Mark ChanPublic Law 2013-2014

Case Note – R. (on the application of Corner House Research and another) v Director of the Serious Fraud Office [2008] UKHL 60

Introduction

Initiated at the Divisional Court, an action for judicial review was brought by Corner House Research and the Campaign Against Arms Trade (CAAT) against the Director of the Serious Fraud Office (SFO)1. The claimants’ action was prompted by the SFO Director’s decision to terminate an investigation on alleged corruption in defence contract negotiations between BAE Systems and Saudi Arabian authorities. In light of the SFO’s responsibility to probe and prosecute serious corruption offences, it was claimed that the Director had unlawfully yielded to Saudi threats to end contract negotiations as well as to withhold cooperation on anti-terrorism initiatives. The Director’s decision was found to be unlawful and was overturned by the Divisional Court.

The Judgment of the Court

The decision by the Queen’s Bench Division was unanimously overruled by the five law lords in the House of Lords. In his leading judgment, Lord Bingham held that Lord Justice Moses in the Divisional Court had addressed the wrong question2- rather than whether the SFO Director had exhausted all alternatives to submitting to the threat, it should have been whether the Director had acted beyond the lawful discretion that he was entrusted with3. Since the Director had no access to diplomatic machinery, it was reasonable to rely on a Shawcross exercise to access relevant considerations4. Secondly, it was held that in consulting the Ambassador to Saudi Arabia and the Attorney General, the Director had not surrendered his discretionary power of decision to a third party5. His decision was made independently and it was doubted if a reasonable decision-maker would have done otherwise6. Finally, it was held that Article 5 of the OECD Convention on Combatting Bribery of Foreign Public Officials In International Business Transactions (1997) was an unincorporated treaty provision and hence did not bind the Director to follow it7. It was considered unnecessary to determine the Director’s adherence to Article 5 because he would have made the decision regardless of its existence8.

The ratio decidendi of the judgment can be deduced to: where an independent public prosecutor is faced with threats to national security in performing his duty, the prosecutor is

1 R. (on the application of Corner House Research and another) v Director of the Serious Fraud Office [2008] EWHC 714 (Admin)2 R. (on the application of Corner House Research and another) v Director of the Serious Fraud Office [2009] 1 A.C. 756, 7843 Ibid 8434 Ibid 8445 Ibid 8446 Ibid 8447 Ibid 8458 Ibid 846

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entitled to give priority to national security over the functioning of his duty in the interest of safety.

Analysis of the Judgment

While the instant case has been considered an affront to British justice by many, it is worthwhile to note that the judgements by both the Queen’s Bench Division and House of Lords provide differing perspectives on how they rule of law ought to be protected in the United Kingdom. The Divisional Court, in condemning what it perceived as undue influence of executive powers upon the Director of the SFO, upheld a tripartite separation of powers as per Lord Montesquieu. Contrastingly, the House of Lords declined to interpret Article 5 of the OECD Convention because it was neither within its jurisdiction to interpret nor was it an incorporated treaty provision. In establishing the prevalence of ordinary laws of the land above unincorporated law, Dicey’s doctrine that only breaches of law can warrant punishment was applied. Corner House Research has demonstrated the plurality of doctrines regarding the rule of law within the judiciary, which underpin occasionally conflicting judgments.

Crucially, Corner House Research has highlighted the vague status of international law in domestic courts. The House of Lords adopted the view, similar to the judgment in R. v Lyons9, that English courts had no obligation to follow international law and no jurisdiction to interpret them; however, relevant authority exists which concludes otherwise10. Nevertheless, the Divisional Court in Corner House Research was placed in an unsettled position in when it examined Article 5 of the OECD Convention on the primary basis that the Director had relied on it11. Had the Director not considered the OECD Convention, as was deliberated in the House of Lords12, it followed that the court would lose jurisdiction on international law. This ambiguous jurisdiction might not be favourable for English courts and could result in future confusion. It could also be argued that court flexibility in the jurisdiction of international law, as exhibited by the Divisional Court, could improve the ability of English courts to deal with increasingly complicated cases.

Conclusion

Corner House Research has laid authority for future cases which implicate matters of public interest related to both the rule of law and national security. However, an extreme situation such as in the instant case has not yet been encountered following the introduction of the Bribery Act 2010. Consequently, the new Act might indicate a less compromising stance towards corruption in the future, potentially at odds with the decision in Corner House

9 R. v Lyons [2002] UKHL 4410 R v Horseferry Road Magistrates Court Ex. p Bennett [1994] 1 A.C. 4211 R. (on the application of Corner House Research and another) v Director of the Serious Fraud Office [2009] 1 A.C. 756, 79312 R. (on the application of Corner House Research and another) v Director of the Serious Fraud Office [2009] 1 A.C. 756, 846

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Research. Ultimately, the said case has established a precedent in light of a realist interpretation of international affairs. Nevertheless, such considerations are possibly best deliberated by the executive and not in English law courts.

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