Investigating BAE systems

Our man in Riyadh was one of two decisive influences on Robert Wardle, the director of the Serious Fraud Office, when he decided not to continue the SFO’s investigation into alleged bribes paid to Saudis by BAE Systems. That’s what Wardle told me yesterday.

Wardle spoke to Britain’s ambassador to Saudi Arabia, Sir Sherard Cowper-Coles, on three separate occasions over two or three weeks before the announcement on 14 December last year that the SFO was discontinuing its probe into commissions paid by BAE as part of the Al-Yamamah defence contract. From these conversations, Wardle was persuaded that the investigation was putting an intolerable strain on diplomatic relations between the UK and Saudi, which could threaten our national security.

It was a delicate moment in the investigation. At the time (and subsequently) the SFO believed it was close to having built a case that could be prosecuted - although the Attorney has consistently maintained that the prospects for a successful prosecution were slim to none. Indeed, thought was being given to approaching BAE with the offer of a plea-bargain.

However, after two of his conversations with Cowper-Coles, Wardle had to contend with representations from an altogether more powerful individual, the head of the British government. Wardle received a substantial dossier, compiled by 10 Downing Street in the name of the prime minister, again highlighting the supposedly dreadful damage being done to the nation by the SFO’s Saudi enquiries.

The views of Tony Blair had been obtained by the Attorney General, Lord Goldsmith, as part of what’s known as the 1951 Shawcross Convention, which is a process of obtaining ministerial views on whether a particularly sensitive prosecution could damage the public interest. This is how the then Attorney-General, Sir Hartley Shawcross, described this exercise more than half a century ago:

“The true doctrine is that it is the duty of an Attorney-General, in deciding whether or not to authorise the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution... would have upon public morale and order, and with any other consideration affecting public policy. In order so to inform himself, he may... consult with any of his colleagues in the Government and indeed... he would in some cases be a fool if he did not... The responsibility for the eventual decision rests with the Attorney-General, and he is not to be put, and is not put, under pressure by his colleagues in the matter.”

What’s curious about the BAE case is that Shawcross Convention was employed - or so the Solicitor-General, Mike O’Brien, has told the Commons - but the decision not to proceed with the case was not taken by the Attorney, as it would normally be under the Convention. Downing Street, the Attorney and Wardle himself all say that it was Wardle who made the big call and stopped the probe.

So put yourself in Wardle’s position. He was being told by the prime minister, no less, that an investigation was threatening the very security of the nation. What was Wardle supposed to do? To be clear, Wardle is not complaining about the burden of having to weigh the duties of his office to pursue possible serious crime against a wider public interest. His view is that it comes with the territory. But, in practice, how easy would it really have been to ignore the urgings of the prime minister?