Zardari v Secretary of State for Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE GARLAND,LORD JUSTICE KENNEDY |
| Judgment Date | 09 April 2001 |
| Neutral Citation | [2001] EWHC 275 (Admin) |
| Date | 09 April 2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3659/2000 |
[2001] EWHC 275 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Kennedy
Mr Justice Garland
Case No: CO/3659/2000
Mr Michael BROMLEY-MARTIN (instructed by Zaiwalla & Co for the Applicant)
Mr James TURNER QC (instructed by Treasury Solicitor for the Respondent)
INTRODUCTION
1. This is a renewed application for permission to apply for Judicial Review of a decision by the Secretary of State for the Home Department to transmit evidence received by Bow Street Magistrates' Court to the Attorney-General of Pakistan pursuant to the provisions of Section 4 and paragraph 5 of Schedule 1 of the Criminal Justice (International Co-operation) Act 1990. The decision of the Secretary of State was communicated to the Applicant's Solicitors in England, Zaiwalla & Co, by a 14-page letter dated 21st September 2000. The application for permission was made on 5th October 2000; grounds for contesting the claim were filed by the Secretary of State on 26th October and on 3rd November permission was refused by Sullivan, J.
THE STATUTE
2. The 1990 Act contains provisions for the reciprocal service of process, obtaining evidence, and the transfer of prisoners to give evidence or assist in investigations. Section 7 applies Part II of the Police and Criminal Evidence Act 1984 to the gathering of evidence relevant to an overseas investigation and Schedule 1 paragraphs 1 —4 provide for securing the attendance of witnesses and taking evidence. Paragraph 5 deals with the transmission of the evidence taken in England and Wales to the requesting authority. The provisions relevant to this application are Section 4 sub-sections (1), (2), (4), (5) and (6) and paragraph 5 of Schedule 1:-
“4 United Kingdom evidence for use overseas
(1) This section has effect where the Secretary of State receives -
(a) from a court or tribunal exercising criminal jurisdiction in a country or territory outside the United Kingdom or a prosecuting authority in such a country or territory; or
(b) from any other authority in such a country or territory which appears to him to have the function of making requests of the kind to which this section applies,
a request for assistance in obtaining evidence in the United Kingdom in connection with criminal proceedings that have been instituted, or a criminal investigation that is being carried on, in that country or territory.
(2) If the Secretary of State or, if the evidence is to be obtained in Scotland, the Lord Advocate is satisfied -
(a) that an offence under the law of the country or territory in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed; and
(b) that proceedings in respect of that offence have been instituted in that country or territory or that an investigation into that offence is being carried on there,
he may, if he thinks fit, by a notice in writing nominate a court in England, Wales or Northern Ireland or, as the case may be, Scotland to receive such of the evidence to which the request relates as may appear to the court to be appropriate for the purpose of giving effect to the request.”
3. Sub-section (4) relieves the Secretary of State from having to carry out detailed enquiries or investigations by providing:-
“(4) For the purpose of satisfying himself as to the matters mentioned in sub-section (2)(a) and (b) above the Secretary of State or, as the case may be, the Lord Advocate shall regard as conclusive a certificate issued by such authority in the country or territory in question as appears to him to be appropriate.”
4. Sub-section (5) provides that “evidence” includes documents and other articles; sub-section (6) that Schedule 1 shall have effect with respect to the proceedings before a nominated court in pursuance of a notice under sub-section (2). Paragraph 5(1) of Schedule 1 provides:-
“5. (1) The evidence received by the court shall be furnished to the Secretary of State or, in Scotland, the Lord Advocate for transmission to the court, tribunal or authority that made the request.”
THE BACKGROUND
5. The application has to be examined in the context of political events in Pakistan and earlier litigation in this country. The Applicant is the husband of Benazir Bhutto. In November 1996 her Government was dissolved and she was succeeded by Nawaz Sharif. An organisation called the Ehteshab Cell (or Accountability Cell) headed by Senator Saifur Rehman was created to pursue allegations of corruption against members and supporters of the previous government. It was concerned only with alleged corruption. A separate organisation, the Anti-Narcotics Force (“ANF”) was concerned with drug trafficking. It was an independent organisation headed by Major General Mushtaq Hussain.
6. One aspect of the Pakistan criminal justice system which is relevant to the Applicant's case is the formal manner in which a criminal investigation is commenced. A Police Officer cannot initiate an investigation; there has first to be created a “First Investigation Report” (“FIR”) signed, sealed or marked by the complainant or informant and attested by the officer recording the “first information”. This is the first step in any investigation. If a suspect is arrested and in interview implicates someone else, an investigation into that person cannot begin until the suspect signs an FIR as “first informant”.
7. The Applicant was arrested on the day that the Bhutto government was dissolved. On 19th December 1996 there was an FIR against him for the murder of Benazir Bhutto's brother; on 16th February 1997 an FIR for corruption in connection with air freight charges; on 18th August 1997 another for corruption in connection with a consultancy contract and in September a further one for murder. The authorities were concerned that substantial assets may have been corruptly transferred to Europe and that the Applicant may have been involved in drug trafficking. This appears from the passage in the affidavit of Simon Watkin sworn on 18th May 1998 and referred to the Secretary of State's first decision letter of 11th October 1999:-
“Prior to 21st October 1997 requests were made by the Pakistan Government to the UK for mutual legal assistance, including restraint of assets and obtaining of evidence relating to alleged corruption and alleged drug-related offences. These requests were either not in a satisfactory form and/or failed to provide sufficient information and/or sought assistance of a type the Secretary of State could not give.”
8. At about the same time the Ehteshab Cell (“EC”) made requests to the Swiss Government for assistance in relation to corruption allegations. A recurring theme of Mr Bromley-Martin's submissions was that whereas in the UK freezing, restraint and forfeiture orders can be made in proceedings under the 1990 Act for drug trafficking offences, they are not available in relation to corruption offences but in Switzerland they are equally available in relation to both types of offence. In September 1997 a Home Office team including lawyers, went to Pakistan to assist the EC with advice which included an explanation that the availability of freezing, restraint and forfeiture orders in the UK was limited to drug trafficking.
THE LETTER OF REQUEST
9. On 21st October 1997 a Letter of Request was received by the British Government requesting assistance in relation to investigations into drug trafficking by the Applicant. The Letter contained a list of property and accounts of which evidence was sought. With the Request came a copy of an FIR dated 19th October 1997 timed at 18.15 and a Certificate for the purposes of S.4(4) signed by the then Attorney-General, Chaudry Mohammed Farooq. On 15th December, the Secretary of State nominated Bow Street Magistrates' Court to receive evidence. The Magistrate required the Police to obtain statements and documentary evidence from witnesses. The Applicant was not informed of the Letter of Request but his Solicitors in London became aware of it and asked to be allowed to see it or to be provided with details of the contents. The Home Office replied that they were seeking the views of the Pakistan Government. The Applicant applied for leave to move for Judicial Review on the grounds that the maker of the request did not have authority to make it; that there was no genuine investigation or criminal prosecution in respect of any drugs offence; that the evidence requested was of a nature that could have no relevance to any investigation or prosecution for drugs offences and was being sought for some other purpose, namely, corruption; that the matter was politically motivated, any investigation or proceeding being in respect of an offence of a political nature; and lastly, that the Applicant was entitled to disclosure of the Letter of Request or of its contents. Latham, J. (as he then was) granted leave on the last ground only. On 12th February 1998 he stayed the proceedings in the Magistrates' Court pending a hearing of the application on 11th March.
10. In the event the Government of Pakistan consented to the substance of the Letter of Request being revealed. This was done by the Secretary of State on 2nd March so that the entire basis of the application for Judicial Review disappeared. The Applicant's then Solicitors were given the information by letter dated 2nd March 1998. It included the list of property and accounts in the Letter of Request.
“The allegations that have been made against your client in this regard will be apparent from the FIR,...
To continue reading
Request your trial
-
Agrama v Min for Justice and Others
...STATE OF THE HOME DEPARTMENT EX PARTE FININVEST SPA 1991 1 WLR 743 R v BOW STREET MAGISTRATES' COURT EX PARTE ZARDARI UNREP 9.4.2001 2001 EWHC ADMIN 275 EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1959 ART 1 EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1959 ......
-
R v Cii, Ap and Ti; [2008] Wlr (D) 401
...obtained, which can be exercised both at the time of the request and later when the material has been gathered in: see Zardari v SSHD [2001] EWHC Admin 275 and Abacha v SSHD [2001] EWHC Admin 787. The practice of States is an admissible aid to the construction of treaties; this practice, ......