Omar & Ors, R (on the applicatiom of) v Secretary of State for Foreign & Commonwealth Affairs

A common law remedy cannot coexist with a statutory scheme where, viewed as a whole, the remedy would be incompatible with Parliament’s arrangements. The Crime (International Co-operation) Act 2003 provides the exclusive procedure for obtaining evidence in the United Kingdom for foreign criminal proceedings. Norwich Pharmacal relief is therefore unavailable when that scheme applies.

In any event, Norwich Pharmacal relief requires necessity in the interests of justice. Ordinarily, an applicant must first seek available disclosure from the foreign court. The respondent need only have been involved in the wrongdoing, rather than have facilitated it, but must be more than a mere onlooker or witness.

The appellants faced criminal proceedings in Uganda arising from terrorist bombings in Kampala. They alleged that they had been unlawfully rendered from Kenya to Uganda and subjected to torture and other ill-treatment. They petitioned the Ugandan Constitutional Court and sought Norwich Pharmacal disclosure from the Secretary of State of information which might assist that petition.

The Divisional Court dismissed the application in [2012] EWHC 1737 (Admin). It held principally that the statutory arrangements for obtaining evidence for foreign proceedings excluded Norwich Pharmacal jurisdiction. It also held that relief would fail on necessity and discretion. The Secretary of State cross-appealed against a subsequent requirement to produce a public interest immunity certificate concerning material in the closed judgment.

The central issues were whether the Crime (International Co-operation) Act 2003 excluded the common law remedy, what involvement in wrongdoing Norwich Pharmacal relief required, and whether the closed-material directions prevented the court from requiring a public interest immunity certificate.

1. Appeal and cross-appeal dismissed. The statutory procedure in the Crime (International Co-operation) Act 2003 was exclusive where evidence was sought in the United Kingdom for foreign criminal proceedings. The appellants could not use Norwich Pharmacal proceedings to circumvent it, and they were not eligible to apply directly under the statutory procedure.

2. Whether a statutory scheme excludes a common law remedy depends on construction. The question is whether the remedies cover substantially the same ground and whether, viewed as a whole, their coexistence would be incompatible with Parliament’s scheme. The 2003 Act reserved requests to foreign courts and prosecuting authorities, conferred discretion on the Secretary of State, and protected national security and Crown servants. Norwich Pharmacal jurisprudence contained no equivalent mandatory constraints. Allowing that remedy would therefore subvert the statutory allocation of control over sensitive evidence.

3. The distinction between obtaining “information” and obtaining “evidence” was elusive and did not determine jurisdiction. Information could mature into evidence. Earlier Norwich Pharmacal decisions in which the statutory issue had not been argued could not establish jurisdiction contrary to the statutory scheme.

4. Although unnecessary to the jurisdictional outcome, the application would also have failed the test of necessity. Necessity is a condition of Norwich Pharmacal relief, applied flexibly in the interests of justice. The appellants had deliberately refrained from seeking disclosure in Uganda. Comity required the English court to respect the Ugandan Constitutional Court’s ability to address disclosure and any allegedly fabricated documents. A rational tactical choice did not dispense with necessity.

5. On the “mixed up” requirement, the Divisional Court had imposed too demanding a test. The respondent need not have facilitated the wrongdoing. Involvement is sufficient, provided that it distinguishes the respondent from a mere onlooker or witness. The Supreme Court’s later reference to facilitation in Rugby Football Union did not undermine that approach because the distinction had not arisen there.

6. The agreed closed-material directions did not form an exhaustive code preventing the Divisional Court from subsequently requiring a public interest immunity certificate. Norwich Pharmacal proceedings had no statutory closed-material regime. Where open justice rationally required a more exacting procedure at the judgment stage, the court could require such a certificate. This did not mean that a certificate would invariably be necessary in future cases.

1. Court of Appeal (Civil Division): Dismissed the appellants’ appeal and the Secretary of State’s cross-appeal: [2013] EWCA Civ 118 .
2. Divisional Court of the Queen’s Bench Division: Refused Norwich Pharmacal relief, principally for want of jurisdiction, and alternatively on necessity and discretionary grounds: [2012] EWHC 1737 (Admin) . It later required a public interest immunity certificate concerning a proposed summary of closed material and upheld that certificate.