The High Court has recently (12.10.16) had the opportunity of reviewing the circumstances in which the court can intervene in an investigation. Whilst their conclusion was not a surprise it was a helpful confirmation and exposition of what we had understood the position to be.
The judgement is peppered with expressions such as ‘very high hurdle indeed’ and ‘challenges to the decisions of prosecutors can only be advanced on very narrow grounds and, even then, will succeed only in very rare cases’. It is clear the court will be exceptionally slow to intervene in an ongoing investigation.
The investigator, in this case as in many challenged cases, was the SFO.
Whilst the court acknowledged that the investigators discretion is not unfettered it seems that unless bad faith, unlawfulness or irrationality can be established then the court will not intervene and the investigation will be allowed to run its course.
Those under investigation may well do better by preparing a positive defence. In our experience even long running investigations fail to gather significant evidence. A person or company under investigation can run its own parallel inquiry of its own to ensure that all evidence that might assist them in any future litigation can be gathered and preserved.
Usmani King is able to help in directing or conducting these internal investigations and preparing a comprehensive defence, or if fault is admitted, in putting in place improved systems to deal with any compliance deficiencies.