Factual and Procedural Background
The appellants stand charged in foreign criminal proceedings with offences related to a terrorist atrocity. They petitioned the foreign Constitutional Court claiming that the prosecution is an abuse of process and unconstitutional, alleging unlawful rendition and torture. In domestic proceedings, the appellants sought Norwich Pharmacal relief against the Secretary of State for Foreign and Commonwealth Affairs, claiming he possessed information or evidence that would assist in their foreign litigation. The Divisional Court refused the application primarily on the ground that it lacked jurisdiction to grant relief. The court also considered the merits, finding that although the appellants made out a sufficient case of alleged wrongdoing, relief should be refused due to failure to satisfy the necessity test and other discretionary considerations. The appellants appealed the refusal, and the present judgment addresses that appeal as well as a cross-appeal by the Secretary of State concerning procedural orders related to closed material procedures and public interest immunity certificates.
Legal Issues Presented
- Whether the domestic courts have jurisdiction to grant Norwich Pharmacal relief in respect of evidence for use in foreign criminal proceedings, given the statutory regime established by the Evidence (Proceedings in Other Jurisdictions) Act 1975 and the Crime (International Co-operation) Act 2003.
- Whether the statutory regime excludes or precludes the common law Norwich Pharmacal remedy in such cases.
- The appropriate legal test for the requisite involvement ("mixed up") of a respondent in the alleged wrongdoing to justify Norwich Pharmacal relief.
- The application of the necessity test and discretionary considerations in granting Norwich Pharmacal relief.
- Whether the Divisional Court erred in requiring a public interest immunity certificate for withholding closed judgment material under the closed material procedure order.
Arguments of the Parties
Appellants' Arguments
- The 2003 Act is not comprehensive or exhaustive and leaves a "justice gap" particularly protecting defendants in foreign criminal proceedings, which Norwich Pharmacal relief can fill.
- Norwich Pharmacal provides a flexible remedy adaptable to meet interests of justice, as demonstrated in prior successful cases.
- The Norwich Pharmacal jurisdiction contains sufficient safeguards such as the necessity test, involvement ("mixed up") requirement, and discretionary nature to protect national interests.
- Excluding Norwich Pharmacal relief risks stultifying established judicial willingness to assist litigants in foreign proceedings.
- The test for involvement in alleged wrongdoing should require only "involvement" or "participation," not facilitation, consistent with prior case law.
Respondent's Arguments
- Parliament has enacted a detailed statutory regime which is exclusive and precludes the common law Norwich Pharmacal remedy in the context of foreign criminal proceedings.
- The statutory scheme includes important constraints such as ministerial discretion, national security exceptions, and exclusion of defendants from making requests, reflecting sovereignty limits.
- The common law remedy cannot be used to circumvent the statutory regime.
- The test for involvement requires proof of facilitation of wrongdoing, a higher threshold than mere involvement.
- The Divisional Court was correct to require a public interest immunity certificate for withholding closed judgment material, as Norwich Pharmacal applications are not governed by the statutory closed material procedure regime.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 |
Established the Norwich Pharmacal jurisdiction allowing disclosure from third parties involved in wrongdoing. |
Foundation of the remedy sought; court discussed its development and scope in relation to statutory regimes. |
| R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2011] QB 218 |
Application of Norwich Pharmacal relief to obtain information held by UK Security Services relating to torture allegations. |
Used as a comparative precedent; court distinguished present case on jurisdictional grounds. |
| Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033 |
Confirmed Norwich Pharmacal jurisdiction is exceptional and subject to necessity test. |
Referred to in assessing the necessity and flexibility of applying Norwich Pharmacal relief. |
| Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 |
Jurisdiction to order evidence for foreign proceedings is exclusively statutory under the 1975 Act. |
Supported conclusion that statutory regime excludes common law remedies for obtaining evidence abroad. |
| R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2011] 2 AC 15 |
Principles for determining whether statutory remedies exclude common law remedies. |
Applied to interpret exclusivity of the 2003 Act over Norwich Pharmacal relief. |
| Rugby Football Union v Consolidated Information Services Ltd [2012] UKSC 55 |
Reaffirmed the "facilitation" requirement in Norwich Pharmacal jurisdiction and the need for flexibility. |
Considered in relation to the test for involvement; court found no need to impose a more demanding test than prior case law. |
| Smith Kline & French Laboratories Ltd v Global Pharmaceuticals Ltd [1986] RPC 394 |
Extension of Norwich Pharmacal relief to foreign civil proceedings. |
Referenced to illustrate development of Norwich Pharmacal in civil context prior to 2003 Act. |
| Shaker Aamer [2009] EWHC 3316 (Admin) |
Similar case to R (Mohamed) applying Norwich Pharmacal relief. |
Mentioned as a case where Norwich Pharmacal relief was used before enactment of 2003 Act. |
Court's Reasoning and Analysis
The court began by examining the statutory framework governing assistance in obtaining evidence for foreign proceedings, focusing on the Evidence (Proceedings in Other Jurisdictions) Act 1975 and the Crime (International Co-operation) Act 2003. It identified that these statutes provide an exclusive regime for such assistance, incorporating important features such as ministerial discretion, exclusion of defendants in foreign criminal proceedings as applicants, and national security exceptions. The court concluded that the Norwich Pharmacal remedy, a common law development, cannot be exercised in a manner that circumvents this statutory scheme.
Applying principles from the Supreme Court's decision in R (Child Poverty Action Group) v Secretary of State for Work and Pensions, the court held that where statutory and common law remedies cover the same ground and are inconsistent, the statutory remedy excludes the common law one. The substantial differences between the statutory scheme and Norwich Pharmacal jurisprudence, particularly the statutory safeguards and controls, demonstrate Parliament's intention to create an exclusive regime.
The court also addressed the necessity test for granting Norwich Pharmacal relief, affirming that it is a stringent but flexible requirement that must be satisfied. The appellants failed to meet this test because they had not sought comparable relief in the foreign jurisdiction, and principles of comity required deference to the foreign court's ability to consider disclosure requests.
Regarding the "mixed up" test, the court found that the threshold is involvement or participation in the wrongdoing, not necessarily facilitation. This interpretation aligns with prior authoritative judgments and ensures that innocent bystanders are not subjected to disclosure obligations.
On the procedural cross-appeal, the court held that the Divisional Court was correct in requiring a public interest immunity certificate for withholding parts of the closed judgment. Norwich Pharmacal applications are not governed by a statutory closed material procedure regime, and the court may impose additional safeguards to protect open justice interests.
Holding and Implications
The court DISMISSED the appellants' appeal on the ground that the domestic courts lack jurisdiction to grant Norwich Pharmacal relief in respect of evidence for use in the foreign criminal proceedings, due to the exclusivity of the statutory regime under the 2003 Act. The court also DISMISSED the Secretary of State's cross-appeal concerning the requirement for a public interest immunity certificate.
The direct consequence is that the appellants cannot obtain the requested disclosure through Norwich Pharmacal proceedings in the domestic courts. The decision confirms the exclusivity of the statutory regime for international cooperation in criminal matters and clarifies the limits of the Norwich Pharmacal remedy in this context. No new precedent was established beyond affirming existing statutory interpretation and procedural principles.