High Court refuses permission for a judicial review of the Serious Fraud Office's refusal to close an ongoing investigation

Friday, 21st April 2017

In what was described as "an extraordinary and, on the face of it, somewhat ambitious claim", the court refused permission in a judicial review application regarding the Serious Fraud Office's ("SFO") failure to conclude its investigation into the claimant's activities (the "Primary Investigations"); refusal to provide a clear indication that an investigation would be the subject to no further action; and refusal to provide information regarding further investigations (the "Further Investigations") it was undertaking.

The claimant was an oil company with operations in Somalia. In 2015, the SFO commenced an investigation into whether the claimant committed bribery and corruption offences (vigorously denied by the claimant).

The claimant's perception was that the investigations were "dragging on", casting a shadow over the claimant's business and giving rise to a risk of insolvency. On 17 May 2016, the SFO confirmed that the Primary Investigations were "almost complete" but they had revealed other matters which were the Further Investigations.

On 12 July 2016, the SFO confirmed that it had hoped that the Further Investigations could be investigated separately from the Primary Investigations but that had not proved to be the case. The SFO could give no date when the Further Investigations were likely to be concluded as there were outstanding overseas enquiries and the SFO was not in control of the timing of any responses.

On 10 August 2016, the claimant commenced judicial review proceedings on the following grounds:

  • SFO's failure to conclude the Primary Investigations was unlawful on grounds that it was irrational ("Ground I").
  • SFO's refusal to provide a clear indication that the Primary Investigations would be the subject of no further action was unlawful on grounds that it was irrational, failed to take into account relevant considerations and/or was disproportionate under Article 8 of the European Convention on Human Rights ("Ground II").
  • SFO's refusal to provide information in relation to the Further Investigations was unlawful on grounds that it was contrary to the minimum standards of disclosure required at common law and under EU Directive 2012/13/EU on the rights of an accused or suspected person and failed to take into account a relevant consideration ("Ground III").

By way of a unique exception to its usual policy, the SFO provided a letter containing an update on its investigations the day before the "rolled up" hearing (the "Letter"). The Letter confirmed that there was currently insufficient evidence to found any realistic prospect of conviction in relation to the Primary Investigations and that the Further Investigations were being progressed with all due expedition but the SFO was unable to close its investigations.

The court considered Grounds I and II together holding that challenges to the decisions of prosecutors can only be advanced on very narrow grounds and, even then, will succeed only in very rare cases. The court further noted that challenging the decisions of investigators is still more difficult.

The court held that, in light of the Letter, Grounds I and II must fail as the claimant would not obtain anything better than what was already stated in the Letter.

The court went on to hold that, apart from the Letter, Grounds I and II would have failed in any event for the following reasons:

  • Nothing about the conduct of the investigations would have persuaded the court that the case was wholly exceptional so as to warrant and justify the court's intervention.
  • There was nothing irrational about either the commencement or the continuation of the investigations.
  • The SFO's approach to the investigations was not disproportionate.

Regarding Ground III, the court held that there was no basis to compel further disclosure of a continuing investigation into serious crime. There was no breach of the common law and EU Directive 2012/13/EU was not engaged as recital 28 to the directive states that where information is to be disclosed, it is to be provided "without prejudicing the course of ongoing investigations". As such, Ground III also failed.

The court awarded the SFO 80% of its costs, making allowance for the fact that the judicial review proceedings were the catalyst for production of the Letter.

This case shows that detailed consideration ought to be given to the grounds of a judicial review application before an application is issued.

R. (on the application of Soma Oil & Gas Ltd) v Director of the Serious Fraud Office [2016] EWHC 2471 (Admin).

If you would like to discuss a potential judicial review claim or defence, please contact Gruff Davies on g.davies@ashfords.co.uk or 01392 333986.

 

If you would like to discuss a potential judicial review claim or defence, please contact Gruff Davies on g.davies@ashfords.co.uk or 01392 33 3986.