CHALLENGING PROSECUTION ALLEGATIONS AT THE INVESTIGATION STAGE

After a year and a half of investigating, the SFO will not prosecute Soma Oil and Gas and some associated companies regarding alleged corruption in Somalia. The claims were made by a United Nations monitoring group but the SFO has announced that there will be no charges brought due to there being “insufficient evidence to provide a realistic prospect of conviction.”

So what exactly does insufficient evidence mean? And how can defence teams work to convince the authorities that there is insufficient evidence against a client under investigation?

Insufficient Evidence

The Crown Prosecution Service’s (CPS) Full Code Test outlines the quality of evidence required to proceed with a prosecution. It also considers whether a prosecution is in the public interest but this article – as with Soma Oil and Gas’ lack of prosecution – is concerned with matters of evidence.

Section 4.4 states that prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. It explains that they must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.

The Test explains that the prosecutor has to objectively assess the evidence – including the impact of any defence and any other information that the suspect may put forward to argue their innocence. In reaching the decision on whether to charge, the prosecutor must decide whether an objective, impartial and reasonable jury, bench of magistrates or judge hearing a case alone would convict the defendant of the charge alleged. 

Questions

In deciding whether there is sufficient evidence to prosecute, prosecutors need to ask themselves whether the evidence they are relying on for a prosecution can be used in court. This involves analysis of whether any evidence could be held as inadmissible by the court and, if that happens, how crucial that could be to the chances of conviction.

Reliability of evidence must also be considered: Is it reliable? Is it accurate? If someone is giving it, are they acting with integrity?

Such questions are not academic exercises. The answers to them are fundamental factors when it comes to whether charges should be brought. They also offer great scope for a “switched on’’, resourceful defence team to argue persuasively that there is insufficient evidence for a prosecution to proceed.

Defence

If a defence team is to contest the need for a prosecution on the grounds that there is no case to answer, the lack of sufficient evidence will be where the argument will be won. It is not easy: prosecutors will be reluctant – to put it mildly – to drop a prosecution. For that reason, defence solicitors must carefully research and examine every aspect of what a prosecutor intends to use as evidence.

Prosecutors will have faith in the quality of their evidence. A defence must find ways to at least raise doubts about the quality of it. If we consider the Full Code Test, this can involve finding legal grounds for certain material not being allowed to be used in a trial. Alternatively, finding strong evidence that counters or totally rebuts what the prosecution intends to use as evidence may also lead to prosecutors losing the confidence in the material they intend to use as evidence – leading to a decision not to prosecute due to insufficient evidence.

It must be remembered that should all such evidence be used in a trial, it can be challenged just as vigorously in court. But our experience at Rahman Ravelli shows that a logical approach to questioning the prosecutors’ claims can prevent an investigation ever going to trial due to insufficient evidence.

Success

Business crime investigations are very often far from clear cut. They involve examining large amounts of material – both printed and digital –  taking and analysing statements from large numbers of people and assessing conduct that may span years. Prosecutors will know that there will be elements of their case that they may struggle to “win over’’ a court with. 

It is these elements that a shrewd defence team can identify, examine and challenge. In the right hands, such challenges diminish a prosecutor’s case and reduce the amount of quality evidence readily available to them….meaning that the only possible option is to drop the prosecution due to insufficient evidence.