JUDICIAL REVIEW — Serious Fraud Office — Investigation — Investigation into allegations of bribery — Threats made to government unless investigation ceased — Director of Serious Fraud Office stopping investigation — Whether lawful

R (Corner House Research and another) v Director of the Serious Fraud Office; [2008] WLR (D) 106

DC: Moses LJ and Sullivan J: 10 April 2008

The government’s submission to a threat was lawful only when it was demonstrated to a court that there was no alternative course open to the decision-maker.

The Queen’s Bench Divisional Court so held when granting the claim by (1) Corner House Research and (2) Campaign Against Arms Trade for judicial review of the decision of the defendant, the Director of the Serious Fraud Office, dated 14 December 2006, that he was ending the Serious Fraud Office’s investigation into bribery and corruption by BAE Systems plc in relation to the Al-Yamamah military aircraft contracts with the Kingdom of Saudi Arabia.

People described as “Saudi representatives” had made a specific threat to the Prime Minister’s Chief of Staff that if the investigation was not stopped contracts would not be entered into and previous close intelligence and diplomatic relationship would cease.

MOSES LJ, giving the judgment of the court, said that the power of the Director of the Serious Fraud Office to investigate a suspected offence was conferred by s 1(2) of the Criminal Justice Act 1987. A submission to a threat was lawful only when it was demonstrated to a court that there was no alternative course open to the decision-maker. This would protect the rule of law. Further, too ready a submission might have given rise to the suspicion that the threat was not the real ground for the decision at all, but rather that it was a useful pretext. The defendant 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. The claimants succeeded on the ground that the Director and the 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.

Appearances: Dinah Rose QC, Philippe Sands QC and Ben Jaffey (Leigh Day & Co) for the claimants; Philip Sales QC, Hugo Keith and Karen Steyn (Treasury Solicitor) for the defendant; Clare Montgomery QC (Allen & Overy LLP) for BAE Systems plc as an interested party.

Reported by: Ben Urdang, barrister