10 ARTICLE 5, OECD CONVENTION
177. Article 5 of the OECD Convention states: "Investigation
and prosecution of the bribery of a foreign public official […]
shall not be influenced by considerations of national economic
interest, the potential effect upon relations with another State
or the identity of the natural or legal persons involved".[283]
178. The OECD's Working Group has been highly critical
of the UK's failure to give Article 5 an adequate status under
domestic law, stating that "it must apply with full force
and effect in [the domestic] sphere, both as a practical and legal
matter".[284]
It has stopped short of calling for Article 5 to be enshrined
in primary legislation but its Secretariat asked the Government
to "clarify the status of Article 5 of the Convention in
domestic law and to ensure that it applies effectively to all
investigators and prosecutors at all stages of a foreign bribery
case".[285]
179. Whenever it arose, Article 5 was discussed in
the shadow of the judicial review proceedings concerning the decision
of the then Director of the Serious Fraud Office to halt an investigation
into BAE Systems Plc over the Al Yamamah defence contracts. The
Divisional Court held that the Director had failed to protect
the rule of law by succumbing to a threat made by a Saudi official
that intelligence sharing arrangements would be withdrawn unless
the investigation was abandoned[286].
The House of Lords reversed this decision on the grounds that
the Director was entitled to base his decision on the threat to
public safety that would arise by continuing the investigation.[287]
180. The pressure group that brought the application
for judicial review, The Corner House, described Article 5 as
"completely unenforceable".[288]
It stated that nothing less than giving it full legislative status
would prevent the Government from "abusing national security
to close down embarrassing situations":
[P]rimary legislation would allow the courts
to decide on the meaning of Article 5 and not leave interpretation
of Treaty obligations to a prosecutor or, indeed, to the executive.
It is really important that the courts should be able to have
a say in the interpretation of those particular clauses.[289]
181. The Attorney General stated that the more appropriate
way of giving effect to Article 5 would be by means of its inclusion
under a code or protocols applying to all prosecutors:
[I]t is something which the DPP [i.e. Director
of Public Prosecutions] has already included in the [Crown Prosecutors']
guidelines. Also, there is of course every possibility that, in
the guidance that I give through the Attorney General's guidelines,
this is something that could be highlighted too, but it is important
to remember that Article 5 has purchase not just on these issues,
but generally in the work that a prosecutor will do, and we do
think that putting it in the prosecutorial guidelines is the correct
place for Article 5 to sit.[290]
182. Jeremy Carver of Transparency International
(UK) agreed: "What I do want to see, which ought to be quite
sufficient, is that the code of practice for prosecutors firmly
and unequivocally recognises Article 5 as a necessary element
of the decision when they exercise their discretion. That way
they can be properly tested by the courts".[291]
183. Article 5 of the Organisation for Economic
Co-operation and Development's Convention must, at a minimum,
be enshrined in guidelines applying to all prosecutors. Confidence
in the criminal justice system will be undermined unless this
important principle is both protected and respected. We recommend
that the Attorney General take the earliest opportunity to ensure
that this happens.
283 Available at http://www.oecd.org/dataoecd/4/18/38028044.pdf Back
284
Phase 2 Bis report, para 108 Back
285
BB31, para 21 Back
2 286 91
[2008] EWCH 714 (Admin) Back
287
[2008] UKHL 60 Back
288
BB13, para 12 Back
289
Q542 and Q544
Back
290
Q624 (Baroness Scotland of Asthal) Back
291
Q543 Back
| 
