R (Secretary of State for the Home Department) v Crown Court at Southwark
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses |
| Judgment Date | 19 December 2013 |
| Neutral Citation | [2013] EWHC 4366 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/16780/2013 |
| Date | 19 December 2013 |
[2013] EWHC 4366 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Moses
Mr Justice Griffith Williams
CO/16780/2013
Mr Michael Bromley-Martin QC (instructed by the Treasury Solicitor) appeared on behalf of the Claimant (Mr Simon Ramsden, Solicitor, appeared at read-out)
Mr Robert Palmer (instructed by HM Court Service) appeared on behalf of the Defendant
Hearing date: 13 November 2013
On 9 October 2013 Detective Constable Lambert of the Metropolitan Police (it will be later seen that his provenance is relevant) applied before His Honour Judge McCreath for a production order pursuant to the Crime (International Co-operation) Act 2003 pursuant to a direction of the Secretary of State as the statutory territorial authority (see section 28(9)(a) of the 2003 Act). The eagle eye of His Honour Judge McCreath observed that section 1(b) of the 2003 Act made no express reference to a direction that a Production Order may be applied for. He adjourned for further full submissions to be made on behalf of the Secretary of State. After hearing submissions from Mr Bromley-Martin QC, he ruled in a full judgment that there was no statutory authority for giving a direction for applying for a Production Order. In those circumstances, no Production Order could be made. The Secretary of State now seeks judicially to review that decision.
In so far as it is necessary after so thorough and careful an analysis by the judge, Mr Palmer appears for Southwark Crown Court. He does so on the sensible suggestion, if I may say so, of Collins J who gave permission. The United Kingdom Central Authority, part of the Judicial Co-operation Unit of the Home Office, received a request for mutual legal assistance on 2 April 2013 from the United States Department of Justice, the United States central authority. The request asked for evidence relating to proceedings held by the London Court of International Arbitration. The request wished to use that evidence in a criminal investigation in the United States of America.
The basis of the request was the United States United Kingdom Mutual Legal Assistance Treaty, as amended by the European Union/United States agreement, which entered into force on 1 February 2010. Under the Treaty, the high contracting parties agreed to afford a national administrative authority mutual legal assistance when that authority is investigating conduct with a view to criminal prosecution (see Article 1 of the Treaty). Assistance includes the provision of documents, records and evidence and service of documents executing requests for searches and seizures (see article 1.2(b) and (f)).
There was no dispute but that the London Court of International Arbitration held relevant material but, rightly, it would only release the material subject to a court order. Nor was there any dispute but that the material was held in confidence and constituted special procedure material within the meaning of section 14 of the Police and Criminal Evidence Act 1984 (PACE). By section 14:
"(1) In this Act 'special procedure material' means —
(a) material to which subsection (2) below applies; and
(b) journalistic material, other than excluded material.
(2) Subject to the following provisions of this section, this subsection applies to material, other than items subject to legal privilege and excluded material, in the possession of a person who —
(a) acquired or created it in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office; and
(b) holds it subject —
(i) to an express or implied undertaking to hold it in confidence; or
(ii) to a restriction or obligation such as is mentioned in section 11(2)(b) above."
In domestic investigation such material, other than bankers' books, can only be obtained under PACE either by a Production Order or, in certain specified circumstances, a search warrant pursuant to Schedule 1 of PACE. By section 9 of PACE:
"(1) A constable may obtain access to excluded material or special procedure material for the purposes of a criminal investigation by making an application under Schedule 1 below and in accordance with that Schedule."
Schedule 1 provides:
"1. If on an application made by a constable a circuit judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 below.
2. The first set of access conditions is fulfilled if —
(a) there are reasonable grounds for believing —
(i) that an indictable offence has been committed;
(ii) that there is material which consists of special procedure material or includes special procedure material and does not also include excluded material on premises specified in the application, or on premises occupied or controlled by a person specified in the application (including all such premises on which there are reasonable grounds for believing that there is such material as it is reasonably practicable so to specify);
(iii) that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and
(iv) that the material is likely to be relevant evidence;
(b) other methods of obtaining the material —
(i) have been tried without success ; or
(ii) have not been tried because it appeared that they were bound to fail; and
(c) it is in the public interest, having regard —
(i) to the benefit likely to accrue to the investigation if the material is obtained; and
(ii) to the circumstances under which the person in possession of the material holds it,
That the material should be produced or that access to it should be given.
3. The second set of access conditions is fulfilled if —
(a) there are reasonable grounds for believing that there is material which consists of or includes excluded material or special procedure material on premises specified in the application, or on premises occupied or controlled by a person specified in the application (including all such premises on which there are reasonable grounds for believing that there is such material as it is reasonably practicable so to specify);
(b) but for section 9(2) above a search of such premises for that material could have been authorised by the issue of a warrant to a constable under an enactment other than this Schedule; and
(c) the issue of such a warrant would have been appropriate."
Certain features of this special procedure are of significance. First, the application must be made to a circuit judge. Proposals to extend the power to make an order to district judges have not yet been enacted. Second, the circumstances in which an order may be made are tightly controlled. Third, a recipient of an application is entitled to contend that it is not in the public interest to produce such material. Fourth, if the application relates to excluded material, the second set of access conditions must be complied with and access is even more restricted since it can only be justified if the issue of a warrant would have been appropriate. Excluded material includes personal records and human tissue or tissue fluid (see section 11(1) of PACE).
It is important to bear in mind that the control of access to special procedure or excluded material by virtue of Schedule 1 of PACE provides careful protection to those from whom such material is sought. It was accepted that the provisions in Schedule 1 of PACE gave adequate protection against infringement of the rights enshrined in Article 8 and Article 10 of the European Convention on Human Rights.
There are circumstances in which a warrant might be issued, but those circumstances are even more circumscribed by the addition of further conditions (see paragraph 12A(ii) and paragraph 14 of Schedule 1 of PACE). They include conditions that it is not practicable to communicate with any person entitled to grant entry to the premises (paragraph 14(a)) or that service of notice of an application for an order may seriously prejudice the investigation (paragraph 14(d) of Schedule 1).
Prior to the introduction of the 2003 Act, the Criminal Justice (International Co-operation) Act 1990 extended those domestic investigative measures to overseas or international investigations. Part of the title to that statute read: "An act to enable the United Kingdom to co-operate with other countries in criminal proceedings and investigations." Section 7 of the Criminal Justice (International Co-operation) Act 1990 provided:
"(1) Part II of the Police and Criminal Evidence Act 1984 (Powers of Entry, Search and Seizure) shall have effect as if references to serious arrestable offences in section 8 of and Schedule 1 to that Act included any conduct which is an offence under the law of a country or territory outside the United Kingdom and would constitute a serious arrestable offence if it had occurred in any part of the United Kingdom."
A Justice of the Peace had power to issue a warrant authorising a constable to enter and search premises pursuant to section 7(2) of the 1990 Act. By section 7(4):
"(4) No application for a warrant or order shall be made by virtue of subsection ( 1) or (2) above except in pursuance of a direction given by the Secretary of State in response to a request...
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