Terra Services Ltd, R (On the Application Of) v The National Crime Agency & Ors

On a challenge to a warrant issued under Police and Criminal Evidence Act 1984, the High Court may use a closed material procedure where Parliament has authorised the lower court to consider material in closed session. A public authority claiming public interest immunity must consider the balance between confidentiality and the fair administration of justice, but a ritual recital of that balance is unnecessary. The court remains the ultimate decision-maker and must examine the documents where necessary. Letters of Request in mutual legal assistance arrangements are inherently confidential. Disclosure may be ordered in exceptional circumstances, but confidentiality is the default because routine disclosure could damage international cooperation.

The claimant sought permission for judicial review concerning a search warrant issued by the Inner London Crown Court under Schedule 1 to the Police and Criminal Evidence Act 1984. The warrant followed mutual legal assistance requests from the United States and was executed by the National Crime Agency.

The issues determined at this hearing were whether material relied upon in support of the warrant was protected by public interest immunity and whether the Secretary of State was entitled to withhold the United States Letter of Request on grounds of confidentiality. The hearing followed an earlier Divisional Court case-management order directing that those issues be determined before the permission hearing.

1. Closed material procedure. The court applied the approach in R (Haralambous) v St Albans Crown Court [2018] UKSC 1. Where Parliament has authorised a closed procedure in the magistrates’ or Crown Court, judicial review must accommodate the same procedure so that the High Court can review the decision on the same evidential basis.
2. Public interest immunity. A claim for PII must be made with regard to the balance between the public interest in confidentiality and the fair administration of justice. The responsible official must consider both interests, the likely impact of disclosure, and the duty of candour. An express or formulaic recital of the balancing exercise is not required. The court remains the final arbiter and cannot decline to examine the documents on the assumption that the official’s assessment is sufficient.
3. The court considered the unredacted material in closed session and concluded that disclosure would likely damage or inhibit future cooperation between the United Kingdom and the United States and impair their law-enforcement capacity. A PII order should therefore be made, subject to any further submissions concerning safeguards such as a confidentiality ring.
4. Letter of Request. The confidentiality of a Letter of Request may be overridden in particular circumstances, as illustrated by National Crime Agency v Abacha [2016] 1 WLR 4375. That is exceptional rather than the general rule. There are strong reasons to preserve confidentiality because routine disclosure could adversely affect mutual legal assistance.
5. The claimant’s premise that the warrant could not be challenged without the Letter of Request was rejected. The relevant impact flowed from the warrant, not the request, and only unusual cases would make sight of the request necessary. The confidentiality claim was therefore rejected only in the claimant’s application for disclosure; the Letter of Request remained confidential.

The judgment records that, following argument before a Divisional Court on 10 July 2019, an order was made for a separate hearing of the PII and Letter of Request confidentiality issues. The present court determined those issues before the permission hearing.