C, R (On the Application Of) v Director of Public Prosecutions

An European Investigation Order may be issued during an investigation even though the precise offence, facts, suspect or victim are not yet known. The issuing authority need only have reasonable grounds for suspecting that an offence has been committed and satisfy the statutory requirements. An order may seek evidence already held by the executing state and may, where authorised, facilitate the gathering of evidence in real time. Complaints that an order is overbroad concern necessity and proportionality, rather than jurisdiction. Judicial review remains discretionary where an adequate alternative remedy exists, including an application to exclude evidence under Police and Criminal Evidence Act 1984, section 78.

The claimant faced Crown Court proceedings based partly on EncroChat material obtained by French authorities and shared with UK authorities following an European Investigation Order issued on 11 March 2020. He sought permission to challenge the validity of the order, arguing that Criminal Judgment (European Investigation Order) Regulations 2017 required a specific known offence, identified facts and a request for a particular investigative measure. He also argued that the order did not authorise French interference with UK-based handsets.

The defendant disputed those arguments and relied on the statutory purpose of facilitating cross-border criminal investigations. The court also considered standing, the High Court’s jurisdiction and the availability of an alternative remedy.

1. Permission and disposal. The court granted an extension of time but refused permission to bring the judicial review claim. The judgment was nevertheless permitted to be cited because it addressed issues of principle.
2. Standing and alternative remedy. Standing could not readily be separated from the merits, and the claimant would not be refused permission solely for lack of sufficient interest if the grounds had merit. An adequate alternative remedy does not remove the High Court’s jurisdiction; it affects the court’s discretion. Judicial review is generally a remedy of last resort. The claimant’s substantive concern was the use of evidence in his criminal trial, for which the Crown Court could consider exclusion under section 78 of Police and Criminal Evidence Act 1984.
3. Jurisdiction and ground two. Section 29(3) of Senior Courts Act 1981 did not exclude review of the EIO, because the challenge was to the order and not to a matter relating to trial on indictment. Ground two added nothing material to the challenge. The legality of French activity was governed by French law, and the TEI warrants had not been challenged.
4. Regulation 7. Regulation 7 covers investigations as well as proceedings. An offence need not already have been established, or be known in detail, when an EIO is issued. Nor need an identified or identifiable suspect be known at that stage. The singular wording of the Regulations does not impose a narrower requirement, applying section 6(c) of Interpretation Act 1978.
5. Scope and proportionality. The Directive’s purpose supports a broad interpretation facilitating mutual assistance in investigations of possible criminal conduct. Any objection that an EIO is overbroad concerns the requirements of necessity and proportionality under regulation 7(4)(a), not the issuing authority’s jurisdiction. An EIO may obtain evidence already held by the executing state and may in some circumstances request evidence gathered in real time.
6. The EIO, read fairly and as a whole, identified offences reasonably suspected to have been committed. Its possible use in investigating other offences did not invalidate it.

First-instance judicial review application in the Divisional Court. Permission to bring the claim was refused.