Kotova v Director of Public Prosecutions

Judicial review of prosecutorial decisions is subject to a very high threshold. The court will intervene only on narrow grounds, including unlawful policy, departure from settled prosecutorial policy, or perversity. The proper forum for abuse of process arguments is ordinarily the Crown Court.

Double jeopardy may arise where a person faces a second trial for the same offence, or where a later prosecution is founded on the same or substantially the same facts and amounts to an abuse of process. Mere consideration of related conduct in an earlier judgment is insufficient where it was not integral to the earlier charge, conviction or sentence. Delay in an investigation must be exceptional or oppressive before it can justify judicial review.

The claimant, previously convicted in Russia of an attempted commercial bribe concerning the Canbaikal project, sought judicial review of the defendants’ decision to continue a United Kingdom investigation concerning a separate alleged bribe relating to Vostok Energy.

She argued that continuation of the investigation created a real risk of double jeopardy or involved an abuse of process because the Vostok allegations had been mentioned in the Russian proceedings. She also alleged that the investigation was stagnant and oppressive through delay. The court considered whether the defendants had decided the double-jeopardy issue and whether either ground justified judicial intervention.

1. Application dismissed. The court accepted that the first defendant’s letter of 3 February 2015 constituted a decision to continue the investigation notwithstanding the double-jeopardy issue.
2. The grounds for challenging prosecutorial decisions are narrow. They include unlawful policy, failure to follow settled policy, and perversity in the sense that no reasonable prosecutor could have reached the decision. The court does not itself make prosecutorial decisions, and abuse of process arguments ordinarily belong before the Crown Court.
3. English law recognises protection against double jeopardy following an acquittal or conviction for the same offence, and in respect of a later prosecution based on the same or substantially the same facts where a stay would ordinarily be required as an abuse of process. The court treated Fofana and Belise v Deputy Prosecutor Thubin [2006] EWHC 744 Admin as materially different because the later proceedings there concerned an ongoing course of criminality which included the United Kingdom offence.
4. The Russian proceedings concerned only the attempted Canbaikal bribe. The Vostok bribe was a separate transaction, payment had been completed, it was not charged or convicted in Russia, and it was not taken into account in sentencing for the attempted offence. References to Vostok in the Russian judgment were background material and related to rejection of the claimant’s political-motive defence. They were not integral to the conviction or sentence. There was therefore no double jeopardy and no significant factual overlap requiring a stay.
5. The delay challenge also failed. Judicial review would require delay so exceptional or oppressive as to justify intervention. The investigation was not stagnant: it was essentially complete, and the claimant had not been charged because she remained in Moscow and could not be extradited. That circumstance was not attributable to the defendants.
6. The defendants were awarded their costs in full, subject to detailed assessment.

Permission to bring the judicial review proceedings was granted by Mrs Justice Nicola Davies on 20 August 2014. The Divisional Court dismissed the application and ordered detailed assessment of the defendants’ costs.