CONSTITUTIONAL LAW— SEPARATION OF POWERS— SEPARATION OF POWERS BETWEEN EXECUTIVE AND JUDICIARY
CONSTITUTIONAL LAW— SEPARATION OF POWERS— SEPARATION OF POWERS BETWEEN EXECUTIVE AND JUDICIARY
R (on the application of Corner House Research and others) v Director of the Serious Fraud Office [2008] UKHL 60
House of Lords
Lord Bingham, Lord Hoffmann, Lord Rodger, Baroness Hale and Lord Brown
30 July 2008
The director of the Serious Fraud Office acted within his discretion when deciding that the public interest in pursuing an important investigation into alleged bribery was outweighed by the public interest in protecting the lives of British citizens.
David Pannick QC, Dinah Rose QC, Philippe Sands QC and Ben Jaffey (instructed by Leigh Day & Co) for the claimants. Jonathan Sumption QC, Philip Sales QC, Vaughan Lowe QC, Hugo Keith, Karen Steyn and Rachel Kamm (instructed by the treasury solicitor) for the Director. Julian Knowles (instructed by Allen & Overy LLP) for the interested party, BAE Systems plc. Nigel Pleming QC, Thomas de la Mare and Shaheed Fatima (instructed by Mayer Brown International LLP)
In July 2004, the Serious Fraud Office (SFO), began an investigation into allegations of corruption against BAE Systems plc (BAE), pursuant to ss 1(3) and (5) of the Criminal Justice Act 1987 (CJA 1987). One aspect of the investigation concerned a valuable arms contract between the British government and the Kingdom of Saudi Arabia. The contract contained a confidentiality clause. A valuable extension to the contract was in the course of negotiation from 2004–06.
The SFO 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 the aircraft and the previous close intelligence and diplomatic relationship would cease.
Ministers, including the prime minister, 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 challenged that decision by way of judicial review. They contended that the separation of powers required the courts to resist encroachment on the territory for which they were responsible. Had the threat been made by a person subject to English criminal law, he would risk being charged with an attempt to pervert the course of justice. The Divisional Court ruled in favour of the claimants and the SFO appealed.
LORD BINGHAM:
The essential point of the claimants’ challenge did not relate to the relevance of national security to the director’s decision or the government’s assessment of the risk to national security but to the threat uttered (as it was said) by the Saudi representative to the prime minister’s chief of staff. It was one thing to assess the risk of damage which might flow from continuing an investigation, quite another to submit to a threat designed to compel the investigation to call a halt.
When the threat involved the criminal jurisdiction of the UK, the issue was no longer a matter only for the government, and the courts were bound to consider what steps they must take to preserve the integrity of the criminal justice system.
The constitutional principle of the separation of powers required the courts to resist encroachment on the territory for which they were responsible. Had the threat been made by a person subject to English criminal law he would risk being charged with an attempt to pervert the course of justice and threats to the administration of justice within the UK were the concern primarily of the courts, not the executive.
It was common ground that the director was a public official appointed by the Crown but independent of it. It was accepted that the decisions of the director were not immune from review by the courts, but authority made plain that only in highly exceptional cases would the court disturb the decisions of an independent prosecutor and investigator: R v Director of Public Prosecutions, Ex p C [1995] 1 Cr App R 136, 141.
The evidence made plain that the decision to discontinue the investigation was taken with extreme reluctance.
The Divisional Court held that “No revolutionary principle needs to be created…we can deploy well-settled principles of public law”. But in para 99 of its judgment the court had laid down a principle which, if not revolutionary, was novel and unsupported by authority:
“The principle we have identified is that submission to a threat is lawful only when it is demonstrated to a court that there was no alternative course open to the decision-maker.”
Protecting lives
The objection to the principle formulated by the Divisional Court was that it distracted attention from what, applying well-settled principles of public law, was the right question: whether or not, in deciding that the public interest in pursuing an important investigation into alleged bribery was outweighed by the public interest in protecting the lives of British citizens, the director had made a decision outside the lawful bounds of the discretion entrusted to him by Parliament.
Evidence before the House showed that the Saudis found it difficult to accept that the UK government and the prime minister could not stop the investigation if they chose to do so.
Considerable thought was given within the SFO to the possibility of persuading the Saudis to withdraw their threat, but that was not in the Ambassador’s view a viable course of action.
The director was confronted by an ugly and obviously unwelcome threat. He had to decide what, if anything, he should do. He did not surrender his discretionary power of decision to any third party, although he did consult the most expert source available to him in the person of the ambassador and he did, as he was entitled if not bound to do, consult the attorney general who, however, properly left the decision to him.
The issue was not whether his decision was right or wrong, nor whether the Divisional Court or the House agreed with it, but whether or not it was a decision which the director was lawfully entitled to make. Such an approach involved no affront to the rule of law, to which the principles of judicial review gave effect. In the opinion of the House the Director’s decision was one he was lawfully entitled to make. It might indeed be doubted whether or not a responsible decision-maker could, on the facts before the director, have decided otherwise.
The appeal would therefore be allowed. Lord Hoffmann, Lord Rodger, Baroness Hale and Lord Brown delivered concurring opinions.
