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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/1626.html
Cite as: [2006] 1 WLR 1316, [2005] EWHC 1626 (Admin), [2005] 4 All ER 285, [2006] WLR 1316

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Neutral Citation Number: [2005] EWHC 1626 (Admin)
Case No: CO/3960/2004

IN THE HIGH COURT OF JUSTICE
DIVISONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL .
22/07/2005

B e f o r e :

LORD JUSTICE KENNEDY and
MR JUSTICE CRANE

____________________

Between:
Energy Financing Team Ltd & ors
Applicant
- and -

The Director of the Serious Fraud Office
Respondent

____________________

Paul Downes and Leona Powell (instructed by Clyde & Co) for the Applicant
Khawar Qureshi (instructed by Treasury Solicitors) for the Respondent Marc Beaumont (instructed by Peters & Peters) for an interested party.
Hearing dates: 30th June & 1st July 2005

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Kennedy:

  1. On 28th October 2003 the relevant prosecuting authority in Bosnia and Herzgovina made a written request to the Secretary of State for the Home Department in the United Kingdom for assistance in relation to an investigation being carried out into the affairs of certain companies and individuals who were suspected of having colluded with the management of Elektroprivreda Republika Srpska (EPRS) to acquire for their own use or disposal the funds or assets of EPRS. EPRS were engaged in the business of electricity supply, and Energy Financing Team Ltd (EFT) was one of the companies identified in the request. Another was GML International Ltd (GML).
  2. The request made in October 2003 was followed by a second supplementary request made in February 2004, and a further request dated 27th April 2004. All three requests were referred by the Secretary of State to the Director of the Serious Fraud Office, who applied to a District Judge for search warrants. The application came before District Judge Nicholas Evans at Bow Street Magistrates' Court on 14th May 2004, and the applications were then granted. Thus on 18th May 2004 police officers executing one of the warrants went to the premises of EFT at 11-15 Wigmore Street, London, W.1, where they took possession of files and electronic data.
  3. These Proceedings.

  4. In these proceedings, which were commenced in August 2004, EFT seek to quash the warrant and apply for the recovery of the material obtained from them pursuant to the warrant. They also seek various declarations of illegality. GML, whose premises were also searched pursuant to a warrant which came into existence in the same way, was served with these proceedings as an interested party. At a very late stage GML decided to take an active part, and we heard submissions from Mr Beaumont, counsel for GML.
  5. In essence the submission made by Mr Downes on behalf of EFT, and supported by Mr Beaumont, is that having regard to general fundamental principles of law, the statutory framework within which he was obliged to operate (including the incorporated provisions of the European Convention on Human Rights) and the material available to him, the Director of the SFO should not have applied for the relevant warrants and if he did so the District Judge should not have granted his application.
  6. Legislative Framework.

  7. In English domestic law the power to enter, search and seize property or persons is to be found in Part II of the Police and Criminal Evidence Act 1984. It is a restricted power,. only exercisable pursuant to a warrant obtained by a constable from a justice of the peace, and sections 15 and 16 of the 1984 Act contain certain safeguards which are of general application. Section 15, so far as relevant provides -
  8. '"(1) This section and section 16 below (which relates to execution) have effect in relation to the issue to constables· under any enactment, including an enactment contained in an Act passed after this Act, of warrants to enter and search premises; and an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below.
    (2) Where a constable applies for any such warrant it shall be his duty -
    (c) to identify, so far as is practicable, the articles or persons to be sought.
    (6) a warrant -
    (b) shall identify, so far as is practicable, the articles or persons to be sought."

    The Criminal Justice Act 1987 set up the Serious Fraud Office and section 1(3) of that Act empowered the Director of the SFO to "investigate .... Fraud". Section 2 of the Act defined the Director's investigative powers. That section was amended by the Crime (International Co-operation) Act 1990. to take account of a situation such as that which arises in this case, where an authority abroad seeks the assistance of the Secretary of State who, pursuant to section 4(2A) of the 1990. Act, because the request involves serious or complex fraud, refers the request to the Director of the SFO "for him to obtain such of the evidence to which the request .... relates as may appear to the Director to be appropriate for giving effect to the request ..... " In this case there is no issue before us as to the legality of the original requests, or as to the propriety of . the reference by the Secretary of State to the Director. The Director was then in a position to exercise his investigative powers under section 2 as amended, if it appeared to him that there was good reason to do so for the purpose of investigating the affairs, or any aspect of the affairs of any person (see subsection 1) and it appeared to him that the offence in respect of which he had been requested to obtain evidence involved serious or complex fraud (see subsection 1B). In the present case it is not contended that the Director was not entitled to be satisfied in relation to those. matters but, as Mr Downes points out, the statutory provisions do demonstrate that the Director is required to exercise an independent judgment. Section 2(2) enables the Director to require that information be given to him, and that is not a power with which we are now directly concerned in this case, but the next three subsections, so far as relevant, read as follows-

    (3) The Director may by notice in writing require the person under investigation or any other person to produce ... any specified documents which appear to the Director to relate to any matter relevant to the investigation or any documents of a specified description which appear to him so to relate; ...
    (4) Where, on information on oath laid by a member of the Serious Fraud Office, a justice of the peace is satisfied in relation to any documents, that there are reasonable grounds for believing -
    (a)that -
    (ii) it is not practicable to serve a notice under subsection (3) above in relation to them; or
    (iii) the service of such a notice in relation to them might seriously prejudice the investigation; and
    (b) that they are on premises specified in the information, he may issue such a warrant as is mentioned in subsection (5) below.
    (5) The warrant referred to above is a warrant authorising any constable - .
    ( a) to enter .... and
    (b) to take possession of any documents appearing to be documents of the description specified in the information ...

    Submissions as to the Law.

  9. Mr Downes accepts that where documents are sought from someone suspected of involvement in a fraud (and both EFT and GML were in that position) it will rarely be practicable to obtain them by notice pursuant to section 2(3), but he submits that because the execution of a warrant is an intrusive power the Director, before applying for a warrant, must first consider whether section 2(3) can be used, and if he does have to resort to section 2(4) he can only seek a warrant in relation to documents which could have been adequately described for the purposes of· section 2(3). Historically the English courts have never allowed warrants to be used by investigating authorities to conduct fishing expeditions, or even to obtain documents only normally obtainable on discovery, and that approach, Mr Downes submits, is now re-enforced by the provisions of the European Convention. Furthermore, the person against whose property the warrant is directed, and the officer who executes it, both need to know at the time of execution to what property it relates, and if it is possible to obtain the documents which are sought from some other untainted source (such as a bank) then there should not be an application for a warrant at all.
  10. Mr Qureshi, for the Secretary of State and for the Director, does not seriously dispute the general approach adopted by Mr Downes, but he does not accept that when the Director is giving effect to a request for mutual legal assistance in relation to an investigation any warrant which he drafts must be so framed as to satisfy the specificity requirements of section 2(3). He also points out that the statutory provisions to which I have referred require the Director not simply to reflect the terms of a letter of request in a draft warrant but, as Mr Downes contended, to exercise an independent judgment. Section 4(2A) of the 2003 Act in particular requires the Director to obtain such of the evidence to which the request relates as appears to him to be appropriate to give effect to the request so, as Mr Qureshi puts it, if the request seeks two documents which can only properly be understood in the light of a third the Director can draft a warrant seeking all three. That I would accept but, as there was disagreement between counsel as to the degree of specificity required in a draft warrant prepared for the purposes of section 2(4) of the 1987 Act in a case where there is an investigation and a call for mutual legal assistance I must, before looking at the terms of the request and of the warrant which are in issue in this particular case, turn to the authorities to which we were referred. As the jurisprudence has developed it is helpful to refer to the cases as counsel did in chronological order.
  11. Authorities.

  12. Williams v Somerfield [1972] 2 QB 512 was a decision of this court in relation to an order made under the Bankers' Books Evidence Act 1879. It was cited by Mr Downes to remind us what was said by Lord Widgery CJ at 518 - 519 about a search warrant being a potentially serious invasion of the liberty of the subject, and a gross invasion of privacy. Lord Widgery also drew the distinction between authorising the obtaining of material as permitted by statute, and "a fishing expedition in the hope of finding some material upon which the charge can be hung".
  13. In R v Lewes Crown Court ex parte Hill [1991] 93 Cr App R 60 this court was concerned with the power under section 9 of the 1984 Act to obtain access to excluded material or special procedure material, and at page 67 Bingham LJ said that what had been said in Williams was no less applicable under the 1984 Act, and that the requirements of specificity in the section 9 notice had been emphasised in ex parte Adegbesan [1987] 84 Cr App R 219.
  14. In R v Southwark Crown Court ex parte Sorsky and Defries [1996] CLR 195 the court was concerned with an application to a Crown Court judge under the then relatively new provisions of the 1990 International Co-operation Act. The United States authorities investigating money laundering had sought assistance because a partner in an English firm of accountants had helped to set up schemes and advised. This court was critical of the cursory nature of the proceedings before the circuit judge, McCowan LJ saying that "an intrusion into the liberty of the subject cannot be allowed to go through on the nod". No reasons had been given by the judge, and this court said that the extent to which reasons were required depended on what had gone before. In that case the judge had not, it seems, had an opportunity to pre-read the information and the draft warrant. He admitted unfamiliarity with the relevant statutory provisions, and McCowan LJ said that there should have been a short statement of his reasons for granting the warrant "so that it could be apparent that the judge had taken appropriate matters into account".
  15. However, as Mr Qureshi emphasised, English courts have to recognise that where
  16. . assistance is being given to an authority abroad in relation to an on-going investigation both the letter of request and the draft warrant are likely of necessity to be drawn in wide terms. The objections as to the width of the warrant taken in the present case are, Mr Qureshi submits, broadly similar to those taken by the applicants in R v Secretary of State ex parte Fininvest SpA [1997] 1 WLR 743. In that case at 752E Simon Brown LJ said that the 1990 Act -

    "Created a wholly new scheme for mutual assistance with regard to criminal investigations, a scheme under which it would plainly be necessary to examine altogether more material than would ultimately constitute evidence at any trial."

    At 752H he continued -

    "What is under investigation here is, after all, as the respondents point out, a wide-ranging, multi-faceted, international fraud involving far-reaching allegations against a large number of individuals in connection with an even larger number of companies. Considering, moreover, that it is at the investigative stage, one can hardly look to greater particularisation of the offences than is contained in the letter of request. So far from this being a fishing expedition, specific allegations of fact are made concerning the. setting up of an elaborate network of overseas companies and the various ways in which. the false accounting has been committed. The

    . documentation which it is believed will establish or support these allegations is or rather was with C.M.M. Ltd and Mr Mills. In short the request for assistance here is not, as the applicants contend, vague and speculative; rather it is as precise and focussed as such a. request could sensibly be in these circumstances. "

  17. In R v Director of SFO ex parte KM and others 7th April 1998 the request for assistance came from the United States pursuant to the Mutual Legal Assistance Treaty of 2nd December 1996. Pill LJ, giving the first judgment of this court, stressed at page 16 to' 17 of the transcript the need for candour and full disclosure when a warrant is being sought, quoting the observation of Bingham LJ in ex parte Hill (supra) that the judge "should be told anything to the knowledge to the party applying which might weigh against making an order". At pages 18 to 19 Pill LJ was critical of the width and lack of clarity of the warrants, but the criticisms relate to the wording of the warrants and to the facts of that case.
  18. In ex parte Simms [2000] ,2 AC 115 Lord Hoffmann said at 131F that fundamental rights can only be over ridden by express statutory words, and Mr Downes submits that the statutory power to authorise search and seizure must be construed against the background of fundamental rights.
  19. Smith and Grady v UK [1999] 29 EHRR 493 and Peck v UK [ 2003] 36 EHRR 719. were both cited by Mr Downes in support of the proposition that where fundamental rights are said to have been impugned by an executive decision judicial review may not be an adequate remedy because the test of irrationality is too high. But, as Mr Qureshi pointed out, both cases were decided before the implementation of the Human Rights Act 1998, and in consequence do not deal with the way in which judicial review operates today.
  20. In ex parte Abacha [2001] EWHC Admin 787 the Secretary of State received and acceded' to a request for assistance from the government of Nigeria which was investigating allegations that General Abacha, as military ruler, had stolen state assets for the benefit of his family. In judicial review proceedings the alleged beneficiaries alleged procedural unfairness relying amongst other things on the fact that the Secretary of State refused to disclose the terms of the request which was made' pursuant to a treaty, Article 9 of which provided that the parties -
  21. "Shall to the extent requested use their best endeavours to keep confidential a request and its contents".

    Counsel for the applicants conceded that in the light of the treaty there could be no general obligation to disclose the existence of the letter of request or its contents, but submitted that in the instant case fairness demanded disclosure, even though the applicants had been able to make submissions addressing what they believed to be the contents of the letter of request. Tuckey LJ giving the judgment of the court, rejected the allegations of procedural unfairness. In paragraph 17 the court assumed without deciding that Article 8 of the European Convention might be relevant, and continued -

    "We bear in mind also two general points. First, as Lord Bingham said (in Zadari 11th March 1998 unreported) the section 4 process is not a trial. It leads only to the transmission of evidence to the requesting State where, if it is to be used, one can assume that the criminal defendant will have the opportunity of answering it. Secondly, such requests are made by friendly, foreign countries with whom we have treaty or similar obligations of mutual co-operation. The expectation must therefore be that we will comply with the request unless there are compelling reasons for not doing so and that we will do so as quickly as possible~ Any requirement for procedural fairness must be fashioned with those considerations firmly in mind. "

    In paragraph 18 Tuckey LJ turned to the facts of the instant case saying-

    "One can infer that the request did contain confidential information from its redacted form, so there was a good reason for not disclosing it to the claimants. More importantly however, the claimants knew which transactions the Nigerian authorities were investigating and were able to make a prompt response to put their case. It does not seem to us that they suffered any real prejudice by not seeing the request and by not seeing the FGN's actual responses to their representations, the substance of which they were given by the Treasury Solicitor. The exercise which the Secretary of State has to perform should be simple. He is not required to conduct a criminal trial on paper or to decide disputed questions of foreign law before making his decision."·
  22. Mr Downes sought to distinguish Abacha on the ground that it was concerned with a treaty requirement of confidentiality which is absent in the present case, but the term of the treaty which was relevant in Abacha seems to me to do little more than to set out on paper expectations which would, as a matter of inference, arise in the case of almost any letter of request, and the observations made by the court do seem to me to be helpful. Having said that I do recognise that the underlying decisions being challenged in Abacha were executive decisions to transmit evidence, not a decision to seek a warrant from a court. It may be arguable where the powers of the court are invoked the person affected should be even better equipped to challenge 'the exercise of those powers.
  23. In Evans and Lord [2002] EWCA 2304 Admin the United States, in connection with the investigation of an alleged fraud, sought the assistance of the Secretary of State to obtain evidence and information from members of an English firm of accountants, who were not themselves under suspicion. The matter was referred to the Director and the solicitors for the accountants sought access to the letter of request. Access was refused, on the basis that it was by treaty a confidential document, but the Director went on to provide detailed information as to the American investigation, based on the letter of request. In that case I said at paragraph 12 -
  24. "Having regard to the treaty obligations it is right to start from the position that the letter of request is not a disclosable document, but justice must be done to those who are the subject of a section 2 notice pursuant to a letter of request and the consequential request from the Secretary of State to the Director of the SFO pursuant to section 4(2A) of the Act. The needs of justice can normally be met, as in· this case, if when a request is made for disclosure of the letter of request information is given as to the nature of the criminal investigation, but in some cases the requirements of justice may require more."

    That still seems to me to be the right approach. The second issue raised in Evans and Lord was the extent of the Director's powers when dealing with a request for mutual legal assistance referred to the Director by the Secretary of State. As to that the court adopted what had been said by Simon Brown LJ at page 754 in Fininvest, namely that those powers, draconian as they may be, in particular in section 2, are no narrower with regard to requests for mutual assistance in overseas investigation cases than they are in a domestic context.

  25. Mr Beaumont placed some reliance on Article 1 of the First Protocol (peaceful enjoyment of possessions) and on the assertion in Lester and Pannick's Hum~ Rights Law and Practice that -
  26. "an interference with property must not only be in the public or general interest, but must also satisfy the requirement of proportionality, that is, that there is a reasonable relationship with proportionality between the means employed and the aims sought to be realised."

    That passage was cited with approval by Simon Brown LJ in International Transport Roth Gmb H v Secretary of State [2002] 2 QB 728 at paragraph 50, but it seems to me to be of limited assistance in this case. Having regard to the serious and extensive nature of the inquiry going on abroad if it was not practicable to obtain the documents required by other means the use of a warrant could not be said to be disproportionate.

  27. The background to Kent Pharmaceuticals Ltd and others v SFO [2002] EWCA 3023 Admin was an investigation by the SFO into allegations that some people in the pharmaceutical industry. were dishonestly increasing the price charged for drugs . supplied to the NHS. On 27th March 2002 District Judge Nicholas Evans received written application for warrants and in due course this court considered the statutory requirements applicable to such warrants, and the relevant provisions of the Human Rights Act. The starting point was said to be sections 15 and 16 of the 1984 Act, and in paragraph 16 of his judgment Lord Woolf CJ assumed without finally deciding that "all the requirements of sections 15 and 16 have to be complied with if a warrant is to protect a search and the seizure of goods within premises to which it relates". The Lord Chief Justice then turned to section 2 of the 1987 Act and set out subsections (3) (4) and (5) before saying in paragraph 20 -
  28. "The structure of section 2 is clear. It is intended that the powers that are given to the Director under subsection (3) should be used to obtain documents, if it is appropriate to do so, and it is only in cases that do not lend themselves to being dealt with under subsection (3) that the powers contained in subsections (4) and (5), which were those used here by the SFO, in entering the premises in question, can be used."

    The court did not have to address the argument that a warrant could not properly be . obtained for documents not sufficiently specified to have been the subject of a notice under subsection (3), but the terms of a typical warrant are set out in paragraph 33 of the judgment and, as Mr Qureshi points out, they are wide, and in many ways comparable with those with which we are concerned in this case ... They were found to comply with section 15 of the 1984 Act.

  29. There was then in the Kent Pharmaceuticals case a complaint that the District Judge
  30. had not given reasons, but in a very full acknowledgement of service it was indicated by the Director that the District Judge had given reasons which complied with the requirements not only of the domestic legislation but also of Articles 6 and 8 of the European Convention. For the purposes of the application for permission to apply for judicial review that was accepted, but no one seems to have even suggested that it was unnecessary for reasons to be given.

  31. The Lord Chief Justice then considered and accepted a submission that Article 8 of the European Convention had to be taken into account when considering sections 15 and 16 of the 1984 Act, and section 2 of the 1987 Act. In paragraph 30 he continued -
  32. "In what I have said so far I have had fully in mind the fact that on any showing there is an intrusion into the protection provided by Article 8(1) where searches of the sort that took place in this case, and the removal of material as happened here, occur. However, Article 8(1) does not stand by itself; it stands subject to Article 8(2). It is my view that in drawing the legislation contained in PACE in the terms that it has, parliament is endeavouring to give statutory effect to the same principles which Article 8 is designed to protect .. The need to consider Article 8 only arises if sections 15 and 16 do not provide sufficient protection in themselves. In my judgment they do. Article 8 in a case of this sort does not add anything to what has been the position hitherto."
  33. In Re S [2004] UKHL 47 the House of Lords considered whether a judge was right to refuse to restrain newspapers from identifying a mother who had allegedly killed one child by salt poisoning, restraint being sought because of the effect that publicity might have upon a sibling. Consideration was. given to Article 6 of the European Convention which was not directly in issue, and to the interaction between Articles 8 and 10 as well as to the inherent jurisdiction of the High Court. But Lord Steyn, with whom the other members of the House agreed, stated at paragraph 23 that since October 2000 the foundation of the jurisdiction to restrain publicity is now derived from Convention rights. Mr Qureshi submits that by analogy there is no need in this case to go back beyond Convention compliant statutory provisions to fundamental rights. Yet in Bowman v Fels [2005] EWCA Civ 226 the Court of Appeal did refer to fundamental principles and judicial control when considering the ambit of the Proceeds of Crime' Act 2002 and its application to the legal profession.
  34. The final authority to which I need refer is Buck v Germany an application 41604/98 in the European Court of Human Rights. The son of the applicant was accused of driving a vehicle belonging to his father's firm at a speed in excess of a prescribed speed limit. The son raised an issue as to the identity of the driver, and a warrant was issued to search the business and residential premises of the applicant. That was tested in the German courts with commendable speed. The European Court, by a bare majority, found a contravention of Article 8 on the basis that the action taken against the applicant was disproportionate. It also found procedural shortcomings, but stated that nonetheless the safeguards provided by German legislation and jurisprudence against abuse in the sphere of searches and seizures in general can be considered adequate and effective.
  35. General Conclusions.

  36. From the authorities I am able to derive some general conclusions which are relevant to the facts of this case -
  37. (1) the grant and execution of a warrant to search and seize is a serious infringement of the liberty of the subject, which needs to be clearly justified, and before seeking or granting a warrant it is always necessary to consider whether some lesser measure, such as a notice under section 2(3) of the 1987 Act, will suffice.
    (2) If such a notice will not suffice, for example because the documents may be destroyed, consideration should be given to the possibility of obtaining the documents from an alternative untainted source, such as a bank, but where, that would involve many enquiries of many institutions which might or might not be willing and able to produce the information required, the need to assist the investigating authority to make progress with its overall investigation may well, as in this case, render resort to alternative sources impracticable.
    (3) If an application is to be made for a warrant it is the duty of the applicant to give full assistance to the District Judge, and that includes drawing to' his or her attention' anything that militates against the issue of a warrant.. On the material now before us, and bearing in mind the experience of the' District Judge, which is clear from the authorities, I see no reason to conclude that the matter was not properly presented in this case.
    (4) It is clear from the terms of the 1990 Act and the 1987 Act that when the Director of the SFO is seeking a warrant pursuant to a request for mutual legal assistance the warrant does not need to reflect precisely the wording of the letter or letters of request. The Director has a duty to decide for himself how best to give effect to the request in furtherance of the overall investigation, and if that means going further than the letter of request he is entitled to do so,. despite Mr Beaumont's submission to the contrary.
    (5) When there is an ongoing investigation into, for example, the affairs of a company such as EPRS, which appears to have been at the centre of a fraud, it will always be difficult to say precisely what documentation of value to the inquiry may be recovered from those who are justifiably suspected of being in contact with the main target company, but nevertheless the warrant needs to be drafted with sufficient precision to enable both those who execute it and those
    . whose property is affected by it to know whether any individual document or class of documents falls within it. If that is done it seems to me that the specificity required will be no less than would be required for a notice under section 2(3) were it practicable to serve such a notice, and although the terms of the warrant may be wide it will not simply be fishing if it is directed to support an investigation
    which has apparent merit.
    (6) For practical reasons, to make the best use of court time, it is obviously desirable to give a District Judge from whom a warrant is being sought time to pre-read the material relied upon, namely the sworn information, usually supported by the letter(s) of request and the draft warrant. It is important for the purposes of any subsequent review for the Director or his representative to be able, as in this case, to say whether that was done.
    (7) If there has been an opportunity for pre-reading the hearing itself may. be very short. If the applicant supplements the material already provided, possibly in response to questions from the District Judge, that should be noted, and the same applies to the decision of the District Judge, which should be briefly reasoned. It seems that sometimes proceedings before the District Judge are tape-recorded, and if that can be arranged that is clearly the best form of record, but if that is impracticable the party applying for a warrant must prepare a note which can be submitted to the judge for approval if any issue arises as to the way in which the warrant was obtained. That is what seems to have happened in this case, save that the file note, which was circulated to Bow Street Magistrates Court ends with the brief assertion that "the judge granted the warrants and initialled the schedules attached." If he gave reasons they. are not spelt out.
    (8) Mr Downes submitted that where a warrant is granted it should be upon the basis that the party affected by it can go to the District Judge, after it has been executed and after the property has been secured, to invite the District Judge to reconsider his decision to grant the warrant either at all or in that form. No one suggested that a District Judge has any statutory jurisdiction to reconsider his decision to grant an application for a warrant after the warrant has been executed, and I am not persuaded of the existence of any inherent jurisdiction to that effect. Whether such a jurisdiction should now be granted to a District Judge by statute is a matter for parliament not for this court. There are plainly arguments in favour of a further hearing at that level rather than by seeking relief in the High court.
    (9) The remedy which is available to a person or persons affected by a warrant is to seek judicial review. It is an adequate remedy because the statutory provisions have to be read in the light of those Articles of the European Convention which are now part of English law. In fact, as was said by the Lord Chief Justice in the Kent case if the statutory provisions are satisfied the requirements of Article 8 of the Convention will also be satisfied, and at least since the implementation of the Human Rights Act an application . for judicial review is not bound to fail if, for example, the applicant cannot show that the Director's decision to seek a warrant in a particular form was irrational, but in deciding whether to grant permission to apply for judicial review the High Court will always bear in mind that the seizure of documents pursuant to a warrant is an investigative step, perhaps best reconsidered either at or even after the trial.
    (10) Often it may not be appropriate even after the warrant
    has been executed, to disclose to the person affected or his legal representatives all of the material laid before the District Judge because to do so might alert others or frustrate the purposes of the overall enquiry, but the person affected has a right to be satisfied as to the legality of the procedure which led to the execution. of the warrant, and if he or his representatives do ask to see what was laid before the District Judge and to be told about what happened at the hearing, there should, so far as possible, be . an accommodating response to that request. It is not sufficient to say that the applicant has been adequately protected because discretion has been exercised first by the Director and then by the District Judge. In order to respond to the request of an applicant it may be that permission for disclosure has to be sought from an investigating authority abroad, and/or that what was produced or said to the District Judge can only be disclosed in an edited form, but judicial control by way of judicial review cannot operate effectively unless the person or persons affected are put in a position to take meaningful advice, 'and if so advised to seek relief from the court. Furthermore it is no answer to say that there is no general duty of disclosure III proceedings for judicial review.

    In this Case.

  38. The warrant, as I have said, was granted on 15 May 2004 and was executed at the
  39. premises of EFT on 18th May 2004. For convenience a copy of that warrant is 'attached to this judgment. It does not simply reflect the terms of the letters of request, the first and fullest of which, after describing the investigation, contains this paragraph under the heading "Requested Assistance" -

    "1. All mandates, books of account, bank statements (between 1998-2003), paid cheques, vouchers, transfer slips, agreements, correspondence, attendance notes, internal memoranda,' and reports and other documents relating to:
    -a/c no: 53675099 - a/c holder: Energy Financing Team Limited and any other related account held in the name of, or on behalf of the company;
    -all accounts held at your branch of the Bank to which Vuk Hamovic is or was a party or signatory;
    -all accounts held in the name of, or on behalf of the following companies:
    GML (Holdings) Ltd
    GML International Ltd
    10 Wadham Gardens Ltd
    Webo Ltd·
    JMDP Elektropriveda Republika Srpeska
    2 All documents relating to the attached Barclays Bank guarantee eng 1 4592010 (and any other guarantee or facility) for .JMDP Elektropriveda Republika Srpeska"

    Then under the heading "Documents" the letter states -

    "In England and Wales production of all documents including statements of account, payment advices evidencing deposits to. and withdrawals from accounts in the names of or under the control or disposal of the companies and individuals under investigation. "

    Premises to. be searched are then identified. They include the premises of EFT at Wigmare Street and two. premises of GML. Appendix one. to. the letter identifies companies and the persons under investigation. They include EFT, GML and three individuals - Hamavic, Nye and Bestner. For present purposes it is unnecessary to. dwell an the contents of the second and third letters of request,. which were supplementary.

  40. Although the warrant dais not simply reflect the letters of request it is clearly drafted in such a way as to. give effect to. the request, and in my judgment it is sufficiently specific to. meet the requirements of the statute. The key paragraph is the second paragraph an the first page which I do. not need to. set out here. In the Kent case there was same criticism of the use of the wards "include" and "including" but, as the Lard Chief Justice said, a warrant dais have to. be read as a whale. That also. meets Mr. Dawnes' criticisms of the schedule. Correspondence between electricity companies or between EPRS and employees or potential employees, and the business records of EFT are not covered unless they appear to. relate to. same matter relevant to. the il1yestigatian (see the second paragraph an the first page).
  41. Turning to. the material which was adduced in support of the application for the warrant (including the letters of request) the solicitors acting for EFT sought access to. that material an 7th July 2004, and repeatedly thereafter, but were not granted it in any form. So., an 13th October 2004 they made an application for disclosure. That eventually resulted in a letter from the Treasury Solicitor dated 15t December 2004 Gust aver a week before the application was due to. be heard) which disclosed the letters of request and, as Mr Dawnes concedes, enough information about the contents of the information and the proceedings before the District Judge to. enable EFT to. take advice and to. conduct these proceedings. In my judgment there is no. adequate excuse for the delay in providing the information set out in the letter of 15t December 2004, and the solicitors should never have been put in the position of having to. issue an application for disclosure in order to. obtain it. That is why, as we indicated during the hearing, we have concluded that EFT are entitled to. the casts of that application. It is no. sufficient answer to. say that in this case EFT knew the nature of the allegations in Bosnia and Herzegovina and had made representations in relation. to. them, including the production of a report prepared by KPMG. They still have the right to. be satisfied as to. what had happened before the District Judge.
  42. As to. the procedure before the District Judge it is clear from the recent witness statement of Anthony Robert Wilson of the SFO that several days before the application was made he had lodged the relevant material with the Magistrates' Court, so. the experienced District Judge had ample opportunity to. read the material before . the hearing. In those circumstances. I am not surprised that the hearing lasted only 10 minutes. On the material which was available it is clear to. me that the District Judge was entitled to. be satisfied as to. the statutory requirements, and I have no. reason to. doubt that in same way or another he made that apparent. As I have indicated there should have been a better record of his reasons, but in the circumstances that does not seem to me to justify any intervention by this court.
  43. Conclusions.

  44. I would therefore dismiss the application of EFT for judicial review, but grant them their costs in relation to the application for disclosure. As Mr Beaumont eventually accepted, GML are not entitled to any relief in these proceedings.
  45. Mr Justice Crane:

  46. I agree, subject to some short observations.
  47. When the Secretary of State refers a request to the Director of the Serious Fraud .
  48. Office he is acting under section 4(2A) of the Criminal Justice (International Cooperation) Act 1990, which in part reads:

    " ... he may, if he thinks fit, refer the request or any part of the request to the Director of the Serious Fraud Office for him to obtain such of the evidence to which the request or part referred relates as may appear to the Director to be appropriate for giving effect to the request of part referred".
  49. While I agree that section 2(1) of the Criminal Justice Act 2(1) permits the Director to decide to exercise his powers for the purposes of investigating the affairs of any person, it requires that "it must appear to him that there is good reason to do ~o". Therefore when a request is referred to him, for the limited purpose set out in section 4(2A) of the 1990 Act, the Director must in my view consider whether there is good reason for a wider investigation if he is to go beyond that purpose. On the evidence before ~s, in particular the statement of Anthony Wilson and the letter from the Treasury Solicitor dated 1st December 2004, I am satisfied that he did consider whether there was a good reason and was entitled to conclude that there was.
  50. The warrant authorised a search for
  51. "All documents ... which appear to relate to any matter relevant to the investigation of the affairs of [EPRS] between January 1999 and June 2003 which include the documents referred to in and between the persons and entities described in the schedule or any of them including information recorded in any form concerning the purchase, sale, transit or exchange of energy with [EPRS]".
  52. I agree that the use of the words "include and "including" are not open to objection, for reasons given by the Lord Chief Justice in Kent. However, I consider that there are in principle objections to the specifying of the documents by reference to an "investigation". The scope of the investigation will be described, as apparently it was in this case, in the information, and may be clarified, as it was here, by the terms of the request to the Director. However, the information and the request will not necessarily have been seen by all those executing the search and certainly not by the person whose premises are being searched. How then are they to understand whether a particular document was relevant to the investigation?
  53. Similar wording was used in the Kent case, where the words were "information ...
  54. which appears to relate to any matter relevant to the investigation into the production, supply and pricing of penicillin-based antibiotics". The entities relevant to that investigation were set out in an Appendix. Thus in that case the nature of the investigation was described.

  55. Turning back to the present warrant, I accept that the documents were limited to a particular period and must have been relevant to EPRS. However, there was nothing explicit in the quoted words in the warrant to tell those searching whether all documents for that period relating to EPRS were included. I am, however, prepared to accept that the Schedule of Persons and Entities, although qualified only by' the words "including" would have assisted in understanding which documents were being described. I am also of the opinion that the request and what we know of the information would have justified the seizure of 'any documents relating to EPRS within the specified dates.
  56. While for these reasons I would not quash the warrant in the present case, a warrant should be capable of being understood by those carrying out the search and by those whose premises are being searched, without reference to any other document.


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