The Queen (oao Terra Services Ltd) v National Crime Agency
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 24 June 2020 |
| Neutral Citation | [2020] EWHC 1640 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 June 2020 |
| Docket Number | Case No: CO/1064/2019 |
[2020] EWHC 1640 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RT HON The Lord Burnett of Maldon,
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HON Mr Justice Jay
Case No: CO/1064/2019
Monica Carss-Frisk QC and Robin Barclay QC (instructed by Macfarlanes LLP) for the Claimant
Guy Ladenburg (instructed by National Crime Agency) for the First Defendant
Clair Dobbin (instructed by Government Legal Department) for the Second Defendant
The Third Defendant was neither present nor represented
Hearing dates: 18 th and 19 th March 2020
Approved Judgment
THE LORD CHIEF JUSTICE and
Overview
On 13 th December 2018 a PACE search warrant (“the Warrant”) was executed by officers of the National Crime Agency (“the NCA”) at a storage facility known as Unit M20, 289 Kennington Lane, London SE11 (“the Unit”). The officers seized and removed 11 boxes containing voluminous documentation in both paper and electronic form. These boxes belong to Terra Services Limited (“Terra”) although the licensee of the Unit was an employee of that company, Mrs Tatyana Talyanskaya. The Warrant had been applied for by the NCA on the same day following a direction from the UK Central Authority (“the UKCA”), part of the International Criminality Unit of the Secretary of State for the Home Department which had in turn received a Letter of Request from the US Department of Justice (“DoJ”) to take steps to obtain these documents.
Approximately 15 months later, after three Divisional Court hearings and a separate hearing in CLOSED before May J, this Court is now seized of a “rolled up” application for judicial review. This delay is regrettable and some of it is the fault of Terra. The Defendants do not oppose this application on the ground of delay and we therefore say no more about it.
The decision to grant the Warrant was made by HHJ Kelleher sitting at Inner London Crown Court on 13 th December 2018, but as we have said this claim for judicial review also challenges other matters. Terra challenge the ex parte application for the Warrant and the Warrant itself. (The matters which are said to undermine the application can be directed to the Warrant itself). There are two other challenges:
i) a decision of the NCA, said to have been made on 26 th November 2018, to authorise under section 93 of the Police Act 1997 (“the Authorisation”) a covert search and examination of the material stored at the Unit (here, we are simply setting out Terra's case, because the existence of the Authorisation is neither confirmed nor denied (“NCND”) by the NCA).
ii) a decision of the Secretary of State, following her receipt of the Letter of Request, to direct the NCA under section 13 of the Crime (International Cooperation) Act 2003 (“the CICA”) to apply for “a search warrant (or other appropriate measure)” to obtain material from the Unit (“the Direction”).
Terra had abandoned two claims in advance of the hearing, and before us Ms Monica Carss-Frisk QC indicated that she would not be pursuing her client's claims in relation to five Requests for Information (“RFIs”) issued by the NCA under the Crime and Courts Act 2013 to the Kennington Branch of the licensor of the Unit, Big Yellow Storage, between 19 th November and 13 th December 2018 in relation to Mrs Talyanskaya in particular.
Our provisional assessment was that the claims in relation to the RFIs would struggle, not least because the NCA has wide powers to investigate serious crime. Section 7 of the Crime and Courts Act 2013 does not limit those powers (which, in the context of what the subject of the request may do, is apt to cover “information” in the form of the provision of documents), and compliance with RFIs is not mandatory. We might add that the reason why the two other claims have not been pursued is that they could not be sustained in the light of the decisions of this Court made during the course of this litigation. On 5 th November 2019 Irwin LJ and May J upheld the NCA's claim for non-disclosure of material on the ground of Public Interest Immunity and the Secretary of State's claim to confidentiality in respect of the Letter of Request. On 13 th December the same composition of this Court ordered the claim to proceed by way of “rolled up” hearing which would include a closed material procedure (in line with the principles expounded by the Supreme Court in R (oao Haralambous) v Crown Court at St Albans and another [2018] UKSC 1, [2018] AC 236). Terra's application that a Special Advocate be appointed was refused by the same composition of this Court in January of this year, with an application to certify a point of law of general public importance being refused in February.
We received submissions over the course of two days, both in OPEN and CLOSED hearings. Having considered those submissions, we refuse permission on Terra's grounds insofar as they relate to the Authorisation and the Warrant (including the application for the warrant). We grant permission on Terra's grounds insofar as they relate to the Direction, because we recognise that the decision of this Court (Butler-Sloss LJ and Laws J, as he then was) in R (Propend) v Central Criminal Court [1996] 2 Cr. App. R. 26 supports its case; but we dismiss the application for judicial review against the Secretary of State.
Notwithstanding the range and detail of the arguments deployed by Ms Carss-Frisk against the NCA, our conclusion that permission should be refused means that this judgment may be less full on these aspects of this case. We are also handing down a CLOSED judgment which is relevant to the case against the NCA.
Dramatis Personae
Terra was incorporated on 15 th July 2003 and describes itself as a management services company. According to the NCA's skeleton argument, Terra carries on business as a general commercial company acquiring and holding interests in other companies and providing financial and management services. Upon incorporation, or perhaps only after January 2018 because Terra's evidence is inconsistent about this, Terra's registered office was at 8 Cleveland Row, London SW1A 1DH. On 2 nd November 2018 it changed its registered address to 100 Pall Mall, St James, London SW1Y 5NQ. Its company secretary between incorporation and 25 th April 2018 was Mr Paul Hauser who was an English solicitor and a commercial litigation and arbitration partner at the US law firm Bryan Cave Leighton Paisner LLP (“BCLP”) until 31 st December 2019. Upon his resignation, Mrs Talyanskaya was company secretary of Terra until 19 th September 2018 when she also resigned.
It is in the public domain that Mrs Talyanskaya was admitted to practise as a solicitor in England and Wales on 15 th February 2011. According to the Amended Statement of Facts and Grounds, since April 2018 she was employed as in-house legal counsel at Terra (the skeleton argument gives a different date). There is a dispute as to whether the NCA either knew or ought to have known this.
Originally, the sole director of Terra was Pavel Ezubov, who is a cousin of Oleg Deripaska. The latter is, or at least has been, associated with Paul Manafort and Rick Gates, who have been found or have pleaded guilty in the US to a wide variety of financial crimes. On 6 th April 2006 Mr Deripaska was registered as Terra's person of significant control (“PSC”). On the same date he was registered as PSC of another company, EN+ Consult, a wholly owned subsidiary of the EN+ Group. Terra and EN+ Consult worked out of 8 Cleveland Row, at least since January 2018. On 25 th January 2018 Paul Ezubov replaced Mr Deripaska as PSC of Terra although the latter remained PSC of EN+. In April 2018 the US Office of Foreign Assets Control imposed financial sanctions on both Oleg Deripaska and EN+ Consult. Mr Hauser, as a US citizen was unable to continue as company secretary of both companies, which may explain Mrs Talyanskaya's appointment in April.
The role and responsibilities of the NCA do not require exposition. Under the CICA the Secretary of State is the “territorial authority” to whom overseas authorities may direct requests for mutual legal assistance and who may act on those requests to direct that a search warrant be applied for. The UK Central Authority (“the UKCA”) is the body within the Home Office that handles such requests. Ms Clair Dobbin told us that there are 16 officials working within this division with 16 support staff.
The Facts
There is a mass of evidence before us, much of which is disputed and some of which has arrived very late. The judicial review process does not enable us to resolve many of the factual issues; some may only be addressed in CLOSED; and, in any event, the real focus should be on what was believed or ought with reasonable diligence to have been believed, as the case may be, by the relevant decision makers. Ms Carss-Frisk's observation that she proceeds “blindfolded” in relation to the terrain covered by the CLOSED material is of course correct, but we have evaluated that material both carefully and critically with the assistance of Mr Guy Ladenburg for the NCA.
Aside from the lateness of the fourth and fifth witness statements of Mr Neill Blundell, solicitor for Terra, we draw attention to the fact that there is no witness statement from Mrs Talyanskaya. Terra has chosen to provide us with her account through the medium of its solicitor. Hearsay is admissible in judicial review proceedings but direct evidence will usually be better than a second-hand account uncritically relayed by an intermediary.
For the purposes of this application for judicial review, the...
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