R (Unaenergy Group Holding Pte Ltd and Others) v Director of the Serious Fraud Office
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross |
| Judgment Date | 29 March 2017 |
| Neutral Citation | [2017] EWHC 600 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3276/2016 |
| Date | 29 March 2017 |
[2017] EWHC 600 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Mr Justice Nicol
Case No: CO/3276/2016
and
Hugo Keith QC and Clair Dobbin (instructed by Kingsley Napley LLP) for the Claimants/Applicants
Jonathan Hall QC and Simon Pritchard (instructed by the Government Legal Department) for the Defendant/Respondent
Hearing dates: 01 December, 2016
Approved Judgment
INTRODUCTION
This is the judgment of the Court to which we have each contributed.
This case raises for consideration the question, amongst others, whether the common law duty of disclosure or candour attaching to an applicant for a domestic search warrant is applicable, in modified form, to an authority requesting assistance by way of a Letter of Request from a foreign authority, pursuant to the provisions of s.7 of the Crime (International Co-operation) Act 2003 ("CICA").
The Defendant ("the SFO") is the United Kingdom authority responsible for investigating and prosecuting serious and complex fraud. Pursuant to the Crime (International Co-operation) Act 2003 (Designation of Prosecuting Authorities) Order 2004 ("the 2004 Order"), the SFO is a designated prosecuting authority for the purposes of s.7(5) CICA.
S. 7(5) of CICA provides as follows:
"…a designated prosecuting authority may itself request assistance under this section if –
(a) it appears to the authority that an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed, and
(b) the authority has instituted proceedings in respect of the offence in question or it is being investigated.
'Designated' means designated by ….[the 2004 Order]… "
The "assistance" that may be requested under s.7 is itself defined by s.7(2) as "…assistance in obtaining outside the United Kingdom any evidence specified in the request for use in the proceedings or investigation."
On the 22 nd March, 2016, the SFO commenced the investigation with which this matter is concerned, pursuant to s. 1(3) of the Criminal Justice Act 1987 ("the CJA 1987"). The investigation was commenced because the SFO suspected that offences had been committed – namely, offences of corruption under s.1 of the Public Bodies Corrupt Practices Act 1889, corruption under s.1 of the Prevention of Corruption Act 1906, conspiracy to corrupt under s.1 of the Criminal Law Act 1977, conspiracy to enter into corrupt transactions outside the United Kingdom contrary to s.1A of the Criminal Law Act 1977 and offences of bribery under ss. 1 and 6 of the Bribery Act 2010.
On the next day, the 23 rd March, 2016, the SFO sent the authorities in Monaco ("the Monegasque authorities") a Letter of Request ("the LOR") seeking the assistance of those authorities in relation to the SFO's criminal investigation.
The LOR requested that premises be searched and business records obtained. Acting on the LOR, on the 29 th March, 2016, the Monegasque authorities raided the office of the Second Claimant and the homes of the Third to Fifth Claimants and seized documents, computers and other property. The Third to Fifth Claimants were arrested and later interviewed in both Monaco and here. The SFO subsequently issued Notices pursuant to s.2(3) of the CJA 1987 on the Third to Fifth Claimants, requesting them to provide further information and documents relating to their business activities.
The primary suspects of the SFO investigation are said to be the Third, Fourth and Fifth Claimants, British nationals of Iranian descent, residing in Monaco. The First Claimant is the holding company of the Unaoil Group ("Unaoil"). The Second Claimant is a Monegasque subsidiary of Unaoil. The Third Claimant is the Chairman of Unaoil. The Fourth Claimant was, until relatively recently, the Chief Executive Officer of Unaoil. The Fifth Claimant is the Chief Operating Officer of Unaoil.
The Group has been described as providing oil and gas services in the Middle East, Central Asia and Africa. As set out in the Witness Statement of the Claimants' former solicitor, Mr Tolaini of Clifford Chance, dated 22 nd June, 2016 ("the Tolaini WS"):
"…Unaoil specialises in integrating local capabilities with Western technology in niche areas of the oil industry, with the objective of making Unaoil the local partner of choice for larger international companies looking to execute projects in the areas in which Unaoil operates by way of a joint venture…"
The Claimants claim judicial review seeking, inter alia, the quashing of the LOR, together with the return of all the materials obtained from the Monegasque authorities pursuant to the LOR and the destruction of any copies of those materials held by the SFO.
The Claimants initially advanced a number of grounds. We are only concerned with the two grounds for which permission was granted by Andrews J on the 8 th August, 2016. These two grounds ("the Grounds") are as follows:
i) The LOR was unlawful because it failed to disclose key information ("Ground 1");
ii) The LOR was unlawful because it was impermissibly wide (i.e., "a fishing expedition") and constituted an improper exercise of the statutory power under s.7, CICA ("Ground 2").
As the argument evolved before us, the principal Issues to which the Grounds give rise fall conveniently under the following headings:
i) Was the SFO under a duty to the Claimants to comply with a "heightened procedural obligation" when issuing the LOR? ("Issue I: Duty")
ii) If any relevant duty was owed, was the LOR unlawful by reason of a breach or breaches of that duty? ("Issue II: Breach of Duty")
iii) Did the LOR constitute an unlawful fishing expedition? ("Issue III: Fishing Expedition")
iv) Depending on the outcome of Issues I – III, what order should the Court make? ("Issue IV: Disposal")
We acknowledge with thanks the excellent assistance furnished to this Court by Mr Keith QC, for the Claimants and Mr Hall QC, for the SFO, together with their respective teams.
Before turning to the Issues, it is first necessary to outline the contents of the LOR.
THE LOR
Following introductory courtesies and reference to the suspected criminal offences under investigation, the LOR explained the urgency of the request:
"Our investigation has recently commenced and we hope to charge one or more suspects in the coming months. Three of the main suspects are believed to reside and operate their business from Monaco. The SFO has intelligence to suggest that the main allegations will be published on an international news website on the 30 th March 2016 and believe that this may prompt the destruction of the relevant evidence being requested….. "
The LOR records that the request is made pursuant to the European Convention on Mutual Assistance in Criminal Matters, done at Strasbourg in 1959 ("the Strasbourg Convention") and the UN Convention against Transnational Organised Crime, done at Palermo in 2000 ("the Palermo Convention").
The LOR involved a request for "business records, suspects to be interviewed and searches of premises to obtain evidence" for use in the investigation and any subsequent prosecution, including related restraint, confiscation, enforcement and ancillary proceedings. The identities and other details of the Third to Fifth Claimants were given and the offences, with which the investigation was concerned, were enumerated.
A "Summary of Facts" followed. As there set out:
"2. The SFO is investigating wide-ranging allegations of bribery and corruption committed by senior executives of Unaoil Monaco SAM ('Unaoil')….
3. Material in the possession of the SFO (notably internal Unaoil emails and documentation) suggests that Ata, Cyrus and Asam Ahsani together with Peter Willimont and Basil Al Jarah paid bribes and/or conspired together to pay bribes to high-ranking Iraqi public officials on behalf of Unaoil clients."
The LOR then turned to Unaoil's (alleged) dealings with Leighton Offshore Pte Ltd ("Leighton"), a company incorporated in Singapore, in connection with various very substantial contracts for the oil industry in Iraq. The LOR goes on to say this:
"9. The documents seen by the SFO to date strongly suggest that Leighton bribed Iraqi officials to obtain their contracts with SOC [i.e., the Iraqi state-owned oil producer]. It is that …[certain contracts]…were entered into to provide an apparent cover of legitimacy for payments from Leighton to Unaoil. These monies are thought to have provided Unaoil with its own share of the profits but also the funds to make corrupt payments to Iraqi officials.
10. These Iraqi officials and the middle man used to acquire influence were referred to by code names in email correspondence between the Ahsanis, Peter Willimont and their Iraqi partner, Basil Al Jahar, when discussing their business dealings…. "
A code was also said to have been used to disguise a particular payment. The SFO alleged that the use of codes evidenced the Claimants' knowledge that the payments were corrupt. The LOR recounted details going to allegations of Unaoil dealings with Iraqi officials, exercising influence with regard to the award of contracts to Leighton and likewise Rolls Royce.
The LOR states that shortly after this investigation commenced on 22 nd March, 2016, Mr Al Jarah (referred to above) was arrested. He was searched, as was his home address and he was interviewed.
"23. ….On his person, Al Jarah was carrying two cheques from 'A. Ahsani'. Both were made payable to Armada Investments LLC (believed to be the...
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