The Serious Fraud Office (SFO) has decided not to prosecute
Soma Oil and Gas regarding corruption in Somalia, due to insufficient evidence.
Aziz Rahman looks at what insufficient evidence means and how to challenge
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
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?
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
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.
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
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.
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
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.