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High Court rules that letters of requests are not disclosable as a matter of principle and a person cannot assert privilege against self-incrimination in relation to documents created independently of a compulsory discovery process

  • United Kingdom
  • Financial services disputes and investigations
  • Litigation and dispute management - Disclosure – Other

11-11-2017

 

R (on the application of River East Supplies Ltd) v Crown Court at Nottingham [2017] EWHC 1942 (Admin)

Facts of the case

– Following a request for legal assistance from the US Department of Justice, Nottinghamshire Police (“NP”) applied (on behalf of the UK Home Office) to the Crown Court at Nottingham for a production order in respect of River East Supplies (“River East”).

– The application ran to 14 pages. It set out the background to the US criminal investigation, and annexed a 46 page superseding indictment, detailing the allegations being made against River East and the reasons for them.

– NP did not disclose the letter of request (“LoR”) for mutual legal assistance. HH Judge Spencer QC held that there was no obligation to do so, either in full or redacted form, and granted the production order.

– River East applied for judicial review. The judicial review raised the following issues: (i) whether on application for a production order pursuant to a LoR, the applicant is obliged to disclose (if necessary in redacted form) the LoR to the respondent to the proposed production order and (ii) whether an order should be made where producing the document may violate the respondent’s privilege against self-incrimination. 

The decision

– The Administrative Court of the High Court held that:

– LoRs are confidential and therefore there is no right to require sight of a LoR in a normal case

– the common law privilege against selfincrimination does not extend to material that is “independent”, ie material which has not arisen by virtue only of an investigation of suspected or possible wrong doing (applying C Plc v P [2007] EWCA Civ 493, [2008] Ch I). 

Analysis and practical advice

– The concern to preserve the confidentiality of LoRs arises primarily from the potential risk of otherwise prejudicing ongoing investigations or trials. Absent agreement from the requesting state, the starting point is therefore that LoRs are not disclosable. However, they may be disclosable (although potentially only in redacted form) where:

– the interests of justice or fairness require the provision of information as to the nature of the investigation (eg where documents or information are available to the court, but not the  respondent)

– the nature of the application means the court requires additional information (eg to confirm that there is a jurisdictional basis for the particular order sought).

– Neither of these were applicable in this case, not least because of the detailed nature of the application which appended the superseding indictment.

– The case is also a reminder of the limits of privilege against self-incrimination as a basis for withholding material when faced with a production order. This is because the material sought will often be pre-existing and therefore have come into being independent of the compulsory discovery process, eg historic business records such as emails, hard copy files or telephone tapes. This contrasts with statements made pursuant to a compelled interview.

– There is, however, a tension between the finding in this case and C Plc on which it is based, and the finding of the majority in R (Bright) v Central Criminal Court [2000] EWHC 560 (QB), [2001] 1 WLR 662. In Bright, the majority found that Parliament had excluded privilege against self-incrimination in the context of section 9 and schedule 1 of the Police and Criminal Evidence Act 1984. This is a point which will need to be resolved in due course as, for the purposes of these proceedings, the Court found that the decision in C Plc was binding on it.