Corner House and CAAT v SFO

Corner House and the Campaign Against the Arms Trade have succeeded in their judicial review of the SFO’s decision to discontinue its investigation into possible bribery by BAe Systems related to the Al Yamamah arms contracts with Saudi Arabia. You’ll recall that the case was discontinued because it was thought pursuing it would lead the Saudis to break off intelligence links with the UK, and so endanger British lives. Well, the Administrative Court (Moses LJ and Sullivan J) has today ruled the decision to discontinue unlawful. Paras. 1-27 summarise the judgment very well.

The decision was unlawful according to the Court not because it breached article 5 of the OECD Convention on bribery, which requires that an investigation of bribery of a foreign official

shall not be influenced by considerations of… the potential effect on relations with another State.

The Court gave no conclusion on that, although it implies (paras. 131-149 of the judgment, especially paras. 142-145) that although national security is, as the government argued, a potentially lawful reason for discontinuing, it may only properly be invoked in a more narrow set of circumstances than applied in this case, namely where the only way the state can safeguard an essential interest threatened by grave and imminent peril is not to perform some other obligation of lesser weight or urgency. And it implies (para. 101) that there is a suspicion that the real reasons for the decision were indeed those prohibited by article 5, for which national security was merely a convenient pretext.

The meat of the judgment is however about the importance of maintaining the rule of law and the integrity of the justice in the face of threats – the claimants alleged, and the government did not deny, that Prince Bandar of Saudi Arabia had issued a direct threat to the government to stop this investigation “or else”. The judgment conveys the clear impression of two judges angered in the extreme by this foreign pressure, and determined to resist it (see paras. 60-65): they do so by laying down the principle (para. 99) that it is lawful for a decision-maker to submit to such threats only when it is demonstrated to a court that there was no alternative course open to the decision-maker; and that submission where there is an alternative is (para. 68) to act under the dictation of another, and therefore to act unlawfully under normal judicial review principles.

I’ve a few comments. First, on the shallow judicial politics of it: Sullivan J must by now be the government’s least favourite judge by some way – he was the one who caused them so much trouble over control orders, you may remember.

Turning to the merits, though, now. We’re all bound to share the judge’s feelings about this Saudi threat, and I’m pleased and reassured that the judgment smells of their flaming anger. It seems to me, too, that the principles this judgment lays down are difficult to argue with: of course decision-makers should only yield to this kind of threat in extremis. To be fair the judges do make clear that it would be lawful to yield in those circumstances – I agree with that. And reading the details of what appears to have happened here and the way the decision came to be made soon after the specific threat, it’s difficult not to feel, as the judges clearly did, that government could have been more robust in this case.

I am left with two qualms, though. First, how is the decision-maker supposed to demonstrate to the court the gravity of such a situation in the future? I’m afraid this judgment means sensitive security evidence and top secrets will have to be considered by the courts in future in cases such as these, and presumably in closed session. How do we know for example that the 21/7 bomb plot wasn’t foiled with Saudi help? Or that all major terror arrests in this country haven’t been made on the basis of Saudi intelligence? I’m afraid this judgment means judges will have to weigh, and rule on, considerations such as these, if they are prepared to look behind the judgments of ministers.

Second, if these principles are to work they must be applicable to all prosecutions: the approach to the public interest in a prosecution must be uniform, in principle. Are we sure that we can consistently require CPS prosecutors only to discontinue a prosecution on public interest grounds relating to some kind of danger if that’s the only way of avoiding a grave and imminent peril? How would that work in cases involving children or domestic violence? Or is the principle only meant to apply to explicit and intentional threats made by individuals?

I’ve blogged about all this a number of times, and looking back on my earlier posts a couple of things are clear. First, that initially I (along with almost all other commentators I must say) mistakenly though this was the Attorney’s decision, when in fact it wasn’t – though Lord Goldsmith obviously was heavily involved. Second, that I underestimated this challenge, which has succeeded in spit of my pooh-poohs. Two points in my defence, though. It didn’t succeed on the initial basis it was put, on article 5 of the OECD Convention. And, since the court has accepted there are some occasions when a macro-political judgment may override what the rule of law would otherwise require, it seems to me beyond argument that that that kind of decision should be made by a minister accountable through Parliament, not by an official.