QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE KEITH
| HAFNER & OTHERS
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Khawar Qureshi (instructed by The Treasury Solicitor) for the Respondent
Mr Ian Winter for Australian Securities and Investments Commission
Hearing date : 12 April 2006
Crown Copyright ©
Lord Justice Maurice Kay:
"The Australian authorities seek evidence held by Mees Pierson relating to the above-named individuals and the following legal and natural persons … "
"Attached to and forming part of the summons are documents and questions for your consideration. Although some of the questions are repeated to both you and Mr Lavin, the Australian authorities are primarily seeking testimony from Mr Lavin concerning his direct professional relationship with the individuals and legal entities mentioned whereas they seek the formal production of documents held by Mees Pierson by yourself."
The statutory framework
"13(1) Where a request for assistance in obtaining evidence in a part of the United Kingdom is received by the territorial authority for that part, the authority may
(a) if the conditions in section 14 are met, arrange for the evidence to be obtained under section 15 …
(2) The request for assistance may be made only by
(a) a court exercising criminal jurisdiction or a prosecuting authority in a country outside the United Kingdom,
(b) any other authority in such a country which appears to the territorial authority to have the function of making such requests for assistance …
14(1) The territorial authority may arrange for evidence to be obtained under section 15 if the request for assistance in obtaining the evidence is made in connection with
(a) criminal proceedings or a criminal investigation, being carried on outside the United Kingdom …
(2) In a case within subsection (1)(a) … the authority may arrange for the evidence to be so obtained only if the authority is satisfied
(a) that an offence under the law of the country in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and
(b) that proceedings in respect of the offence have been instituted in that country or that an investigation into the offence is being carried on there …
(3) The territorial authority is to regard as conclusive a certificate as to the matters mentioned in subsection (2)(a) and (b) issued by any authority in the country in question which appears to him to be the appropriate authority to do so …
15(1) Where the evidence is in England and Wales or Northern Ireland, the Secretary of State may by a notice nominate a court to receive any evidence to which the request relates which appears to the court to be appropriate for the purpose of giving effect to the request. …
(5) Schedule 1 is to have effect in relation to proceedings before a court nominated under this section."
"(1)The evidence received by the court is to be given to the court or authority that made the request or to the territorial authority for forwarding to the court or authority that made the request."
"A court nominated under section 15(1) of the Crime (International Co-operation) Act 2003 (nominating a court to receive evidence) may
(a) determine who may appear or take part in the proceedings under schedule 1 to the 2003 Act before the court and whether a party to the proceedings is entitled to be legally represented; and
(b) direct that the public be excluded from those proceedings if it thinks it necessary to do so in the interests of justice."
The involvement of the Secretary of State
i) that the questions which were to be put to Mr Lavin were wide-ranging;
ii) that Mr Hafner's professional duty of confidentiality under Swiss law required protection;
iii) that the questions failed to reflect the fact that Rene Rivkin had died;
iv) that the proceedings in this country are "duplicative".
"Obviously, ASIC seeks to obtain the information only once. That which is obtained in the United Kingdom will not be sought elsewhere and vice versa."
"On behalf of ASIC therefore our position is straightforward. The documentation and evidence sought in England is relevant to the Letter of Request. It is not duplicative of material obtained from Switzerland. Even if it is duplicative it is held by different persons in England to those holding it in Switzerland, the mere fact of which would entitle ASIC to obtain it. In any event, such considerations are for the court and not for the Home Office since they require a detailed evidence-based consideration of the issues in respect of each individual document."
Two preliminary points
(1) Hearing in Private
"(1) The general rule is that a hearing is to be in public …
(3) A hearing, or any part of it, may be in private if –
(a) publicity would defeat the object of the hearing …
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality …
(g) the court considers this to be necessary, in the interests of justice."
"The court should start from the principle that very good reasons are required for departing from the normal rule of publicity … Simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document. … It is highly desirable, both in the general public interest and for simple convenience, to avoid the holding of trials in private, or partially in private."
(1) Duplicative Proceedings
(2) Failure to take into account the death of René Rivkin
(3) The breadth of the questions
(4) Non-Disclosure of the request
(5) Non-Exclusion of ASIC from the proceedings
Mr Justice Keith: