Bonalumi v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLORD JUSTICE STEPHENSON,LORD JUSTICE LLOYD,SIR DAVID CAIRNS
Judgment Date22 November 1984
Judgment citation (vLex)[1984] EWCA Civ J1122-1
Docket Number84/0436
CourtCourt of Appeal (Civil Division)
Date22 November 1984

In The Matter of S.5 of The Extradition Act 1813

In The Matter of S.7 of The Bankers' Book Evidence Act 1879

In The Matter of a Swedish Commission Rogatoire

Between:
Sergio Bonalumi
Respondent
and
The Secretary of State for The Home Department

and

The Government of Sweden
Applicants

[1984] EWCA Civ J1122-1

Before:

Lord Justice Stephenson

Lord Justice Lloyd

and

Sir David Cairns

84/0436

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(MR. JUSTICE MACPHERSON)

Royal Courts of Justice

MR. J.G. ROSS (instructed by Messrs. Pothecary & Barnett, Solicitors, London, Agents for Messrs. Hawkins & Co, Solicitors, Hitchin SG5 7AS) appeared on behalf of the Respondent

MR. A. MOSES (instructed by The Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Applicants

LORD JUSTICE STEPHENSON
1

This is an appeal by Mr. Bonalumi from an order made by Mr. Justice Macpherson on the 16th of this month under s.7 of the Bankers' Books Evidence Act 1879. The order is in this form:

"That the applicants be at liberty to inspect and take copies of all statements of account, confirmations, vouchers, copies of which have been produced for Sergio Bonalumi, cheques received and other documents, recording or evidencing deposits made or receipts received by or on behalf of Sergio Bonalumi at Banco di Roma, London branch, between 1st June 1978 and 30th April 1982. This order refers to accounts held in the sole name of Sergio Bonalumi or joint accounts held by Sergio Bonalumi with other parties"—

2

and then there is a provision which is not relevant to this appeal.

3

That order was required for evidence to be used in criminal proceedings in Sweden against the applicant Bonalumi, who is, we understand, in this country at the moment. There was a request from the Government of Sweden to the Secretary of State for the Home Department in which what was asked for was assistance in obtaining from the Banco di Roma London a statement of account held by Sergio Bonalumi at that bank, I think from the year 1976 to 1982. That request stated that the account was needed, or might be needed, by the prosecutor as evidence in the case against Sergio Bonalumi, concerning an offence described as "gross disloyalty to a principal", which is now pending in the District Court of Helsinborg.

4

In compliance with that request, the Secretary of State made an order under s.5 of the Extradition Act of 1873, giving a direction to the Guildhall Justices. That order is in these terms:

"Whereas it is desired to obtain evidence in this country for the purposes of a certain criminal matter now pending in a court or tribunal at Helsinborg in Sweden now I, by virtue of the power conferred on me by s.5 of the Extradition Act 1873, do hereby authorise and require you to take and transmit to me in the manner prescribed by the said enactment such evidence in furtherance of the commission rogatoire hereunto annexed as you may be able to gain from any witness or witnesses within your jurisdiction".

5

That was directed to the Justices sitting at the Guildhall Justice Room.

6

That order was abortive in the sense that in February 1984 a Justice sitting in the Guildhall Justice Room was not satisfied that there was evidence of any criminal proceeding in Sweden; but that defect was remedied when a further order was made under the section and considered by a justice in the Guildhall Justice Room in November, this very month. As was natural and proper, the Banco di Italia was not prepared to volunteer inspection of the confidential accounts of one of its clients without an order from the court, so the Secretary of State sought an order from the High Court, as he was empowered to do. He could have sought an order from a Magistrates' Court, but he chose to apply to the High Court for the order under the Bankers' Books Evidence Act without, as Mr. Moses has told us, having any idea or suspicion that by choosing that court he might be depriving Mr. Bonalumi of any power of appeal.

7

I should read the relevant sections. The Extradition Act of 1873 provides by s.5, which is still in force, though the same ground appears now to be covered by the provisions of the Evidence (Proceedings in other Jurisdictions) Act 1975:

"A Secretary of State may, by order under his hand and seal, require a Police Magistrate or a Justice of the Peace to take evidence for the purpose of any criminal matter pending in any court or tribunal in any foreign state and the Police Magistrate or Justice of the Peace, upon the receipt of such order, shall take the evidence of every witness appearing before him for the purpose in like manner as if such witness appeared on a charge against some defendant for an indictable offence, and shall certify at the foot of the depositions so taken that such evidence was taken before him and shall transmit the same to the Secretary of State; such evidence may be taken in the presence or absence of the person charged, if any, and the fact of such presence or absence shall be stated in such deposition".

S.7 of the Bankers' Books Evidence Act 1879 provides:

"On the application of any party to a legal proceeding a court or judge may order that such party be at liberty to inspect and take copies of any entries in a Banker's Book for any of the purposes of such proceedings. An order under this section may be made either with or without summoning the bank or any other party and shall be served on the bank three clear days before the same is to be obeyed, unless the court or judge otherwise directs".

8

Such an order may be made in any legal proceedings, whether those proceedings are criminal or civil.

9

Mr. Justice Macpherson heard the application, which was an application by the Secretary of State. He pointed out that the Secretary of State was not a party to the criminal proceedings in which it was sought to use evidence which might be provided by the bank accounts, and there was a short adjournment in order that the Government of Sweden might be joined as an applicant. Having achieved that joinder, the learned judge was then satisfied that justice and comity, as he put it, required the order to be made and that he had power to do it, and he made the order.

10

From that order there was an appeal to the Divisional Court, which was heard by Mr. Justice Glidewell. He was moved, not by an appeal but by an application for leave to apply for judicial review. He heard the application and he refused leave to apply for that remedy. In the course of doing so, he pointed out that he had no jurisdiction, and that there might be difficulties in finding jurisdiction in the Court of Appeal because it might be a criminal cause or matter with which the Civil Division would have no jurisdiction to deal, and it might not be within the statutory powers of the Criminal Division either. That led Mr. Ross, on behalf of Mr. Bonalumi, to appeal to the Civil Division of this court.

11

The point indicated by Mr. Justice Glidewell was taken by the Registrar of Civil Appeals. It was pointed out by counsel that there was a decision of this court in Regina v. Grossman, [1981] 73 Criminal Appeal Reports, p.302, in which a court consisting of Lord Denning, Master of the Rolls, Lord Justice Shaw and Lord Justice Oliver had entertained an appeal from an order made under the Bankers' Books Evidence Act in support of a prosecution in a Welsh magistrates' court for tax evasion and had discharged the order that had been made. In those circumstances the Registrar, in my opinion rightly, decided that the appeal ought to be considered and be listed for hearing in this court, but that the preliminary point should be decided before the appeal was heard on the merits, whether the appeal lay at all to this court, on the ground that it was an appeal in a criminal cause or matter. Ever since the Court of Appeal was set up over 100 years ago, its statutory jurisdiction has been limited to exclude criminal causes or matters. S.47 of the Judicature Act of 1873 was repeated in s.31 of the Judicature Act of 1925, and the same restriction now appears in s.18(1)(a) of the Supreme Court Act of 1981. That provides as follows:

"No appeal shall lie to the Court of Appeal—(a) except as provided by the Administration of Justice Act 1960"—that relates to contempt of court and has nothing to do with this case—"from any judgment of the High Court in any criminal cause or matter".

12

Mr. Justice Macpherson's judgment in this case is alleged on behalf of the Secretary of State and the Government of Sweden to be clearly a judgment in a criminal cause or matter. It is therefore submitted that this court has no jurisdiction to hear, and is prevented by s.18(1)(a) of the Supreme Court Act 1981 from hearing the appeal at all. It is pointed out by Mr. Moses on behalf of those two parties that the judgment of Mr. Justice Macpherson was a judgment in relation to evidence to be taken in a court of criminal jurisdiction, namely the justices' court at Guildhall, according to criminal rules of evidence for the purpose of a criminal case which is known to be taking place in Sweden. The reason why this appeal has been brought urgently before this Division of this court is that the Guildhall Justice was going to complete, or continue, the hearing of the evidence under the direction of the Secretary of State's order yesterday, and will resume the hearing tomorrow dependent upon the result of this appeal, and that the proceedings against Mr. Bonalumi are due to start in Sweden on Tuesday of next week. In my judgment we are not concerned with the nature of those proceedings, or with exactly what is comprised in the offence of...

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