R (Corner House Research & Ors) v Director of the Serious Fraud Office

The Director of the Serious Fraud Office lawfully discontinued part of the SFO's investigation into BAE's Al Yamamah contract after receiving credible representations that continuation would pose a real and immediate risk to national and public security. The House held that prosecutorial discretion is broad but not unfettered: a prosecutor may take into account public interest considerations, including threats to national security and public safety, provided he remains within the statutory discretion, directs himself properly in law and does not surrender his decision-making power to a third party.

The court rejected the Divisional Court's novel rule that submission to a threat is lawful only when a decision-maker can demonstrate to a court that no alternative course was open. The House further held it was unnecessary for the domestic courts to decide the correct construction of article 5 of the OECD Convention on Combating Bribery because the Director gave clear evidence he would have taken the same decision even if article 5 were thought to preclude consideration of the effect on relations with another state.

This was an appeal from the Divisional Court's decision quashing the Director's decision of 14 December 2006 to discontinue the Al Yamamah strand of the Serious Fraud Office investigation into alleged overseas bribery by BAE Systems.

• Background and parties: The SFO opened an investigation in July 2004 under its statutory powers (Criminal Justice Act 1987, section 1) and pursuant to anti-bribery provisions (Anti-terrorism, Crime and Security Act 2001, sections 108–110). The respondents were public interest organisations challenging the discontinuance. BAE was the subject of the investigation but did not participate in the proceedings.
• Nature of the application: The respondents sought judicial review of the Director's decision to discontinue the Al Yamamah investigation on public interest grounds after threats and representations from Saudi representatives and senior ministers asserting that continuation would damage counter-terrorism and security cooperation and risk British lives.
• Issues framed: (i) Whether the Director unlawfully surrendered his statutory decision-making by acceding to foreign threats; (ii) whether the Director took into account considerations (relations with another state / national economic interest) prohibited by article 5 of the OECD Convention, and whether the domestic court should interpret that unincorporated treaty provision.
• Procedural posture: The Divisional Court quashed the Director's decision. The Director appealed to the House of Lords.
• Court’s reasoning in brief: The House recognised the breadth of prosecutorial discretion and the courts' usual reluctance to intervene. It rejected the Divisional Court's fixed requirement that submission to a threat is lawful only when no alternative existed, and found on the facts that the Director had not surrendered his power but had reasonably relied on expert diplomatic and security advice as to an immediate and serious threat to public safety. It also held that it was unnecessary and undesirable in this case to authoritatively construe article 5 of the OECD Convention; the Director had a tenable view of article 5 and, in any event, would have made the same decision even if article 5 were thought to forbid taking account of the effect upon relations with another state.

Appeal allowed. The House held that the Director lawfully discontinued the Al Yamamah investigation. He remained within the statutory prosecutorial discretion, legitimately weighed competing public interest considerations including credible threats to national and public security, and did not unlawfully surrender his decision to a foreign power. It was unnecessary for the House to determine the correct domestic application of article 5 of the OECD Convention because the Director would have reached the same conclusion irrespective of its interpretation.

Divisional Court (Queen's Bench Divisional Court, Moses LJ and Sullivan J) quashed the Director's decision: [2008] EWHC 714 (Admin). Appeal to the House of Lords allowed: [2008] UKHL 60.