Bermingham and others v The Director of the Serious Fraud Office: QBD 21 Feb 2006

Prosecution to protect defendant not available

The claimants faced extradition to the US. They said that the respondent had infringed their human rights by deciding not to prosecute them in the UK. There was no mutuality in the Act under which they were to be extradited.
Held: The Director had a discretion as to whether to prosecute. He had no duty to consider the place of trial as a way of protecting the defendants’ human rights: ‘The request to investigate in effect invited the Director [of the Serious Fraud Office] to constitute himself the judge of the proper forum for the defendants’ trial and to decide the issue in favour of trial here and not the United States: and thereby to pre-empt the statutory extradition process. Such a function cannot conceivably be found in s. 1(3) of the [Criminal Justice Act 1987].’ The section created only a power to investigate. To take it further would be fanciful and would usurp the role of the judicary. As to the extraditions themselves the Home Secretary had no remaining discretion as to whether or not to authorise extradition. He had a duty to do so. The case had substantial connections with the US and was properly triable there.
In the absence of a wholly exceptional case, the court would not intervene to examine by way of judicial review a discretionary decision by the Director of the SFO to investigate or not to investigate fraud.
Lord Justice Laws, Mr Justice Ouseley
[2006] EWHC 200 (Admin), Times 24-Feb-2006, [2006] 3 All ER 239, [2007] QB 727, [2006] UKHRR 450, [2006] ACD 55, [2007] 2 WLR 635
Bailii
Extradition Act 2003 103 108, Criminal Justice Act 1987 1(3)
England and Wales
Citing:
CitedHill v Chief Constable of West Yorkshire HL 28-Apr-1987
No General ty of Care Owed by Police
The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members . .
CitedRegina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
CitedRegina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
CitedGovernment of Canada v Aronson; Director of Public Prosecutions v Aronson HL 20-Jul-1989
The Canadian Government asked for the arrest of the defendant and for his return to Canada to face 78 allegations in Canada. The magistrate had determined that there was sufficient evidence in 66 cases. The detainee said that 69 offences were not . .
CitedRegina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .

Cited by:
CitedAhmad and Aswat v United States of America Admn 30-Nov-2006
The defendants appealed orders for their extradition. They were suspected of terrorist offences, and feared that instead of facing a trial, they would be placed before a military commission.
Held: The appeals failed. The court had diplomatic . .
CitedMcKinnon v USA and Another Admn 3-Apr-2007
The defendant appealed an order for his extradition. He had used his computer in London to access remotely defence and other government computers in the USA, and deleted files and copied others onto his own computer. He had been offered a deal if he . .
CitedCorner House Research and Campaign Against Arms Trade, Regina (on the Application of) v Director of the Serious Fraud Office and Another Admn 10-Apr-2008
The defendant had had responsibility to investigate and if necessary prosecute a company suspected of serious offences of bribery and corruption in the conduct of contract negotiations. The investigation had been stopped, alledgedly at the . .
CitedNorris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
CitedCorner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
CitedMcKinnon, Regina (On the Application of) v Secretary Of State for Home Affairs Admn 31-Jul-2009
Assurances for Extradition
Extradition of the defendant was sought to the US to face allegations of hacking into defence computers there. He said this would infringe his article 3 rights, saying that he suffered Autism Spectrum Disorder.
Held: The application failed. US . .
CitedNorris v Government of United States of America SC 24-Feb-2010
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .
CitedBH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
CitedShaw, Regina (on The Application of) v Cheshire Constabulary Admn 23-Jul-2015
The claimant sought judicial review of a decision not to prosecute, now renewing his application for leave.
Held: Leave was refused: ‘The police have investigated and have come to a conclusion. The courts have set their face against reviewing . .
CitedJJ Management Consulting Llp and Others v Revenue and Customs CA 22-Jun-2020
HMRC has power to conduct informal investigation
The taxpayer, resident here, but with substantial oversea business interests, challenged the conduct of an informal investigation of his businesses under the 2005 Act, saying that HMRC, as a creature of statute, are only permitted to do that which . .

These lists may be incomplete.
Updated: 01 June 2021; Ref: scu.239881