Van Der Pijl v Secretary of State for the Home Department & Anor

In mutual-assistance proceedings, the statutory test of substantial relevance remains the same, but its application is context-dependent. A requested court should not conduct a mini-trial or undertake a detailed evaluation of the foreign prosecution. It may rely on properly explained evidence from the requesting authority and retain material where that evidence establishes substantial relevance to the foreign investigation or proceedings. Section 59 of the Criminal Justice and Police Act 2001 may be used to cure the consequences of an unlawfully issued warrant and to retain material for onward transmission under the Crime (International Cooperation) Act 2003. The court may also authorise retention of digital material relevant to continuity or provenance. Mutual-assistance proceedings must be conducted promptly, while preserving the affected person’s fundamental rights.

The claimant challenged two decisions arising from Dutch requests for mutual legal assistance. One claim challenged the Secretary of State’s decision to transmit seized material to the Netherlands. The other challenged a decision of HHJ Price QC permitting retention of the material under section 59 of the Criminal Justice and Police Act 2001.

The material had been seized under a warrant issued pursuant to the Crime (International Cooperation) Act 2003 and the Police and Criminal Evidence Act 1984. The warrant had previously been quashed for lack of specificity, but the material was retained under section 59. The central issues were whether the Crown Court had properly assessed substantial relevance and whether section 59 could support retention for onward transmission to the Dutch authorities.

1. Outcome. Permission to apply for judicial review of the Secretary of State’s decision was refused. Permission was granted in the claim against Kingston Crown Court, but the substantive claim was dismissed. Orders restraining transmission were vacated.
2. Substantial relevance. The statutory test was context-dependent in mutual-assistance proceedings. The court had to protect individual rights, but the Strasbourg and EU mutual-assistance conventions were founded on mutual trust. The requested court was not required to conduct a mini-trial or determine in detail what evidence would ultimately be pivotal in the foreign proceedings.
3. The same test applied, but its application would ordinarily be more circumscribed when the proceedings were foreign. The Crown Court could consider the requesting prosecutor’s detailed report and oral evidence explaining the relevance and substantial value of individual documents. It was for the judge to reach his own decision; he had not unlawfully delegated that task.
4. The Crown Court’s case-management decision to permit the Dutch prosecutor to inspect and explain the material was lawful. The absence of a detailed challenge to the prosecutor’s analysis meant that the judge was not required to reproduce a document-by-document assessment in his judgment.
5. Retention and transmission. Section 59 of the Criminal Justice and Police Act 2001 applied to property seized in the purported exercise of a relevant statutory power, including material seized under an invalid warrant. It could therefore be used to cure a defective warrant obtained under the Crime (International Cooperation) Act 2003 and the Police and Criminal Evidence Act 1984. The provision was to be construed purposively as part of the corpus of domestic law enabling the United Kingdom to comply with its international and EU obligations.
6. The purpose of the retention order was to enable the Secretary of State to decide whether to transmit the material under her statutory duty. An interpretation which permitted retention but made transmission impossible would produce futility.
7. Section 59 also permitted retention of digital material needed to establish continuity or provenance. Such material could be substantially relevant even if its evidential use arose only on a later appeal.
8. The court criticised the excessive delay. Future mutual-assistance cases required informed listing, effective case management, care in obtaining warrants and expedition, while continuing to protect fundamental rights.

The judgment itself records earlier proceedings arising from the same investigation.

• High Court, Divisional Court: In [2012] EWHC 3745 (Admin); [2013] 1 WLR 2706, the search warrant and subsequent retention orders were quashed for technical defects, subject to possible renewed retention proceedings under section 59 of the Criminal Justice and Police Act 2001.
• High Court, Administrative Court: Ouseley J refused interim relief and permission in an earlier challenge to the Crown Court’s proposed procedure. The present court dismissed the substantive challenge to HHJ Price QC’s later retention decision and refused permission in the challenge to the Secretary of State’s transmission decision.