Hafner & Ors v Secretary of State for the Home Department

This is an application for judicial review pursuant to permission granted by Mrs Justice Cox on an urgent application on 5 January 2006. Mr Benno Hafner is a Swiss lawyer practising in Zurich. Hafner and Hochstrasser is the law firm in which he is a partner. The Australian Securities and Investments Commission (ASIC) is a statutory body responsible for monitoring and enforcing corporate law, the stock exchange and securities trading in Australia. From about 1 October 2003, ASIC started to investigate the involvement of three men, René Rivkin, Trevor Kennedy and Graham Richardson. The investigation is continuing, although René Rivkin died on 1 May 2005. In the briefest of terms, the Australian investigation concerns an allegation that Rivkin and Kennedy used two Swiss financial institutions, Bank Leumi Le Israel and EBC Zurich AG, to hold shares in an Australian company and to conceal their own beneficial ownership of the shares. If their beneficial ownership had become known, they would have been classified as “substantial shareholders” and they would have had to have made certain disclosures in relation to share transactions and a takeover of the company. It is further alleged that in 1995 Rivkin and Kennedy gave evidence to the predecessor of ASIC in which they falsely stated that they did not own the relevant shares and did not know who the beneficial owners were. Richardson was a government minister in Australia at the material time. It is less easy from the documents before us to understand the nature and extent of his alleged involvement save to say that it includes an allegation that he too gave false evidence to the Australian authorities. In the course of their investigations, the Australian authorities including ASIC have sent letters of request to the authorities in Switzerland, the Isle of Man, Jersey and the Bahamas seeking assistance in relation to the investigation.

On 6 December 2004 ASIC submitted a letter of request to the authorities in this country, followed by a supplementary letter of request dated 18 April 2005. The letters sought assistance under the Crime (International Co-operation) Act 2003. Essentially, ASIC was seeking the taking of evidence and/or the production of documents from Dennis Lavin and Julian Hunn who are employees of Mees Pierson Intertrust Ltd in London. The requests were processed by the International Assistance Team of the Metropolitan Police. On 9 May 2005 Detective Sergeant Shaw wrote to Mr Lavin referring to the request. He recounted the investigation into the activities of Rivkin, Kennedy and Richardson. His letter stated:

“The Australian authorities seek evidence held by Mees Pierson relating to the above-named individuals and the following legal and natural persons … ”

There are then set out some eight companies, followed by the names “Benno Hafner” and “Hafner Hochstrasser”. Mr Lavin was informed that the Australian authorities sought written testimony from him concerning his dealings with the named persons and entities for the period 1 June 1992 until 31 December 1998.

On 24 May 2005 Detective Sergeant Shaw wrote to Mr Hunn, attaching witness summonses in respect of Mr Hunn and Mr Lavin to attend Bow Street Magistrates Court on 17 June 2005. The letter stated:

“Attached to and forming part of the summons are documents and questions for your consideration. Although some of the questions are repeated to both you and Mr Lavin, the Australian authorities are primarily seeking testimony from Mr Lavin concerning his direct professional relationship with the individuals and legal entities mentioned whereas they seek the formal production of documents held by Mees Pierson by yourself.”

The reference to “questions” was a reference to a document of some 39 pages setting out 554 questions. Neither Mr Lavin nor Mr Hunn has sought to take any issue with the summonses or the questions.

At no stage have the Australian authorities suggested that Mr Hafner or his firm are suspected of having committed any offences. It seems that Mr Hafner came to hear of the request as a result of a communication between Mees Peirson and Kingsley Napley, Mr Hafner’s London solicitors. He was informed that he would be referred to in written replies to questions and was referred to in the request documents. Between 1 June 1992 and 31 December 1998 Mr Hafner and/or his firm acted for some 60 clients in relation to Mees Pierson. He or his firm have acted for all but one of the persons named in the questions which accompanied the Australian request. In these proceedings, Mr Hafner and Hafner and Hochstrasser seek to challenge decisions of the Secretary of State made in response to the request from ASIC.

The Crime (International Co-operation) Act 2003 deals with the provision of assistance to overseas authorities in the obtaining of evidence in the United Kingdom. Its provisions refer to “the territorial authority”. The territorial authority in England and Wales is the Secretary of State. The relevant provisions are as follows:

“13(1) Where a request for assistance in obtaining evidence in a part of the United Kingdom is received by the territorial authority for that part, the authority may

(a)

if the conditions in section 14 are met, arrange for the evidence to be obtained under section 15 …

(2)

The request for assistance may be made only by

(a)

a court exercising criminal jurisdiction or a prosecuting authority in a country outside the United Kingdom,

(b)

any other authority in such a country which appears to the territorial authority to have the function of making such requests for assistance …

14(1) The territorial authority may arrange for evidence to be obtained under section 15 if the request for assistance in obtaining the evidence is made in connection with

(a)

criminal proceedings or a criminal investigation, being carried on outside the United Kingdom …

(2)

In a case within subsection (1)(a) … the authority may arrange for the evidence to be so obtained only if the authority is satisfied

(a)

that an offence under the law of the country 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 the offence have been instituted in that country or that an investigation into the offence is being carried on there …

(3)

The territorial authority is to regard as conclusive a certificate as to the matters mentioned in subsection (2)(a) and (b) issued by any authority in the country in question which appears to him to be the appropriate authority to do so …

15(1) Where the evidence is in England and Wales or Northern Ireland, the Secretary of State may by a notice nominate a court to receive any evidence to which the request relates which appears to the court to be appropriate for the purpose of giving effect to the request. …

(5)

Schedule 1 is to have effect in relation to proceedings before a court nominated under this section.”

Schedule 1 is headed “Proceedings of a nominated court under section 15”. It makes provision for, amongst other things, securing the attendance of witnesses and privilege. Paragraph 6 provides:

“(1)The evidence received by the court is to be given to the court or authority that made the request or to the territorial authority for forwarding to the court or authority that made the request.”

Paragraph 4 provides that rules of court may make provision in respect of the persons entitled to appear or take part in the proceedings and for excluding the public from the proceedings. Originally, the relevant rules were to be found in the Magistrates Court (Crime (International Co-operation)) Rules 2004 and the amended Crown Court Rules 1982. However, they are now to be found in the Criminal Procedure Rules 2005. Rule 32.4 provides:

“A court nominated under section 15(1) of the Crime (International Co-operation) Act 2003 (nominating a court to receive evidence) may

(a)

determine who may appear or take part in the proceedings under schedule 1 to the 2003 Act before the court and whether a party to the proceedings is entitled to be legally represented; and

(b)

direct that the public be excluded from those proceedings if it thinks it necessary to do so in the interests of justice.”

The Secretary of State has nominated Bow Street Magistrates Court under section 15. However, the proceedings in that court have made little progress thus far and, in accordance with the terms of an order made by Mrs Justice Cox when she granted permission to apply for judicial review on 5 January 2006, the nomination is stayed pending the final determination of the claim for judicial review.

In order to understand the present application for judicial review, it is necessary to describe what has been said and done on behalf of the Secretary of State in the exercise of his powers under the Act. Following the nomination of Bow Street Magistrates Court by the Secretary of State, a hearing was listed for 17 June 2005. On 15 June Mr Hafner’s solicitors wrote to the court seeking an adjournment and indicating that they needed time to prepare submissions in order to make four points. These were:

This latter point was in the form of an objection that the proceedings were unnecessary or too wide-ranging, having regard to the proceedings already in being in other jurisdictions. At about the same time Mr Hafner’s solicitors wrote to the Judicial Co-operation Unit at the Home Office indicating that, in their view, the Secretary of State had acted and/or was acting unlawfully in the exercise of his discretion in the nomination of a court. The letter cross-referred to the four matters raised in the letter to the court. In the event the hearing was indeed adjourned. Mr Hafner’s counsel told the court that full representations would be made in 28 days. On 27 June Mr Hafner’s solicitors wrote to the Judicial Co-operation Unit asking to be provided with a copy of the request from the Australian authorities. This request was not acceded to and the expected representations did not appear within the 28 days. Another hearing was set for 4 August but this too was adjourned. On 5 August Messrs Peters and Peters on behalf of ASIC wrote to the Treasury Solicitor objecting to the disclosure of the letter of request. They provided cogent reasons for such an objection. On 28 September ASIC wrote to the Treasury Solicitor, giving extended reasons for their objection. ASIC also responded to the four points which Kingsley Napley had raised in June. It is not necessary to set out the details of the response. However, I should refer to a short passage in the letter dealing with the “duplicative” contention. ASIC said:

“Obviously, ASIC seeks to obtain the information only once. That which is obtained in the United Kingdom will not be sought elsewhere and vice versa.”

On 17 October 2005 the Treasury Solicitor wrote to Kingsley Napley. The letter contains the response on behalf of the Secretary of State to the four points that had been raised in June. It referred to the letters received from and on behalf of ASIC. In effect, the Secretary of State accepted what had been said in those letters. It made the point that Mr Hafner is not sought to be questioned or to produce or reveal anything. As regards disclosure of the letter of request, it said that the letter “contained operationally sensitive material which should not be disclosed”. It maintained that evidence about Rene Rivkin remained relevant and important in any prosecution of the other suspects. It denied that Mr Hafner’s claim to confidentiality impacted on the implementation of the request. It referred to ASIC’s assurance that it seeks to obtain information only once from wherever it is held. Finally it took the position that any issue as to the range of the questions was a matter for the Magistrates Court.

On 24 October Kingsley Napley wrote to the Treasury Solicitor indicating that they had not yet submitted the full representations upon which they would rely. On 25 October the Treasury Solicitor replied that if further representations were made by 1 November, the Secretary of State would be prepared to consider them. On 2 November Kingsley Napley submitted a 25 page document containing such representations. They observed, and this point remains central to the case for Mr Hafner, that sections 13, 14 and 15 of the 2003 Act confer discretions upon the Secretary of State. They emphasised the word “may”. They referred, not for the first time, to Mr Hafner’s rights under Article 8 of the European Convention of Human Rights and Fundamental Freedoms (ECHR). Beyond that, they amplified the points which had been stated in summary form in June. The document invited the Secretary of State to take a fresh decision “as to … the lawfulness of implementing the request for assistance”. It requested the Secretary of State to decide that to implement the request would be unlawful, to revoke his nomination of Bow Street Magistrates Court and to inform the Australian authorities that the request for assistance was declined. Alternatively, if the Secretary of State decided to continue to implement the request and the nomination, he was invited to direct that “the proceedings take place without the participation of the Australian authorities”. On 9 December, the Treasury Solicitor replied maintaining his earlier decision and declining to exclude the Australian authorities from the proceedings.

On 16 December Kingsley Napley sent a letter in the form of a pre-action protocol letter to the Treasury Solicitor. It indicated the present proceeding in the absence of a change of position on the part of the Secretary of State. On 23 December the Treasury Solicitor wrote again stating that the Secretary of State maintained his decision for the reasons that had previously been communicated.

There was a hearing fixed for 6 January. On 29 December, Kingsley Napley wrote to the court with a request for a further adjournment. The request was made “to allow time for the judicial review proceedings to determine the lawfulness of the nomination of the court and, if necessary, for the issue of the disputed participation of the Australian authorities to be resolved”. The District Judge would not adjourn the hearing in advance.

On 4 January 2006 Kingsley Napley wrote again to the Treasury Solicitor inviting the Secretary of State to reconsider his position as a result of a change of circumstances, namely “the transmission of all material sought by the Australian authorities in the duplicative Swiss proceedings on 28 December 2005”. On 5 January 2006 the Treasury Solicitor sent a fax to Kingsley Napley stating that the Secretary of State could see no reason to agree to an adjournment. On the same date Peters and Peters set out the position of ASIC in these terms:

“On behalf of ASIC therefore our position is straightforward. The documentation and evidence sought in England is relevant to the Letter of Request. It is not duplicative of material obtained from Switzerland. Even if it is duplicative it is held by different persons in England to those holding it in Switzerland, the mere fact of which would entitle ASIC to obtain it. In any event, such considerations are for the court and not for the Home Office since they require a detailed evidence-based consideration of the issues in respect of each individual document.”

This letter had reached the Treasury Solicitor before the Treasury Solicitor sent the fax of the same date to Kingsley Napley and it informed the contents of that fax.

On the evening of 5 January the urgent application to Mrs Justice Cox was made by counsel for Mr Hafner and she made the order to which I have referred.

The claim form on behalf of Mr Hafner and his firm seeks to challenge the decision of the Secretary of State on 9 December 2005 to refuse to take steps to exclude the Australian authorities from the hearing at Bow Street Magistrates Court; the decision on 5 January 2006 to continue to arrange for evidence to be obtained pursuant to the Australian request; the decision on 5 January 2006 to refuse to suspend or revoke the nomination of Bow Street Magistrates Court; and the decision on 5 January 2006 to refuse consent to a postponement of the hearing listed on 6 January.

Before turning to the substantive issues it is necessary to refer to two preliminary points. The first was raised on behalf of Mr Hafner. It was in the form of a request that this court should hear the application for judicial review in private. The second preliminary point is raised on behalf of the Secretary of State and ASIC. They seek to question whether Mr Hafner and his firm have a sufficient interest to provide them with standing to make this application for judicial review.

We gave our ruling on this application at the hearing on 12 April 2006. We refused the application. The brief reasons are as follows. Mr Gardner submitted that the hearing before us should be a private hearing because a public hearing would trespass upon the confidentiality to which Mr Hafner and his firm are entitled. He emphasised the confidential nature of the lawyer/client relationship and referred to the duty of secrecy by which Swiss lawyers are bound. He submitted that we should order a private hearing by reference to CPR 39.2 which provides:

“(1)

The general rule is that a hearing is to be in public …

(3)

A hearing, or any part of it, may be in private if –

(a)

publicity would defeat the object of the hearing …

(c)

it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality …

(g)

the court considers this to be necessary, in the interests of justice.”

The classical statement of the presumption in favour of public hearings set out in Scott v Scott [1913] AC 417 has been reiterated since the introduction of the CPR. Thus, in Lilly ICOS Ltd v Pfizer Ltd (2) [2002] EWCA Civ 2 Lord Justice Buxton said (at paragraph 25):

“The court should start from the principle that very good reasons are required for departing from the normal rule of publicity … Simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document. … It is highly desirable, both in the general public interest and for simple convenience, to avoid the holding of trials in private, or partially in private.”

In these proceedings Mr Hafner has produced two witness statements asserting the need for confidentiality to be protected. They can be properly categorised, to use the words of Lord Justice Buxton, as “simple assertions of confidentiality”. They contain no convincing material to justify a departure from the general rule. When we refused the application for a private hearing it seemed to us that there was nothing in this application for judicial review which, if ventilated in a public hearing, would impinge upon any confidentiality to which Mr Hafner and his firm are entitled. That has now been borne out by events. The hearing was conducted on all sides without reference to any fact, matter or document which could possibly be said to have caused concern by reference to CPR 39.2(3)(a), (c) or (g).

This preliminary point can also be disposed of shortly. An issue has been raised, mainly on behalf of ASIC, as to whether Mr Hafner and his firm have standing in domestic law to make this application and as to whether they can properly establish “victim” status under section 7 of the Human Rights Act 1998.

By section 31(3) of the Supreme Court Act 1981, the court will not grant permission to proceed with a claim for judicial review “unless it considers that the (claimant) has a sufficient interest in the matter to which the claim relates”. Plainly the Australian request for assistance relates in part to evidence and documents to which Mr Hafner and his firm are said to be connected. In his witness statements, Mr Hafner refers to having acted for some sixty clients in relation to Mees Pierson and to a continuing business relationship with Mr Lavin who, it is said, provides tax advice and services to Mr Hafner’s clients. Moreover, since the Secretary of State accepted the Australian request and nominated Bow Street Magistrates Court, he has been prepared to consider and reconsider matters on the basis of representations made on behalf of Mr Hafner and his firm. Although no-one is saying that Mr Hafner or his firm is a suspect in the Australian investigation, it seems to me that he and it nevertheless have a sufficient interest in “the matter to which the claim relates”, namely the implementation of the request. As I shall go on to describe, this application for judicial review faces many difficulties but, in my judgment, standing is not one of them. To the extent that the application asserts that the Secretary of State has acted in a way which is incompatible with the Convention rights of the claimants, in breach of section 6(1) of the Human Rights Act, the claimants also need to establish “victim” status under section 7. So far as this is concerned, it is appropriate first to consider the alleged incompatibility with Convention rights.

Having briefly addressed those preliminary points, I now turn to the substance of the application.

To the extent that the responsibilities of the Secretary of State under sections 13(1), 14(1) and 15(1) are expressed in terms of discretion (“may”), I accept that the exercise of the discretion is, in principle, susceptible to judicial review. I also accept that, when the Secretary of State agreed to consider representations on behalf of Mr Hafner and his firm, his consideration of those representations is also susceptible to judicial review. Such a review embraces general public law grounds as well as rights under the Human Rights Act 1998. On the other hand, the statutory responsibilities of the Secretary of State under the Crime (International Co-operation) Act 2003 are more procedural and ministerial than substantive. Essentially, what the Secretary of State is empowered to do is to make arrangements, in this case by nomination of Bow Street Magistrates Court. What is envisaged is that this ministerial and procedural stage will give way to judicial proceedings in the Magistrates Court. The “decisions” are therefore no more than decisions to subject the request to a judicial process. With this in mind, it is necessary to address the specific points raised on behalf of Mr Hafner and his firm.

The essential submission of Mr Gardner under this heading falls into two parts. It seeks to rely on the assurance of ASIC that it “seeks to obtain the information only once”, before developing into a contention that the transmission of documents from Switzerland on 29 December 2005 amounted to a change of circumstances to the effect that the “only once” assurance has been satisfied. Thus, it is suggested, when the Secretary of State decided on 5 January 2006 to continue to accede to the request, to arrange for evidence to be taken, to nominate Bow Street Magistrates Court and not to consent to an adjournment in the light of the Swiss transmission, he failed to have regard to a relevant consideration.

I am wholly unpersuaded by this submission. In my judgment, the true position is as set out in the letter from Peters and Peters of 5 January 2006, the relevant extract of which I have quoted in paragraph 17, above. That letter plainly informed the decision of the Secretary of State. Even where a document recovered from one jurisdiction is replicated in another jurisdiction, it does not necessarily follow that there is duplication. The very fact of the presence of the document in two jurisdictions may be probative. Moreover, it can happen that one of the two copies contains additional probative material such as a date received stamp or the handwritten annotations of the recipient. I am not saying that such matters arise in the present case. The simple point is that no-one can know about the existence or extent of duplication until the documents are produced. That will only occur in the course of the proceedings at Bow Street Magistrates Court. Moreover, this ground of challenge can only relate to the production of documents. There will be no duplication of oral evidence because Mr Lavin has not given evidence in the other jurisdictions. In my judgment, the Secretary of State was amply justified in reaching his reconsidered decision by rejecting the “duplication” argument. To the extent that it may have relevance, that will be a matter for the District Judge.

The letter or letters of request predated the death of René Rivkin on 1 May 2005. Mr Gardner submits that there was therefore a change of circumstances on 1 May 2005 and that it is incredible that the entire request, including the 554 questions, is still necessary following the death of one of the three persons who were under investigation at the date of the request.

Whilst it is true that René Rivkin will never be prosecuted, this does not mean that the investigation into his activities has ceased to be relevant. As with any investigation of an alleged joint offence, however charged, what one person said or did does not cease to be relevant to any case against the others following the death of the first. If the death of René Rivkin does have a limiting effect on the scope of the investigation and the relevance of some of it, that is something which can be explored in the proceedings at Bow Street Magistrates Court. It was not for the Secretary of State to conclude that, such has been the change of circumstances, the procedure must now be stopped, delayed or otherwise limited.

This complaint again focuses on the 554 questions. In addition it again relies on the death of René Rivkin as a change of circumstances. The submission is that the number and range of questions were always too broad and unfocused and that this has become even more objectionable since the death of René Rivkin. In addition, the transmission of evidence from Switzerland, it is said, necessitated a reconsideration of the breadth of the 554 questions. Thus, it is submitted, the range and scope of the 554 questions make the decision of the Secretary of State (i) disproportionate in the context of Article 8 of the ECHR and/or unreasonable; (ii) vitiated by a failure to take into account the death of René Rivkin and/or the transmission of the material from Switzerland. Both Mr Gardner and Mr Qureshi seek to draw support from R v Home Secretary ex parte Fininvest [1997] 1 WLR 743. However, it seems to me that the approach of the Secretary of State to that authority is more to the point. Whilst I accept that it is for the Secretary of State to satisfy himself that a request is not ambiguous or lacking in precision, it cannot be said that the request in the present case is defective in these ways. Moreover, as Fininvest makes clear, the scope of a request is likely to be significantly more extensive than the mere production of material which would form part of the prosecution case at any subsequent trial. At this stage, what is in issue is still investigation rather than prosecution. In addition, if and to the extent that the hearing before the District Judge may justify the current fears of Mr Hafner, then those judicial proceedings are more than adequate to assess the strength of any objection to a particular question. At this stage, it is not incumbent upon the Secretary of State to pre-empt the judicial process in that way. His task was to consider the gateway requirements and to consider the representations which he invited, but only within the parameters of his statutory role and not as a substitute for the judicial process. In the same way, it will be far more appropriate for the District Judge to consider proportionality in the context of Article 8 in the light of the way the case proceeds and is presented before him.

Mr Gardner submits that Mr Hafner and his firm are entitled to more than they have been given by way of details of the request for assistance. He accepts that such an entitlement depends on the interests of justice: see Michael Evans v Inspector of the Serious Fraud Office [2002] EWHC 2304 Admin, paragraph 12. In my judgment, the Secretary of State was entitled to rely on the statement of ASIC that the request “contained operationally sensitive material which should not be disclosed”. It is not for the Secretary of State to conduct something akin to an international public interest immunity hearing. Moreover, he was entitled to have regard to the fact that Mr Hafner and his firm are not themselves the targets of the investigation in respect of which assistance has been sought. I do not regard the non-disclosure of the letter of request to be administrative unfairness on the part of the Secretary of State.

The complaint here is that, if ASIC is represented in the proceedings before the District Judge, it will in effect learn of the evidence and documents before the Secretary of State has made a final decision on whether to transmit them to Australia. In my judgment it is correctly submitted on behalf of the Secretary of State that he has no power to exclude ASIC from the proceedings before the District Judge. ASIC is the requesting authority. Moreover, it is for the District Judge rather than the Secretary of State to determine who may appear or take part in the proceedings: see Criminal Procedure Rules 2005, Rule 32.4, paragraph 9 above. If a question were to arise, for example as to a privileged document, then it would be for the District Judge to determine the issue along conventional lines. As I understand it, the District Judge is amenable to the participation of Mr Hafner in the proceedings. He or those representing him will be able to make whatever submissions are appropriate. The total exclusion of ASIC from the proceedings would inhibit the proper processing of its request.

It follows from what I have said that, in my judgment, this application for judicial review must fail. I have endeavoured to explain this conclusion sequentially when dealing with the individual grounds of challenge. However, it is appropriate to express an overview. I express it in the context of Mr Hafner and his firm not being targets in the Australian investigation and not being required to give evidence or produce documents in the proceedings before the District Judge. Essentially, the current application was an attempt at a pre-emptive strike against the implementation of the request and the judicial proceedings before the District Judge. If Mr Hafner and his firm have any legitimate cause of complaint about, say, duplicative proceedings, the effect of the death of René Rivkin, the breadth of the questions, the participation of ASIC, professional obligations arising under Swiss law or anything else, the place to make it is before the District Judge. In the same way, if it can be said that Mr Hafner’s Convention rights are at risk, such an argument can be advanced to the District Judge who can assess it in the light of the circumstances as they then appear. I am wholly unpersuaded that the challenge to the approach of the Secretary of State is sustainable or that any breach of Convention rights has been established thus far.

I agree.