R Terra Services Ltd v The National Crime Agency
| Jurisdiction | England & Wales |
| Judge | Mrs Justice May,Lord Justice Irwin |
| Judgment Date | 21 November 2019 |
| Neutral Citation | [2019] EWHC 3165 (Admin) |
| Date | 21 November 2019 |
| Docket Number | Case No: CO/1064/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3165 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
Mrs Justice May
Case No: CO/1064/2019
Monica Carss-Frisk QC and Robin Barclay (instructed by Macfarlanes LLP) for the Claimant
Lisa Giovannetti QC and Guy Ladenburg (instructed by the National Crime Agency) for the First Defendant
Clair Dobbin (instructed by The Government Legal Department) for the Second Defendant
The Third Defendant did not attend and was not represented
Hearing date: 17 October 2019
Approved Judgment
Introduction
In this case the Claimant seeks permission for judicial review in relation to a warrant issued by HHJ Kelleher at the Inner London Crown Court on 13 December 2018. The warrant was issued pursuant to Schedule 1 to the Police and Criminal Evidence Act 1984 [“PACE”]. It was applied for and executed by the National Crime Agency, the First Defendant. The application followed a request for mutual legal assistance from the United States Department of Justice [“DoJ”] to the Secretary of State for the Home Department, the Second Defendant.
HHJ Kelleher issued the warrant on 13 December 2018, following an ex parte hearing in the course of which he considered Public Interest Immunity [“PII”] material presented by the First Defendant in closed session. The warrant was executed on the same day at a commercial storage unit known as the Big Yellow Storage Company [“BYS”] in Kennington in London. Documents and data which were the property of the Claimant, and of associated individuals, was seized.
Subsequently the Claimant applied to the Crown Court pursuant to Criminal Procedure Rule 5.7(1) for disclosure of full copies of the material presented by the First Defendant to HHJ Kelleher. Redacted copies had been supplied to the Claimant. HHJ Kelleher heard further submissions from the Claimant and the First Defendant in OPEN session and further submissions from the First Defendant in CLOSED. He declined the application, giving his reasons in a CLOSED judgment.
It is not necessary for present purposes to itemise at any length all of the grounds upon which permission for judicial review is sought. In the course of these reasons I will consider some aspects of the claim in greater detail, but the following summary is sufficient to give the overall shape of the claim.
The first challenge is to the decision by the First Defendant to issue Requests For Information [“RFIs”] concerning the Claimant and associated individuals to BYS between 19 November and 13 December 2018. It is said that the First Defendant did not have the statutory power to issue the RFIs, alternatively that these RFIs exceeded the statutory powers. Secondly, it is said that the authorisation dated 26 November 2018, granted by the Deputy Director of the First Defendant, which permitted a covert search of the relevant premises was unlawful since it was said that the relevant statutory provisions (in Part III of the Police Act 1997) required approval of the authorisation by a judicial commissioner on the grounds that (1) the relevant premises constituted office premises and/or (2) the search and seizure was likely to result in acquisition of material subject to legal professional privilege.
The next challenge is to the direction given by the Second Defendant to the First Defendant to apply for the warrant to search the premises. This challenge is mounted on two grounds. The first is that the Letter of Request [“LoR”] from the DoJ in this case was excessively wide and insufficiently specific. As a consequence, it is said that the direction was unreasonable and unlawful. It is said, as a further consequence, that the application for the warrant was unlawful, being tainted by the unlawfulness of the requests for further information and/or the authorisation.
The next challenge is to the issue of the warrant which again is said to be tainted by the prior unlawfulness of the steps taken. In addition, it is said that the requirements of Schedule 1 to PACE were not met, in that there was no basis upon which HHJ Kelleher could properly be satisfied that the “access conditions” for the grant of a warrant were fulfilled. It is further said (Ground 3) that there was inaccurate and incomplete disclosure to the Crown Court at the time of the application and that the duty of candour borne by the First and/or Second Defendant was not met. Ground 4 alleges that the terms of the warrants issued were excessively wide and insufficiently specific. It is further said that the procedure and reasons followed by the Crown Court were inadequate and unlawful, since the judge did not apply the required “detailed, anxious and intense scrutiny”.
In relation to two further aspects of the matter, termed “Decision 6: the NCA's decision to withhold the application materials” and “Decision 7: the Crown Court's refusal to order more disclosure of the application materials” it is said that there is procedural unfairness arising in the case since the First Defendant:
“…has disclosed only heavily redacted versions of the application and supplementary form. In circumstances where there are clear signs that material information was not disclosed to HHJ Kelleher and that both the LoR and warrant were fishing expeditions on behalf of a foreign authority, it was procedurally unfair for the NCA to fail to disclose the Application Materials and the LoR and deny Terra the ability to test the legality of the warrant and the means by which it was issued … alternatively, it was procedurally unfair for the NCA not to provide even the gist of the application materials, since the safeguards on which the Supreme Court relied in Haralambous do not necessarily apply where a warrant is used to assist foreign investigations.”
In a similar ground it is said that the decision on 11 March 2019 in the Crown Court to refuse the Claimant's application for disclosure of the Application Materials on the grounds of PII, following a CLOSED session in the absence of the Claimant, was procedurally unfair and substantively wrong.
The Defendants contest all the grounds upon which permission is sought.
Case Management
Following argument before the Divisional Court (Singh LJ and Mrs Justice Carr DBE) on 10 July 2019, it was ordered that:
“ PII & Confidentiality Hearing
1. A hearing of the application by the Claimant challenging the claim of the First Defendant to withhold information and documents placed before and relied upon by the Third Defendant at the hearings of 13 December 2018 and 11 March 2019 on the grounds of public interest immunity (“PII”) shall be listed at the convenience of the parties with a time estimate of 1 day (the “PII & Confidentiality Hearing”).
2. The claim of the Second Defendant to withhold the Letter of Request on the grounds of confidentiality shall be considered at the same hearing.”
The hearing before us was to decide the issues identified in that Order. Hence, we must address the question of whether the First Defendant has made out a claim for PII, and secondly whether the Second Defendant is entitled to withhold disclosure of the Letter of Request on the ground of confidentiality.
Procedure Before Us
The First Defendant's claim in respect of public interest immunity is not a claim to exclude the material from consideration by the Court as is conventional. Rather, the First Defendant claims that public interest immunity should extend to withholding the material from consideration by the Claimant (and the public). It is envisaged that the Court at the judicial review hearing will consider the material, both OPEN and CLOSED, pursuant to the approach laid down by the Supreme Court in R (Haralambous) v St Albans Crown Court [2018] AC 236 [2018] AC 236 [2018] UKSC 1. The sole judgment in the case is that of Lord Mance DPSC, with whom the other justices agreed. As the Headnote makes clear, in the context of a challenge to the issue of a warrant:
“It would be unsatisfactory and potentially productive of injustice and absurdity if the High Court in subsequent judicial review proceedings were bound to address the matter on a different basis from the magistrates' court or the crown court.”
The statutory scheme entitles a magistrates' court, on an ex parte application for a search and seizure warrant under sections 8 and 15(3) of PACE, to rely on information which in the public interest cannot be disclosed to the subject of the warrant (judgment, paragraph 37). The Crown Court could not fulfil its role under Section 59 of the Criminal Justice and Police Act 2001 without adopting a similar procedure (judgment, paragraphs 38–43). Since recent amendments introducing section 31(2)(A) and 31(3C) of the Senior Courts Act 1981 “again postulate that the High Court will be considering the outcome on the same basis as the lower court or tribunal” (judgment, paragraph 58). Lord Mance concluded:
“59. In the light of these statutory provisions and of an analysis of the alternative possibilities paralleling that undertaken in Bank Mellat, I consider that the only sensible conclusion is that judicial review can and must accommodate a closed material procedure, where that is the procedure which Parliament has authorised in the lower court or tribunal whose decision is under review. The Supreme Court, when it referred in passing to judicial review in the Al Rawi case [2012] 1 AC 531, was not directing its attention to this very special situation. If it had done so, it might also have seen a similarity between this situation and the two exceptions...
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