Challenging prosecutorial decisions

The existence of a basis to challenge prosecutorial decision making was the subject of a recent decision in the administrative court in the context of judicial review proceedings against the Serious Fraud Office. In R (on the application of Soma Oil & Gas Ltd) ex p Director of the Serious Fraud Office [2016] EWHC 2471, the Divisional Court heard an application to judicially review a decision by the Serious Fraud Office to continue to investigate a Somalian oil and mining exploration company in the context of a bribery investigation. The challenge was mounted on the grounds of irrationality and disproportionality (in an Article 8 sense). The investigation had been commenced as a result of a number of 'capacity building' payments made by the Company to the Somalian government in connection with exploration and research. The Company had co-operated fully with the investigation (as the SFO unusually conceded) and importantly the SFO had written it a comfort letter designed to appease concerned investors. Be that as it may, the company contended that the continued investigation (which had been expanded into other strands) was hampering its ability to conduct business. The Court reviewed the authorities on challenges to prosecutors and investigators before dismissing the application in its entirety. The following principles emerge:

1. The grounds of potential challenge are limited to: a) unlawful policy; b) failing to act in accordance with art policy; and c) a perverse decision on a Wednesbury unreasonable basis.

2. Such challenges are only likely to arise in exceptionally rare circumstances.

3. There is no right to compel disclosure of an ongoing investigation.

In this particular case, the comfort letter written by the SFO was described as being the very best that the company could have hoped for. The Court was wholly unpersuaded that this was an exceptional case. The authorities are clear. However, unjust and inconvenient an investigation may seem to those which are its subject, the Court will not intervene save where there is some clear departure from stated policy, unlawfulness in policy (discrimination, for example, comes to mind) or perversity. Public policy clearly dictates that the courts should be very reluctant to interfere in the decision making processes of investigators or prosecutors still less to act to terminate any ongoing investigation or prosecution.