Corner House Research & Campaign Against Arms Trade, R (on the application of) v Director of the Serious Fraud Office & Anor

A public authority exercising statutory powers must make its own independent judgment and must not surrender that judgment to a threat intended to influence the administration of justice. This principle applies even where the threat comes from a foreign state and the authority is advised that serious national-security consequences may follow resistance.

National security may be a relevant consideration in deciding whether to continue a criminal investigation. However, submission to a threat is lawful only where the decision-maker demonstrates that no alternative course was reasonably available. The court must scrutinise such a decision with particular rigour because surrender undermines the rule of law and may encourage further interference.

The claimants sought judicial review of the Director of the Serious Fraud Office’s decision to discontinue an investigation into alleged bribery connected with defence contracts between BAE Systems plc and Saudi Arabia.

The Director stated that continuation of the investigation created a serious and immediate risk to national and international security because Saudi representatives had threatened to withdraw security, intelligence and diplomatic co-operation. The claimants argued that the decision unlawfully surrendered the Director’s statutory independence, failed to consider the damage to the rule of law, and was incompatible with Article 5 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997.

The central issue was whether the Director had lawfully responded to the threat.

1. Claim succeeded. The Director’s decision to discontinue the investigation was unlawful. Under section 1(2) of the Criminal Justice Act 1987, the Director had to exercise his statutory power independently, subject only to the Attorney General’s superintendence. He could not surrender that judgment to pressure from a third party.

2. The Director was entitled, as a general matter, to take account of risks to life and national security. The court would give substantial weight to assessments made by those responsible for national security and would not itself determine the merits of those assessments. However, the case was not merely about assessing risk. The threat was specifically intended to compel the abandonment of a criminal investigation.

3. The constitutional responsibility of the courts to protect the rule of law required particular scrutiny of the decision. Submission to a threat directed at the administration of justice was unlawful unless the decision-maker could demonstrate that no alternative course was reasonably open. The Director had considered the consequences of resistance but had not shown that steps had been taken to resist or mitigate the threat.

4. The court accepted that extreme circumstances might justify submission to a threat to save lives. The distinction between a lawful response and unlawful surrender was for the court to assess. The facts did not establish the same degree of compulsion as an immediate threat to identifiable hostages, and the Director had yielded too readily.

5. The court was entitled to examine Article 5 of the OECD Convention insofar as the Director had publicly relied on his own interpretation of it to justify a domestic decision. That examination was directed to the legality of the decision under domestic public law, not to the enforcement of international law as such. The court expressed no concluded view on whether the decision complied with Article 5, since the domestic-law ground was sufficient and the OECD Working Group was the appropriate body to promote uniform interpretation.

6. The claim succeeded because the Director and the Government had failed to recognise that the rule of law required resistance to the specific threat and had failed to satisfy the court that all reasonable steps had been taken to resist it. Further argument was required on the appropriate relief.