Buried deep within the judgment rejecting Unaoil’s judicial review that I talked about in the prior post, Lord Justice Gross makes a very important point, namely that such challenges to Serious Fraud Office investigations should be “very rare."
To bring home the point, he adds that he would “not [be] attracted to a development in the law which would encourage their increase.”
In the Unaoil case at least -- which has seen a succession of highly experienced barristers representing the company, including former director of public prosecutions Lord Ken Macdonald QC -- judicial reviews are anything but rare. In addition to the aforementioned judicial review that was rejected two weeks’ ago, Saman Ahsani has also challenged a notice compelling him to provide documents to the SFO.
Ahsani’s challenge was rejected in August by a judge who labelled the claim as “totally without merit."
Ahsani tried to revive the claim in October arguing that the notice should not require him to hand over documents stored outside the UK. However, this revived challenge was also rejected. Justice Dingemans, who rejected the revived application, labelled it an abuse of process. Specifically, the judge questioned why Ahsani had filed a separate judicial review rather than filing one application that incorporated both the challenge to the section 2 notice and the challenge to the letter of request.
Justice Dingemans told Ahsani: “These courts do not exist to allow litigants to come back on a revolving door basis if they have challenged public law decisions on one basis and failed.”
“This court is quite busy enough as it is,” the judge added.
Corruption Watch understands that members of the Ahsani family, which runs Unaoil, have so far raised seven separate legal grounds for judicial review since June 2016, all of which have either failed, or have been withdrawn.
The flurry of judicial reviews in the Unaoil case form part of a growing list of recent challenges to SFO investigations, only some of which can be publicly named.
In the past few years, judicial review applications have been brought by: Soma Oil & Gas; three senior employees of pharmaceutical company GlaxoSmithKline (GSK); and Colin McKenzie, a director of MIB Facades, a Welsh construction company linked to suspected bribery in the Middle East.
In all of these recent challenges the shadow of the Tchenguiz case looms large.
In July 2012, following a judicial review, the High Court quashed warrants against millionaire brothers Robert and Vincent Tchenguiz, who had been the subject of a botched fraud investigation by the SFO overseen by former director Richard Alderman.
The SFO, which admitted that it did not have a proper record of the evidence it used to obtain a search warrant for Vincent Tchenguiz’s home, ended up paying the brothers millions of pounds in damages.
Claimants currently bringing judicial reviews against the SFO would like to achieve a similar result, but the prosecutor is now a different, slicker beast under the leadership of its new director, David Green.
Unlike the Tchenguiz judicial review, the challenges brought by Unaoil, Soma, McKenzie and GSK staff have all failed. As the judge overseeing Soma’s judicial review application observed in October, challenges to the decisions of government investigators must pass a “a very high hurdle” to succeed.
So why are companies bringing so many of these challenges given their slim chance of success? That's what we'll look at in the next post.
Rahul Rose is a senior researcher for Corruption Watch, a London-based NGO that undertakes cross-border investigations into grand corruption and pushes for effective enforcement of UK anti-corruption legislation. He can be contacted here.