Lord Justice Gross :
- This is the judgment of the Court to which we have each contributed.
- This case raises for consideration the question, amongst others, whether the common law duty of disclosure or candour attaching to an applicant for a domestic search warrant is applicable, in modified form, to an authority requesting assistance by way of a Letter of Request from a foreign authority, pursuant to the provisions of s.7 of the Crime (International Co-operation) Act 2003 ("CICA").
- The Defendant ("the SFO") is the United Kingdom authority responsible for investigating and prosecuting serious and complex fraud. Pursuant to the Crime (International Co-operation) Act 2003 (Designation of Prosecuting Authorities) Order 2004 ("the 2004 Order"), the SFO is a designated prosecuting authority for the purposes of s.7(5) CICA.
- S. 7(5) of CICA provides as follows:
"…a designated prosecuting authority may itself request assistance under this section if –
(a) it appears to the authority that an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed, and
(b) the authority has instituted proceedings in respect of the offence in question or it is being investigated.
'Designated' means designated by ….[the 2004 Order]… "
The "assistance" that may be requested under s.7 is itself defined by s.7(2) as "…assistance in obtaining outside the United Kingdom any evidence specified in the request for use in the proceedings or investigation."
- On the 22nd March, 2016, the SFO commenced the investigation with which this matter is concerned, pursuant to s. 1(3) of the Criminal Justice Act 1987 ("the CJA 1987"). The investigation was commenced because the SFO suspected that offences had been committed – namely, offences of corruption under s.1 of the Public Bodies Corrupt Practices Act 1889, corruption under s.1 of the Prevention of Corruption Act 1906, conspiracy to corrupt under s.1 of the Criminal Law Act 1977, conspiracy to enter into corrupt transactions outside the United Kingdom contrary to s.1A of the Criminal Law Act 1977 and offences of bribery under ss. 1 and 6 of the Bribery Act 2010.
- On the next day, the 23rd March, 2016, the SFO sent the authorities in Monaco ("the Monegasque authorities") a Letter of Request ("the LOR") seeking the assistance of those authorities in relation to the SFO's criminal investigation.
- The LOR requested that premises be searched and business records obtained. Acting on the LOR, on the 29th March, 2016, the Monegasque authorities raided the office of the Second Claimant and the homes of the Third to Fifth Claimants and seized documents, computers and other property. The Third to Fifth Claimants were arrested and later interviewed in both Monaco and here. The SFO subsequently issued Notices pursuant to s.2(3) of the CJA 1987 on the Third to Fifth Claimants, requesting them to provide further information and documents relating to their business activities.
- The primary suspects of the SFO investigation are said to be the Third, Fourth and Fifth Claimants, British nationals of Iranian descent, residing in Monaco. The First Claimant is the holding company of the Unaoil Group ("Unaoil"). The Second Claimant is a Monegasque subsidiary of Unaoil. The Third Claimant is the Chairman of Unaoil. The Fourth Claimant was, until relatively recently, the Chief Executive Officer of Unaoil. The Fifth Claimant is the Chief Operating Officer of Unaoil.
- The Group has been described as providing oil and gas services in the Middle East, Central Asia and Africa. As set out in the Witness Statement of the Claimants' former solicitor, Mr Tolaini of Clifford Chance, dated 22nd June, 2016 ("the Tolaini WS"):
"…Unaoil specialises in integrating local capabilities with Western technology in niche areas of the oil industry, with the objective of making Unaoil the local partner of choice for larger international companies looking to execute projects in the areas in which Unaoil operates by way of a joint venture…"
- The Claimants claim judicial review seeking, inter alia, the quashing of the LOR, together with the return of all the materials obtained from the Monegasque authorities pursuant to the LOR and the destruction of any copies of those materials held by the SFO.
- The Claimants initially advanced a number of grounds. We are only concerned with the two grounds for which permission was granted by Andrews J on the 8th August, 2016. These two grounds ("the Grounds") are as follows:
i) The LOR was unlawful because it failed to disclose key information ("Ground 1");
ii) The LOR was unlawful because it was impermissibly wide (i.e., "a fishing expedition") and constituted an improper exercise of the statutory power under s.7, CICA ("Ground 2").
- As the argument evolved before us, the principal Issues to which the Grounds give rise fall conveniently under the following headings:
i) Was the SFO under a duty to the Claimants to comply with a "heightened procedural obligation" when issuing the LOR? ("Issue I: Duty")
ii) If any relevant duty was owed, was the LOR unlawful by reason of a breach or breaches of that duty? ("Issue II: Breach of Duty")
iii) Did the LOR constitute an unlawful fishing expedition? ("Issue III: Fishing Expedition")
iv) Depending on the outcome of Issues I – III, what order should the Court make? ("Issue IV: Disposal")
- We acknowledge with thanks the excellent assistance furnished to this Court by Mr Keith QC, for the Claimants and Mr Hall QC, for the SFO, together with their respective teams.
- Before turning to the Issues, it is first necessary to outline the contents of the LOR.
- Following introductory courtesies and reference to the suspected criminal offences under investigation, the LOR explained the urgency of the request:
" Our investigation has recently commenced and we hope to charge one or more suspects in the coming months. Three of the main suspects are believed to reside and operate their business from Monaco. The SFO has intelligence to suggest that the main allegations will be published on an international news website on the 30th March 2016 and believe that this may prompt the destruction of the relevant evidence being requested….. "
- The LOR records that the request is made pursuant to the European Convention on Mutual Assistance in Criminal Matters, done at Strasbourg in 1959 ("the Strasbourg Convention") and the UN Convention against Transnational Organised Crime, done at Palermo in 2000 ("the Palermo Convention").
- The LOR involved a request for "business records, suspects to be interviewed and searches of premises to obtain evidence" for use in the investigation and any subsequent prosecution, including related restraint, confiscation, enforcement and ancillary proceedings. The identities and other details of the Third to Fifth Claimants were given and the offences, with which the investigation was concerned, were enumerated.
- A "Summary of Facts" followed. As there set out:
" 2. The SFO is investigating wide-ranging allegations of bribery and corruption committed by senior executives of Unaoil Monaco SAM ('Unaoil')….
3. Material in the possession of the SFO (notably internal Unaoil emails and documentation) suggests that Ata, Cyrus and Asam Ahsani together with Peter Willimont and Basil Al Jarah paid bribes and/or conspired together to pay bribes to high-ranking Iraqi public officials on behalf of Unaoil clients."
- The LOR then turned to Unaoil's (alleged) dealings with Leighton Offshore Pte Ltd ("Leighton"), a company incorporated in Singapore, in connection with various very substantial contracts for the oil industry in Iraq. The LOR goes on to say this:
" 9. The documents seen by the SFO to date strongly suggest that Leighton bribed Iraqi officials to obtain their contracts with SOC [i.e., the Iraqi state-owned oil producer]. It is that …[certain contracts]…were entered into to provide an apparent cover of legitimacy for payments from Leighton to Unaoil. These monies are thought to have provided Unaoil with its own share of the profits but also the funds to make corrupt payments to Iraqi officials.
10. These Iraqi officials and the middle man used to acquire influence were referred to by code names in email correspondence between the Ahsanis, Peter Willimont and their Iraqi partner, Basil Al Jahar, when discussing their business dealings…. "
A code was also said to have been used to disguise a particular payment. The SFO alleged that the use of codes evidenced the Claimants' knowledge that the payments were corrupt. The LOR recounted details going to allegations of Unaoil dealings with Iraqi officials, exercising influence with regard to the award of contracts to Leighton and likewise Rolls Royce.
- The LOR states that shortly after this investigation commenced on 22nd March, 2016, Mr Al Jarah (referred to above) was arrested. He was searched, as was his home address and he was interviewed.
" 23. ….On his person, Al Jarah was carrying two cheques from 'A. Ahsani'. Both were made payable to Armada Investments LLC (believed to be the company belonging to Al-Jibouri) [an alleged middle man and described, inter alia, as 'The Doctor' in the Code/s] in the sums of GBP £950,000 and GBP £925,000 respectively. The SFO therefore has a strong suspicion that the people named in this Letter of Request are continuing to commit further offences up to the present day."
- Under the heading of "Assistance Requested", the LOR details searches for hardcopy and electronic materials. Likewise, it requests interviews of the Third to Fifth Claimants and Mr. Willimont, as suspects – and gives the "principal subject areas" of the interviews. As appears from p.12, para. 2b), those "principal subject areas" are essentially focused on Iraq. However, the LOR goes on to request permission for SFO officials to be present at and, as far as possible, participate in the searches and interviews, for this stated reason:
" ….that they have been fully involved in the investigation of the allegations of bribery and corruption involving Unaoil in several jurisdictions and have detailed knowledge which will assist the Monaco's authorities execute this request. "
- Finally, confidentiality was requested because of a concern that relevant evidence might otherwise be concealed or destroyed. Once obtained, the evidence was to be transmitted to the SFO in the United Kingdom.
ISSUE I: DUTY
- (1) The rival arguments: For the Claimants, Mr Keith's central submission was that:
"…there is (or ought to be) correspondence between the standards of fairness which apply to a United Kingdom law enforcement agency when it invokes the assistance of foreign authorities, and those which apply when it seeks the same assistance from a domestic court."
Where the essence of what was sought internationally amounted to intrusive searches – no different from search warrants – a duty of candour rested or ought to rest on the applicant (here the SFO) under s.7(5), CICA, as under any ex parte application. It was to be remembered that the execution of a search warrant was a draconian state power. Mr Keith contended for a "heightened procedural obligation", closer to the well-recognised obligations applying to applications for domestic search warrants – though he accepted that the obligations were not identical, given that the context here was that of Mutual Legal Assistance ("MLA"). The obligation was more than the "amorphous, ill-defined obligation" of good faith between states but less than the full disclosure obligation, explained by Hughes LJ (as he then was) in In re Stanford International Bank Ltd  EWCA Civ 137;  Ch 33, at  (see further below). The matter could not be left to the scrutiny of the court of the requested state; in the MLA sphere, substantive scrutiny, or judicial oversight, was for the court of the requesting state. Nor was it right to rest content with such safeguards as were available at trial (if any trial took place); it was intrinsically unfair for the Claimants to have to wait until then. That a challenge at this stage might delay or disrupt a criminal investigation was neither here nor there; if the challenge was well-founded, so be it.
- For the SFO, Mr Hall was anxious to divide the matter into a number of different stages, distinguishing between the obligations which applied at each stage and between those obligations applying to the requesting state and those applying to the requested state. He submitted that at this stage of the process (the issuing of an international state to state LOR) there was no such obligation as contended for by the Claimants. Moreover, to develop the law, as urged by the Claimants would be inconsistent with:
" …(1) the well-established principle that the courts will not entertain challenges to steps taken in criminal investigations save in exceptional circumstances, (2) the provisions and spirit of international conventions which apply to LORs, and (3) the longstanding reluctance of the courts to superimpose common law requirements upon the actions of UK authorities within the field occupied by CICA 2003, which is intended to be a comprehensive statutory scheme implementing the UK's international obligations in a field of high public interest and international comity. "
In making LORs, state parties were obliged to act in good faith and to proceed in accordance with the requirements of the applicable international conventions. The SFO had done so here; additional common law obligations should not be read in. Moreover, the individual enjoyed the judicial protections available in the requested state, a fortiori here, where Monaco was a party to the ECHR. Still further, the individual would be protected by the fair trial safeguards in the court of the requesting state, should a criminal prosecution ensue. Furthermore, in the course of oral argument, Mr Hall accepted that the making of a LOR was amenable to judicial review on the usual public law grounds, including irrationality; that too furnished a safeguard, "albeit with a light touch". At a later stage in the process, when the requested state was putting the LOR into action, a duty of candour would arise; according to Mr Hall, requested states commonly made inquiries of requesting states, at this (later) stage. If, still later, there was a challenge to execution of the search warrant (or local equivalent) that was a matter for the local law. That had no nexus with the LOR which operated "on the international plane". It was to be remembered that the warrant, not the LOR, authorised searches and seizures.
- (2) The Legal Framework: For present purposes, the relevant treaties governing cooperation between state parties with regard to LORs are, first the Strasbourg Convention and, secondly, the Palermo Convention.
- The Strasbourg Convention, ratified by both the United Kingdom and Monaco, provides, by Art. 1.1 that the parties "undertake to afford each other….the widest measure of mutual assistance…" in criminal matters. Art. 2 provides that assistance may be refused in respect of political offences or if the requested party considers that the execution of the request "…is likely to prejudice the sovereignty, security, ordre public or other essential interests of its country". Art. 3.1 provides that the requested party shall execute "…in the manner provided for by its law any letters rogatory relating to a criminal matter…" addressed to it by the judicial authorities of the requesting party "for the purpose of procuring evidence or transmitting articles to be produced in evidence, records or documents."
- The requisite contents for requests for MLA are to be found in Art. 14 of the Strasbourg Convention:
" 1 Requests for mutual assistance shall indicate as follows:
a the authority making the request,
b the object of and the reason for the request,
c where possible, the identity and the nationality of the person concerned, and
d where necessary, the name and address of the person to be served.
2 Letters rogatory referred to in Article 3, 4 and 5 shall, in addition, state the offence and contain a summary of the facts."
- The Palermo Convention also provides for MLA between states in relation to certain categories of offending. So far as here material, the requirements as to the content of a request for MLA are to be found in Art. 18(15) – (17) and are in the following terms:
" 15. A request for mutual legal assistance shall contain:
(a) The identity of the authority making the request;
(b) The subject matter and nature of the investigation, prosecution or judicial proceeding to which the request relates and the name and functions of the authority conducting the investigation, prosecution or judicial proceeding;
(c) A summary of the relevant facts, except in relation to requests for the purpose of service of judicial documents;
(d) A description of the assistance sought and details of any particular procedure that the requesting State Party wishes to be followed;
(e) Where possible, the identity, location and nationality of any person concerned; and
(f) The purpose for which the evidence, information or action is sought.
16. The requested State Party may request additional information when it appears necessary for the execution of the request in accordance with its domestic law or when it can facilitate such execution.
17. A request shall be executed in accordance with the domestic law of the requested State Party and…. where possible, in accordance with the procedures specified in the request."
- The United Kingdom's international obligations in respect of outgoing and incoming requests for MLA under these treaties are implemented by CICA and the terms of s.7 (so far as relevant) have already been set out. It may be noted that no provision is made in s.7 for the contents of any request, save under s.7(7) which is inapplicable here. In other contexts, CICA does limit requests to cases where the information is likely to be of 'substantial value' to the investigation and in those cases the request must state why it is likely to be of such value – see CICA s.43(1)(c) and s.43(6)(b). But the present case does not come within those provisions.
- (3) The common ground: It is helpful to summarise the common ground, so as to illuminate the nature of the dispute under this Issue. Thus it was not in dispute before us that, at least so far as concerned Iraq:
i) The SFO had reasonable grounds to suspect that the Claimants have committed offences involving complex and serious fraud.
ii) The pre-conditions for making the LOR had been met; there was no suggestion on the Claimants' part that the SFO had acted irrationally or ultra vires in doing so.
iii) The SFO had acted in good faith.
- (4) Discussion: With respect to Mr Keith's submissions, we are quite unable to accept the existence of a "heightened procedural obligation" in this sphere. Our reasons follow.
- First, the nature of the disclosure obligation when a law enforcement agency seeks a domestic search warrant on an ex parte application is such as to render it peculiarly inappropriate to a LOR to a foreign authority. An authoritative statement of the relevant duty of candour appears from the judgment of Hughes LJ (as he then was) in In re Stanford International Bank Ltd (supra), at :
" ….it is essential that the duty of candour laid upon any applicant for an order without notice is fully understood and complied with. It is not limited to an obligation not to misrepresent. It consists in a duty to consider what any other interested person would, if present, wish to adduce by way of fact, or to say in answer to the application, and to place that material before the judge….. In effect a prosecutor seeking an ex parte order must put on his defence hat and ask himself what if he were representing the defendant or a third party with a relevant interest, he would be saying to the judge, and, having answered that question, that is what he must tell the judge….."
The likely colloquial response from the requested state would be an invitation to the UK judicial or designated prosecuting authority making the request to resolve its own doubts or difficulties and to re-issue the LOR if, or when, it had done so. At the very least, a LOR couched in such terms would be likely to cause real confusion to the requested state. In short, this duty only needs spelling out to demonstrate that it is wholly unsuitable for adoption in the context of making a LOR to a foreign authority.
- Secondly, no doubt appreciating that an argument for the same obligation as that governing the making of a domestic application for a search warrant was doomed, Mr Keith contended for a "heightened procedural obligation". As already noted, this was said to be more than an obligation of good faith, but less than the full disclosure obligation; in the Claimants' skeleton argument it was advanced variously as conforming to "irreducible standards of fairness" or "minimum standards of fairness". As it seemed to us, the difficulty, with respect, was that even an advocate as skilful as Mr Keith struggled with articulating and defining the content of such an obligation. Even considered in isolation from the international scheme for MLA (to which we next turn), we do not think this argument can be well-founded.
- Thirdly, we are not persuaded that it would be right to read in or superimpose a domestic common law duty of disclosure or candour, or procedural requirement, in an area covered by a comprehensive international scheme which CICA seeks to implement in, as Mr Hall rightly submitted, "a field of high public interest and international comity". We do not think that there is any such obligation as contended for by the Claimants and we see no attraction in developing the law in the direction urged by them, even assuming it to be open to us to do so.
i) The LOR was required to comply with the conditions for invoking CICA, s.7 (5), Art. 14 of the Strasbourg Convention and Art. 18(15) of the Palermo Convention. It did so comply; indeed (subject only to Issue III below), there was no argument before us that it did not. For present purposes, the SFO was thus obliged to, and did, set out, accurately, in the LOR, inter alia: that there were reasonable grounds for suspecting that offences had been committed; that those offences were being investigated; the object of and the reason for the LOR, together with a summary of the facts. The Claimants' case would require an additional domestic obligation to be read into this international scheme – moreover a proposed obligation afflicted by the difficulties already outlined. Though the context is somewhat far removed, the decision in R (Omar) v Foreign Secretary  EWCA Civ 118;  QB 112 serves as a reminder of the difficulty of introducing common law obligations or remedies into the international treaty regime sought to be implemented by CICA.
ii) The object of the international scheme is that as between friendly states with whom there are treaty obligations of mutual cooperation, requests for MLA will be acted upon – and as quickly as possible, at least unless there are compelling reasons for not doing so: R v Secretary of State for the Home Department, ex parte Abacha  EWHC (Admin) 787, at ; JP Morgan v SFO  EWHC 1674 (Admin), at  – . As Tuckey LJ observed in Abacha (loc cit), any requirements of procedural fairness "…must be fashioned with those considerations firmly in mind". As it seems to us, the introduction of the suggested "heightened procedural obligation" would introduce unwarranted complexity and would not assist in this regard; it would be much more likely to slow down the working of the international scheme rather than assist its expeditious operation. In particular, the statutory and treaty regime focuses on a statement of the facts and matters upon which the LOR is based, justifying its issue and calling for it to be acted upon. By contrast, the essence of the heightened procedural obligation goes to setting out the reasons casting doubt on the issue of the LOR and, hence, why it should not be acted upon.
iii) It is common ground or indisputable that the issuing of a LOR is a step in an investigation. Challenges by way of judicial review to investigators in the conduct of an investigation have and should have a "very high hurdle to overcome" and will be entertained only in exceptional circumstances: R (on the application of Soma Oil and Gas Ltd) v Director of the SFO  EWHC 2471, esp. at  and following. The Claimants' submission, if well-founded, would lead to increased scope for challenging the conduct by the SFO, acting in good faith, of an investigation into serious criminality. Such challenges to investigators should be very rare; we are not attracted to a development in the law which would encourage their increase.
- Fourthly, we have not at all overlooked the observation in JP Morgan (at ), which per contra we reiterate, that "…ordinarily, disputed points of foreign law or procedure are best left for resolution in the courts of the requesting State…." – i.e., rather than the courts of the requested state. It does not, however, follow that we must or should accede to the superimposition of the "heightened procedural obligation" in the requesting state contended for by the Claimants. Looking at the matter in the round, those who are the subject of a LOR are not without protections. That those protections are not as all-encompassing as Mr Hall was minded to submit, is not a reason for introducing a domestic obligation cutting across the working of this international scheme. A balance must be struck between the public interest in international cooperation in investigating and prosecuting serious crime and the rights of the individual; in our judgment, the protections which are available serve to furnish a satisfactory balance.
i) In the requesting state, the SFO must comply with the CICA and treaty requirements. The SFO, moreover, must act in good faith, in accordance with this country's treaty obligations. As noted above, Mr Keith was somewhat dismissive, describing this obligation of good faith as "amorphous" and "ill defined". In the field of treaties, we respectfully disagree; the nature of the obligation is clear and well-established; questions of compliance or breach are necessarily context and fact specific. That breaches of the obligation of good faith may (hopefully) be exceedingly rare is nothing to the point. Further still, the making of a LOR, as Mr Hall in terms accepted, is amenable to challenge on public law grounds. Though such challenges are not at all to be encouraged (Soma Oil, supra), they would dovetail well with the statutory and treaty regime provided their focus was upon compliance with the CICA and treaty conditions for the making of a LOR. On this footing, they would not cut across the international scheme but would provide a means for testing whether the power to issue a LOR had been properly invoked where, in those rare cases, there were real grounds for believing that it had not.
ii) So far as concerns the requested state, though disputed points of foreign law are intended to be rare – given the underlying expectation that requests for MLA will ordinarily be granted and acted upon speedily - it is to be remembered that MLA should "not be equated to a blank cheque": JP Morgan (supra), at . It is to be underlined that the issuing of the LOR – with which these proceedings are solely concerned – is but the first stage of the process. Additionally, in the present case, Monaco is a party to the ECHR, so that the conduct of the search and seizure (of which no complaint is made) is subject to the requirements of the ECHR.
iii) Finally, should the matter proceed to trial in the requesting state, there are the usual protections inherent in the trial process, safeguarding defendants and ensuring fairness.
- Fifthly, Mr Keith asked us to note the central role which the SFO played in the execution of the search warrants and interviews of suspects in this individual case. But we cannot see how this has any bearing on the duty of the SFO at the point where the LOR is issued and which will, necessarily, be before any searches or interviews are conducted. If there is any legitimate complaint about those later steps, they would have to be ventilated in the Monegasque courts by reference to Monegasque law, as to which we had no evidence.
- Sixthly, and for completeness, it remains to deal with the decision of the Northern Ireland Court of Appeal, Re Application by Winston Churchill Rea For Leave to Apply for Judicial Review  NICA 8. Mr Keith relied upon this decision for the proposition that, in order to read CICA compatibly with the applicant's ECHR Art. 8 rights, the Court had been prepared to consider reading into the wording of s.7(2) a requirement to satisfy a particular standard of relevance. In the event, however, we do not think that Winston Churchill Rea serves to assist Mr. Keith's argument. First, it is one thing to seek to interpret a statute compatibly with the ECHR, in accordance with s.3(1) of Human Rights Act 1998 ("the HRA") and, for that purpose, if need be, to read words into the statute; it is another to superimpose a domestic duty of disclosure or candour into an international scheme when not required by the ECHR. Secondly, the decision in Winston Churchill Rea is notably unhelpful to the Claimants. The Court rejected (at ) the heightened relevance requirement. Furthermore, even on the assumption that the issue of the LOR in that case may have infringed the applicant's right to privacy, the Court (at ) was "… entirely satisfied that any such interference was in accordance with law and necessary in the interests of the prevention of crime in accordance with Article 8(2)…". As will be recollected, there was no HRA claim here.
- For the reasons given, we reject the Claimants' argument under Issue I that a "heightened procedural obligation" applies or should apply to the SFO's issuing of a LOR in the present case.
ISSUE II: BREACH OF DUTY
- Strictly speaking, our decision on Issue I disposes of Issue II which falls away: there was no relevant duty and thus no question of breach of duty. Nonetheless, out of deference to the arguments addressed to us, we shall deal with Issue II, albeit somewhat briefly.
- The Claimants' complaints fell under three headings:
i) Prior publication;
ii) Ongoing offences;
iii) Unaoil – Leighton litigation.
We take each in turn.
- (1) Prior publication: As we have seen, in the LOR, the SFO relied upon the forthcoming publication in the media of allegations against the Claimants as the justification for urgent action by the Monegasque authorities to guard against destruction of the relevant evidence. The nub of the Claimants' complaint here was that the SFO had failed to present a balanced picture to the Monegasque authorities; given the longstanding investigation by the Australian Federal Police ("AFP") into Leighton, these allegations of corruption were already, and had been for a long time, a matter of public knowledge. Accordingly, the LOR mischaracterised the need for urgent action and overstated the risk of destruction of the evidence.
- The SFO response was that the AFP investigation had a very different focus from the SFO's criminal investigation into the Claimants. Not least, the Claimants were apparently not suspects in the Australian criminal investigation, which was concerned primarily with Australian nationals and companies incorporated in Australia.
- If contrary to our conclusion on Issue I there had been a "heightened procedural obligation" of candour, approximating the obligation of disclosure in domestic ex parte applications, then we would have treated the failure to mention the AFP investigation as akin to non-disclosure. In that regard, with respect, we were not attracted to the manner in which this topic was dealt with in the SFO's skeleton argument at para. 51(b). We would not, however, have viewed this failure as amounting or akin to material non-disclosure. We are content to adopt the test for material non-disclosure most favourable to the Claimants, namely, that a Judge might well (rather than would) have refused to make the order sought had there been full and proper disclosure: R (Mills) v Sussex Police  EWHC 2523 (Admin);  1 WLR 2199, esp. at . However, even applying this test, we entertain no real doubt that a Judge (hypothetically) considering the LOR would have been content to see it issued had there been full and proper disclosure of the earlier AFP investigation; realistically, no Judge would have been minded to risk destruction of the evidence. The forthcoming publication in The Huffington Post would have given prominence to Unaoil and the individual Claimants, whatever had been previously published. The SFO was, at the least, entitled to emphasise urgency to the Monegasque authorities. Accordingly, this complaint of the Claimants would have been bound to fail even had we reached some different conclusion on Issue I. We also observe that in the context of a domestic search warrant, the duty of disclosure operates in a statutory milieu whereby, if property is wrongfully seized, the police can nonetheless apply to the Crown Court for it to be retained -see Criminal Justice and Police Act 2001 s.59. There is no analogue (at least none of which we were informed) on the international plane. All that said, the SFO may care to reflect that an additional sentence in the LOR, noting the earlier AFP investigation and attendant publicity, would have done no harm and would have avoided unnecessary controversy.
- (ii) Ongoing offences: As already recorded, the LOR referred to the arrest on the 22nd March, 2016, of Mr Al Jarah, carrying two substantial cheques, made payable to a company to which suspicion attached (as there set out). The Claimants complain of the LOR's failure to state that the cheques were dated 2013 and 2014. It is said that this failure breached the duty of candour and undermined the impression of ongoing criminality, asserted in the LOR.
- We are unable to accept the Claimants' submissions in this regard. The cheques remained valid. While an innocent explanation could of course not be precluded, the carrying of cheques in those amounts, made out to a suspect company, supported, and fairly supported, the suspicions expressed by the SFO in the LOR. That another draftsman might, for completeness and perhaps more happily, have included the dates of the cheques, does not advance the matter. Had there been a duty of candour (contrary to our conclusion on Issue I), we would have rejected the contention that the failure to give the dates of the cheques entailed a breach of that duty.
- (3) Unaoil – Leighton litigation: In this regard, the LOR said the following:
" In relation to the JICA MOU, there was a dispute between Unaoil and Leighton heard in the High Court of England and Wales for breach of contract. It is suspected that Unaoil made corrupt payments to the Iraqi officials prior to the JICA Contract being won by Leighton. The SFO believes, on the basis of documentation reviewed, that Leighton refused to honour the terms of the JICA MOU as it had made separate corrupt payments to others in respect of the same contract. Unaoil was awarded US$12,577,500 for unpaid debts and damages for loss of profits in the sum of US$5.8m by the High Court."
- The Claimants advance two complaints under this heading. First, that para. 19 of the LOR did not make clear whether the suspicion voiced in the second sentence had been part of the claim that was heard by the High Court, and therefore considered by it, as opposed to what was suspected by the SFO. As expressed in the Claimants' skeleton argument: "It reads, in effect, as though the High Court litigation in some way supported the existence of that suspicion." We disagree. The sentence in question simply does not convey the meaning attributed to it by the Claimants. The suspicion is clearly that of the SFO and, as such, it accurately represents the SFO's belief.
- Secondly, the Claimants were dissatisfied that the LOR did not make clear that the transaction and payments – characterised as corrupt in the LOR - had been examined by the High Court and no adverse finding had been made in respect of them. Furthermore, the judgment in the High Court litigation contained a reference to the evidence of corrupt payments being "tenuous": Unaoil Ltd v Leighton Offshore PTE Ltd  EWHC 2965 (Comm), at . The LOR made no reference to this observation of Eder J.
- For our part, we cannot help thinking that this is another instance where the LOR would have read better had it clearly articulated the SFO's actual thought processes; nothing would have been lost by doing so and no confusion would have been introduced. Perfectly understandably, the SFO's position was, in essence, that the evidence and documentation before Eder J had been seriously incomplete so that no, or the most minimal, reliance could be placed on the absence of a finding adverse to the Claimants. Not only is that now the SFO's position but there are pointers in this regard to be found in the judgment of Eder J. Thus, at , Eder J remarked that "…certain aspects of the story are, to say the least, somewhat obscure." At , the Judge referred to the "absence of any relevant documents" constituting a feature of the case rendering the assessment of that part of the Unaoil damages particularly difficult. Earlier in the same paragraph, Eder J had expressed himself carefully: "…I am not saying that Unaoil has necessarily failed in its disclosure obligations." Against this background, while it is our view that the LOR could have been better expressed, we cannot agree that it breached a duty of candour (had one existed).
- For completeness, we add this. Mr Keith submitted that all the alleged breaches of the heightened procedural obligation with which we have dealt constituted material misrepresentations. We are unable to accept this submission. The complaint, if complaint there was, lay in the sphere of breaches of a duty of candour, akin to non-disclosure, as distinct from material misrepresentations.
ISSUE III: FISHING EXPEDITION
- The Claimants' case was straightforward. The Monegasque authorities were not to be used as investigators. It was not open to the SFO (or to any other law enforcement body) to "seek the seizure of materials wider than those matters which it is investigating in the hope they provide a 'hook' for further allegations or charges". Here, the LOR was specifically focused on investigating the Claimants in respect of their activities in Iraq; however, the vice of the LOR was that it did not confine the materials to be searched for and seized to those relating only to the Iraq investigation. Accordingly, the LOR had been too broadly formulated and amounted to an impermissible fishing expedition. It is to be noted that the Claimants' case in this regard does not depend on reading into CICA or the Treaty framework a heightened procedural obligation. Instead, if this submission of the Claimants is well-founded, they would be entitled to say that the SFO had failed to comply with ss. 7(2) and (5) of CICA (set out above) – which link the assistance sought to the investigation – and/or constituted an improper exercise of the statutory power under that section.
- The SFO response was equally straightforward. First, the LOR on its true construction was not limited to suspected offences committed in Iraq; it included (as set out above) an express reference to wrongdoing in several jurisdictions; furthermore, given the nature of the corrupt activities suspected it was inherently unlikely that the (alleged) wrongdoing would be confined to one jurisdiction. Secondly, if there was any doubt in this regard, the matter was put beyond argument by the terms of the investigation set out by the Director of the SFO and the evidence from Mr Martin, the SFO Case Controller. Thus, the SFO's Head of Bribery and Corruption confirmed the scope of the investigation to Mr Martin in an e-mail dated 22nd March, 2016, as follows:
" To confirm: the Director today opened an investigation into the activities of Unaoil, its officers, employees and agents for suspected offences of bribery, corruption and/or money laundering. He did so, pursuant to s. 1(3) of the CJA 1987, on the basis that there appeared to him reasonable grounds to suspect offences involving serious or complex fraud."
For his own part, Mr Martin, in his witness statement dated 30th September, 2016, was unequivocal:
" The investigation scope reflected the fact that the investigation team considered that there was evidence that Unaoil had paid bribes in a number of jurisdictions. It is important to emphasise that at no stage has the SFO's investigation been geographically limited and there has never been a decision by either the Director or me, as Case Controller, to investigate only issues relating to Iraq. I observe that in my experience, given the nature of the offences, and given the nature of Unaoil's business, it is unlikely that any offences committed by Unaoil would be confined to one particular jurisdiction. "
Accordingly, all the material sought (at pp. 10 and 11 of the LOR), if held at the specific addresses listed in the LOR, would be evidence in the investigation.
- Although, at first blush, there is some force in the Claimants' submission on this Issue, we are not ultimately persuaded. We do not think that the LOR constituted an unlawful fishing expedition. Our reasons are these:
i) Although the LOR was principally focused on Iraq in terms of the specific allegations advanced, when read as a whole, it cannot be said to be confined to the Claimants' activities only in Iraq. Indeed, it is plain that the material sought was not limited to Iraq.
ii) The question accordingly is whether the investigation is geographically confined to Iraq. In this regard, we do not see any basis for going behind the Director's certification of the investigation – which is not limited to Iraq – and Mr Martin's very clear evidence, in terms, that it is not so limited. We are bound to say that we are fortified in this regard by the inherent likelihood that the activities of the Claimants forming the subject of the investigation are unlikely to be confined to a single jurisdiction.
iii) The remaining question is whether there were reasonable grounds for suspecting that offences had been committed in jurisdictions other than Iraq. Here too, we regard Mr Martin's evidence as telling decisively in favour of the SFO's case. Moreover, although the LOR does not elaborate on the grounds for suspicion, we do not think that there can be an obligation – at least under s.7 CICA – to set out what those grounds were. We add that we would be surprised if there was any such obligation, as the material forming the basis of suspicion may well be sensitive, at least at this early stage of the investigation. For completeness, the Claimants did not apply to amend the grounds for seeking judicial review to allege that the SFO did not, or could not lawfully, hold the view that there were reasonable grounds to suspect criminal offences beyond Iraq, and any such request at the hearing would have been far too late.
- Accordingly, we reject the Claimants' submission that the LOR was an unlawful fishing expedition.
ISSUE IV: DISPOSAL
- It follows that the Claimants' various challenges to the LOR all fail and must be dismissed. We would be grateful for the assistance of counsel in drawing up an order reflecting our conclusions.