River East Supplies Ltd, R (On the Application Of) v Crown Court at Nottingham

Letters of request for mutual legal assistance are confidential as a starting point and are not ordinarily disclosed to the court or an affected party. Disclosure may nevertheless be required where the requesting state agrees, fairness demands it, or the nature of the application makes further information necessary. The common-law privilege against self-incrimination does not extend to documents or things existing independently of the suspect’s will. The binding majority ratio in C plc v P applied. The claim therefore failed.

River East sought judicial review of a Nottingham Crown Court ruling granting a production order made pursuant to a United States request for mutual legal assistance. The order followed an earlier search warrant which had been quashed by consent. The application was supported by detailed material, including a superseding indictment, but the Letter of Request was not disclosed.

The claim raised two issues: whether the Letter of Request had to be disclosed, in whole or in redacted form; and whether production of the documents would infringe the privilege against self-incrimination.

1. Claim dismissed. Letters of Request are confidential as a matter of principle. The normal starting point is non-disclosure to both the court and an affected party. Disclosure may be required with the foreign state’s consent, where justice or fairness demands information about the investigation, or where the application itself makes further disclosure necessary. The application and superseding indictment gave sufficient information. There was no general right to inspect the Letter of Request.
2. The production-order application did not require the judge to determine substantive rights between prosecution and defence on secret material. River East knew what the judge had seen and did not contend that the disclosed material was insufficient to satisfy the statutory requirements.
3. The majority ratio in C plc v P was binding: the common-law privilege against self-incrimination does not extend to documents or things having an existence independent of the will of the person relying on it. That principle was confirmed and applied in R v S (F).
4. The documents covered by the order were indisputably independent material. The privilege therefore did not apply. The court did not need to decide whether PACE 1984 had independently excluded the privilege, or whether the Circuit Judge had a discretion to refuse the order on that ground.
5. The court expressed preliminary, non-definitive reservations about such a discretion, because it could undermine fairness, simplicity, expedition, efficiency and legal certainty.

Not stated in the judgment.