Hafner & Ors v Secretary of State for the Home Department

The Secretary of State’s functions under the Crime (International Co-operation) Act 2003 are principally procedural and ministerial. Judicial review remains available for the exercise of the statutory discretions and for Convention-rights issues. However, the Secretary of State should not pre-empt the judicial process by determining matters properly arising before the nominated court, including the relevance or duplication of evidence, the scope of questions, privilege and proportionality under Article 8.

A request need not be confined to material ultimately forming part of a prosecution case. During an investigation, its scope may be wider. The nominated court is responsible for controlling participation and resolving objections concerning particular evidence or documents.

Mr Benno Hafner, a Swiss lawyer, and his firm sought judicial review of decisions made by the Secretary of State in response to a request from the Australian Securities and Investments Commission. The request sought evidence and documents from persons in England in connection with an Australian investigation into alleged concealment of share ownership and related false evidence.

The Secretary of State had arranged for evidence to be obtained and nominated Bow Street Magistrates Court under the Crime (International Co-operation) Act 2003. The claim challenged the continuation of that process, the refusal to revoke or suspend the nomination, the refusal to exclude ASIC from the proceedings and the refusal to postpone the hearing. The claimants relied on duplication, the death of one suspect, the breadth of the questions, confidentiality, Article 8 and procedural fairness.

1. The application failed. The claimants had sufficient interest to challenge implementation of the request, and the Secretary of State’s discretionary decisions were in principle susceptible to judicial review.
2. The Secretary of State’s statutory role under sections 13, 14 and 15 of the Crime (International Co-operation) Act 2003 was principally procedural and ministerial. His task was to consider the statutory gateway requirements and the representations properly relevant to that role. The nominated court was the forum for resolving objections arising during the taking of evidence.
3. The production of documents from Switzerland did not establish impermissible duplication. Copies held in different jurisdictions might contain different probative material. Whether documents or questions were duplicative, relevant or excessive was for the District Judge to assess. The death of one suspect did not by itself make the investigation irrelevant or require the Secretary of State to stop, delay or limit the process.
4. The request was not ambiguous or insufficiently precise. In an investigation, its scope could extend beyond material that would ultimately form part of a prosecution case. The Secretary of State was not required to pre-empt the District Judge’s assessment of individual questions or Article 8 proportionality.
5. The Secretary of State was entitled to rely on ASIC’s assertion that the request contained operationally sensitive material and was not required to conduct an international public-interest-immunity hearing. Non-disclosure of the request was not administrative unfairness, particularly as the claimants were not investigation targets.
6. The Secretary of State had no power to exclude ASIC from the nominated-court proceedings. Rule 32.4 of the Criminal Procedure Rules 2005 assigned questions of participation to the District Judge. The claimants could raise privilege, confidentiality and Convention-rights objections before that court.

The challenge was therefore dismissed. The claimants’ complaints were, in substance, premature attempts to obstruct or control the judicial proceedings before the District Judge.