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Corner House Research & Ors, R (On The Application of) v The Serious Fraud Office
Factual and Procedural Background
The Appellant, the Director of the Serious Fraud Office (“SFO”), began investigating Company A in July 2004 for alleged overseas corruption connected with a government-to-government defence contract (the “Al Yamamah” project) involving a foreign state. After extensive investigative steps—including statutory production notices and international inquiries—the Appellant received escalating representations from senior government officials that the inquiry risked the loss of vital counter-terrorism co-operation with the foreign state, thereby endangering lives in the United Kingdom.
On 14 December 2006 the Appellant discontinued the investigation. A Divisional Court (Judge Moses and Judge Sullivan) ruled the decision unlawful and ordered reconsideration. The Appellant appealed to the House of Lords. The Respondents were public-interest organisations; no finding has ever been made against Company A.
Legal Issues Presented
- Whether the Appellant’s decision to halt the investigation, taken in response to threats that national security co-operation would be withdrawn, constituted an unlawful surrender of prosecutorial discretion.
- Whether discontinuing the investigation contravened Article 5 of the OECD Convention on Combating Bribery by taking account of foreign-relations considerations.
Arguments of the Parties
Appellant's Arguments
- The SFO Director possesses a broad statutory discretion to investigate or discontinue investigations and may lawfully weigh threats to national and international security.
- No improper delegation occurred; expert national-security advice was legitimately relied upon.
- Article 5 of the OECD Convention does not bar consideration of grave risks to public safety, and, in any event, the same decision would have been made even if Article 5 prohibited such factors.
Respondents' Arguments
- Yielding to a foreign threat undermines the rule of law and amounts to an abdication of statutory responsibility.
- Under Article 5 the Director was precluded from considering effects on relations with another state; the decision was therefore ultra vires.
- The Director failed to explore alternative measures to neutralise or resist the threat.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Coventry City Council, Ex p Phoenix Aviation [1995] 3 All ER 37 | Illegality of succumbing to unlawful threats; safeguarding the rule of law | Divisional Court relied heavily on it; House distinguished, noting different factual matrix |
| R v Chief Constable of Devon & Cornwall, Ex p CEGB [1982] QB 458 | Courts’ duty to prevent interference with statutory functions | Cited by Divisional Court; House found limited assistance due to dissimilar context |
| R v DPP, Ex p C [1995] 1 Cr App R 136 | Sparingly interfering with prosecutorial discretion | House affirmed high threshold for judicial review of prosecutors |
| R v DPP, Ex p Manning [2001] QB 330 | Same as above | Re-affirmed |
| R (Bermingham) v Director of the SFO [2007] QB 727 | Limits of review over SFO decisions | Cited to illustrate rarity of intervention |
| Mohit v DPP of Mauritius [2006] UKPC 20 | Exceptional nature of quashing prosecutorial decisions | Endorsed by House |
| Matalulu v DPP [2003] 4 LRC 712 | “Polycentric” nature of prosecutorial decisions | Quoted with approval on separation of functions |
| Sharma v Brown-Antoine [2006] UKPC 57 | Further authority for limited review | Applied |
| R v Chief Constable of Sussex, Ex p International Trader’s Ferry [1999] 2 AC 418 | Balancing public-order duties against resource limits | Used to contrast proper balancing exercises |
| CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 | Failure to consider a non-mandatory factor does not vitiate discretion | Cited when rejecting argument that wider reputational factors must be weighed |
| R v Secretary of State (Home Dept), Ex p Launder [1997] 1 WLR 839 | Domestic review of decisions said to comply with unincorporated treaties | Discussed but distinguished |
| R v DPP, Ex p Kebilene [2000] 2 AC 326 | As above | Discussed but distinguished |
| R (Alconbury) v Secretary of State [2001] UKHL 23 | Judicial review upholds rule of law | Cited on framework of review |
| R ( Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2777 | Non-justiciability in foreign-affairs context | Referenced when analysing court’s competence |
| R (Gentle) v Prime Minister [2008] 2 WLR 879 | Limits of review over war-powers decisions | Referenced on justiciability |
Court's Reasoning and Analysis
1. Scope of Prosecutorial Discretion. The House reiterated that decisions to investigate or prosecute are conferred on independent prosecutors and are reviewable only in “highly exceptional” circumstances. Extensive authority confirmed the reluctance of courts to substitute their own view.
2. Nature of the Threat. Unlike ordinary political or economic pressure, the threat here—withdrawal of counter-terrorism intelligence leading to potential loss of life—engaged the state’s positive obligation to safeguard life. The Appellant was entitled to accept expert national-security assessments, notably by the Ambassador, that “British lives on British streets” were at risk.
3. Alleged Surrender of Power. The House rejected the Divisional Court’s formulation that submission is lawful only if “no alternative course” exists. The correct inquiry is whether the decision lay within the lawful range of prosecutorial discretion. The Appellant did not abdicate power; he made an independent judgment after prolonged resistance and consultation.
4. Article 5 of the OECD Convention. The House found it “unnecessary and undesirable” to pronounce definitively on the Convention’s meaning. Even if Article 5 precluded reliance on foreign-relations consequences, the Appellant’s unequivocal evidence was that he would have reached the same conclusion on public-safety grounds. Moreover, treaty interpretation is better left to the Convention’s Working Group, and the Appellant’s reading of Article 5 was at least tenable.
5. Rule of Law Considerations. The House acknowledged the importance of the rule of law but held that protecting lives can outweigh the public interest in pursuing serious corruption allegations. The decision, though “ugly and unwelcome,” was within the boundaries Parliament set.
Holding and Implications
HOLDING: The appeal was ALLOWED; the Divisional Court’s order quashing the decision was set aside (save as to costs).
Implications: The judgment affirms the wide latitude afforded to independent prosecutors when balancing competing public interests, especially where credible national-security threats are involved. It signals that courts will not readily interfere with prosecutorial decisions taken to avert substantial risks to life, and it leaves unresolved—but flags for international resolution—the precise reach of Article 5 of the OECD Convention.
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