The story of the Saudi Arms Inquiry throws mainstream criminal law and criminology theories into chaos and illustrates the application of English criminal law in favour of one class.
The inquiry involved allegations of massive corruption. No prosecutions were brought in the “interests of the state”. This can be compared with thefts of small amounts of property resulting in prison sentences.
In December 2006 the Serious Fraud Office abandoned its investigation into a multimillion pound arms deal between BAE and Saudi Arabia. This followed a private threat from Saudi Arabia that intelligence cooperation with Britain would be cut unless the inquiry was abandoned. The Attorney-General stated that the decision to end the inquiry had been taken in the public interest. The investigation would cause serious damage to UK/Saudi security, intelligence and diplomatic co-operation. It would be likely to have seriously negative consequences for the UK public interest in terms of national security and foreign policy objectives.
The inquiry concerned allegations that a multimillion pound slush fund was linked to the deal. The Saudi government had threatened to cancel a £10 billion order for 72 Eurofighter Typhoon jets.
In April 2008 the High Court ruled that the decision by the government and by the Serious Fraud Office to stop an investigation into allegations of corrupt dealings between BAE Systems and Saudi Arabia was a threat to the reputation of British justice, unlawful and an abject surrender.
Lord Justice Moses and Lord Justice Sullivan are reported to have made the following comments:
They feared for the reputation of the administration of justice if it could be perverted by a threat.
Any similar future unlawful threats to the rule of law must be resisted by the government, or the courts would intervene.
No-one is entitled to interfere with the course of our justice. The rule of law is nothing if it fails to constrain overweening power.
The Director of the Serious Fraud Office had ceased to exercise the power to make the independent judgment conferred on him by Parliament.
The Director (in reality the government) contended that he was entitled to surrender to the threat and that such threats were a part of life. So bleak a picture of the impotence of law invited at least dismay, if not outrage.
The government had failed to recognise that the threat uttered was not simply directed at this country’s commercial, diplomatic and security interests but was aimed at its legal system.
If such a threat had been made by one who was subject to the criminal law of this country, he would risk being charged with an attempt to pervert the course of justice.
There was no evidence that any consideration had been given as to how to persuade the Saudis to withdraw the threat, let alone any attempt made to resist the threat.
On appeal to the House of Lords (2008) by the Director of the Serious Fraud Office, the appeal was allowed. The Lords stated that where he took the view that protecting the lives of British citizens outweighed the public interest in pursuing an investigation into allegations of corruption, the Director was entitled to exercise his discretion to discontinue the investigation, following threats by a foreign state as to consequences affecting national security if he did not do so.
The issue was not whether he had been right or wrong but whether the decision was one which he was lawfully entitled to take. In the opinion of the Lords, it had been.