R (on the application of AL) v Serious Fraud Office & (1) XYZ Ltd (2) ABC Llp (3) MS (4) DJ (2018) EWHC 856 (Admin) (Holroyde LJ, Green J) 19/04/2018

Matthew Smith Partner

Why is it important?

Clarifies when judicial review proceedings may be permitted in respect of a Deferred Prosecution Agreement (DPA) with the Serious Fraud Office (SFO) in connection with suspected wrongdoing under the Bribery Act 2010.

What happened?

A company instructed external lawyers to help it decide whether it should self-report in relation to bribery. The lawyers interviewed senior executives of the company, who were suspected of wrongdoing. The interviews were not recorded, but notes were made. When the SFO began investigating the matter, the company refused to provide the interview notes on the basis that they were protected by legal privilege, providing an oral summary of them instead. The company subsequently entered into a DPA with the SFO under which the SFO agreed to suspend the draft indictment charging the company. They did so on condition that the company co-operated with the SFO, including by disclosing to the SFO all information and material in its possession regarding the activities described in the draft indictment.

The company failed to disclose the full notes. The SFO refused to take steps against them, and the claimant in this matter, who was being charged by the SFO in respect of the same alleged wrongdoing, applied to the Crown Court for disclosure. The application was refused on the basis that the notes were not in the “possession” of the company.

What did the Administrative Court say?

The Crown Court’s decision was upheld. Even though the SFO failed to take into account relevant factors when deciding not to take steps against the company, the Crown Court was the proper venue for deciding issues arising from DPAs as these impacted ongoing criminal proceedings. The one caveat to this is where it emerges that there is a procedural gap in the Crown Court’s powers which risks giving rise to injustice.

Take away

Judicial review proceedings are only likely to be permitted in respect of a DPA where it transpires that there is some procedural gap and the Crown Court doesn’t have the power to determine a matter fairly.