MCML Limited (Formerly ED&F Man Capital Markets Limited) & Anor, R (on the application of) v Southwark Crown Court

For a criminal cause or matter, certification for a Supreme Court appeal requires a point of law of general public importance and a case which ought to be considered by the Supreme Court. The threshold is deliberately high. A complaint that the High Court misapplied an agreed legal test to the facts of an individual case is ordinarily a first-instance error and does not meet that threshold. A potentially important issue may be certifiable where it concerns the proper legal test or whose knowledge or belief is relevant, including in a mutual legal assistance context. Certification must, however, be confined to the genuinely important issue. Leave may still be refused where the proposed appeal has poor merits or would not affect the outcome.

The claimants’ applications for judicial review had been dismissed in an earlier judgment, [2024] EWHC 861 (Admin). The first claimant then sought certification of two questions of general public importance and leave to appeal to the Supreme Court. The application arose from HMRC applications for warrants based on mutual legal assistance requests from authorities in Denmark and Germany.

The court considered whether the proposed questions raised certifiable points under section 1(2) of the Administration of Justice Act 1960, including questions about disclosure obligations and the interpretation of paragraph 2(b)(ii) of Schedule 1 to PACE.

1. The applications concerned a criminal cause or matter, so section 1(2) of the Administration of Justice Act 1960 applied. Certification required both a point of law of general public importance and a point which ought to be considered by the Supreme Court.
2. The statutory threshold is high. Its purpose is to ration access to the highest court. An alleged error in applying an agreed legal test to the facts of an individual case is ordinarily a first-instance error and is not a point of general public importance. The court applied the distinction described in In re McGuinness.
3. Each proposed question contained a potentially certifiable issue concerning whether, in a mutual legal assistance case, HMRC’s or the requesting authority’s state of knowledge or belief is relevant to the disclosure test and to the interpretation of paragraph 2(b)(ii) of Schedule 1 to PACE. The questions were too broad as drafted and could not be certified in that form.
4. The court rejected the suggestion that references to the applicant’s genuine belief that lesser measures were bound to fail disclosed an error of law. Those references were shorthand for the approach in R (Newcastle United Football Club Ltd) v HMRC, which had not been disputed as a matter of domestic law. In any event, a possible misapplication of that test would concern the individual case only.
5. Leave to appeal was refused. The court considered the merits of any appeal poor, remained unpersuaded that its earlier conclusions were wrong, and held that the warrants were undoubtedly justified and that the outcome would be unchanged. The court was willing to certify two questions limited to the common issue identified above, subject to redrafting and agreement between the parties.

• High Court (Administrative Court): The claimants’ judicial review applications were dismissed in [2024] EWHC 861 (Admin).
• High Court (Administrative Court): Certification was granted only for two questions confined to the common mutual legal assistance issue. Leave to appeal to the Supreme Court was refused.