Director; David Pannick QC, Dinah Rose QC, Philippe Sands QC and Ben Jaffey (Leigh Day & Co) for the claimants; Nigel Pleming QC, Thomas de la Mare and Shaheed Fatima (Mayer Brown International LLP) for JUSTICE, intervening; Julian Knowles (Allen & Overy LLP) for BAE, an interested party.
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