Law Lords rule SFO lawfully stopped bribery inquiry
The five law lords unanimously overturned a high court decision in April that Tony Blair’s government and the SFO caved in too readily to threats by Saudi Arabia over intelligence sharing and trade.
In today’s ruling, the senior law lord, Lord Bingham, said the SFO’s former director, Robert Wardle, was confronted by an “ugly and obviously unwelcome threat”.
The Attorney General on 13 December 2006 was said to be “extremely unhappy” at the implications of dropping the investigation at that stage. What determined the decision was the Director’s judgment that the public interest in saving British lives outweighed the public interest in pursuing BAE to conviction. It was a courageous decision, since the Director could have avoided making it by disingenuously adopting the Attorney General’s view (with which he did not agree) that the case was evidentially weak. Had he anticipated the same consequences and made the same decision in the absence of an explicit Saudi threat it would seem that the Divisional Court would have upheld the decision, since it regarded the threat as “the essential point” in the case.
The Director was confronted by an ugly and obviously unwelcome threat. He had to decide what, if anything, he should do. He did not surrender his discretionary power of decision to any third party, although he did consult the most expert source available to him in the person of the Ambassador and he did, as he was entitled if not bound to do, consult the Attorney General who, however, properly left the decision to him. The issue in these proceedings is not whether his decision was right or wrong, nor whether the Divisional Court or the House agrees with it, but whether it was a decision which the Director was lawfully entitled to make. Such an approach involves no affront to the rule of law, to which the principles of judicial review give effect.
In the opinion of the House the Director’s decision was one he was lawfully entitled to make. It may indeed be doubted whether a responsible decision-maker could, on the facts before the Director, have decided otherwise.