OneWorld.net (U.S.)

Royal Courts of Justice The Strand, London, UK Thursday 14 February – Friday 15 February 2008

(To confirm the time and court room, please go to the website of Her Majesty's Courts Service – Court Hearings – Administrative Courts and Divisional Courts: http://www.hmcourts-service.gov.uk/cms/list_admin.htm)

This week, on Thursday 14th February, the High Court in London will hear the judicial review brought by The Corner House and Campaign Against Arms Trade (CAAT) contesting the legality of the Serious Fraud Office's decision to terminate its investigation into alleged bribery by BAE Systems to secure a huge arms deal with Saudi Arabia.

It was over one year ago that we wrote jointly to the UK Government arguing that the decision was unlawful and should be reversed. Now the legality of that decision will finally be reviewed in court.

The judicial review is expected to last two days, and has become a test case concerning:

-the UK's adherence to its international legal obligations;

-the rule of law;

-the separation of powers in the UK between the judiciary and the executive (government);

-the role of the executive (government) in prosecution decisions;

-the duties and functions of an independent prosecutor (the Serious Fraud Office) faced with threats akin to blackmail by those alleged to be involved in the criminal conduct under investigation;

- the use of 'national security concerns' arising from extortion by a third party to justify intervention to stop a prosecution.

The separation of executive (government) and judicial powers is at the heart of the UK's unwritten constitution and is central to the protection of citizens' rights against the arbitrary exercise of power by the government.

Our lawyers will argue that the decision was unlawful on six overlapping grounds:

1) OECD Anti-Bribery Convention

The decision to discontinue the BAE-Saudi corruption investigation was based on considerations of potential damage to the UK's relations with Saudi Arabia, in particular, damage to UK/Saudi security, intelligence and diplomatic cooperation. This is unlawful because it contravenes Article 5 of the OECD's Anti-Bribery Convention, which prevents signatories from terminating an investigation because of "the potential effect [of an investigation] upon relations with another State".

2) Saudi Arabia's international legal obligations to combat terrorism

The UK effectively colluded with Saudi Arabia in breaching Saudi Arabia’s international legal obligations to cooperate and share information on terrorist activities, and thereby colluded in committing an internationally wrongful act.

3) Acting on tainted advice from government ministers

Government ministers (including the Prime Minister) took into account the risk of the UK not being able to sell Typhoon aircraft, and other commercial, economic and diplomatic matters when they gave advice to the SFO Director on the public interest aspects of the investigation. This was despite being told by the Attorney General that Article 5 of the OECD Anti-Bribery Convention forbids such considerations from being taken into account. The ministerial advice was therefore “tainted”.

4) Damaging national security by discontinuing the investigation

The SFO Director is under a legal obligation to take a balanced view of the public interest issues arising from an investigation. But neither the Director nor government ministers assessed or took into account the harm to the UK's national security of discontinuing the investigation.

5) Government ministers expressed a view on what decision an independent prosecutor (the Director of the Serious Fraud Office) should take.

The SFO Director and Attorney General requested views from government Ministers on the public interest aspects of pursuing the investigation. The rules for these consultations between the judiciary and the executive forbid Ministers from giving a view on whether a prosecution should proceed or not. But the Prime Minister expressed a clear view that the public interest would best be served by intervening to halt the investigation. This is unlawful.

6) Blackmail, threats and the rule of law

It is unlawful for an independent prosecutor to permit threats or blackmail to influence his/her decision to discontinue a criminal investigation or prosecution. To do so is to surrender the rule of law.

The Government has denied any breach of the OECD Anti-Bribery Convention –- but has declared that it would have taken the decision to terminate the investigation, regardless of international law, on the grounds of “national security”.

For more information -- and to see key documents indicating that the UK's then Prime Minsiter Tony Blair intervened to stop the investigation -- go to our website (http://www.thecornerhouse.org.uk) or Control BAE (http://www.controlbae.org) website.