Halsbury's Law Exchange

A new site set up by LNUK is Halsbury's Law Exchange. The following is a blog post published on the site here.

The day we sold the Rule of Law

R (on the application of Corner House Research and another) v Director of Serious Fraud Office (BAE Systems plc, interested party) [2008] 4 All ER 927

A central tenet of the rule of law is an independent prosecutorial process, free of influence from central government or other external pressure. British Governments have long respected this principle, and a failure to do so brought down the first ever Labour administration in 1924.

In the mid-2000s, however, that principle was tested to the extreme. A British company had concluded several highly lucrative contracts with Saudi Arabia to sell fighter jets. The Serious Fraud Office (SFA) formed the view that there might have been bribery involved in some of those deals, and began an investigation accordingly.

Up with this the Saudi authorities did not intend to put. It was made clear that not only would commercial interests be threatened by the investigation, but intelligence sharing in the “war on terror” would cease. Bluntly put, this would place British lives at heightened risk from international terrorists. Faced with this unambiguous threat the Director of the SFA halted the investigation.

Concerned groups applied for judicial review of the Director’s decision. The Divisional Court, incensed by what it saw as a direct assault by a foreign power on the administration of justice, allowed the application.

Allowing the Director’s appeal, the House of Lords tried to pour cold water on the affair. The Director had lawfully exercised his undoubted discretion not to prosecute, and the courts were not entitled to intervene.

In a forthcoming LexisNexis book, Cases That Changed Our Lives, John Cooper QC considers the case and its legacy. He finds that the ultimate decision was legally correct, though the extremely distasteful manner of the threat to which the SFA was compelled to respond remains. But he also shows that underpinning the whole saga was the thoroughly unsatisfactory state of British bribery laws - adding a further depressing angle to the story.

Different readers may view the case in a variety of ways. On the one hand it could be a straightforward example of realpolitik. On the other it might be said to be emblematic of the murky nature of international weapons sales; a shameless selling-out of principle for thirty pieces of silver; a manifestation of hapless bribery laws; a shameful capitulation of the rule of law; a shameful capitulation of the entire British state in the face of a quasi declaration of war by a so-called ally; or all of the above.

One thing is certain: realpolitik or not, nothing positive exists to be said about the saga.