R Terra Services Ltd v The National Crime Agency
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin |
| Judgment Date | 30 January 2020 |
| Neutral Citation | [2020] EWHC 130 (Admin) |
| Date | 30 January 2020 |
| Docket Number | Case No: CO/1064/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 130 (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 DBE
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: 22 January 2020
Approved Judgment
On 22 January 2020 we refused the application of the Claimant for the appointment of a Special Advocate (SA) to appear in the Closed Material Proceedings (CMP) in the case. We now give our reasons for that decision. Both of us have contributed to this judgment.
The facts of the case are familiar and require no detailed recitation. They were set out in paragraphs 1 to 10 of the judgment of 21 November 2019.
As indicated in paragraph 33 of that judgment, the Claimant wished to make submissions as to the approach to a hearing in CLOSED conditions. The initial suggestion was that a confidentiality ring was appropriate. However, the Claimant subsequently withdrew that suggestion as being impractical. A rolled-up hearing was ordered on 13 December 2019. We gave other directions, including a direction that oral submissions on the appointment of a SA should be heard as soon as possible in January 2020. The rolled-up hearing has been fixed for 18 and 19 March 2020.
The Claimant's Submissions
Monica Carss-Frisk QC, for the Claimant, at the outset of her oral submissions emphasised the inherent unfairness of a closed procedure, describing it as contrary to common law principles of fairness and as giving rise to a significant inequality of arms. She submitted as a general proposition that it was right, in circumstances where a CMP is to be adopted, that anything which could be done to mitigate any unfairness, or to redress such inequality, should be done. Here that meant appointing a SA; it was what justice required.
Ms Carss-Frisk observed that many of the reported cases on the appointment of a SA concern issues of disclosure, rather than substantive issues affecting a claimant's rights. The test of “exceptionality” discussed by Lord Bingham in R v H [2004] 2 AC 134 was expressed in the context of disclosure for the purposes of a criminal trial. She pointed out that this and other such cases pre-dated the decision of the Supreme Court in R (Haralambous) v Crown Court at St Albans and another [2018] AC 236, approving the use of a CMP in judicial review proceedings where statute provides for closed procedures in the court below. In judicial review proceedings, which she says raises issues bearing directly upon a claimant's substantive rights, other considerations come into play. Ms Carss Frisk identified these as follows:
i) Proportionality: one of the access conditions for the issue of a warrant is whether it is in the public interest for the material to be obtained. She directed us to the decision of Sir Anthony Clarke MR in R (AHK) v Secretary of State for the Home Department [2009] 1 WLR 2049 where issues of proportionality were identified as a factor which might make it appropriate to appoint a special advocate.
ii) The complexity of the exercise in this case: she pointed out that the Claimant is seeking to examine not just the issue of the warrant itself but, more broadly, matters occurring prior to its issue.
iii) The scale of the infringement of the claimant's property rights, where over 24,000 hard copy and/or digital documents have been seized. Ms Carss Frisk submitted that although there is no criminal prosecution, nevertheless the interference with her client's privacy and property rights was extreme and the judicial review hearing would finally determine her client's substantive rights in this context.
iv) The requirement for full and frank disclosure to the court issuing the warrant: in this case the Claimant will wish to raise points on disclosure to the judge at the time the warrant was sought, for instance whether he was told of a prior covert search at the premises, or that large amounts of the material would attract legal professional privilege.
v) The prospect of a SA furthering the Claimant's interests not only by testing arguments put forward by the Defendants but also, potentially, by identifying other arguments arising out of the closed material, something that it would be inappropriate for the court itself to do.
Ms Carss-Frisk drew our attention to these and other factors identified in The Competition and Markets Authority v Concordia International RX (UK) Ltd [2018] EWHC 3158, a decision examining the propriety of a warrant issued in a different context. The overarching consideration, she suggested, was one of fairness. She submitted that the correct question for a judge in a given case was whether it was just to appoint a SA, having regard to the need for proceedings to be fair to both sides, referring us to the very recent decision of Supperstone J in R (Privacy International) v Investigatory Powers Tribunal [2019] 10 WLUK 111.
Finally, Ms Carss-Frisk indicated that insofar as the cost of appointing a SA may be a concern, the Claimant was prepared to meet such costs, whilst reserving the right to reclaim them in the event of success in the judicial review.
The Respondent's Submissions
Lisa Giovanetti QC, for the Secretary of State, submitted the need for a SA in this case had not been made out. She argued that the issues arising on the challenge to the warrant were straightforward and could easily be grasped. There would be relatively few documents to be considered by the court in closed session.
Ms Giovanetti pointed out that a criminal trial, or indeed a citizenship application, involves qualitatively different rights to those engaged by the issue of a search and seizure warrant, issued in the context of an ongoing investigation. Evidence obtained as a result of a warrant remains subject to ordinary safeguards before it can be used at any criminal trial. Furthermore, she reminded us, the procedure for obtaining a warrant was designed as a speedy, ex parte process, as emphasised by the Supreme Court in Haralambous, at [27].
As to proportionality, Ms Giovanetti submitted that in examining whether the present warrant was properly issued, the court will not be examining proportionality at large, it will be looking at that question in the relatively narrow context of the statutory test.
Ms Giovanetti pointed out that the court will have before it all the material that was before the judge. The Claimant will be able to raise all its arguments, for instance its points on full and frank disclosure, in open session. The court will be able to cross-check submissions made in open session against all the material before it,...
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