R (on the application of Corner House Research and another) v Director of the Serious Fraud Office [2008] EWHC 714 (Admin)
Queen’s Bench Division, Divisional Court
Moses LJ and Sullivan J
10 April 2008
The discontinuance of a criminal investigation by the director of the Serious Fraud Office (SFO) may only be reached as an exercise of independent judgment, in pursuance of the power conferred by statute; the director is required to satisfy the court that all that could reasonably have been done has been done to resist any threat made by any party to cease the investigation.
Dinah Rose QC, Philippe Sands QC and Ben Jaffey (instructed by Leigh Day & Co) for the claimants.
Philip Sales QC, Hugo Keith and Karen Steyn (instructed by the Treasury Solicitor) for the director.
Clare Montgomery QC (instructed by Allen & Overy LLP) for the interested party, BAE Systems plc.
From July 2004 the SFO carried out an investigation into allegations of bribery by the interested party (BAE) in relation to military aircraft contracts with the Kingdom of Saudi Arabia. In October 2005, BAE sought to persuade the attorney general and the SFO to stop the investigation on the ground that its continued investigation would be contrary to the public interest, in that it would adversely affect relations between the UK and Saudi Arabia and prevent the UK securing a very substantial export contract. The SFO however continued its investigations.
In July 2006, it was about to obtain access to Swiss bank accounts, when a Saudi representative made a specific threat to the prime minister’s chief of staff—that if the investigation was not stopped, there would be no contract for the export of Typhoon aircraft and the previous close intelligence and diplomatic relationship would cease. Ministers advised the attorney general and the director of the SFO that if the investigation continued those threats would be carried out; the consequences would be grave, both for the arms trade and for the safety of British citizens and service personnel.
In the light of what he regarded as the grave risk to life, if the threat was carried out, the director decided to stop the investigation. The claimants applied to challenge that decision by way of judicial review.
lord justice Moses:
The defendant, in substance the UK government, contended that the director was entitled to surrender to the threat. The law was powerless to resist the specific and, as it turned out, successful attempt by a foreign government to pervert the course of justice in the UK, by causing the investigation to be halted.
So bleak a picture of the impotence of the law painted by the defendants invited at least dismay, if not outrage. The danger of so heated a reaction was that it generated steam; that obscured the search for legal principle. The challenge, triggered by the application, was to identify a legal principle which might be deployed in defence of so blatant a threat. However abject the surrender to that threat, if there was no identifiable legal principle by which the threat might be resisted, then the court had to itself acquiesce in the capitulation.
To describe the claimants’ application as a challenge either to the relevance of national security to the decision of the director, or to the government’s assessment of the risk to national security missed the essential point of the application. The essential point derived from the threat uttered, it was said, by the Saudi representative to the prime minister’s chief of staff.
Threat to legal system
The constitutional principle of the separation of powers required the courts to resist encroachment on the territory for which they were responsible. In the instant application, the government’s
response had failed to recognise that the threat uttered was not simply directed at the UK’s
commercial, diplomatic and security interests; it was aimed at its legal system.
Had such a threat been made by one who was subject to the criminal law of the UK, he would risk being charged with an attempt to pervert the course of justice. But whether or not a criminal offence might have been committed, the essential feature was that it was the administration of public justice which was traduced.
Threats to the administration of public justice within the UK were the concern primarily of the courts, not the executive. It was the responsibility of the court to provide protection.
His lordship considered the facts further and concluded that the claimants would succeed on the ground that the director and government had 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.
To preserve the integrity and independence of that judgment demanded resistance to the pressure exerted by means of a specific threat. That threat was intended to prevent the director from pursuing the course of investigation he had chosen to adopt. It achieved its purpose.
The court had a responsibility to secure the rule of law. The director was required to satisfy the court that all that could reasonably be done had been done to resist the threat. He had failed to do so. He submitted too readily because he, like the executive, concentrated on the effects which were feared should the threat be carried out and not on how the threat might be resisted.
