Hafner & Ors, R (on the application of) v City of Westminsters' Court & Anor

Compulsory acquisition of confidential documents and information, followed by disclosure to an overseas authority, engages Article 8 rights even where the material is business-related or concerns proceedings in which the affected person was not initially involved. A court nominated under the Crime (International Co-operation) Act 2003 must consider Article 8(1), apply the qualification in Article 8(2), and adopt a procedure that enables affected persons to make informed representations where appropriate. Legal professional privilege requires particular protection. Disclosure necessary for crime prevention will generally prevail, but material going beyond what is necessary should be protected, including by redaction. The decision was quashed because the magistrate had proceeded on the legally erroneous basis that Article 8 was not engaged.

The claimants sought judicial review of a decision made by a District Judge in the City of Westminster Magistrates' Court during proceedings under the Crime (International Co-operation) Act 2003. The proceedings concerned an Australian request for documents and answers to questions from employees of a London corporate service provider. The material included confidential information supplied by the claimants and a commercially sensitive document.

The District Judge concluded that the material fell within the request and that Article 8 was not engaged. The claimants sought declarations concerning the court's procedural powers and a quashing order. The central issue was how the nominated court should address Article 8 rights when determining whether evidence was appropriate for giving effect to an overseas request.

1. Decision. The District Judge's decision was quashed and the matter was remitted for further consideration, preferably before an alternative District Judge and clerk.
2. The compulsory acquisition of documents and information communicated in confidence, and their subsequent communication to an overseas authority, engaged the claimants' rights under Article 8. The fact that the correspondence was business-related did not remove protection for private life or correspondence. Nor did the fact that the claimants were not initially parties to the overseas investigation exclude Article 8 protection. The court endorsed the propositions supported by Funke v France (1993) 16 EHRR 297, Niemietz v Germany (1992) 16 EHRR 97, Z v Finland (1997) 25 EHRR 371 and Amann v Switzerland (2000) 30 EHRR 843.
3. A court nominated under section 15 must have regard to Article 8(1). It must decide the appropriate procedure for applying Article 8(2), including whether to notify and hear persons whose rights may be infringed. In many cases notice will be appropriate. The court must be particularly careful to protect legal professional privilege.
4. Article 8 privacy rights will generally not prevail where disclosure is necessary for the prevention of crime. The court must nevertheless protect material exceeding what is necessary for that purpose. Information in the commercially sensitive document concerning individuals outside the overseas investigation should therefore be redacted.
5. The nominated court should give reasons for its decision. The reasons need not be elaborate, but must identify the substance of relevant representations and the inferences drawn from them. They should be framed so that explaining the decision does not defeat the privacy protection in question. The guidance in R v Southampton Crown Court, ex parte J and P [1993] Crim LR 962 was adopted and supplemented in that respect.
6. The District Judge's conclusion that Article 8 was not engaged was based on an unsound appraisal of the law. The remitted court was directed to permit the claimants, subject to an undertaking of confidentiality, to examine the documents and answers, make further written objections, and receive reasons for the resulting decision. ASIC was ordered to pay two-thirds of the claimants' costs incurred since 27 March.

The judgment concerned judicial review of a decision made on 27 March 2007 by a District Judge in the City of Westminster Magistrates' Court. The Administrative Court quashed that decision and remitted the matter for reconsideration.