AL, R (On the Application Of) v XYZ Ltd & Ors

Judicial review is a remedy of last resort. Where disclosure disputes arise in pending Crown Court proceedings, the Crown Court will ordinarily be the proper forum, particularly where statutory powers can compel production from third parties. The High Court retains a residual jurisdiction where the alternative forum cannot provide effective protection against injustice.

A prosecutor’s discretion concerning disclosure is materially constrained by the accused’s right to a fair trial, the Attorney General’s Guidelines on Disclosure and the continuing duty to take reasonable steps to obtain relevant third-party material. A prosecutor must assess privilege claims properly, consider waiver, and keep disclosure under review. A cursory test of whether a privilege claim is not obviously invalid is insufficient.

The claimant was a defendant in criminal proceedings arising from alleged bribery by employees of XYZ Ltd. XYZ Ltd had entered into a deferred prosecution agreement with the Serious Fraud Office, including obligations of cooperation and disclosure.

Before self-reporting, XYZ Ltd’s lawyers interviewed four employees and made detailed notes. The SFO obtained short oral summaries but not the underlying notes, which XYZ Ltd withheld on grounds of legal privilege. The claimant sought judicial review of the SFO’s decision not to compel XYZ Ltd to provide the notes or pursue breach proceedings under the deferred prosecution agreement.

The central issues were whether the Crown Court provided an adequate alternative remedy and, if not, whether the SFO’s decision was unlawful because of errors concerning disclosure, privilege, waiver and the adequacy of the summaries.

1. Disposition. The claim for judicial review was dismissed because the Crown Court was the appropriate forum. The Court nevertheless held that, had it exercised its jurisdiction, it would have quashed the SFO’s decision and remitted it for reconsideration.
2. Alternative remedy. Parliament had established an interlocking regime under the Criminal Procedure and Investigations Act 1996, the Criminal Procedure (Attendance of Witnesses) Act 1965 and Schedule 17 to the Crime and Courts Act 2013. That regime placed disclosure disputes, witness summonses and deferred prosecution agreement enforcement principally in the Crown Court. The High Court retained jurisdiction, but should intervene only if the Crown Court could not provide an effective remedy and a procedural lacuna threatened injustice.
3. Prosecutorial discretion. The margin of discretion applicable to a decision concerning disclosure during an existing criminal trial was substantially narrower than that applicable to the decision whether to prosecute. The SFO had to give proper weight to the defence’s fair-trial rights under common law and Article 6 ECHR, and to the Attorney General’s disclosure guidance. Shareholder interests in finality could not outweigh the company’s continuing contractual duty to cooperate under the deferred prosecution agreement.
4. Third-party material. Where relevant material was known to exist in a third party’s possession, the guidance required persistence. If the third party refused access, the matter should not simply be left. The prosecutor should consider seeking a witness summons under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965. The section 2 procedure was capable of addressing production and privilege disputes concerning the interview notes.
5. Privilege and waiver. The law was settled that first interview notes obtained for the purpose of deciding whether to self-report were not protected by litigation privilege on the authorities of Three Rivers District Council v Governor and Company of the Bank of England (No 6), RBS Rights Issue Litigation and SFO v Eurasian Natural Resources Limited. The SFO had failed to analyse the privilege claim, the effect of the oral proffers and whether any waiver was limited or extended to disclosure to the defendants. A test of whether the claim was not obviously invalid was legally inadequate.
6. Reliability of summaries. The SFO could not confidently infer that the short oral proffers contained all relevant material merely by comparing them with other material in its possession. The length and detail of the interviews, the absence of questioning context, inconsistencies with the self-reporting submissions and possible relevance to legal arguments created a real possibility of relevant incremental material.
7. Continuing duty. The SFO could not rely on finality or alleged developments in the law to avoid reviewing its disclosure obligations. It had a continuing duty to apply the law as it stood and to ensure a fair trial.

This was a first-instance judicial review in the Divisional Court. Permission to seek judicial review had been granted by Supperstone J, but the claim was dismissed on the ground that the Crown Court was the proper forum.