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

A statutory disclosure power may satisfy the in accordance with law requirement under Article 8(2), even where it confers a wide discretion, if its statutory and public-law context supplies adequate safeguards. The Serious Fraud Office must nevertheless act fairly when proposing to disclose seized material to another public authority. Ordinarily, the owner should receive advance notice and a reasonable opportunity to make representations, unless countervailing factors make that impracticable or undesirable. If advance notice is not given, notice should be provided as soon as possible after disclosure. Breach of fairness does not automatically require relief; materiality, available alternative opportunities and any resulting detriment remain relevant.

The claimant sought judicial review of decisions by the Director of the Serious Fraud Office to disclose documents seized during a serious-fraud investigation to the Department of Health. The disclosures supported civil proceedings concerning alleged manipulation of prices for generic medicines. The claimant challenged the seizures, the statutory disclosure discretion under section 3(5) of the Criminal Justice Act 1987, the absence of a meaningful opportunity to make representations, and the failure to notify it promptly of a later disclosure.

The court considered whether the seizures were lawful, whether the disclosure power complied with Article 8(2), and what fairness and Article 6 required in relation to notice.

1. Seizure. The challenge to the five documents failed. The relevant statutory powers required the seizing officer to have reasonable grounds for believing that the material was within the warrant or was evidence of an offence. The officer was not required to establish relevance with certainty or probability. A proportionate approach was appropriate given the scale of the investigation. The evidence supported the seizures, including under section 19(3) of the Police and Criminal Evidence Act 1984.
2. Disclosure discretion. Section 3(5)(a) of the Criminal Justice Act 1987 conferred a wide discretion, but it was sufficiently bounded in context. Disclosure was limited to specified public-authority recipients and had to serve a lawful public function. A disclosure made in bad faith or for an improper purpose would be reviewable on ordinary public-law grounds. Following the Human Rights Act 1998, proportionality review was also available. The January and August disclosures were therefore in accordance with law for Article 8(2), and no disproportionality was alleged.
3. Fairness. In the circumstances, fairness required the SFO to notify the claimant of proposed disclosure and allow reasonable time for representations or an application to the court. No sufficient countervailing difficulty existed in January or August. The January disclosure was procedurally unfair. The claimant suffered no material detriment concerning the August disclosure because it had received notice of the proposed further disclosure through the Department of Health’s solicitors and had taken no steps in response.
4. Post-disclosure notice. Where advance notice was required but not given, the SFO was obliged to notify the owner as soon as possible after disclosure. This followed from the fairness authorities and the Article 6 access-to-court principle in Golder v United Kingdom and Tinnelly & Sons Ltd and McElduff & Others v United Kingdom. The application achieved limited substantive success, with relief reserved for further submissions on materiality and the claimant’s disclosure obligations in the civil proceedings.