Commentary on BAe decision in House of Lords

Posted On: 01 August 2008

House of Lords uphold SFO decision to halt BAe bribery investigation

The Serious Fraud Office acted lawfully when it halted a criminal investigation due to potential repercussions for public safety, the House of Lords ruled this week. The Lords unanimously overturned a decision of the English High Court to quash the SFO's decision. BAe were suspected of bribing members of the Saudi Arabian royal family to obtain weapons contracts. Groups campaigning against overseas corruption and the international arms trade sought judicial review. The High Court held that Robert Wardle, the SFO Director at the time the decision was made, had surrendered his independence by succumbing to threats of non-cooperation from Saudi Arabia over counter-terrorism. The Lords held that Mr Wardle's decision was made for the legitimate purpose of protecting the British public.

Julius Komorowski, Advocate, said:

"The House of Lords decision is a significant contribution to the law regarding discretion and the enforcement of the criminal law. Almost as important are the tactical lessons to be drawn.

Lord Justice Moses, in the High Court, said Mr Wardle's decision was a 'capitulation' that 'invited dismay, if not outrage.' Lord Justice Moses' judgment was described by The Times as 'one of the most critical and strongly worded rulings ever made by a judge'. The stinging rebuke of Mr Wardle was a significant publicity coup for Corner House Research and the Campaign Against the Arms Trade. One wonders, however, whether a more measured judgment might have been easier to defend on appeal.

Lord Bingham of Cornhill said the High Court judgment 'does not lend itself to simple or succinct summary'. He did not agree with the Lord Justice Moses as the evidence plainly demonstrated that Mr. Wardle had acted with 'extreme reluctance'.  Lord Bingham was at pains to say that Mr. Wardle was 'courageous' for not hiding behind pretended evidential difficulties: he honestly made clear the investigation was being stopped because of the public interest. Although Baroness Hale of Richmond confessed that she would have liked to uphold the High Court's decision, she could not agree with every aspect of its reasons.

It would have been a major forensic triumph for Corner House Research and CAAT to win in the Lords, given the applicable principles of administrative law. Defence of the High Court's rhetoric was an additional burden. In litigation, perhaps, to humiliate the enemy in battle might jeopardize ultimate success in the war."

Julius Komorowski is member of the Public, Administrative and Human Rights Law Practice Group at the Murray Stable. Click on the highlighted text to view their webpages.