R (on the application of Corner House Research and others) (Respondents) v Director of the Serious Fraud Office (Appellant) (Criminal Appeal from Her majesty's High Court of Justice)

A court will disturb an independent prosecutor’s decision to discontinue an investigation only in a highly exceptional case. Judicial review addresses the lawful limits of the statutory discretion, rather than the merits of the prosecutor’s assessment.

A prosecutor may balance the public interest in investigating serious crime against a real and grave risk to life or public safety. The prosecutor may rely on expert security assessments but must retain personal responsibility for the decision. Lawfulness does not depend on proving that no alternative course existed.

A national court should hesitate to determine the uncertain meaning of an unincorporated treaty where the treaty provides another mechanism for resolving interpretative differences. Interpretation may be unnecessary where the official would undoubtedly have made the same domestically lawful decision even if it breached the treaty.

The Director of the Serious Fraud Office investigated allegations of corrupt payments connected with an arms contract between the United Kingdom and Saudi Arabia. The investigation was discontinued after the Director received expert assessments that its continuation would cause Saudi Arabia to withdraw counter-terrorism co-operation, creating a real risk to British lives. He stated that commercial and national economic interests had received no weight.

The respondent public-interest organisations successfully challenged that decision. The Divisional Court, in [2008] EWHC 714 (Admin), held that submission to a threat was lawful only if the decision-maker demonstrated that no alternative course was available. It quashed the decision and remitted it for reconsideration. The court did not finally determine whether article 5 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997) prohibited consideration of the security consequences.

The Director appealed. The principal questions were whether discontinuance fell within his statutory discretion and whether the domestic courts should determine the disputed meaning of article 5.

1. Disposition. The House unanimously allowed the Director’s appeal. Lord Bingham delivered the leading speech. Lord Hoffmann and Lord Brown agreed with it, and Lord Rodger agreed with both Lord Bingham and Lord Brown. Baroness Hale agreed that the decision was lawful and that the appeal should be allowed.
2. Prosecutorial discretion. Per Lord Bingham, decisions of an independent prosecutor or investigator are reviewable, but judicial intervention is confined to highly exceptional cases. The Director had to promote the statutory purpose, direct himself correctly in law, act in good faith and exercise an objective judgment on relevant material. The court’s task was not to decide whether discontinuance was right, but whether it remained within the lawful bounds of the broad discretion conferred by sections 1(3) and 1(5) of the Criminal Justice Act 1987.
3. The threat to public safety. Per Lord Bingham, the Director could lawfully weigh the strong public interest in investigating alleged corruption against the public interest in protecting British lives. He was entitled, and effectively required, to rely on expert assessments of risks outside his competence. He nevertheless retained responsibility for the decision and did not surrender his discretion to ministers, the Ambassador or the Attorney General. The Divisional Court’s rule that submission to a threat was lawful only where no alternative could be demonstrated was novel and misdirected the inquiry. The proper question was whether the Director’s balancing decision exceeded his lawful discretion.
4. Competing evaluations. Baroness Hale agreed that public safety was a relevant consideration and that expert advice could be relied upon. She emphasised that the Director still had to weigh the risk against the rule of law and the principle that powerful persons and companies are not above the law. Unlike Lord Bingham, she did not consider discontinuance to have been the only decision reasonably available.
5. Article 5. Per Lord Bingham, the Convention was unincorporated and did not itself have domestic legal effect. The House did not determine whether article 5 prohibited consideration of the threatened loss of security co-operation. Article 12 provided a mechanism through which the parties could seek uniform interpretation, and a national court should hesitate before deciding the issue unilaterally. Determination was also unnecessary because the Director would undoubtedly have made the same decision even if he had believed it incompatible with article 5. Lord Brown additionally considered that, in this context, examination of whether the Director had adopted a tenable view was the furthest a domestic court should go.
6. Order. The Divisional Court’s order was set aside except as to costs. Its costs condition attached to permission to appeal remained effective.

1. House of Lords: The Director’s appeal was allowed unanimously. The order quashing and remitting his decision was set aside, save as to costs.
2. Divisional Court of the Queen’s Bench Division: In [2008] EWHC 714 (Admin), Moses LJ and Sullivan J held the discontinuance unlawful, quashed it and remitted the matter to the Director for reconsideration.