Sunday, October 04, 2009

And besides, the wench is dead

The SFO case against BAES has been praised by the former Attorney General, Lord Goldsmith. "The Serious Fraud Office intends to prosecute BAE unless it pays a fine." according to the BBC, and the story was leaked to the press on Thursday morning.

The allegations are certainly serious, but this whole affair stinks. "Give us a billion pounds or we prosecute"... targetted leaks to embarass the company and harm its share price (the worst performer in the FTSE 100 for most of Thursday, down 5% just after opening)... how is this any better than the man claimed to have been blackmailing Letterman?

Surely, if you have a good case that someone has done wrong, you prosecute them? Maybe allow them to admit guilt after being charged and get a lesser punishment for saving the effort of a trial... but to start out with dirty-tricks negotiation of what the plea-bargain will be seems... wrong.

It also suggests that maybe the SFO's case is nowhere near as strong as they'd like, and so they have to rely on anti-arms-trade sentiments and public embarassment as they can't prove it in court.

Thinking along those lines, why might that be? Well, the BBC Today programme claims that the prosecution is to be under the Prevention of Corruption (Amendment) Act, 2001. Slight problem there, in that said Act is an Irish law! No doubt they mean Part 12 of the Anti-terrorism, Crime and Security Act, 2001 - the same law they'd previously accused BAES under. Yes, that's right, the same people accusing the same company again, but for a different incident - shades of the "we'll keep prosecuting until we get a conviction" attitude over Saddam Hussein's trial?

Let's look at some facts.

The Act in question received royal assent and came into force on 14 December 2001, in the wake of 9/11. The Tanzania deal was made in 2001 (before October, when the ICAO commented on it), the South African one in 1999. I'm told that the Romanians investigated the allegations and found no evidence of criminal activity. No idea about the Czechs, but that's starting to look awfully thin: someone may have done something that was legal at the time but would now be illegal, therefore they should pay us a billion pounds for having not broken the law in the past? Or is the law retroactive - despite there being no hint in the wording and a strong tradition against ex post facto laws?

Then there's an issue of jurisdiction. Nobody is suggesting that bribes were paid in the UK, and if bribes are legal (as is the case for much of the world) where they were paid, what business is that of the SFO? The UAE has extremely strict policies on drug-taking - is it reasonable for them to prosecute people in Brighton and Amsterdam? Should US citizens drinking beer at 18 in the UK be locked-up for underage drinking when they return home (sober) to a 21 drinking-age? It seems to be a somewhat idiotic form of cultural imperialism, yet ironically it's widely supported by soi disant liberals and left-wingers - presumably because of a personal distaste for the military-industrial complex.

Even if the law is valid and applies in these cases, how strong is the evidence? Arms deals are notoriously shady, and usually involve government help on one or both sides. Is the SFO really expecting to get testimony from Saudi princes, senior foreign government officials, and the accused themselves? The UK MOD won't even let the NAO have full and accurate figures, so it's a bit unlikely that their foreign counterparts will suddenly decide to admit to accepting bribes.

So what sort of case does the SFO have? I once heard a very wise quote from a detective sergeant: "If you can't prove it without a cough, you shouldn't try and prove it with."

- KoW

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