In R (on the application of Soma Gas &Oil Ltd) v Director of SFO  EWHC 2471 (Admin), the Claimants (Soma) judicially reviewed the UK SFO, arguing that the SFO's failure to conclude its investigation into Soma was unlawful on the grounds that it was irrational. Soma, ambitiously, sought a mandatory declaration to the effect that the SFO would terminate the investigation, or that the SFO would take a decision whether to prosecute Soma and disclose the nature of inquiries being pursued by the SFO.
On 25 June 2015, the SFO commenced its investigation into whether or not Soma committed bribery and corruption offences in connection with oil exploration activities it conducted in Somali territory from June 2013 to date. The initial investigation focused on Soma's involvement in making capacity building payments to Somali public officials that gave rise to potential criminal offences under ss 6 and 7 of the Bribery Act 2010 (UK). A leaked report authored by the United Nations Somalia and Eritrea Monitoring Group dated 28 July 2015 characterised the capacity building payments as "a likely part of a quid pro quo arrangement" whereby, in exchange for payments to public officials, Soma had obtained preferential treatment and commercial advantages. Soma denies any wrongdoing.
By May 2016, Soma perceived the investigation to be dragging on and expressed such concerns in correspondence with the SFO. Soma was seeking further finance in August 2016 and it was concerned the continued investigation would cast a shadow over Soma's business and give rise to a risk of insolvency. The SFO conceded that Soma had been cooperating fully during the investigations. However, in a letter dated 17 May 2016 the SFO told Soma that although the capacity building payments aspect of the investigation was almost complete, "the investigation […] revealed certain other matters which we have a duty to investigate…"
Soma commenced proceedings for judicial review against the SFO in August 2016. Between then and the judgment, the SFO, against its usual policy, gave Soma an update regarding the investigations. The letter made clear that if Soma wished to communicate the contents to its potential investors, such consent would be approved by the SFO, provided the investors gave a written undertaking that it would not communicate the contents without SFO prior approval. The letter also invited Soma to withdraw the judicial review.
The Court held that Soma faced a very high hurdle in asking the Court to review the discretionary decision of the SFO to commence the investigation, and in seeking mandatory orders terminating such an investigation. The Court confirmed that challenges to the decisions of prosecutors can only be advanced on very narrow grounds and, even then, will succeed only in very rare cases. This is due to the wide discretion entrusted to the Director of the SFO under s 1(3) of the Criminal Justice Act 1987 which says "the director may investigate…"
Whilst the decisions of the Director to commence an investigation are not immune from review of the courts, the courts will be slow to interfere. However, the SFO had not yet reached any decision, and the update on the investigation sent to Soma illustrated the SFO approached the matter proportionately, with regard for Soma's concerns.
Soma was unsuccessful in all its claims and was ordered to pay 80% of the SFO costs. In relation to disclosure of other matters, given the national security risks, the Court held the SFO could not disclose those to Soma until the investigation was concluded.
See the Court's decision here.