The High Court gave the Government a right good kicking a couple of weeks ago when it ruled that the Serious Fraud Office’s (SFO) decision to drop the BAE Systems investigation was unlawful.
It said that in reality the Government was on trial, not just the SFO director. The Government had rolled over under pressure and failed to consider the importance of maintaining our system of justice. In doing so it had “surrendered” to a “successful attempt by a foreign government to pervert the course of justice”. The Government’s response invited “dismay, if not outrage”. It had damaged “not merely… the reputation of the SFO and the Government, but [also] the reputation and very existence of the rule of law”.
No wonder the SFO is looking to appeal the decision, and although there is more to this saga it is worth looking over the case itself as it throws up key questions, such as the importance of the rule of law against the threat of terror.
Lord Justice Moses and Mr Justice Sullivan both spoke out boldly in their ruling as guardians of the rule of law. They would not let our court system be damaged without a struggle. They spoke with passion and directness. Their final comment was full of irony – taking the Prime Minster’s reason for trying to stop the investigation as their own reason for intervention: “On 11 December 2006, the Prime Minister said this was the clearest case for intervention in the public interest he had seen. We agree.”
But what if the SFO had continued and Saudi Arabia implemented its threat to withhold intelligence? Say 50 lives were lost? Or nearly 3,000 – as on 9/11? There would have been outrage at the SFO’s boneheadedness. Any argument that it was obliged to carry on to protect the English legal system would have seemed badly misguided.
Principles such as the rule of law are worth fighting for. Ask the people of Zimbabwe – or Pakistan, whose chief justice was deposed. And this is what the court was upholding.
It recognised that prosecutors sometimes have to bow to pressure. In 1970 a Palestine Liberation Organisation (PLO) terrorist, Laila Khalid, was released after threats from the PLO to kill hostages. But in the BAE case the court was troubled by a capitulation it thought too rapid, too unquestioning. It ruled that submission to threats was only legal where there was no alternative course open to the decision-maker.
The issue also arises that this case would have been a first in relation to legal proceedings being taken on account of bribery. International lawyers and agencies have been asking for years why the UK has not had a prosecution, let alone a conviction, for bribery in recent times. Don’t we know how to do it? Do we lack the will?Will things be any different following this decision? Much has changed in a year. The City of London Police now have a dedicated investigation unit. There is a new attorney-general and a new director of the SFO. So we will see.
But the signs are that the Government will continue to protect its strategic interests with Saudi and is considering legislation to facilitate dropping investigations such as this. Outside of special circumstances that applied in the BAE case, this decision shows that even issues of national security may not protect corporate bribers from investigation and prosecution. Companies need to stamp out corruption or face prosecution and huge fines and costs.
BAE will continue to cause controversy, such as the SFO’s appeal, where the issue is one of whether the court has the right to second-guess the decisions of prosecutors when weighing up the public interest.
But whatever the future holds, the court intervened to protect our legal system from threats and to make it more difficult for such threats to succeed in the future. No one could doubt the importance of this.