R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60; [2009] 1 AC 756

Key Point
  • To suspend investigations on the ground of threats from a foreign government is within the scope of discretion of the Director of the Serious Fraud Office to investigation corruption under s1(3) Criminal Justice Act 1987
Facts
  • The Director as authorised under s1(3) Criminal Justice Act 1987, had been investigating allegations of corruption against a UK company which had been the main contractor for a valuable arms deal between the Government of the UK and the Kingdom of Saudi Arabia
  • The Director proposed to investigate certain Swiss bank accounts for evidence of untoward payments to Saudi officials
  • The Saudi authorities threatened that if the investigation was carried out, they would pull out of their counter-terrorism co-operation arrangements with the UK, thus risking “British lives on British streets”
  • After meeting with the ambassador to Saudi Arabia to discuss the threats, the Director decided to halt the investigation
  • Corner House sought judicial review of this decision on the basis that it was unlawful for such a threat to influence his decision
  • The Divisional Court quashed the decision, holding that
    • The Director had not independently exercised the powers under the 1987 Act and
    • The Director had not sufficiently appreciated the damage to the rule of law by submitting to the threat
    • The Director can only submit to such threats if left with no other choice
Held (House of Lords)
  • Appeal allowed; the Director’s decision had been lawful
Lord Bingham of Cornhill

Failure to exercise discretion

  • The Director of the SFO, is a public official appointed by the Crown but independent of it, similar to the Director of Public Prosecutions: [30]
  • What the Director had decided was that, in his judgment, the public interest in saving lives outweighed the public interest in pursuing the contracting company to conviction: [35]
  • The decision did not amount to a surrender by the Director discretionary powers to a third party although he consulted the ambassador and the Attorney General: [41]
  • The issue was “not whether his decision was right or wrong, nor whether the Divisional Court or the House agrees with it, but whether it was a decision which the Director was lawfully entitled to make.”: [41]
  • In the opinion of the House the Director’s decision was one he was lawfully entitled to make: [42]
Commentary
  • The decision in this case can be criticised on several grounds
  • As the Divisional Court points out, the independence of the Director and thus the rule of law is undermined if the Director gives in to foreign threats and pressure from the government
  • Spencer, ‘Fiat justicia, ruatque concordia cum Arabe?’ C.L.J. 2008, 67(3), 456-458 points out that if kleptocrats and tyrants are convinced that the UK government and the Prime Minister could not stop the investigation if they chose to, they would not try to pressure the UK government to do so, much like how they do not pressure the UK government to censor the UK press as they know the press is not controlled by the UK government
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