The Queen (on the Application of AL) v Serious Fraud Office
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 19 April 2018 |
| Neutral Citation | [2018] EWHC 856 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/57/2018 |
| Date | 19 April 2018 |
[2018] EWHC 856 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Holroyde
Mr Justice Green
Case No: CO/57/2018
and
Tim Owen QC, Neil HawesQC andJames Horne (instructed by Irwin Mitchell LLP) for the Claimant
Jonathan Hall QC, Adam PayterandPaul Raudnitz (instructed by the Serious Fraud Office) for the Defendant
The First Interested Party was not represented
The Second Interested Party was not represented
Catherine Callaghan QC (instructed by Shoosmiths) for the Third Interested Party
Rashid Ahmed and Michael Cogan (instructed by Asghar & Co Solicitors) for the Fourth Interested Party
Hearing date: 9 th March 2018
Judgment Approved
A. Introduction: Overview and conclusion
Overview
This is the Judgment of the Court.
This claim for judicial review concerns novel issues concerning the extent to which the Serious Fraud Office (“SFO”), in fulfilling its disclosure obligations towards a defendant in criminal proceedings who had formerly been employed by a company which had self-reported wrong doing, is under a duty to obtain documents from that company in order to review them and disclose them if appropriate. In this case the SFO concluded a Deferred Prosecution Agreement (“ DPA”) with the company under which, inter alia, the SFO prepared a draft indictment against the company but then, with the approval of the Crown Court, suspended that indictment. One of the conditions in the DPA for the continued suspension of the indictment was that the company would afford total cooperation to the SFO in its efforts to investigate and proceed against employees of the company who, it is alleged, engaged in the criminal payment of commissions (bribes) to foreign agents to secure business for the company.
In order to decide whether to self-report the company instructed external lawyers to conduct a review and this included interviewing four senior executives suspected of wrongdoing. The interviews were not recorded but the interviewing lawyers took detailed notes. These then formed part of the material used by the company to decide that it should self-report.
In due course, and before any prosecution was commenced, the SFO sought the interview notes. The company refused asserting legal privilege. The SFO disagreed that privilege applied to first interview notes of this sort. The company persisted. After some negotiation the company agreed to allow a lawyer from the external firm to give an “ oral proffer”. Under this process the lawyer read out (but did not provide a copy of) a statement which purported to summarise the interviews with the four employees. The SFO recorded the oral summaries and then transcribed them. The SFO ultimately decided to charge 1 out of the 4 employees who had been interviewed. The other interviewees were not charged and are not prosecution witnesses. The SFO disclosed the summaries to the Defendants. The SFO was requested by the Defendants to disclose the full interview notes. The SFO reverted to the company who, once again, refused. A Defendant (the Claimant in this judicial review) then applied to the Crown Court for an order requiring the SFO to disclose the full interview notes. The Judge in the Crown Court refused upon the basis that the notes were not in the “ possession” of the SFO and as such the disclosure obligation in the Criminal Procedure and Investigation Act 1996 (“ CPIA 1996”) did not bite. He did however express “ misgivings” about the situation. The SFO then reverted to the company and asked them to reconsider. They refused. The SFO then informed the Defendant that it would take no further steps against the company.
In the light of this refusal the Claimant has (upon the basis that he has exhausted available remedies in the Crown Court) sought judicial review of the decision of the SFO not to pursue the company for breach of the duty of cooperation under the DPA. It is argued that this decision is based upon a series of public law errors including failing to address relevant considerations, taking into account irrelevant matters, irrational inconsistencies in approach, and errors of law.
It is argued for the Claimant that: “… the nature of the challenge is both novel and wholly exceptional arising, as it does, in the context of the first criminal trial of individuals where a DPA has enabled their former corporate employer to secure deferment, on strict term, of a prosecution of the company for the same conduct. Rather than seeking to challenge a prosecutor's decision to investigate or prosecute (or to decline to investigate/prosecute), this case focuses on the prosecutor's failure to initiate proceedings outwith the extant trial process and pursuant to a discrete Court approved agreement with a view to safeguarding the fairness of the trial process”. The Claimant hence argues that the High Court has jurisdiction and should exercise it and, in so doing, find that the SFO has misdirected itself, failed to consider relevant matters and adopted material errors of law, and that the decision should be quashed and remitted to the SFO to be re-taken.
The SFO, for its part, argues that there are perfectly adequate remedies available in the Crown Court which can be used to address disclosure disputes and that, judicial review being a remedy of last resort, the Claimant has not exhausted available alternative remedies and this is a reason for refusing judicial review. In any event even if this Court decides to determine the merits of the Claim it is well established that the Courts will interfere with a prosecutorial decision only very exceptionally and the decision not to pursue breach proceedings against the company was a “judgment call” for it to make which cannot properly be challenged on a judicial review. It is then also argued that on the facts of the case the decision of the SFO was that there was no need to procure the full interview notes because the company had asserted privilege which was “ not obviously wrong” and the SFO was satisfied that there was nothing in the full interview notes that was not adequately captured in the summaries which had already been disclosed.
Conclusion
In our judgment the High Court is not the appropriate forum in which a dispute about disclosure of this sort should be litigated. We conclude that there are adequate alternatives open to the Claimant (and indeed all the Defendants) in the Crown Court which should be sufficient to enable this issue to be resolved. The issues arising however are novel; if in due course it transpired that the Crown Court did not have sufficient powers to determine this matter fairly then it is possible that the High Court would then decide that it was proper to exercise its jurisdiction in order to fill a procedural lacuna that otherwise risked giving rise to injustice. However, that position has not yet been reached and, on our analysis, we think it unlikely that it would be.
Having arrived at this conclusion we nonetheless have real reservations as to the position adopted by the SFO in this case. Had we decided that the High Court was the proper forum we would have quashed the decision of the SFO and remitted the issue for reconsideration. We conclude that in several respects the SFO has: failed to address relevant considerations; taken into account irrelevant matters; provided inconsistent and inadequate reasons for its decisions; and, applied an incorrect approach to the law.
For the avoidance of doubt, we emphasise that the views we express in this judgment (concerning issues of public law) do not bind a Crown Court Judge who might (if the SFO persists in its present stance) be called upon to determine the matter upon the basis of different criteria and statutory and common law powers. It will be the responsibility of that Judge to determine any application on the merits as they appear in the light of arguments and evidence then before the Court.
It follows that because we conclude that the Crown Court is the proper forum in which this matter should be resolved we refuse this claim for judicial review.
Reporting restrictions
The background to the case is set out in the Judgment of Sir Brian Leveson PQBD in Serious Fraud Office v XYZ Ltd (Crown Court, 11 th July 2016). A redacted version of this Judgment is in the public domain. The full version cannot be published until completion of the criminal proceedings. In that Judgment an order was made restraining publication of the terms of the DPA pending completion of the trial, though the Judgment provides a description of the key terms of the DPA. In a subsequent order made in these judicial review proceedings it was directed that pending further order no reference was to be made to the identity of the Claimant or any Interested Party. This Court thereby extended protection to the identity of the lawyers acting on behalf of the company (the second Interested Party hereto).
To enable our reasons to be set out in as transparent a manner as is possible, whilst at the same time avoiding any risk of injustice in the forthcoming criminal proceedings, we refer to the parties in anonymised terms. The Defendant to this judicial review is the Serious Fraud Office (“SFO”). The Claimant (hereafter “AL”) is a Defendant in the criminal proceedings. There are four Interested Parties. The first is the company (hereafter “the company” or “XYZ Ltd”) which self-reported suspected instances of the payment of unlawful commissions to the SFO. The second Interested Party (hereafter “ABC LLP”) is the firm of lawyers which acted for XYZ Ltd in the internal investigation leading up to...
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