Corner House Research & Ors, R (On The Application of) v The Serious Fraud Office

Facts

The Serious Fraud Office was investigating allegations of corruption by a defence contractor in connection with arms contracts with Saudi Arabia. In December 2006 the Director decided to discontinue the investigation. He did so after representations that, if the investigation continued, Saudi Arabia would end its cooperation on security and intelligence, which would put the national security of the United Kingdom and the lives of British people at risk.

History

The campaign groups Corner House Research and Campaign Against Arms Trade sought judicial review. The Divisional Court held in 2008 that the decision was unlawful because the Director had yielded to a threat. The Director appealed to the House of Lords.

Issue

Whether the Director acted unlawfully in discontinuing the investigation because of the threat to national security, in particular whether yielding to such a threat offends the rule of law, and whether he acted contrary to the OECD Convention on Combating Bribery.

Held

Appeal allowed. The decision of the Director was lawful. The court could review a prosecutorial decision only in rare cases, and he had acted rationally and within his powers in taking account of a real threat to national security.

Ratio

• The decision of an independent prosecutor to discontinue an investigation is reviewable only in very limited circumstances, and a decision to discontinue because of a credible threat to national security, which the prosecutor considered with care and could not otherwise avert, is lawful; the OECD Convention is not part of domestic law and its provisions are not enforceable by the courts.

The judgments

Key reasoning

• The Director has a statutory role independent of government, and the courts will interfere with his decisions only in exceptional cases such as dishonesty, bad faith or other very rare circumstances.
• The Director was entitled to treat the threat to national security as genuine, the risk to British lives as serious, and the threat as one which could not be averted by other means.
• The rule of law is not violated by a prosecutor who yields to a threat, if he does so because that is the only way to prevent serious harm and has made his own independent decision.
• The OECD Convention is a treaty which has not been incorporated into domestic law, so its provisions create no enforceable rights in the courts, and the Director did not act in breach of the Convention.

Where it fits in the module

The topic on the rule of law and the Constitutional Reform Act 2005, s 1 concerns the content of the rule of law and the role of the courts in applying it to the executive. Corner House tests the idea that the rule of law demands equal application of the criminal law and no yielding to threats, against the independence of the prosecutor and the need to protect national security. It raises the issue of which institutions decide where the public interest lies.

Criticisms

• By accepting that a prosecutor can lawfully abandon an investigation in the face of a threat from a foreign state, the decision sits uneasily with the principle that the law applies equally and cannot be bought off.
• The court accepted the assessment of the threat made by the Director with little scrutiny, which weakens judicial review where the executive invokes national security.
• The treatment of the OECD Convention as unenforceable leaves obligations of the United Kingdom to combat bribery without domestic remedy.
• Although the Director was said to be independent, his decision followed representations made on behalf of the government, so the case shows how the independence of a prosecutor can be undermined in practice.