Kent Pharmaceuticals Ltd, (R on Application of) v Serious Fraud Office & Anor

The court reviewed a judicial review challenge to the Serious Fraud Office's decision to disclose copies of documents seized under warrants to the Department of Health. Key legal principles applied were the statutory seizure powers under the Criminal Justice Act 1987 (notably section 2(5)) and the Police and Criminal Evidence Act 1984 (section 19), the statutory disclosure power under section 3(5)(a) of the Criminal Justice Act 1987, and the Human Rights Act/European Convention on Human Rights requirements that interferences with Article 8 privacy be "in accordance with law" and proportionate.

The court rejected the claimant's challenge that particular documents were unlawfully seized, holding the seizing officers had reasonable grounds to believe the items were within the warrant or were lawfully seized under section 19 PACE. The court held that the wide discretion to disclose under section 3(5)(a) did not breach the Article 8(2) requirement that interference be "in accordance with law" when read in its statutory context and subject to public law review and Human Rights Act proportionality review. However, the court held the SFO acted unfairly in failing to give reasonable advance opportunity to make representations in relation to the January 2003 disclosure and concluded that, where advance notice is not given, the SFO is ordinarily obliged to notify the owner as soon as reasonably practicable so the owner can consider legal options (Article 6/access to court considerations were engaged in that context).

This is a judicial review of the Director of the Serious Fraud Office's decision (14 January 2003) to disclose copies of documents seized from Kent Pharmaceuticals to the Department of Health. The documents had been seized pursuant to warrants issued after an investigation into suspected unlawful concerted action in the generic drugs market (including Warfarin). The claimant sought declarations that the disclosure was unlawful, damages, and an order that the SFO must notify the claimant of any disclosure of seized documents to government departments.

Nature of the claim/application: The claimant applied for judicial review seeking (i) a declaration that the SFO's decision to disclose copies of seized documents to the DoH was unlawful, (ii) damages, and (iii) a declaration that the SFO is obliged to notify it of any disclosure to government departments. The claim raised statutory and human rights issues and challenged both seizure and disclosure decisions.

Issues framed by the court:

• Whether particular documents had been unlawfully seized in breach of the warrant and PACE (section 19).
• Whether the SFO's exercise of the discretion to disclose under section 3(5)(a) Criminal Justice Act 1987 was "in accordance with law" for Article 8(2) purposes.
• Whether the SFO acted fairly in failing to allow the claimant a reasonable opportunity to make representations before disclosure.
• Whether the SFO was obliged to notify the owner after making a disclosure to another government department so as to protect access to court rights under Article 6.

Court's reasoning and conclusions:

• On seizure: The court analysed five exemplar documents and held the officers had reasonable grounds to seize them either as documents described in the warrant or under section 19 PACE. The challenge that the seizures were unlawful therefore failed.
• On "in accordance with law": The court accepted that section 3(5)(a) confers a wide discretion but, considered in context (special statutory regime for serious and complex fraud; limited classes of permitted recipients; judicially issued warrants underpinning seizure; availability of public law review and Human Rights Act proportionality review), the statutory discretion did not fail the Strasbourg standards (Sunday Times, Domenichini). The disclosure was "in accordance with law."
• On fairness/notice: The SFO had given only very short notice in January 2003 yet disclosed the next day; the court concluded, applying domestic authorities (Woolgar, Thorpe, Marcel) and Strasbourg principles on access to court (Golder, Tinnelly), that the SFO should have given a reasonable opportunity to make representations before disclosure in the January case. As to the August disclosure, the court found solicitors for the DoH had given indirect notice by late July and the claimant did not object, so there was no material detriment. The court held that, where advance notice is not practicable or does not occur, the SFO is ordinarily obliged to inform the owner as soon as reasonably practicable after disclosure so the owner may consider legal remedies.

The court gave the claimant limited substantive success on fairness/notification issues but dismissed the principal arguments about unlawful seizure and unlawfulness of the statutory disclosure power. Relief was to be considered subsequently and the court invited submissions on remedies.

The claim was allowed in part. The court dismissed the claim that the exemplar documents were unlawfully seized and held the disclosure power under section 3(5)(a) of the Criminal Justice Act 1987 was "in accordance with law" for Article 8(2) purposes. However, the court found the SFO acted unfairly in failing to give reasonable advance opportunity to make representations in relation to the January 2003 disclosure and held that where advance notice is not given the SFO is ordinarily obliged to notify the owner as soon as reasonably practicable after disclosure so the owner can consider legal remedies. Relief was reserved for further submissions.