R (on the application of River East Supplies Ltd) v The Crown Court at Nottingham Chief Constable of Nottinghamshire Police and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon |
| Judgment Date | 28 July 2017 |
| Neutral Citation | [2017] EWHC 1942 (Admin) |
| Docket Number | Case No: CO/4454/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 July 2017 |
[2017] EWHC 1942 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon
and
Sir Kenneth Parker (sitting as a High Court Judge)
Case No: CO/4454/2016
and
Graham Brodie QC and Tom Doble (instructed by BCL Solicitors LLP) for the Claimant
Martin Evans QC (instructed by East Midlands Police Legal Services) for the 1st Interested Party
Ben Watson (instructed by Government Legal Department) 2nd Interested Party
Hearing dates: 14 and 15 June 2017
Judgment Approved
Introduction
This is a judgment to which both members of the Court have contributed.
The claimant ('River East') seeks judicial review of a ruling by HH Judge Spencer QC sitting at Nottingham Crown Court, following which he issued a production order. The production order followed a request for legal assistance from the United States Department of Justice.
River East is an online pharmaceutical company responsible for the wholesale and retail supply of pharmaceutical products. At all material times, it was licensed by the Medicines and Healthcare Products Regulatory Agency ('MHRA') and the General Pharmaceutical Council.
According to River East, in 2011 it purchased a batch of 167 vials of Avastin (a cancer treatment) from CareMed (a regulated and licensed supplier of pharmaceuticals in Denmark) which appeared to be suspect. It informed CareMed about the suspect batch; it also informed the Swiss regulatory authorities (since CareMed had sourced the batch from a licensed Swiss wholesaler), as well as the Danish regulator and the MHRA. In February 2012, the MHRA informed the claimant that the testing of the drug had revealed that it was counterfeit.
The present proceedings arise out of an investigation being carried out by the United States authorities into what is said to be a deeper involvement of River East in the trading of suspect drugs.
Other than highlighting this difference, it is unnecessary to say anything further at this point about the underlying disputed facts.
The history of proceedings
On 24 March 2015, the first interested party, the Chief Constable of Nottinghamshire ('the Chief Constable'), applied to Mansfield Magistrates' Court for a search warrant pursuant to s.8 of the Police and Criminal Evidence Act 1984 ('PACE 1984'), following a request for mutual legal assistance from the US authorities. The warrant was executed; and the lawfulness of both the warrant and its execution was subsequently challenged by River East. On 22 October 2015, the Chief Constable conceded that the application for the search warrant was defective, that the warrant itself was defective and that it should be quashed. On 26 November, a consent order was made by the Administrative Court quashing the warrant and declaring that the warrant and subsequent search were unlawful.
On 2 November, Detective Sergeant Gunn of the Nottinghamshire Police applied to the Crown Court at Nottingham for a production order pursuant to the request for mutual assistance. The application ran to 71 paragraphs over 14 pages. It set out the background to the criminal investigation being carried out in the United States by the Food and Drug Administration Office of Criminal Investigation ('FDA') in relation to what was said to be misbranded or unapproved new drugs in interstate commerce. It described the investigation in the United States into CanadaDrugs.com Limited Partnership, River East and various individuals for conspiring to distribute counterfeit, misbranded and unapproved prescription drugs, in particular, Altuzan and Avastin. The information in the application identified River East as routinely declaring the value of shipments at slightly less than $2,000 which was the threshold that would trigger a formal customs clearance. The application provided detail about the counterfeit Altuzan and Avastin and the involvement of named individuals and the material that was sought from River East. It set out the access conditions under ss.13 and 16 of the Crime (International Co-operation) Act 2003 ('CICA 2003'), why the application complied with those conditions, that the request came from the UK Central Authority at the Home Office ('UKCA') and that the process under s.13(1) was satisfied. It also addressed the requirement for dual criminality.
It is unnecessary to set out further detail in the application since it is not part of River East's argument that the application was deficient. However, it is important to note that a 46-page superseding indictment, dated 17 July 2015, was annexed to the application. This document sets out clearly the serious allegations being made against River East and the basis on which they are being made.
River East indicated that it wished to apply at an inter partes hearing in the Crown Court for an order requiring that the Chief Constable serve on the Court the US Letter of Request. Following this, the UKCA indicated that it wished to intervene in relation to the issue.
So far as the claim for judicial review is concerned, two issues arise. First, whether, on application for a Production Order pursuant to a Letter of Request for mutual assistance, the applicant is obliged to disclose (if necessary in redacted form) the Letter of Request itself ('the first issue')? Second, whether an order should be made where producing the documents may violate the privilege against self-incrimination ('the second issue')?
The Judge's ruling on the first issue
On 8 March 2016, the Judge heard submissions from the parties and, in a ruling dated 20 March, he concluded that in the circumstances of the case the applicant was not obliged to disclose the Letter of Request. Having referred to a number of cases to which we were also referred, he ruled that there was binding legal authority as to the usual confidential nature of international Letters of Request and the policy considerations which underlay the basis on which the domestic courts approached them. He therefore ruled that there was no obligation to disclose the Letter of Request to the Court, either in full or in a redacted form.
The argument on the first issue
Mr Brodie QC submitted that it was a legal requirement that the UKCA disclose to the Court and to River East so much of the Letter of Request as was necessary to establish the grounds for the application. If there were information which went beyond what was necessary to establish the grounds, it could be redacted. The disclosure was necessary so as to place the Court in a position where it could comply with its obligation to ensure that the statutory requirements were met by independent examination of the relevant material; and so as to enable River East to make such submissions on the material as it wished to, thereby achieving procedural fairness.
He submitted that it is inherently unsatisfactory that an order should be made on the basis of the UKCA's interpretation of the Letter of Request rather than the document itself; and that it was clear from a comparison of the application and the superseding indictment that there was material in the former that did not derive from the latter. He pointed out that the procedural history and the deficiencies in relation to the warrant gave rise to a justifiable concern about the danger of not disclosing the Letter of Request itself.
Mr Brodie recognised the policy interest in giving effect to requests for mutual assistance but submitted that requiring disclosure of those parts of the Letter of Request which identified the grounds for the Court Order avoided the need for interpreting the contents of a Letter of Request for the purposes of drafting an application and was likely to give rise to greater expedition in the process.
So far as confidentiality was concerned, he submitted that it was no part of River East's challenge that confidential information should be disclosed and accepted that parts of the Letter of Request might be redacted.
He relied in support of some of these submissions on the decision of the Court of Appeal in National Crime Agency v. Abacha and others [2016] 1 WLR 4375.
Discussion
In our view the authorities establish clearly that letters of request are confidential and are not disclosed as a matter of principle. In the similarly named but different case of R (Abacha) v. Secretary of State for the Home Department [2001] EWHC Admin 787 (Divisional Court) the claimant in the judicial proceedings complained of procedural unfairness relying on (among other matters) the respondent's failure to disclose the terms of the Nigerian Government's Request for Assistance. Tuckey LJ, giving the judgment of the Court, rejected this complaint. The process was not a trial and led only to the transmission of evidence whither it was to be assumed that the criminal defendant would have an opportunity to answer it. At [17], he stated:
… such requests are made by friendly, foreign countries with whom we have Treaty or other similar obligations of mutual co-operation. The expectation must therefore be that we will comply with the request unless there are compelling reasons for not doing so and that we will do so as quickly as possible. Any requirement for procedural fairness must be fashioned with those considerations in mind.
The Treaty with the Nigerian Government provided for the parties to exercise their best endeavours to keep the request and its contents confidential.
In R (Evans) v. Director of the SFO and others [2003] 1 WLR 299, the claimant had written to the respondent asking for a copy...
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