Secretary of State for the Home Department, R (On the Application Of) v Southwark Crown Court

LORD JUSTICE MOSES: On 9 October 2013 Detective Constable Lambert of the Metropolitan Police (it will be later seen that his provenance is relevant) applied before His Honour Judge McCreath for a production order pursuant to the Crime (International Co-operation) Act 2003 pursuant to a direction of the Secretary of State as the statutory territorial authority (see section 28(9)(a) of the 2003 Act). The eagle eye of His Honour Judge McCreath observed that section 1(b) of the 2003 Act made no express reference to a direction that a Production Order may be applied for. He adjourned for further full submissions to be made on behalf of the Secretary of State. After hearing submissions from Mr Bromley-Martin QC, he ruled in a full judgment that there was no statutory authority for giving a direction for applying for a Production Order. In those circumstances, no Production Order could be made. The Secretary of State now seeks judicially to review that decision.

In so far as it is necessary after so thorough and careful an analysis by the judge, Mr Palmer appears for Southwark Crown Court. He does so on the sensible suggestion, if I may say so, of Collins J who gave permission. The United Kingdom Central Authority, part of the Judicial Co-operation Unit of the Home Office, received a request for mutual legal assistance on 2 April 2013 from the United States Department of Justice, the United States central authority. The request asked for evidence relating to proceedings held by the London Court of International Arbitration. The request wished to use that evidence in a criminal investigation in the United States of America.

The basis of the request was the United States United Kingdom Mutual Legal Assistance Treaty, as amended by the European Union/United States agreement, which entered into force on 1 February 2010. Under the Treaty, the high contracting parties agreed to afford a national administrative authority mutual legal assistance when that authority is investigating conduct with a view to criminal prosecution (see Article 1 of the Treaty). Assistance includes the provision of documents, records and evidence and service of documents executing requests for searches and seizures (see article 1.2(b) and (f)).

There was no dispute but that the London Court of International Arbitration held relevant material but, rightly, it would only release the material subject to a court order. Nor was there any dispute but that the material was held in confidence and constituted special procedure material within the meaning of section 14 of the Police and Criminal Evidence Act 1984 (PACE). By section 14:

In domestic investigation such material, other than bankers' books, can only be obtained under PACE either by a Production Order or, in certain specified circumstances, a search warrant pursuant to Schedule 1 of PACE. By section 9 of PACE:

Schedule 1 provides:

Certain features of this special procedure are of significance. First, the application must be made to a circuit judge. Proposals to extend the power to make an order to district judges have not yet been enacted. Second, the circumstances in which an order may be made are tightly controlled. Third, a recipient of an application is entitled to contend that it is not in the public interest to produce such material. Fourth, if the application relates to excluded material, the second set of access conditions must be complied with and access is even more restricted since it can only be justified if the issue of a warrant would have been appropriate. Excluded material includes personal records and human tissue or tissue fluid (see section 11(1) of PACE).

It is important to bear in mind that the control of access to special procedure or excluded material by virtue of Schedule 1 of PACE provides careful protection to those from whom such material is sought. It was accepted that the provisions in Schedule 1 of PACE gave adequate protection against infringement of the rights enshrined in Article 8 and Article 10 of the European Convention on Human Rights.

There are circumstances in which a warrant might be issued, but those circumstances are even more circumscribed by the addition of further conditions (see paragraph 12A(ii) and paragraph 14 of Schedule 1 of PACE). They include conditions that it is not practicable to communicate with any person entitled to grant entry to the premises (paragraph 14(a)) or that service of notice of an application for an order may seriously prejudice the investigation (paragraph 14(d) of Schedule 1).

Prior to the introduction of the 2003 Act, the Criminal Justice (International Co-operation) Act 1990 extended those domestic investigative measures to overseas or international investigations. Part of the title to that statute read: "An act to enable the United Kingdom to co-operate with other countries in criminal proceedings and investigations." Section 7 of the Criminal Justice (International Co-operation) Act 1990 provided:

A Justice of the Peace had power to issue a warrant authorising a constable to enter and search premises pursuant to section 7(2) of the 1990 Act. By section 7(4):

Thus, an application for a Production Order could be made under the Criminal Justice (International Co-operation) Act 1990 pursuant to a direction given by the Secretary of State and subject to the conditions detailed in section 7.

On 26 April 2004 (see the Crime (International Co-operation) Act 2003 Commencement No 1 Order 2004 SI 2004/786) there were brought into force the provisions of sections 13-19 and Schedule 1 of the Crime (International Co-operation) Act 2003. The long title of the statute read:

It is apparent that section 14 provides that requests for assistance from overseas authorities may be answered provided that the conditions identified in section 13 are fulfilled in one of two ways. Either the territorial authority in the United Kingdom may arrange for evidence to be obtained under section 15 if the conditions in section 14 are met, or the territorial authority may direct that a search warrant be applied for under or by virtue of sections 16 and 17. There is no reference to a direction by the territorial authority to a direction that an order may be applied for under section 16.

Section 16 provides:

It is clear that following a request for assistance in obtaining evidence, section 13 makes no specific reference to a power conferred on a territorial authority to direct that a Production Order be applied for. Absent such a power, by virtue of section 16(2)(a) only a search warrant may be applied for in pursuance of a direction given under section 13, whereas either a warrant or a Production Order may be applied for under section 16(2)(b) if the application is made by a constable who is a member of an international joint investigation team.

Three questions accordingly arise in this application by the Secretary of State. First, is the omission of any reference to a Production Order in section 13(1)(b) a mistake? Second, if it is a mistake, can this court rectify that error? Third, if this court can rectify the error, should it do so?

The relevant principles were identified by Lord Nicholls in Inco Europe Limited & Ors v First Choice Distribution & Ors [2000] 1 WLR 586. The task of the court is to make sense of the statutory position, read in its appropriate context and within the limits of the judicial role (see Statutory Interpretation, Professor Sir Rupert Cross (3rd edition) 1995 at page 103). The limitations of the judicial role were described by Lord Nicholls at page 592. He said:

There is no difficulty as to the intended purpose of the relevant provisions. In our view, we can be "abundantly sure" that the purpose of the provisions was further co-operation with those countries who have requested assistance in obtaining evidence. The purpose was clearly to improve the means of co-operation beyond that for which the 1990 Act had made provision. The starting point must, therefore, be that with that purpose in mind a more restrictive approach than that afforded by the 1990 Act is not to be expected. The provisions of the 2003 Act are accordingly designed to enable the territorial authority within this country to respond to requests made as a result of international treaties. The European Convention On Mutual Assistance In Criminal Matters (Strasbourg, 20 April 1959) plainly envisaged "the widest measure of mutual assistance" (Article 1). It envisaged in particular production and transmission of records and documents (see Article 3.3). The United States treaty, to which we have already referred, equally makes reference to the provision of documents, records and evidence (see article 1.2). There is no distinction in the treaties between Production Orders and executing requests for searches. It would be strange if a domestic statute designed to enable the domestic authorities to comply with requests drew such a distinction, all the more so in a statute, such as the 2003 statute, designed to improve the ability of the domestic authorities to co-operate. The restriction in the ability to co-operate caused by the omission in section 13(1)(b) of any reference to a power to direct that an application should be made for a Production Order is a manifest contradiction of the clear purpose of the 2003 Act.

Secondly, it was clearly the purpose of the 2003 Act to confer a power to direct that an application for a Production Order should be made. This is made plain by section 16(1) itself. The purpose of section 16(1) was, as the title to the section heralds, to extend domestic investigative powers to foreign criminal investigations for the purposes of mutual legal assistance. Section 16(1) specifically refers to Schedule 1 of PACE, and thus to special procedure material and the control of access to it. It runs counter to that purpose to restrict the power to direct that an application be made for the production of that material merely to constables who are members of a joint investigation team.

Thirdly, the very structure of this part of the 2003 Act demonstrates a purpose to provide two distinct means for affording legal assistance in response to a request from an overseas authority. The first method is by arranging for evidence to be obtained. The second and distinct method is by extending statutory search powers. The first method requires the conditions under section 14 of the 2003 Act to be met. If they are met, then the Secretary of State may nominate a court to receive any evidence to which the request relates (see section 15(1)). It should be noted that any court may be nominated and thus the Secretary of State may, and as a matter of practice does, nominate a magistrates' court. If a court is nominated, the provisions to Schedule 1 to the 2003 Act will apply (section 15(5)). There are rules laid down within that Schedule as to privilege. Evidence may be taken on oath and a party affected by that evidence, such as a putative defendant, may attend and cross-examine witnesses. Contrast the procedure envisaged as to the second method by which this country may assist and respond to a request from an overseas authority.

The second method is not by arranging for evidence to be obtained and for a nominated court to receive evidence, but by the extension of what are described in the heading to section 16 as "statutory search powers". It is necessary to appreciate the scope of statutory search powers. Statutory search powers are not confined to the application and issue of search warrants, but they embrace an application for, and obtaining, a Production Order. The reference to statutory search powers is a reference back to Part 2 of PACE as section 16(1) makes clear. Under the heading in Part 2 of PACE, "powers of entry, search and seizure" comes, as part of those powers, the power under section 9 to obtain access to special procedure material in accordance with Schedule 1 to PACE. Accordingly, it is clear that it was the purpose of section 16 to include within the second method of assistance obtaining a Production Order. In the light of the respondent's arguments, it is important to bear the distinction between those two methods of assistance in mind. Applying and obtaining a Production Order is part and parcel of the second, and not the first, statutory method of assistance.

Mr Palmer contended that it was far from clear that Parliament did intend to include a power to direct that an application may be made for anything more than a search warrant. He suggested that, provided the conditions of paragraph 14 of Schedule 1 of PACE were met, a search warrant to obtain special material could be used. But those conditions include, for example, the fact that it is not practicable to obtain such material. That may well not be the case. A third party may be known and perfectly willing, apart from the agreement he made with the person to whom the documents belonged, to provide those documents to a territorial authority. If that is the case, there is no basis for obtaining a warrant under paragraph 12 and 14 of Schedule 1 of PACE. This case provides ample example of this. It was not a method that could be used in the instant case since, as one would expect, the London Court of International Arbitration were happy to co-operate with the territorial authority provided that a court order was obtained.

It is suggested, however, that the material could have been obtained through the means of nominating a court and requiring a witness to produce evidence under section 15 and Schedule 1 of the 2003 Act. It is true that paragraph 6(2) of Schedule 1 of the 2003 Act envisages the production of a document, but it is curious to the point of absurdity that the 2003 Act, as a means of securing better co-operation, should have envisaged the nomination of a court to receive special procedure material. That such should have been the method envisaged by the 2003 Act is even more anomalous when it is recalled that there is no requirement to nominate a Crown Court presided over by a circuit judge. Mr Palmer, on behalf of Southwark Crown Court, was forced to accept that the Secretary of State would inevitably nominate such a court in cases concerning special procedure material. But if that was envisaged, there is no reason why the Act does not require it, when it is required for domestic proceedings under Schedule 1 of PACE. Moreover, it is equally anomalous that the safeguards afforded by paragraphs 2 and 3 of Schedule 1 of PACE are not included in Schedule 1 and section 15 of the 2003 Act if that was the method by which the 2003 Act envisaged that special procedure material be obtained.

The suggestion that special procedure material may only be obtained, unless there is a police constable applying for it who is a member of a joint investigation team, through section 15 of the 2003 Act confuses the two distinct methods of assistance which we have previously identified. Obtaining access to special procedure material is not to be confused with, and is not the same as, receiving evidence. Section 15 is not apt for the production of documents called special procedure material; it is to section 16 that it is necessary to look to obtain such material for the purposes of meeting an overseas request. Section 16 can only sensibly be deployed if section 13(1)(b) of the 2003 Act is read so as to include a power to direct an application for a Production Order. Only by reading section 13(1)(b) in a way so as to include such a power may domestic investigative methods be properly and sensibly extended to overseas investigations.

For those reasons, we are abundantly sure that it was the purpose of the 2003 Act, just like its predecessor, to extend the power to obtain a Production Order as a response to an overseas request, and that the omission of that power was inadvertent.

There is no difficulty as to the words which are to be included in section 13(1)(b). That section, in our judgment, should be read so that section 13(1)(b) reads:

The third question is whether the court should rectify section 13(1)(b) in that way. We were rightly reminded that the power to apply or order production of special procedure material is intrusive and requires strict control to fulfil the obligation to comply with Article 8 (see Niemitz v Germany (1993) 16 EHRR 97 at paragraphs 29 to 31). It is necessary to provide protection against intrusive access to business documents. It is beyond argument that such documents are entitled to protection under Article 8, and if they are journalistic material by virtue of Article 10 (see R (on the application of Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin) at paragraph 47).

Any provision permitting such intrusion must be clear and accessible. In short, it must be in accordance with the law and, as the House of Lords made clear in R (on the application of) Purdy v DPP [2009] UKHL 45; [2010] 1 AC 345 at paragraph 41, the law must be accessible and foreseeable. It is said that it is far from clear that that requirement would be complied with in circumstances where the words "or order" must be read in. In our view though, having reached the conclusion that it is abundantly plain that those words were omitted by accident, no one can have been in any doubt as to the extent of the power to make a direction in light of the wording of section 16.

It was further contended that this court should feel even greater inhibition from adding those words by appreciating that there were penal consequences which could follow from a failure to comply. We were reminded that, even if the three conditions were satisfied to which Lord Nicholls referred, he continued:

Mr Palmer invoked the doctrine of doubtful penalisation, explained in Bennion on Statutory Interpretation, 5th Ed at section 271.

In our view, this argument goes nowhere. Mr Palmer accepted that documents can be obtained under what Mr Bromley-Martin QC described as the "statutory palaver", a palaver which does not contain the safeguards set out in Schedule 1 of PACE. But if the words "or order" are included in section 13(1)(b), the full safeguards of Schedule 1 of PACE are incorporated. It is accepted that Schedule 1 of PACE does provide adequate protection of the rights enshrined in Articles 8 and 10. It would equally do so if the domestic power to obtain a Production Order is extended as a means of complying with requests for assistance. In those circumstances, there is no justified or justifiable fear that by reading those words into section 13(1)(b) there is any diminution of the protection against infringement of those rights.

For those reasons, we will allow this appeal.

I would add that my Lord Griffith Williams J has seen a draft in note form of the judgment that I have just delivered and agrees with it and has contributed to it, and accordingly this is the judgment of the court.

Having allowed the appeal, we will hear any argument as to whether there is any further form of relief that is needed. Mr Palmer, I notice you are here on your own. Do you want me to adjourn that in case anybody wants to make written submissions?

MR PALMER: My Lord, I do not believe so. Mr Ramsden is here on behalf of the Treasury Solicitor. The agreed position is there should be no order as to costs. There is no other application which I have instructions to make. I would imagine it is sufficient that, following this judgment, the Constable's application be restored to Southwark Crown Court.

LORD JUSTICE MOSES: And then it will just have to be considered. Is that all right?

MR RAMSDEN: Yes, I think so, my Lord. I think we just wanted the relief that was set out in the original claim form, which was a quashing order setting aside the decision of the Crown Court and then a mandatory order requiring the Crown Court to reconsider the application, so it is the same effect.

LORD JUSTICE MOSES: Yes. I am not sure whether it is necessary.

MR PALMER: A mandatory order is not necessary.

LORD JUSTICE MOSES: I do not think a mandatory order is necessary, no. If you could draw that up for the associate, I would be grateful. Thank you very much.