Secretary of State for the Home Department, R (On the Application Of) v Southwark Crown Court

Where legislation contains an accidental omission, the court may read words into the provision only when it is abundantly sure of the statutory purpose, the drafting error and the substance of the correction Parliament would have made. The correction must remain within the judicial interpretative role.

In the context of international mutual legal assistance, statutory search powers include applications for production orders as well as search warrants. A provision directing that a warrant be applied for may therefore be read to include an order where the statutory scheme, its purpose and its structure make the omission clear. The resulting power must remain subject to the safeguards governing access to confidential and special procedure material.

The Secretary of State sought judicial review of Southwark Crown Court’s decision that the Crime (International Co-operation) Act 2003 did not authorise a direction for a constable to apply for a production order. The underlying request came from the United States Department of Justice for confidential material held by the London Court of International Arbitration for use in a criminal investigation.

The material was special procedure material under the Police and Criminal Evidence Act 1984. The central questions were whether the omission of production orders from section 13(1)(b) of the 2003 Act was accidental, whether the court could rectify it by interpretation, and whether it should do so consistently with Articles 8 and 10 of the Convention.

1. Appeal allowed. The court held that section 13(1)(b) of the Crime (International Co-operation) Act 2003 should be read as permitting the territorial authority to direct that “a warrant or order” be applied for under or by virtue of section 16.
2. The court applied the approach in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586. It was abundantly sure that the statutory purpose was to improve international co-operation in obtaining evidence, that Parliament and the draftsman had inadvertently omitted production orders from section 13(1)(b), and that the substance of the necessary correction was the inclusion of the words “or order”.
3. The structure of the 2003 Act confirmed that it created two distinct methods of assistance. Section 15 concerned arranging for evidence to be obtained by a nominated court. Section 16 extended domestic statutory search powers to overseas investigations. Those powers were not confined to warrants: they included production orders under section 9 and Schedule 1 of the Police and Criminal Evidence Act 1984.
4. Reading section 13(1)(b) as excluding production orders would produce a more restrictive regime than the predecessor legislation and would contradict the purpose of extending domestic investigative powers to international investigations. Section 15 was not an adequate substitute, since receiving evidence was distinct from obtaining access to special procedure material.
5. The court considered the requirements of Articles 8 and 10. Production orders are intrusive and must be authorised by clear and accessible law, as explained in R (on the application of) Purdy v DPP [2009] UKHL 45; [2010] 1 AC 345. The correction did not diminish protection because the full safeguards in Schedule 1 of PACE applied.
6. The constable’s application was to be restored to Southwark Crown Court for consideration. There was no order as to costs, and no mandatory order was necessary.

The judgment does not state a prior appellate decision. It records the decision of Southwark Crown Court under review and allows the judicial review appeal, restoring the production-order application for reconsideration.