currently being offered to Saudi Arabia.
Photograph: Italian Air Force
Our lawyers argued that: (a) The rule of law means that an independent prosecutor should not give way to threats.
[The technicalities described here refer to the juiciest corruption investigation outside the US in many years. The Transparency International corruption rankings don't take it into account, but there is no corruption to compare with G8-level corruption, unless of course it is ably assisted by fat-cat outsiders like the Saudis purchasing non-market items like weapons systems. -jlt]
**Judgments to be handed down this Wednesday, 30 July 2008**
Back in April this year, the UK High Court ruled that the Director of the Serious Fraud Office, acting on government advice, acted unlawfully when he stopped its BAE-Saudi corruption investigation in December 2006.
The ruling followed the judicial review of the Director's decision sought by The Corner House and Campaign Against Arms Trade (CAAT).
The Serious Fraud Office appealed against this ruling to the House of Lords, the UK's highest court, on two principles of law:
* the Rule of Law;
* compliance with the OECD Anti-Bribery Convention.
The appeal was heard three weeks ago on 7-8 July.
Below is a summary of the main arguments put forward by the Serious Fraud Office as to why the High Court's ruling should be overturned, and responses from our lawyers as to why it should be upheld.
The relevant legal documents have all been posted on The Corner House website: http://www.thecornerhouse.org.uk/subject/corruption/
(Send us an email if you would like a more detailed account of the appeal hearing: enquiries AT thecornerhouse.org.uk)
We've just learnt that the judgements on the appeal from the five law lords will be handed down this week, on Wednesday 30 July in the morning. We'll let you know what they are as soon as we can.
Many thanks for all your messages of support; they are much appreciated.
best wishes from all at The Corner House
SERIOUS FRAUD OFFICE APPEAL to House of Lords
The two-day Appeal over 7-8 July 2008 was heard in a crowded Committee Room in the Houses of Parliament overlooking the River Thames. The hearing was before an Appellate Committee of five law lords:
* Lord Bingham of Cornhill
* Lord Hoffman
* Lord Rodger of Earlsferry
* Baroness Hale of Richmond, and
* Lord Brown of Eaton-under-Heywood
Jonathan Sumption QC, the lead barrister representing the Serious Fraud Office, argued that the High Court's ruling should be set aside for six reasons:
- the decision whether or not to proceed with the BAE-Saudi investigation was a matter for the Director, subject to the ordinary requirements of legality, rationality and fairness;
- the Director was entitled in his discretion to discontinue the investigation if he considered that the public interest required it, even though the public interest issue arose from the danger to national security occasioned by threats from Saudi Arabia to withdraw security cooperation with the UK;
- there was no evidence of any adverse effect of national security arising from the Director's decision to discontinue the investigation, nor was he under any obligation to consider the possibility that there might be;
- the lawfulness and rationality of the Director's decision did not depend on Article 5 of the OECD Anti-Bribery Convention;
- the decision was consistent with the Convention;
- the decision of the High Court was wrong.
Two barristers were advocates for CAAT and The Corner House: David Pannick QC responded to points concerning the rule of law while Dinah Rose QC addressed those involving the OECD Anti-Bribery Convention.
Our lawyers argued that:
(a) The rule of law means that an independent prosecutor should not give way to threats.
The constitutional principle of the rule of law requires an independent prosecutor not to give way to threats of adverse consequences in deciding whether to pursue an investigation or a prosecution. Otherwise, the more powerful the alleged criminal and their supporters, the less likely it is that a prosecution will take place and the law upheld. A central element of the rule of law is that the law must be applied to all equally, regardless of their identity, power or influence, or that of their
(b) But if s/he does so, the decision should pass a strict necessity test.
A prosecutor must uphold the constitutional principle of the rule of law unless the facts of the case satisfy a test of strict necessity -- there is an imminent risk to life; ways of addressing the problem have been exhausted; and the consequences of giving in to the threat have been considered.
(c) The courts must especially scrutinise administrative decisions made after a threat has been issued.
Because of the importance of the constitutional principle of the rule of law, the courts should scrutinise, and scrutinise particularly carefully, a decision to stop a criminal investigation or prosecution in response to a threat.
(d) In the present case, there was no imminent risk to life; other means to address the problem had not been exhausted; and the damaging consequences of giving in to the threats were not properly considered.
Therefore to stop the investigation by reference to the threats was a breach of the constitutional principle of the rule of law.
(e) OECD Anti-Bribery Convention
Further, the Director stated expressly that he had regard to Article 5 of the OECD Anti-Bribery Convention when making his decision and that he had complied with the Article and had not taken into account prohibited considerations. The Courts do therefore have the authority under English law to consider whether the Director correctly understood and applied the OECD Anti-Bribery Convention, and whether his decision complied with it or not, even thought the Convention is not itself part of English law.
(f) Article 5 of OECD Anti-Bribery Convention
Under Article 5 of the OECD Convention, the Director was prohibited when investigating the bribery of a foreign public official from being influenced by the potential effect on relations with another State. In deciding to stop the investigation because of the threats to withdraw diplomatic and intelligence co-operation made by Saudi Arabian officials, the Director did take into account the potential effect on relations with another State and thus acted contrary to Article 5 of the OECD Convention.
(g) The SFO Director should make his decision again as to whether or not to continue with the investigation into BAE's alleged corruption in its recent arms deals with Saudi Arabia and do so on a correct legal basis.
The Serious Fraud Office is a UK government department that investigates and prosecutes complex fraud. It aims to contribute to 'the delivery of justice and the rule of law.'
The High Court ruled on 10th April 2008 that:
1. The Director of the Serious Fraud Office had failed to exercise his independent judgement in halting the investigation.
2. The Director had failed to convince the court that he had done all in his power to resist the threat in order to uphold the rule of law.
The threat was from Saudi Arabia to cancel an arms deal and withdraw diplomatic and intelligence co-operation if the investigation was not stopped.
The 'rule of law' simply means the best way of protecting everyone's rights from the arbitrary exercise of power is to apply and uphold legal rules impartially. Doing so requires an independent judiciary (prosecutors, judges, magistrates, courts) that acts 'without fear, favour or prejudice'. Any action that undermines the impartial application and upholding of the law undermines the rule of law.
The OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions (known as the OECD Anti-Bribery Convention) is a multilateral treaty aiming to ensure that all OECD countries present a combined and united front against bribery and corruption of foreign public officials.
Article 1 of the Convention requires parties to make it a criminal offence to bribe a foreign public official, which the UK did in Section 109 of the Anti-Terrorism, Crime and Security Act 2001.
Article 5 of the OECD Anti-Bribery Convention makes various provisions to enforce Article 1. It rules out the termination of corruption investigations on grounds other than the merits of the case. Signatory governments undertake not to be influenced 'by the potential effect [of an investigation or prosecution] upon relations with another State.' Article 5 also prevents signatories from being 'influenced by considerations of national economic interest' in deciding whether to terminate an investigation.
For a time line of the judicial review, including links to arguments presented and key legal documents and evidence, please go to ControlBAE Judicial Review: http://www.controlbae.org/jrRecommend this Post