17 Mar 2014

How not to provide Mutual Legal Assistance

On 13 February 2014 the Divisional Court issued a strongly worded judgment about the way in which UK authorities should handle mutual legal assistance requests. ; in Van Der Pijl v Secretary of State for the Home Department and another [2014] EWHC 281 (Admin) does not change the law in this area but the court felt the need to set out the duties placed on each party when responding to and assisting foreign authorities pursuant to the Crime (International Co-operation) Act 2003. The need for clarification was emphasised when Mr Justice Green bluntly stated “This case reflects an exercise in how not to provide mutual legal assistance.”

The litigation had a long and complex history beginning with the application for mutual assistance by the Dutch authorities as far back as March 2011 and ending in December 2013 without the transmission of any of the material requested in time for the Dutch criminal trial. The Dutch authorities sought assistance with the search and seizure of materials located within the jurisdiction, to be used in a criminal case for tax fraud against the claimant. After the execution of the search warrant by the MPS the claimant successfully challenged its legitimacy in judicial review on the grounds of ‘specificity’. It is important to note that the letter of request from the Dutch authority was regarded lawful because they had provided an adequate basis upon which the court could properly form a conclusion that the domestic equivalent of the offence being investigated had actually been committed as opposed to being merely suspected. The judge made the order for the MPS to return material seized from the claimant on the grounds that the order to retain the material was made on the basis of an illegal warrant. The judge did not order the return of materials in the possession of the Dutch authorities on the undertaking from the MPS and the Secretary of State that they would use their best endeavours to persuade the said authority to return the property and any copies to the claimant.

Following the return of the seized material to the UK the claimant sought to prevent the Dutch authorities accessing the information under section 59 of the Criminal Justice and Police Act 2001, which allows authorities to retain material obtained in the “purported exercise of a relevant power of seizure;” this led to further preparatory hearings, an interim relief application and this application for judicial review. The claimant failed to challenge the reasoned decision of HHJ Price QC, allowing the Secretary of State to transfer the document to the Dutch authorities, until 31 October 2013, even after a request from the Secretary of State to apply without delay.

Search warrants both inside and out of the jurisdiction must satisfy the test of ‘substantive relevance;’ however, Green J highlights the limitations the UK courts face when reviewing foreign applications. Green J emphasised the mutual trust and comity which underpins both the European Convention on Mutual Assistance in Criminal Matters and the Convention on Criminal Matters between the Member States of the EU. The mutual trust entrenched in the signing of these conventions should have prevented the Dutch authorities from having to justify the relevance of each document, dramatically speeding up the process.

Green J gave a damning verdict on the efficiency of the UK authorities who had had over two and a half years to cooperate. The claimant was also blamed for tactically abusing the judicial processes available to him in order to prevent the Dutch authorities from obtaining the information in time for their December trial. The numerous failings throughout this case are laid out in the guidelines given by Green J:

i) The United Kingdom Central Authority needs to ensure that at all times the Courts are kept fully aware of the state of progress of proceedings in the foreign jurisdiction since without this knowledge informed listings decisions cannot be made;

ii) The Courts need to ensure that listing decisions are taken with a view to ensuring as much expedition as is proper in the circumstances and if necessary designating a single judge to be responsible for case managing the process;

iii) The MPS needs to take greater care in seeking and enforcing warrants; and

iv) Persons subject to mutual assistance order and interventions need to be made fully aware that in their entirely legitimate attempts to protect their rights, any unacceptable delay or abuse of process will be rigorously opposed and appropriate sanctions imposed.

The guidelines set out by Green J should ensure that foreign authorities, especially EU member states, who make valid requests for mutual assistance, are not thwarted by error, disorganisation or procedural abuse in the UK. It is clear that all parties have a part to play in ensuring the system runs efficiently and expediently. The case underlines again the vital importance of making an early challenge to search warrants in such cases. A delay of two and a half months in this case was plainly far too long. The court expects such claims to be filed very quickly in future.

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