Soma Oil And Gas Ltd, R (On the Application Of) v Director of the Serious Fraud Office

Judicial review of an investigator’s decision to continue a good-faith investigation into suspected serious criminality faces a very high threshold. Intervention is reserved for wholly exceptional cases, such as unlawfulness, bad faith, irrationality or other exceptional legal grounds. The court must respect the constitutional and practical distinction between judicial review and investigative decision-making.

Where an investigation engages Art. 8 ECHR, proportionality may be assessed using the structured approach in Bank Mellat. A suspect has no general right to disclosure of sensitive investigative lines of inquiry where disclosure could prejudice an ongoing investigation. Permission to proceed was refused.

The claimant sought judicial review of the Serious Fraud Office’s continuing investigation into suspected bribery and corruption arising from oil exploration activities in Somalia. It challenged the continuation of the investigation into capacity-building payments, sought a public indication that no prosecution would follow, and sought disclosure of the nature of other investigative strands.

The SFO had issued an exceptional letter stating that the available evidence concerning the capacity-building payments did not presently establish a realistic prospect of conviction, while confirming that other strands remained under investigation. The central issues were whether the SFO’s investigative decisions were irrational or disproportionate under Art. 8 ECHR, and whether common law or EU law required further disclosure.

1. Disposition. Permission to proceed with the judicial review claim was refused on all three grounds. The claim had no real prospect of success.
2. Capacity-building payments. The SFO’s exceptional letter gave Soma all the practical relief it could realistically obtain. Grounds I and II therefore could not succeed.
3. Review of investigations. Decisions to investigate are reviewable in principle, but the court will intervene only in a wholly or most exceptional case. The SFO’s statutory discretion under Criminal Justice Act 1987, s.1(3), was broad. The investigation had begun and continued in good faith, there was no undue delay in the circumstances, and there was no irrationality. A mandatory order terminating it would blur the distinct roles of the court and investigator.
4. Article 8. The court assumed, without deciding, that the investigation engaged Soma’s Art. 8 rights. If so, continuation was capable of justification under Art. 8. The proportionality test stated in Bank Mellat was applicable, including whether a fair balance had been struck.
5. Disclosure. There was no common-law right to compel disclosure of the nature of sensitive investigative lines of inquiry. The Directive did not require disclosure of investigative lines of inquiry, particularly where disclosure might prejudice an ongoing investigation.
6. Costs. The SFO’s costs were summarily assessed at £20,000, with Soma ordered to pay 80%, namely £16,000, within 28 days.

The judgment describes an earlier inter partes directions hearing before Andrews J on 12 August 2016, followed by this rolled-up hearing. The court refused permission to proceed with the judicial review claim and certified the decision as authoritative.