Unaenergy Group Holding Pte Ltd & Ors, R (On the Application Of) v The Director of the Serious Fraud Office

A domestic duty of candour applicable to an ex parte search-warrant application should not be superimposed on an authority making a Letter of Request under the Crime (International Co-operation) Act 2003. The statutory and treaty scheme requires compliance with specified conditions, good faith and an accurate statement of the request’s object, reasons and factual basis. The request is also amenable to ordinary public-law challenge, although challenges to investigative steps face a very high hurdle.

An international request is not an unlawful fishing expedition merely because the factual allegations focus principally on one jurisdiction. The relevant questions are the scope of the investigation and whether there were reasonable grounds for suspecting offences beyond that jurisdiction. The claim was dismissed.

The claimants sought judicial review of a Letter of Request issued by the Serious Fraud Office to the Monegasque authorities during an investigation into suspected bribery and corruption. Searches were conducted and materials seized in Monaco.

Permission was granted on two grounds: alleged failure to disclose key information, and alleged unlawfulness because the request was impermissibly wide. The central issues were whether a heightened procedural obligation applied to an outgoing request, whether that obligation had been breached, whether the request was a fishing expedition, and what relief should follow.

1. Duty of candour. The court rejected the proposed heightened procedural obligation. The full duty of candour applicable to an ex parte domestic search-warrant application was unsuitable for a state-to-state Letter of Request. A less precisely defined obligation of minimum or irreducible fairness was likewise not established.
2. The Crime (International Co-operation) Act 2003, together with the Strasbourg and Palermo Conventions, formed a comprehensive scheme. It required the requesting authority to satisfy the statutory and treaty conditions, act in good faith, and state accurately the object, reasons and factual basis of the request. There was no justification for adding a domestic common-law disclosure obligation. The Letter of Request was amenable to ordinary public-law challenge, but challenges to investigative steps should be entertained only in exceptional circumstances.
3. The safeguards were sufficient to strike the necessary balance between international cooperation in investigating serious crime and individual rights. Later issues concerning execution of searches fell to be addressed under the law of the requested state, while any criminal trial would provide the usual fair-trial safeguards.
4. Alleged non-disclosure. Issue II technically fell away because no heightened duty existed. Even if such a duty had applied, the complaints concerning prior publicity, the dates of cheques and the earlier commercial litigation would not have amounted to material non-disclosure. The court considered that a judge would still have issued the request.
5. Fishing expedition. The Letter of Request, read as a whole, was not confined to Iraq. The court was entitled to rely on the Director’s certification and the case controller’s evidence that the investigation was geographically wider. Section 7 did not require the SFO to set out the grounds for its suspicion, particularly where the underlying material might be sensitive. The challenge therefore failed.
6. The claimants’ challenges to the Letter of Request were dismissed. Counsel were invited to draw up the consequential order.

The judgment records that permission to apply for judicial review was granted by Andrews J on 8 August 2016. No prior judicial decision in the same proceedings is otherwise stated.