England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/02/2014

Mr Justice Green :

A. Introduction

1. There are before the Court two "rolled up" applications for permission to apply for judicial review arising out of closely associated facts and, if permission is granted, for substantive relief. The applications form part of a series of litigation in this jurisdiction and also in the Netherlands arising out of an investigation by the Dutch authorities into suspected fraud and money laundering by, inter alia, the Claimant. This litigation has had an unfortunate history. The facts arise out of a request made in March 2011 for assistance by the Netherlands authorities to their United Kingdom counterparts for the latter to seize certain documentary evidence located in this jurisdiction and then to transmit that material to the Dutch authorities for them to use in the course of their investigation including in the course of criminal proceedings against the Claimant. The Dutch investigation culminated in a trial which commenced on 3^rd December 2013, more than 30 months after the initial request. The trial finished on 6^th December 2013 which was just about 2 weeks before the hearing of these applications. In the event the Claimant together with four corporate entities and one other co-defendant were convicted of forming a "criminal organisation" with the purpose of committing tax fraud. In the ordinary course the United Kingdom authorities, in fulfilment of their legal duty to provide assistance, should have had more than ample time to obtain the documents and transmit them to the Dutch authorities well in advance of the trial, even taking due account of the possibility of litigation to resolve disputes along the way. However, by a combination of errors on the part of those conducting the searches, a determination by the Claimant to litigate each and every step taken in this jurisdiction, and delays in the listing of hearings the position was arrived at whereby the trial hearing occurred in the Netherlands yet the United Kingdom authorities had not transmitted the documents. For reasons set out later in this judgment this does not however mean that there is no utility in the transmission.
2. This case reflects an exercise in how not to provide mutual assistance.
3. The Claimant has brought two applications against different aspects of the same set of facts. The first concerns the decision of the Secretary of State dated 17^th October 2013 to transmit documents and material to the Dutch Authorities; the second concerns the decision of HHJ Price QC of 15^th August 2013 to permit retention of seized material. The grounds sought to be argued were originally numerous, intertwined and complicated; however shortly before the hearing they were substantially reduced in number.
4. An oral hearing was held on 19^th December 2013, very shortly before the verdict was delivered in the Dutch proceedings. At the end of the hearing the following rulings were made: (i) The application for permission to apply for judicial review of the decision of the Secretary of State of 17^th October 2013 was refused; (ii) the application for permission to apply for judicial review of the decision of HHJ Price QC of 15^th August 2013 sitting at Kingston Crown Court was granted but the substantive application was thereafter dismissed; (iii) any and all orders preventing or restraining the Secretary of State from transmitting the material and property seized to the Dutch authorities were vacated forthwith. It was indicated that because the points arising were of wider practical and legal significance detailed reasons would follow.
5. In order to explain the complex history to this matter it is necessary to set out the facts in some detail.

B. Facts and procedural chronology

The requests for assistance by the Dutch authorities

6. The Claimant is a Dutch national. He has a residence in Holland Park, London. His position includes that of director of various companies. The Dutch authorities consider that the Claimant is engaged in a number of criminal acts contrary to section 140 of the Dutch Criminal Code involving the incorrect filing of tax forms for Corporate Tax with criminal intent and money laundering in relation to funds arising from the tax fraud, again with criminal intent. The said offences are punishable under sections 420 bis and 420 ter of the Dutch Code.
7. The modus operandi of the alleged fraud was as follows. The three individuals allegedly involved through the use of companies controlled by them acquired various target companies which had in common that they had made a profit in the current financial year which profits attracted a tax liability. In order to fund the tax claim the target companies possessed a bank balance which was at least equal to the tax claim. In the end result tax was not paid since losses were set off against the profit before the end of the financial year. The losses originated from loss making "over the counter" ("OTC") transactions in derivatives. These transactions were formulated such that on paper they resulted in a loss for the target companies but in reality it was alleged that no economic loss was ever suffered. The Dutch authorities, in a written request to the UK authorities, described the transaction in the following way:

"It seems as if beforehand that the loss is almost certain. These derivatives transactions are financed with so-called promissory notes. This means that no actual money passes between the parties that are involved in the derivatives transactions. The only real money that is moved is the bank balance (for the benefit of the tax claim) that was in the target company and that is taken out of it."

8. It is not necessary, for the purpose of this judgment, to go into any further detail about the allegation made by the Dutch authorities. Needless to say the Claimant contended that his affairs were arranged in a lawful and tax efficient way whereas the Dutch authorities contend that they represented a tax fraud.
9. On 25^th February 2011 the District Court in The Hague granted an application by the Public Prosecutor (dated 21^st February 2011) for an order that the Claimant's London premises be searched. On 2^nd and 15^th March 2011 the Prosecutor's Office in Amsterdam issued international requests for legal assistance to the competent authorities of the United Kingdom. The requests explained that investigations were being conducted into various natural and legal persons and that the Claimant and his wife were considered as suspects.
10. Both requests identify the legal basis of the requests which include treaties regarding legal assistance between the Netherlands and Great Britain and in particular the European Treaty regarding mutual legal assistance in criminal cases (Strasbourg, 20^th April 1959) and the Additional Protocol with the European Treaty regarding mutual legal assistance in criminal cases (Strasbourg, 17^th March 1978). They also refer to a 2000 Convention between the Member States of the EU. I deal with the legal framework below at section C.
11. In the request the Dutch authorities sought: searches of the premises of the residential address of, inter alia, the Claimant; the provision of update sheets and statements of balances with certain banks in the period from 1^st December 2006 through to the present; evidence or information held by the United Kingdom tax authorities in relation to sources of income and property of inter alia, the Claimant; proofs of registration, deeds of incorporation and other financial documents held by certain government departments relating to certain companies; and the establishment of certain telephone numbers used by one of the suspects.

The authorisation of the application to seek a search warrant

12. On 7^th April 2011 a lawyer within the Judicial Cooperation Unit of the United Kingdom Central Authority ("UKCA") issued a direction to DC Evelyn Steeples of the Metropolitan Police Service ("MPS") directing that an application be made for a search warrant under section 16(1) of the Crime (International Cooperation) Act. The direction was in the following terms:

"REQUEST FOR LEGAL ASSISTANCE FROM NETHERLANDS

We have received two letters of request from the Netherlands dated 2^nd and 15^th March 2011. These relate to search and seizure. We have had the opportunity to consider the matter and believe, subject to any operational restraints you may wish to raise, that we are now in a position to proceed with a search of the properties concerned.

The request is for the search of the following premises: [ ]

In pursuance of sections 13 and 16 of the Crime (International Cooperation) Act 2003, the Secretary of State by this letter directs that an application be made for a search warrant under section 16(1) of the Crime (International Cooperation) Act. The evidence uplifted should include only that which is relevant to the offences listed in the letter of request.

The conduct if it had occurred in England and Wales would constitute an indictable offence. The appropriate offences in England and Wales would be:

Cheating the public revenue, contrary to common law

Money laundering, contrary to s329 Proceeds of Crime Act 2002

Section 19 of PACE only permits the extension of a search relating to material of other alleged offences that have been committed [within] the jurisdiction [of] England and Wales. Does not extend to any evidence relating to other offences that may have taken place outside the jurisdiction.

Once the searches have taken place, please liaise with [ ] to discuss handling and transmission of the evidence."

13. On 12^th April 2011 an application, supported by an information on oath, was made to the Crown Court at Kingston Upon Thames by DC Steeples for the issue of a warrant under section 16 of the Crime (International Cooperation) Act 2003 and section 9(1) of Schedule 1 to the Police and Criminal Evidence Act 1984 ("PACE"). HHJ Tapping granted the search warrant.

Execution of the search warrant on 27^th April 2011

14. The warrant was executed on 27^th April 2011. On the same date the Claimant was arrested pursuant to a parallel European Arrest Warrant dated 14^th April 2011. In the course of the search on the 27^th April 2011 three categories of material were seized: First, paper files covered by the warrant; secondly, paper files marked "legal"; and thirdly, computer images. A quantity of seized material was transmitted to the Dutch authorities on 28^th April 2011; but a significant portion of the material was retained by the MPS pending a sift of that material for legal privilege.

Order made on 6^th July 2011 under sections 50 and 59(1), (6) and (7) of the Criminal Justice and Police Act 2001 for retention of seized material

15. On 6^th July 2011 two orders were made by the Crown Court in Kingston pursuant to sections 50 and 59(1),(6) and (7) of the Criminal Justice and Police Act 2001 ("CJPA") which authorised the retention of some of the material seized during the search conducted when the warrant was executed on 27^th April 2011. The applications were supported by an information on oath made by DS Nathan Coutts and was said to be "…for the retention of material seized under a relevant power of seizure, namely section 50 Criminal Justice and Police Act 2001, as per the provisions of section 59(1), (6) and (7) of the Criminal Justice and Police Act 2001". In relation to both applications authority was given for the retention of two categories of information being: (a) material seized during the search at [address] on 27^th April 2011 that relate to companies owned, controlled or utilised by [the Claimant]; and (b) the computer images that were taken from the home address of the Claimant on 27^th April 2011. In the case of the computer images the order of the Crown Court was that retention was authorised "until such time as all criminal and associated court matters are concluded in this case".

The judicial view of the search warrant: the Judgment of the High Court 21^st December 2012: Regina (Van Der Pijl & Another) v Crown Court at Kingston [2012] EWHC 3745 (Admin); [2013] 1 WLR 2706 ("the Divisional Court judgment").

16. By a claim for judicial review the Claimant, inter alia, challenged the legality of the search warrant issued on 12^th April 2011 and the two orders made by the Crown Court on 6^th July 2011 pursuant to section 59 CJPA 2001 authorising the retention of some of the material seized during the search. Judgment was handed down on 21^st December 2012 by Sir John Thomas PQBD and Wilkie J (delivering the lead judgment). They granted the application. They did so upon the following bases.
17. First, the conditions prescribed for a lawful search warrant in Schedule 1 PACE were not satisfied and that accordingly the grant of the warrant was unlawful. In particular the Court held that the warrant lacked sufficient specificity; in describing five of the seven categories of material the use of the phrase "the suspects" was too vague to satisfy the requirements in section 15(6)(b) that a warrant "…shall identify, so far as is practicable, the articles or persons to be sought". The Court reviewed in detail the authorities as to the level of specificity required in a warrant (ibid paragraphs [53-65]) and held that it would have been sufficient for the warrant to have specified the identity of the Claimant but that generalised reference to "the suspects" was insufficient. The Court therefore concluded that the warrants were unlawful.
18. Secondly, the Court accepted the submission that if the warrant was unlawful then the orders made subsequently on 6^th July 2011 were conditional and dependent upon there having been a valid search warrant issued on 12^th April. The Court therefore accepted that it necessarily followed that the subsequent orders had to be quashed.
19. Thirdly, the Court (cf paragraph [84]) concluded that the applications resulting in the orders of 6^th July 2011 were unlawful upon the additional basis that they had been made without notice to the Claimant even though the order sought affected property in which the Claimant had a relevant interest. The Court observed further that the police had been in active correspondence with the Claimant about the property and there was no particular urgency in the application being made which might have called for an application to be made without notice. Wilkie J concluded:

"84. In my judgment, such an application ought properly to have been made on notice to the Claimant, whether arising out of a common law duty to act fairly in the circumstances, or by virtue of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. On that basis, quite apart from the concession that these orders must be quashed as a consequence of the search warrant, in my judgment, the orders of 6^th July would be liable to be quashed".

20. It is however relevant to the present applications that the Divisional Court rejected the submission that the letters of request from the Dutch authorities were unlawful. The Claimant had argued that the letters of request amounted to an inadequate basis upon which the Court could properly form a conclusion that the domestic equivalents of the offences which the Dutch authorities were investigating had actually been committed (cf the double criminality requirement referred to at paragraph [12] above) as opposed to being merely suspected of having been committed. Further, it was argued that there was no sufficient information upon which the Crown Court could properly conclude that the seized material was of "substantial value" to the Dutch investigation, or was "relevant evidence". The Divisional Court rejected these 3 submissions having reviewed for themselves the Dutch request and the Information provided by the MPS (the Information simply summarised the history of the case and was drafted upon the basis of the Dutch request). The Court concluded that there "were reasonable grounds to believe that each of the conditions was satisfied".
21. Having arrived at the conclusion that, for essentially technical reasons, the warrants were unlawful the court then had to consider the consequences of that conclusion, viz., to quash the three orders in dispute. The court addressed itself to sections 50-59 of the CJPA 2001. I have summarised and set out the relevant statutory provisions below but, at this juncture, it suffices to observe that pursuant to section 59(5)-(7) CJPA 2001 the court has the power to permit a relevant applicant to retain property that has been seized in the "purported exercise" of a relevant power of seizure and which therefore falls to be returned to its owner, i.e. a power of retention of material otherwise unlawfully held. Wilkie J set out the relevant statutory provisions and expressly referred to section 59 in paragraphs 74-80 of his judgment. In paragraphs 85-90 the judge stated as follows:

"85. The claimants seek an order that the MPS return the material and any copies which have been taken of such material which is in their possession to the claimants on the basis that there is no lawful authority for its continued retention.

86. In my judgment, on the face of it, that must be the appropriate order. However, as Mr Lewis QC has pointed out it is open to the MPS to make an application under s.59(5) in respect of material which is in their possession which has been seized in purported exercise of a relevant power of seizure, which includes seizure pursuant to Schedule 1 of the 1984 Act. In my judgment the property which was seized, under the, now known to be, unlawful search warrant, would, even in the light of its being quashed by this court, have been seized in purported exercise of the Schedule 1 power. In those circumstances, it would be open to the MPS to make an application to the Crown Court, pursuant to s.59(5), for an order under s.59(6) for retention of the property, which would otherwise fall to be returned, on the basis that s.59(7) applies namely: that if the property were returned it would immediately become appropriate to issue an application for a warrant in pursuance of which it would be lawful to seize the property.

87. This might be on the basis that the defect with the search warrant, which has resulted in my conclusion that it must be quashed, was one which could have been remedied by the insertion into the warrant of the identity of "the suspects" in the five categories of property where, in the warrant granted, they were unidentified.

88. In my judgment, it would not be just to quash the orders on terms which would preclude the ability of the MPS to make an application to the Crown Court pursuant to section 59, if so advised and provided they did so with due expedition. Therefore, I would make an order, ancillary to quashing the orders of the 12^th April and the 6^th July, that the MPS be ordered to return all property and any copies which have been taken of such material, currently in its possession, seized, pursuant to the warrant of 12 April 2011 and/or retained pursuant to the orders of the 6^th July 2011, within 14 days of the making of the order unless, in the meantime, the MPS has made an application to the Crown Court at Kingston pursuant to s.59(5) for the retention of the material pursuant to s.59(6) on the grounds that the conditions in s.59(7) are satisfied.

89. In respect of the material which has been passed on to the Dutch authorities, they are not before the court and, accordingly, in my judgment, it is not appropriate to make any order requiring the MPS, or the Secretary of State for the Home Department, to return that property. In my judgment it would be sufficient to meet the justice of the case for the MPS and the Secretary of State to inform the Dutch authorities of the orders quashing the search warrant and the s.59 orders and for them to use their best endeavours to persuade the Dutch authorities to return the material and any copies of that material to her or the MPS. It would, at the point at which such material is returned to the MPS or the Secretary of State, by parity of reasoning, be appropriate for there to be an order requiring the Secretary of State or the MPS (whichever has possession of the property) to return those items to the claimants within 14 days unless, in the meantime, an application is made by either of them to the Crown Court pursuant to s.59(5) of the 2001 Act for an order under s.59(6) on the grounds that the conditions in s.59(7) have been satisfied.

90. I would invite Counsel for the claimants and the First and Second Interested parties to draft an order which reflects those principles."

22. In the final result the court quashed the decisions of the Crown Court at Kingston of 12^th April 2011 and 6^th July 2011 respectively granting the search warrant and making the orders under section 59 of the CJPA 2001 in respect of the property seized by the police from the residence of the Claimant. It ordered that the MPS return to the Claimant all such property seized and all copies of such material currently in its possession within 14 days of the order of the court unless within that period the MPS had made an application to the Crown Court at Kingston pursuant to section 59(5) CJPA 2001 "…for an order, pursuant to section 59(6), authorising retention of that property on the grounds that the conditions in section 59(7) of the 2001 Act are satisfied". The Court made no substantive order in relation to material transmitted to the Dutch authorities upon the undertaking of the MPS and the Secretary of State for the Home Department forthwith to inform the Dutch authorities of the orders made by the High Court and to use their best endeavours to persuade the said authorities to return the property and any copies of that material to the Claimants.
23. The detailed reasoning of the court was given by Mr Justice Wilkie; however Sir John Thomas, President of the Queen's Bench Division, agreed though added certain observations about the procedure to be adopted in the future on applications under section 59 CPJA 2001 (viz., that it should be inter partes).

The application made by the MPS in January 2013 under s59 CPJA to the Crown Court at Kingston

24. On 4^th January 2013 MPS applied to the Crown Court at Kingston Upon Thames for an order pursuant to section 59 CJPA 2001 in respect of the materials that had never left the United Kingdom and were still in the possession of the MPS.

The return the Dutch evidence to the United Kingdom

25. The material that had been transmitted to the Dutch authorities was returned to the United Kingdom in April 2013. Some delay had risen by virtue of the fact that the materials had become subject to several Dutch sets of criminal and civil proceedings instigated by the Claimant seeking to return the material to him. Following the return of these materials the MPS submitted a further application pursuant to section 59 CJPA 2001 in relation to this material.

The preparatory hearings in relation to the section 59 application

26. In the course of a hearing preparatory to the section 59 application the MPS submitted that it was experiencing difficulties in identifying precisely what materials were relevant and whether such materials would be of substantial value to the Dutch investigation. The judge, HHJ Price QC, ordered that the Dutch prosecutor (Ms Esther Sachs) should be granted access to the material so that these could be reviewed on a document by document basis and to enable a report to be produced to assist the Court in establishing which particular documents met the requirements of PACE for the purpose of the foreshadowed section 59 application. In order for this to occur the MPS had to permit, Ms Sachs, officier van justitie, and her servants or agents, the relevant officials from the Dutch prosecuting authority, to obtain access to and sight of the documents in paper and/or electronic form held by the MPS.

The application for interim relief and judicial review of the procedural decision of the Judge: Order of Lewis J. 26^th July 2013

27. The Claimant objected to the proposed procedure and commenced judicial review proceedings against the Crown Court at Kingston (First Defendant) and against the MPS (Second Defendant). As part of the application the Claimant also sought interim relief restraining the MPS from allowing Ms Sachs, and her colleagues, to obtain access to the documents in paper or electronic form held by the MPS.
28. By an order of 26^th July 2013 Lewis J granted the restraining order until a substantive hearing on the interim relief application could be heard orally. In his observations Lewis J stated as follows:

"1. On 27^th April 2011, the 2^nd Defendant executed a search warrant at the Claimant's premises and seized documents. By an order dated 21^st December 2012 the Divisional Court quashed the search warrant and ordered the 2^nd Defendant to return all the material unless an application was made to the Crown Court at Kingston under section 59 of the Criminal Justice and Police Act 2001 for an order for the retention of the material.

2. The 2^nd Defendant made such an application. On 10 July 2013, HHJ Price QC ordered that a member of the Dutch prosecution team concerned with this matter be given access to the documents with a view to preparing a case statement for him and the Claimant in assessing whether or not an order should be made under section 59 of the Act. That process is to begin on 29 July [2013].

3. The Claimant contends that allowing the Dutch prosecution authorities to have access to the information in this way (1) is not permissible under section 59 of the Act and (2) violates Article 8 ECHR and the need to protect confidential information.

4. Those arguments ought, in my judgment, to be considered at an oral hearing. Given, however, that the inspection is due to begin on 29 July 2013, it is appropriate to grant interim relief now pending that hearing or further order or otherwise that oral hearing would be rendered pointless. Given the urgency, and the fact that the 1^st Defendant is proposing to deal with this section 59 application in August, it is appropriate that the matter be heard if at all possible in the week beginning 29 July 2013".

The hearing before Ouseley J on 1^st August 2013

29. The matter came before Mr Justice Ouseley on 1^st August 2013. He rejected the application for interim relief and he refused permission to apply for judicial review. In his judgment he recited, in summary form, the procedural history. The Judge was fully aware that the purpose of the application that the MPS was making to retain seized documents was in the context of the receipt of requests for mutual legal assistance from the Dutch authorities and it was obvious that if the MPS was permitted to retain the documents that in due course the Secretary of Statue would be minded to transit those documents to the Dutch Authorities in accordance with the duty of transmission in section 19 CICA 2003.
30. No part of the Claimant's argument before Ouseley J was that the entire process pursuant to section 59(7) was futile and lacked purpose because, ex hypothesi, even if the MPS were permitted to retain the documents the Minister would not, thereafter, be permitted in law to transmit them to the Dutch authorities because the power in section 59 CJPA 2001 could not legitimately be deployed to facilitate the transmission of documents under the 2003 Act. It could, for instance, have been contended (as it is now) that since the power could not be used to further an unlawful object then it necessarily was wrong to contemplate any procedure whereby a Dutch prosecutor was accorded access to material in order to assist a Judge to decide whether the documents were properly relevant to the Dutch proceedings. But this line of argument was not put forward.
31. Instead, the arguments focussed upon the lawfulness of the procedure proposed to be adopted by the Crown Court in processing and assessing the relevance and substantiality of the seized documents. Ouseley J recorded (paragraph [10]) the content of a note of the observations of HHJ Price QC on 6^th July 2012 which set out the Judges views of the procedure he proposed to adopt. It is relevant to set out the note in full though it will be observed that the material in brackets, which I have italicised in this judgment, would appear to be the comments of Ouseley J interjected into his recitation of the note:

"So I am in a position to exercise discretion under section 59 and will do so. I have to assess them. If I am to go through documents I will but I need help. I need a case opening. I will call upon special counsel to assist me [that is a reference to independent counsel, because the matters would be dealt with, as I understand it, inter partes rather than through special counsel, which is normally a reference to counsel involved where proceedings cannot be dealt with inter partes].

If it is thousands of documents then I may need other assistance. Seems to me I am going to require translations or a Dutch speaker. He [I believe that to be a reference to the judge] expresses reluctance to do this and there were matters I am obliged to take into consideration to see if they are relevant.

Confirms he [again, a reference to the judge] will only deal with retention and not transmission. If you [a reference to Mr Hines for the MPS] take instructions and the Dutch decide they don't need these documents then this court need not consider them under section 59. From what I read I would still need special counsel. I shall give you 20 minutes to consider".

32. Ouseley J recorded that the MPS had proposed to the Judge that instead of the use of independent counsel (as the Judge contemplated) the Dutch prosecutor, Ms Sachs, who spoke impeccable English, should assist with the task of assessing relevance and substantiality. It was proposed that she should prepare a written opening or report for the judge for his evaluation. It was pointed out that she had been in possession of the documents since the summer of 2011 so that she had considered them before. It was said that it was not unusual for a court to hear from a police officer with regard to a warrant and the proposal meant only that the Dutch prosecutor would assist the court in the task in the same manner as any intermediary counsel would also do. The judge had agreed and ruled that the prosecutor should have access to the material but that the defence would attend and that if there were matters in dispute the judge would resolve those matters. The judge however recognised that it was for him to decide on the relevance and substantiality of the individual documents. In paragraph 12 Ouseley J commented upon the stance taken by the judge:

"He said he took the view that it was necessary for Miss Sachs, the Dutch prosecutor, to see the documents and he also took the view that the trial should start when it was scheduled to start. That is a reference to the Dutch trial with an anticipated start date of December 2013".

33. In relation to the application for interim relief Ouseley J observed that the determination of that application would dispose of the ultimate proceedings. He recorded the submissions of Mr Alun Jones QC for the Claimant that it was wrong for the prosecutor to be involved in an examination of documents and that the proper course of action was for independent counsel to be retained. Mr Jones QC had submitted that the judge had ended up with a procedure which circumvented the letter of request procedure. Ouseley J recorded the following submissions made to him:

"More fundamentally [Mr Jones] contends that the vice of what the judge contemplates is that it would permit effective examination of unlawfully seized documents in order to justify their retention in circumstances which would be little different from the wholesale seizure of documents in order to see whether there might be something of interest, and then selecting those which were found to be of interest and a very considerable breach of the common law and the privacy rights of an individual. All of this could be [avoided] by the use of independent counsel, a role which is accepted and commonly used in relation to the retention or return of material. Moreover, the judge ought to have dealt with the issue concerning the relevance of any documents, other than the 267 which are part of the court file, before he reached any conclusion on how the prosecutor should be involved, if at all, because it might mean that none of the documents were relevant to her consideration at all".

34. This submission was rejected. I now summarise the conclusions of Ouseley J in relation to the application before him.
35. First, he concluded that the judge had jurisdiction to permit the Dutch prosecutor to read the documents and then to assist him and/or to give evidence before him as to the justification for the retention of the material under section 59 CJPA in the context of the ongoing investigation in the Netherlands.
36. Secondly, since the judge had jurisdiction his decision whether viewed as a case management matter or some other form of decision was one which was essentially for him and no complaint could be made of it. Ouseley J stated (paragraph [18]) as follows:

"So far as jurisdiction is concerned, there is nothing in the relevant statutes to show that the approach to be adopted with a section 59 application is as contended for by Mr Jones QC, even on the basis that all the documents are for examination for relevance. Of course, if the right approach to section 59(7) is to imagine a seized document with no more precision than would be applied to a warrant for seizure, then there could be no objection to a process in which, on a general basis, an English police officer, with whatever support was necessary from a foreign police officer, explained the basis for the warrant. But once, however, one moves to the position, as commonly understood between the parties and the judge here, that what is required is an examination potentially of each document for substantive value and relevance, the position, as to who can see the documents and explain their relevance, cannot be different. I can see no justification for saying that the domestic police officer has to do the best he can (with the assistance of a translator, no doubt) to explain the relevance of the documents to a case which he is not investigating, and has to do with the benefit only of a case study. I can see no reason why he should be disabled in his explanation of relevance of the documents seized pursuant to a letter of request, from obtaining assistance directly or indirectly on relevance and substantive value from somebody who did not know about it".

37. Thirdly, the judge rejected an alternative submission by Mr Jones QC that there would be no objection to the prosecutor giving evidence provided the prosecutor could not further examine the documents. He expressed the following view (ibid paragraph 19):

"That, to my mind, illustrates the impracticability of the course he proposes. A court would not be assisted by having the imperfect inaccurate un-refreshed memory of a witness on those issues as opposed to the refreshed and more accurate memory of it. If this were a domestic warrant entirely, the police would not be barred from giving evidence about what they had seen, whether before the warrant was declared unlawful or after it, for the purpose of making the application. If prosecutors and police officers were to be barred from seeing the seized material, it would suggest that the scope of the section 59(7) application was very much more of the sort which the parties did not agree here was appropriate; that is to say, it was simply a general document which was required, corrected and updated as might be necessary, by reference to change of circumstance, but not by reference to what documents had actually been seized".

38. Fourthly, Ouseley J stated (paragraph [22]) (endorsing the earlier conclusion of the Divisional Court) that section 59(7) conferred a power to retain unlawfully seized documents for the purpose of onward transmission under CIPA 2003:

"Parliament has itself set out as lawful a procedure whereby the unlawfully seized material can be retained in certain circumstances. To refuse to permit the prosecutor to see the documents for the purposes of that application, whilst at the same time fixing the prosecutor with the obligation to make a document-by-document defence of its relevance, while it was unseen for some time, seems to me to be a contrary approach. It is an approach that would fit with section 59(7) requiring only a generally expressed warrant, not benefiting from knowledge as to what had actually been obtained. But once the right approach under section 57 is seen as being an examination of the basis for the retention of each document, it cannot be right that the prosecutor has to do that on a half-remembered or even ignorant basis without full understanding of the case. As I say, once jurisdiction is present, then, as a matter of effective procedure, this approach cannot be faulted".

39. It is clear beyond peradventure that the context to these observations was the request by the Dutch authorities for transmission of documents.
40. In the event Ouseley J refused the application for interim relief and concluded that in the light of his findings he should refuse permission to apply for judicial review.

The Dutch prosecutor's report: "Report on Relevance"

41. The Dutch prosecutor, Ms Sachs, completed her report entitled "Report on Relevance" on 6^th August 2013. The report is nearly 70 pages long. It starts with a detailed description of the case proceeding in the Netherlands. It contains a description of the position of the defendants in the Dutch proceedings (including that of the Claimant). In a general part of the report she provides detailed context with a view to establishing the broad relevance and substantiality of the documents sought to be transmitted to the Dutch authorities. She made clear that she was seeking documents to cover a range of evidential issues, including continuity and provenance (she says "providence").
42. Under the heading "relevance of property seized" Ms Sachs stated as follows:

"16. As set out before, the companies that have come up in our investigation have entered into contracts which we suspect do not constitute real economic transactions, but were solely entered into with a view to present – on paper – losses for tax purposes, as a result of which tax fraud can be committed. In order to investigate this, it is necessary to examine as far as possible the (original) contracts, the flow of money from the companies, the manner in which the companies were managed and who was in fact managing.

17. For the purposes of conducting a complete investigation, we wish to have the opportunity to examine the complete administrations of the companies involved in the fraud (naturally excluding any privileged documents, which have already been taken out) – something we have not been able to do so far.

18. We also wish to be able to review all other (witness) evidence in the context of the complete property seized at Mr Van Der Pijl's residence. Since 21 December 2012, several witnesses were heard by the examining magistrate at the request of the defence. Furthermore, on 10 June 2013 Van Der Pijl has requested that an additional 55 persons are called as witnesses before the court. The investigation is by no means over and for this reason we wish to have access to the full administration of the companies involved in the fraud. Not only with a view of establishing what exactly is in there, but also what is not, especially with a view to the amounts that are involved in the derivative transactions – which are 10s to 100s of millions in euro. Also, our court may order that additional investigation is conducted with regard to these documents – independently or at the request of the defence. Finally, we require the property with a view to confirming or denying the providence and continuity of documents that may be produced by Mr Van Der Pijl – this applies specifically to the digital data seized at Mr Van Der Pijl's residence. In this respect we note that Mr Van Der Pijl did already produce documents originating from his hard drive during the deposition of witnesses in front of the investigation judge. Because we did not have access to the hard drive image at the time, we could not confirm its providence nor establish continuity.

…

20. In its additional investigation, the FIOD will focus on multiple questions, amongst which are:

(a) which documents/contracts are included in the administration and in what form (original or copy)?

(b) does the evidence from the UK give any insight on how documents or contracts came into existence and who was involved?

(c) on what flow of funds, if any, are the contracts and promissory notes based and what companies or persons were involved?

(d) on what basis were companies liquidated or made dormant?

(e) who was working for or acting on behalf of these companies and what activities did they conduct?

21. The above is a general outline as to why the property seized is still relevant for the criminal investigation against [the Claimant] and the various companies. It also explains as to why we require full administration for each company as it was kept by [the Claimant]".

43. Attached to the report were a series of annexes which provided case summaries, dramatis personna, information about the setting up of the relevant companies, information about the promissory notes and the derivative transactions, and information relating to the corporation tax returns. Her report included a "materiality" analysis for each item which is an explanation of why each piece of evidence has probative value. In particular there is a detailed analysis of the relevance and substantiality of individual documents and categories of documents and which does this by person or company, their alleged role in the fraud, and a detailed description of the material in issue.

The section 59 proceedings before the Crown Court, Kingston

44. The section 59 application was heard over the course of 4 days in August 2013. The hearing was inter partes in accordance with the ruling given by the Divisional Court. On 15^th August 2013 HHJ Price QC gave his ruling on the applications to make 4 orders (identified as orders "A" to "D") in respect of four groups of material, as follows: First, the balance of the material within the paper files marked "legal files" (the Order A material); Secondly, the forensic image files of the computer devices taken at the scene which contained back up data CDs (the Order B material); Thirdly, the digital evidence sifted from the computer devices that related to the companies listed on the letters of request dated 2^nd and 15^th March 2011 and the files relating to companies listed later on the letters of request dated 4^th July 2011 (the Order C material); and Fourthly, the paper file sent to the Dutch authorities now returned to this country (the Order D material).
45. I turn now to summarise the salient parts of the judge's judgment; references below are to the transcript of the judgment:

i) The judge was not concerned with the issue of the transmission by the Home Office to the Netherlands of any documents permitted to be retained (5A). (This being a decision to be taken subsequently by the Minister).

ii) The judge was satisfied that the letters of request from the Dutch prosecuting authorities were in the correct form and that the Dutch prosecuting authorities had valid grounds to request the British authorities for assistance (5B, C).

iii) The court had power pursuant to sections 13 and 16 of the 2003 Act to grant a search warrant in aid of an international criminal investigation and the conditions in those sections were satisfied (5D).

iv) The court had to be satisfied that the documents or material sought to be retained were likely to be relevant evidence as required by schedule 2, paragraph 2(a)4 of PACE and that further, but not in the alternative, the judge had to be satisfied that there were reasonable grounds for believing that the material would be likely to be of great substantial value to the investigation as required by Schedule 1, paragraph 2(a)3 PACE.

v) The court heard oral evidence from Miss Sachs and from DS Coutts. The court gave the Claimant the opportunity to call evidence but the invitation was declined (6B). Opposing legal arguments were however presented by Mr Jones QC for the Claimant.

vi) The judge rejected the submission by the Claimant that as the information in support of the warrants had to be confirmed on oath or affirmation that the evidence of anyone other than the officer making the application (i.e. Ms Sachs) was inadmissible (6C). The judge ruled that whilst the application had to be made by an officer that officer was entitled to rely upon what he had been informed to be the position from a prosecuting authority in another jurisdiction and that it would be "manifestly absurd" to deny the court the valuable assistance from the foreign prosecutorial authority who could explain, as Miss Sachs had explained, the history of the Dutch investigation but also "…why she submits that the materials sought to be retained does indeed come within the two categories set out above", i.e. would be both relevant and of substantial importance to the foreign prosecution (6D-F).

vii) There was no real challenge to the evidence that Miss Sachs gave on oath (6G). Her evidence cured any possible complaint that DS Coutts could not give anything other than unsubstantiated or undocumented assertions.

viii) Miss Sachs gave evidence that she had looked at every document. The judge accepted this evidence without reservation (8A-B).

ix) Miss Sachs expanded upon the contents of her written report in the course of oral evidence and she explained to the court why the material was to be classified as being of substantial value and, in particular that the materials were "essential and likely to be relevant evidence". Her oral evidence was "unchallenged" (8E).

x) The judge recorded that he was not obliged to accept that evidence without question but, nonetheless, he explained that he agreed with her evaluation. He stated that it was not his duty to embark upon the document by document review exercise himself and that he had made this very clear in his ruling in July which had been the subject of the judicial review heard by Ouseley J.

xi) He explained that Miss Sachs had informed him that in the Netherlands the law did not differentiate between evidential and investigative purposes and that documents could be added to a court dossier not only during the investigation but also during the trial process itself (9A-C). He observed that there was no dissent (i.e. from the Claimant) for that statement concerning relevant Dutch legal procedure.

xii) In relation to the digital material he accepted the evidence of Miss Sachs that she, personally, had not gone through all of the material but that in some respects she had relied upon members of her team who had done so under her supervision and at her behest (10F). The judge observed that it would be "absurd" if he had to hear from every member of her team before he ruled on the statutory test. He had no reason to doubt her evidence as, as noted above, it was unchallenged.

xiii) The judge recorded in relation to the computer hard drives that he did have statutory power to order retention and observed that this accorded with "reality" since without the ability to establish continuity the contents of the hard drive would be rendered "nugatory" which could not be right in logic or fairness to either side who might need to rely upon that material at trial.

xiv) Finally, he noted that it had been clear to him that his decision, if against the Claimant, would be challenged by way of judicial review (13B).

The invitation made by the Secretary of State to the Claimant to apply for judicial review without delay

46. On 17^th September 2013, shortly following the judgment of HHJ Price QC, the Secretary of State wrote to the Claimant encouraging him to commence proceedings as soon as practicable. The Claimant did not respond to this encouragement but instead, through his solicitors, wrote back explaining that although he had grounds for challenging the judgment of HHJ Price QC he intended to submit detailed representations to the Secretary of state and then await her decision. No application to challenge the judgment occurred until 31^st October 2013. The Claimant then set out a lengthy series of objections to the proposed decision to transmit, which essentially track the arguments raised in the applications which are the subject of these proceedings.

The decision of the Secretary of State of 17^th October 2013 to transmit the documents

47. The Secretary of State decided to transmit the document to the Dutch authorities on 17^th October 2013 in a letter addressed to the Claimants solicitors which responded to the 8 detailed objections made by the Claimant to the transmission. This was a 49 paragraph reasoned decision which set out the history of the case and addressed each of the numerous objections

The applications for judicial review against (i) the judgment of HHJ Price QC and (ii) the indication by the Secretary of Sate that she intended to transmit the seized material to the Dutch authorities.

48. In fulfilment of the promise made by Counsel for the Claimant to the Judge in the Crown Court applications for judicial review duly followed. Upon this occasion not one judicial review application, but two, were launched. The first was against the decision of the Secretary of State to transmit the documents; the second was against the Crown Court at Kingston for the manner in which the hearing was conducted. The two sets of proceedings were plainly interlinked.

The application before Foskett J for interim relief

49. On 23^rd October 23013 the Claimant applied for and obtained from Foskett J an order prohibiting transmission of the documents to the Netherlands until, in effect, the applications for judicial review had been dealt with.

The criminal trial in the Netherlands 3^rd – 6^th December 2013/ the continuing need for the evidence

50. The trial in the Netherlands started on 3^rd December 2013 i.e. just a few days before these applications were first scheduled to be heard on 6^th December 2013. It completed on 6^th December 2013 with the verdict to be delivered at a later date. The Prosecutor asked for a four year sentence of imprisonment to be imposed upon the Claimant if found guilty. Given the guilty verdict referred to above the Claimant has lodged an appeal against the conviction. No sentence will be implemented pending the appeal. The Secretary of State served evidence, which includes an email from Ms Esther Sachs (the Dutch prosecutor) and the author of the Report before the Crown Court, which explains the applicable procedure in the Netherlands. In short appeals must be lodged within 14 days and grounds of appeal 14 days after that. In particular there may be many bases upon which an appeal would be lodged which might include new evidence if it comes to light and the Prosecution might in such circumstances appeal to either uphold or even discharge a conviction in the light of new evidence. An appeal can take 12 months. In relation to the material which is the subject matter of this application Ms Sachs has explained: that the material is still important to the Dutch prosecutors; that they might well be able to adduce it before the appeal court (especially given that it is because of the Claimants opposition that the Prosecution has not been able to use the material); that they need the formal decision regarding the UK evidence "as soon as possible"; and, if at all possible, the transmission of that evidence itself.
51. In the week before the Dutch trial commenced the Claimant applied for an adjournment of the hearing before the High Court then listed for 6^th December 2013, this time upon the basis that (i) the Claimant wished to represent himself personally before the High Court and had dispensed with counsel (cost reasons were cited); and (ii) the Claimant needed to be present during the Dutch trial and hence could not be in the High Court at the same time given that the Dutch trial would continue until the 6^th December. The Claimant produced an email from the Judge in the Dutch proceedings in which the learned Judge indicated that it would be of assistance to him to have the Claimant in Court in the Netherlands on 6^th December. In these circumstances this Court considered, albeit with some misgiving, that it was necessary to adjourn the application in deference to the ostensible wishes of the Dutch judge whose processes the High Court was, in principle, seeking to assist.
52. The hearing before the High Court was then listed for 19^th December 2013. The Claimant then sought to have this deferred until the New Year upon the basis that he needed time to get ready but he also indicated that he might now be represented by counsel. The Court upon this occasion declined this yet further attempt to delay the hearing.

C. Statutory framework

53. I turn now to consider the statutory framework for the transmission of seized material from the United Kingdom authorities to a foreign requesting authority. There are three legislative regimes to consider: (a) EU and international law; (b) the CICA 2003; and (c), the CJPA 2001.

(a) International and EU law

54. The starting point is the European Convention on Mutual assistance in Criminal Matter (Strasbourg, 20^th April 1959) (hereafter "the Strasbourg Convention"). Under Article 1 the parties are to undertake "promptly" to afford each other the widest measure of mutual assistance in relation to the criminal proceedings of a requesting state. Limited grounds for refusal are set out in Article 2. The Convention proceeds to set out procedures whereby mutual assistance can occur including for the issuance of letters rogatory and for the return to the requested state of documents and evidence once they have been used in the requesting state. This Convention was cited by the Dutch authorities as one the legal bases for its request.
55. The second instrument is the Convention on Criminal Matters between the Member States of the European Union of May 2000. This Convention was established by Council Act of 29^th May 2000 pursuant to Articles 31(a) and 34 of the Treaty on the European Union (see OJ C197/1; 12 July 2000) (hereafter "the EU Convention"). The Strasbourg Convention is expressly identified as the locus classicus of this EU Convention. It is expressly stated in the recitals that the purpose of the EU Convention is to "improve cooperation in criminal matters between the member States of the Union without prejudice to the rules protecting individual freedom" and to "supplement" the Strasbourg Convention.
56. Article 31(a) of the Treaty on the European Union provided:

"Common action of judicial cooperation in criminal mattes shall include:

(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the member states in relation to proceedings and the enforcement of decisions"

57. Article 34 empowers the Council to establish conventions which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements. It also provides that unless they provide otherwise conventions once adopted by at least half the Member States shall "enter into force for those member States"
58. The EU Convention is premised upon the recognition of the need for "fast and efficient" (see recitals thereto) mutual assistance between the Member States with a view to improving cooperation in the suppression of crime. Article 4 emphasises the critical importance of a requested State endeavouring to adhere to the timeframe operating in the requesting State. It provides:

"Article 4"

Formalities and procedures in the execution of requests for mutual assistance

1. Where mutual assistance is afforded, the requested Member State shall comply with the formalities and procedures expressly indicated by the requesting Member State, unless otherwise provided in this Convention and provided that such formalities and procedures are not contrary to the fundamental principles of law in the requested Member State.

2. The requested Member State shall execute the request for assistance as soon as possible, taking as full account as possible of the procedural deadlines and other deadlines indicated by the requesting Member State. The requesting Member State shall explain the reasons for the deadline.

3. If the request cannot, or cannot fully, be executed in accordance with the requirements set by the requesting Member State, the authorities of the requested Member State shall promptly inform the authorities of the requesting Member State and indicate the conditions under which it might be possible to execute the request. The authorities of the requesting and the requested Member State may subsequently agree on further action to be taken concerning the request, where necessary by making such action subject to the fulfilment of those conditions.

4. If it is foreseeable that the deadline set by the requesting Member State for executing its request cannot be met, and if the reasons referred to in paragraph 2, second sentence, indicate explicitly that any delay will lead to substantial impairment of the proceedings being conducted in the requesting Member State, the authorities of the requested Member State shall promptly indicate the estimated time needed for execution of the request. The authorities of the requesting Member State shall promptly indicate whether the request is to be upheld nonetheless. The authorities of the requesting and requested Member States may subsequently agree on further action to be taken

59. There is no provision in the EU Convention which permits the requested state to verify the efficacy or conduct of the procedure being applied in the requesting state, the only caveat of substance being that in Article 4(1) which is that adherence must be consistent with fundamental principles in the requested state. The EU Convention sets out in some considerable details how a range of different types of mutual assistance should be effected.
60. The EU Convention is said to be subject to adoption in accordance with the respective constitutional requirements of each Member State (Article 27). It has been implemented in the United Kingdom via the Crime (International Cooperation) Act 2003 ("CICA 2003").
61. It is of some interest that in the context of its ongoing review (under Article 10 of Protocol 36 to the EU Treaties) into the circa 130 police and criminal justice measures, which were adopted prior to the entering into force of the Treaty of Lisbon, the Government has indicated that the EU Convention is an instrument that is considered to be of significant importance (see HM Government, Decision pursuant to Article 10 of Protocol 36 to the Treaty on the Functioning of the European Union, July 2013, CM 8671). In paragraphs 123-126 HMG makes clear that the EU Convention is considered to be of importance and that in the view of the HMG it affords adequate protection for the fundamental rights of those subject to its provisions:

"123. The EU MLA Convention 2000 and 2001 Protocol can generally be seen as having a positive impact on the fundamental rights of victims in terms of facilitating the effective investigation and prosecution of cross-border crime. This measure may also be used to make MLA requests on behalf of the defence and therefore positively contributes to the package of defendant rights in a criminal trial.

124. In accepting or executing a specific investigative measure the fundamental rights of suspects may be engaged – but the particular fundamental right that may be engaged will depend upon the nature of the MLA request. For example, if the UK executed a MLA request to search the premises of an accused and to seize, retain and transmit any relevant evidence, then this may engage a number of fundamental rights, such as Article 7 (right to respect for private and family life), Article 8 (right to protection of personal data) and/or Article 17 (right to property) of the Charter of Fundamental Rights of the European Union. However, any such interference would be in accordance with the provisions of the Crime (International Co-operation) Act 2003, (namely, sections 13 and 16-19). The search warrant itself would have been issued by a judge (using the same powers as are available in a similar domestic case) and any search would have been conducted in accordance with the relevant domestic legislation and guidance, (e.g. Code B of the PACE Codes of Conduct which deals with police powers to search premises and to seize and retain property found on premises and persons). Thus, any interference in fundamental rights here would have been provided for by law (as required by Article 52 of the EU Charter).

125. It is important to note that the Secretary of State retains the discretion to refuse an MLA request if to execute it would constitute a violation of recognised fundamental rights under the European Convention of Human Rights. In addition, these MLA measures do not prevent those affected by MLA requests seeking a legal remedy where their fundamental rights are engaged. This ensures that the protections provided in Article 47 of the EU Charter (right to an effective remedy and to a fair trial) and the corresponding Article 13 of the ECHR are guaranteed for any persons affected by this EU MLA Convention 2000 and 2001 Protocol.

126. Overall therefore, the Government considers that the EU MLA Convention 2000 and 2001 Protocol comply with the principles of fundamental rights.

(b) Crime (International Cooperation) Act 2003 ("CICA 2003")

62. The principal issues arising in this case concern the scope and effect of the Crime (International Cooperation) Act 2003 ("CICA 2003"), and, sections 50 et seq of the Criminal Justice and Police Act 2001 ("CJPA").
63. The recital to the CICA describes it as "an Act to make provision for furthering cooperation with other countries in respect of criminal proceedings and investigations…" section 13 CICA concerns requests for assistance from overseas authorities. Such authorities are defined in section 13(2) which stipulates that a request for assistance may be made only: by a court exercising a criminal jurisdiction or a prosecuting authority in a country outside the United Kingdom; and any other authority in such country which appears to the territorial authority to have the function of making such request for assistance or any other international authorities such as is mentioned in section 13(3).
64. For present purposes, the Dutch authorities constitute a prosecuting authority in a country outside the United Kingdom within the meaning of section 13(2)(a). Pursuant to section 13(1) where a request for assistance in obtaining evidence in a part of the United Kingdom is received by the territorial authority that authority "may" take one of a number of steps. In the present case, the relevant step which the territorial authority was empowered to take was that specified in section 13(1)(b), namely: "…direct that a search warrant be applied for under or by virtue of section 16 or 17…"
65. Section 16 CICA modifies section 8 and schedule 1 of PACE 1984 to make clear that the power of search and seizure governed by those provisions can be in furtherance of foreign proceedings, and is not limited to domestic proceedings. It adds however a double criminality condition i.e. that the power can only be exercised when the foreign offence is one that also constitutes an offence in England & Wales. It provides as follows:

"(1) Part 2 of the Police and Criminal Evidence Act 1984…is to have effect as if reference to indictable offences in section 8 of, and Schedule 1 to, that Act included any conduct which —

(a) constitutes an offence under the law of the country outside of the United Kingdom; and

(b) would, if it occurred in England and Wales, constitute an indictable offence.

(2) But an application for a warrant or order by virtue of subsection (1) may be made only —

(a) in pursuance of a direction given under section 13…".

66. Under section 19 CICA the Secretary of State has a duty to transmit material to the authorities of the requesting State; the Act is framed as a duty not a power. The section says that any seized evidence "…is to be sent to the Court or authority" making the request.
67. Schedule 1 of PACE governs the making of an order by a circuit judge and, in the context of mutual assistance now makes clear that the circuit judge can only authorise a search if satisfied that, in essence, the material to be searched for and seized is of substantial value to the investigation of (in England & Wales) an offence that is indictable in this jurisdiction as well as in the foreign jurisdiction.
68. It necessarily follows from the fact that the CICA 2003 has been adopted in order to secure compliance with the international law and EU law obligations of the United Kingdom that the domestic legislation must be construed purposively so as to give effect, in so far as possible, to the intent of the relevant conventions. It is also settled EU law that when construing domestic law in the light of EU law one examines the entire corpus of law that might be relevant and that will include legislation that has been explicitly enacted with the task of implementing the EU legislation and also other law of more general application. It is in fact common place that numerous provisions of domestic law might be called into action in the fulfillment of a particular provision of EU law. The power to conduct searches for instance is a power that exists quite independently of EU law and was clearly not introduced to implement EU law. However, that does not prevent the power being construed purposively on those occasions when it is called upon to further an EU law object.

(c) Criminal Justice and Police Act 2001("CJPA 2001")

69. As has been described above an application was made for a warrant which was later held to be unlawful. Accordingly, the only basis upon which the seized material could be retained for onward transmission to the Dutch authorities was pursuant to such general statutory powers as existed in domestic law to permit the retention of material otherwise unlawfully seized. Such a power is found in section 59 of the CJPA 2001. This is not legislation which has been specifically adopted to comply with obligations concerning mutual assistance but it is plainly legislation which can be called upon to enable the competent authority to perform its obligations under the Conventions.
70. In view of the arguments raised in this case it is necessary briefly to describe the provisions of section 50 et seq of that Act. Sections 50 and 51 confer upon a person who is "lawfully on any premises" the power to seize, remove and retain material that they find in the execution of a lawful search. Section 52 imposes a duty to give the occupier of the premises a written notice specifying, inter alia, that which has been seized, the grounds upon which those powers have been exercised and certain other facts and matters set out in section 52(1). Section 53 concerns the expeditious examination and return of property seized under sections 50 and/or 51. Section 54 concerns the obligation to return items subject to legal privilege, and, section 55 concerns the obligation to return "excluded and special procedure material". Section 57 concerns the retention of property seized on the premises by a constable who was "lawfully" on the premises, and, section 58 concerns the identity of the person to whom seized property is to be returned. I have recited this list of powers because each and every one is predicated upon an assumption that the search is a lawful search.
71. Section 59, however, operates upon a different premise. Sub-section (1) states:

"This section applies where anything has been seized in exercise, or purported exercise, of a relevant power of seizure".

72. The reference to "purported exercise" makes clear that it includes property wrongly seized. A "relevant power of seizure" includes "any power of seizure…by or under any enactment" (See section 59(10)).
73. Section 59(2)–(4) is concerned with the power of a person from whom property is seized to seek the return of that property. It confers a power upon persons with a relevant interest in "the" seized property (i.e. the use of the definite article includes a reference to property seized pursuant to a purported exercise of a power of seizure) to apply to an appropriate judicial authority for the return of the whole or a part of the seized property on grounds set out in section 59(3). The definition of "a person with a relevant interest in seized property" includes not only the person from whom the property as seized but also anyone else "with an interest in the property" and "any [other] person who had custody or control of the property immediately before the seizure". It therefore includes the MPS in the context of the present case.
74. In relation to the use of property, including that wrongly seized, section 59(5)(b) provides that:

"(5) The appropriate judicial authority -

"(a) …

(b) on an application made by the person for the time being having possession of anything in consequence of its seizure under a relevant power of seizure…

may give such directions as the authority thinks fit as to the examination, retention, separation or return of the whole or any part of the seized property".

75. Section 59(6) provides further:

"(6) On any application under this section, the appropriate judicial authority may authorise the retention of any property which —

(a) has been seized in exercise, or purported exercise, of a relevant power of seizure, and

(b) would otherwise fall to be returned,

if that authority is satisfied that the retention of the property is justified on grounds falling within subsection (7)".

76. As to the grounds of justification in subsection (7):

"(7) Those grounds are that (if the property were returned) it would immediately become appropriate —

(a) to issue, on the application of the person who is in possession of the property at the time of the application under this section, a warrant in pursuance of which, or of the exercise of which, it would be lawful to seize the property".

77. The scheme in relation to property wrongfully seized involves answering in essence a hypothetical or notional question: If the property were (hypothetically) to be returned could the applicant lawfully apply once again to seize (back) the property?
78. This was the procedure applied for successfully in the present case and which is now challenged.

D. Grounds of challenge

79. The original applications for judicial review raised a large number of grounds. In a skeleton argument submitted prior to the hearing the Claimant combined the grounds in the two applications and further whittled down its challenge. There are now, in essence, three grounds.

(a) Ground I: The Judge failed to carry out his statutory function to determine whether the pre-condiitons of substantiality and relevance to the grant of the notional warrant contemplated by section 59(6) and (7) CJPA 2001 were satisfied

80. The Claimant relies upon the following facts and matters in support of this ground:

i. The Dutch Prosecutor (Ms Sachs) who gave evidence before the Crown Court conducted only a "general examination of the paper" documents and "none at all of the electronic documents".

ii. In relation to the statutory preconditions the Judge did not consider all of the documents in fact "…he considered none of them".

iii. The Judge erred in relying upon the assertions of the Dutch prosecutor.

iv. The Judge relied upon the "beliefs of other members of [the Dutch Prosecutors] team" in relation to the digital material.

v. This was an error by the Judge who thereby failed to assess for himself whether the statutory pre-conditions in PACE 1984 were satisfied and whether reasonable grounds existed.

vi. The failure was acute because only a "fraction" of the material considered by the Dutch authorities "has been deemed to be of use for evidential purposes" in the Dutch proceedings.

vii. The Claimant accepts that during the hearing before the Crown Court it did not challenge the evidence put forward by the Dutch Prosecutor but this did not matter because its submission is that "at its best" the evidence does not meet the requisite test.

81. In his oral submissions Mr Alun Jones QC for the Claimant boiled these points down to a submission that, in essence, the sum total of the evidence advanced by Ms Sachs orally and in her written report did not and could not satisfy the test of substantial relevance in PACE; and further that the test was a demanding one introduced to protect individuals subject to draconian invasions of their basic rights and did not therefore vary according to whether the power was exercised in furtherance (through mutual assistance) of foreign proceedings or in relation to domestic proceedings. Mr Jones QC submitted that the judge erred because he could not have been satisfied that the evidence before him was sufficient to establish that the evidence would be admissible in the trial in the Netherlands.
82. The starting point is to consider the test of substantial relevance as it applies in the context of mutual assistance proceedings. In my view the test is context dependant. The Strasbourg and the EU Conventions operate upon the basis of a high level of mutual trust between the signatory Member States. The Conventions do not operate upon the basis that the courts of the requested state conduct mini-trials of the case to determine what is pivotally relevant to the trial that (invariably) has yet to occur in the foreign jurisdiction. In this jurisdiction a threshold has been introduced of "substantial relevance". This serves to protect individual rights and is thereby consistent with the proviso in Article 4 of the EU Convention that the procedure should protect fundamental rights. The transmission of documents that are not of material (substantial) relevance would be an invasion the property, privacy and confidentiality right of the person from whom the property is seized. A requested court is viewing "substantial relevance" from a juridical distance. In the present case the Crown Court is not possessed of the finer details of Dutch criminal and/or judicial procedure; many of the documents are in the Dutch language; the details of the investigation are prima facie contained in letters of request only and that is all that the Conventions actually require to trigger the requested states obligation to transmit documents. In context a domestic court asked to assess substantial relevance will do so on a necessarily more circumscribed basis than the same court would were the assessment in respect of proceedings before the same Court. Hence, whilst the test of substantial relevance is the same its application will invariably differ where the application is in pursuit of foreign proceedings.
83. In the present case the judge had before him evidence which was far in excess of the bare minimum that is contemplated by the Conventions. Indeed, as noted in paragraph [20] above at an earlier point the Divisional Court concluded that the substantial relevance test was met on the basis of the Letter of Request only. It would therefore be very surprising if an essentially identical exercise conducted this time upon the basis of very much more extensive evidence were found not to be adequate. The Judge had a detailed report from the Dutch prosecutor who appeared before him to explain her own process of investigation in relation to the individual documents in issue; the persons whom she had instructed to assist her in relation in particular to the digital records; and, how this material was relevant not only to the investigation but also to the contemplated trial. The Prosecutor was tendered to be cross examined and she was questioned by the Claimant's counsel but not in any detail as to substantiality and relevance (see paragraph [45(v) – (xi)] above). In the course of oral argument, in the context of a complaint that the Prosecutors report had been tendered only very shortly before the Crown Court hearing, Mr Jones did accept that the Claimant had full knowledge of the documents seized (they were after all his) and that there was no real impediment to Ms Sachs being cross examined on any of the documents upon which she had expressed an opinion about substantiality and relevance in her report. In fact the section 59 hearing before HHJ Price QC in Kingston took almost as a long as the substantive criminal fraud trial did in the Netherlands. Whilst this is a reflection of the difference in nature between the civil and common law traditions; it nonetheless puts into context Mr Jones QC's complaint that the section 59 hearing was inadequate and insufficient to enable the Judge to form a proper view. In short, in the context of mutual assistance proceedings the approach adopted by the Judge cannot be criticised: He adopted sensible case management procedures; he formed his own view of the evidence having heard detailed oral evidence in chief and in cross examination from Ms Sachs, the Prosecutor, and having considered her detailed written report; and he did not delegate that judicial task to Ms Sachs. The Report and the prosecutors evidence is not - as the Claimants suggest – a "general examination of the paper documents". That is an inaccurate description of the Report. It is relevant that the Claimant did not at any point challenge the detail of Ms Sachs analysis. Had there been a real dispute about the Report or parts thereof then one might have expected to see some analysis in the judgment of the Circuit Judge of the matters in dispute but in the absence of any challenge the fact that the judge did not replicate in his judgment all of the submissions that he accepted in relation to each and every document is not a matter for criticism or objection.
84. In short I can identify no arguable error on the part of the Judge in the manner in which he conducted the hearing.
85. I turn now to consider particular and specific submissions made as to the Judge's approach.
86. First, the submission made by Mr Jones QC that taken at its highest the evidence did not meet the test: If that was indeed the case then that was a submission that cried out to be made to the Judge since, assuming it to be valid, it was a proper basis upon which the Judge could have refused to authorise the application. But it was not made. And, in any event, it is not a submission that can be made by mere assertion; it would have to be substantiated. It could, for instance, be made good by submissions addressing the documents set out in the Prosecutors Report explaining why individually and collectively the specific documents in issue were not such as to meet the test of substantial relevance to the Dutch investigation. In the grounds as formulated however it is mere unsubstantiated assertion.
87. Secondly, the submission that the modus operandi adopted by the Judge was not in accord with the thrust of the judgment of Ouseley J referred to above: As to this, that judgment did not rule that the circuit judge had, perforce, to adopt any particular methodology in assessing the evidence again the benchmark of substantial relevance to the Dutch investigation. On the contrary the judgment simply dismissed the submission that the method the Judge was then contemplating (using the written and oral evidence of the Dutch Prosecutor) was not a lawful one. Ouseley J clearly considered that it was a sensible course and fell within the Crown Court Judge's discretion. In the event the approach adopted by the Circuit Judge was in line with that contemplated in the judgment of Ouseley J; and insofar as there were departures they remained, in my view, squarely within the Judge's legitimate case management discretion.
88. Thirdly, the submission that "subsequent" developments have shown that the documents were not needed for evidential purposes during the trial, and that since the Dutch trial had now ended the issue is wholly academic: There is no substance to this. The evidence of the Dutch prosecutor is that even if the material cannot be used in the trial it might still be substantially relevant on an appeal: See paragraph [50] above. That is an answer to the point.
89. Fourthly, it was contended that only a fraction of the documents seized had in fact been used in the Dutch proceedings and that this was significant because the Dutch authorities have had a chance to review a substantial number of them (before returning those documents to the UK authorities – see paragraph [25] above): This is not a sound argument. The evidence is that the Dutch authorities had not completed their sift or analysis of the documents when they were returned to the UK and hence the fact that only a modest percentage were treated then as relevant is not an indicator that other documents would not also be treated as relevant when an exhaustive review was undertaken. In any event, for the reasons referred to above, a requested court should be very loathe to delve deeply into the intricacies of the prosecutorial or investigative process of the requesting state. The requested court will rarely be in a position to form a sophisticated view about this and that sort of evaluative exercise is simply not mandated under the Strasbourg or EU Conventions. Section 59 should be construed accordingly.

Ground II: The judge wrongly failed to consider whether there was any power under section 19 CICA 2003 to transmit the retained items under section 59 CJPA 2001

90. The nub of this point was put in two interrelated ways by the Mr Alun Jones QC, for the Claimant. First, the point advanced is "…if there is no power to transmit. There is no point in making an order to retain" - Skeleton paragraph [22]. On this basis it is argued that the Judge was engaged in a futile exercise since it is common ground that the material was not being retained for the benefit of a domestic investigation but was being sought for the purpose of onward transmission to the Dutch authorities. Secondly, it was said that section 59 CJPA could not be used to further mutual assistance under the CICA: "Section 59 is not a power to authorise disposal, but for a constable to retain for the purpose of UK trials, as contemplated by section 21 and 22 of the 1984 Act" - Skeleton paragraph [28].
91. There are a number of answers to this.
92. First, this point was addressed by the High Court in the Divisional Court judgment of Wilkie J with which Sir John Thomas PQBD (as he then was) agreed. This is set out at paragraph [21] above. The Court expressly contemplated that section 59 would be used to permit the retention of the unlawfully seized material for the specific purpose off onward transmission to the Dutch authorities.
93. Secondly, had this been a good or a live point then it could also, and should also, have been taken before Ouseley J. as a fundamental basis upon which the proposed procedure to be adopted by the Circuit Judge was illegal. The Judge on that occasion proceeded upon the basis that the methodology he was endorsing (viz the use by the Judge of a Dutch prosecutor to enable the Judge to assess the substantiality and relevance of the documents to the Dutch proceedings) was one whereby if the application was granted the property permitted to be retained would be transmitted to the Dutch authorities. If the Claimant now is correct then there would have been no point in Ouseley J making the determination that he did.
94. The Claimant thus has had two ample chances to argue the point before the High Court and the High Court has now, on two occasions on the very facts of this case, given rulings which accept that section 59 can be used as part of a process of mutual assistance. It is not open to the Claimant to re-argue the point now and it is abusive to seek to do so. In Johnson v Gore Wood [2000] UKHL 65 Lord Bingham addressed in broad terms the definition of abuse of process:

"The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice."

95. In Barrow v. Bankside Agency Ltd. [1996] 1 W.L.R. 257 Sir Thomas Bingham MR stated, at page 260:

"The rule in Henderson v. Henderson (1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed."

96. The point being raised is, upon the basis of now well established principle, not open to the Claimant to argue.
97. Thirdly, in any event, it is not a good point.
98. The warrants in the present case were initially authorised "under or by virtue of" the CICA 2003. The power of search and seizure under PACE can be deployed in furtherance of foreign mutual assistance under the CICA: See paragraph [65] above. The warrants issued authorised under the CICA 2003 were of course then quashed. However a power of cure arises under section 59(5)-(7) CJPA 2001 such that the deficiency was, in effect, cured by the process of judicial approval required therein. Nothing in section 59 CJPA 2001 precludes its application to the curing of (defective) warrants obtained to further foreign proceedings. The CJPA 2001 makes clear that the relevant powers of seizure "for the purposes of this section" (i.e. those that can be cured) include powers contained in Parts 1 and 2 of Schedule 1 PACE and "any power of seizure … conferred on a constable by or under any enactment, including an enactment passed after this Act". The power of cure is thus applicable to defective warrants authorised under the CICA 2003 and PACE 1984 in furtherance of foreign proceedings. Common sense tells one that it must be thus. Were it otherwise then the United Kingdom would apply a less favourable approach to foreign proceedings that it did vis a vis its own proceedings. It would lead to the very opposite of quick and efficient assistance and would leave the United Kingdom at risk of being in breach of its international and EU law obligations. Section 59 is part of the corpus of laws available which enable the United Kingdom to fulfill its international and EU law commitments and obligations and it should accordingly be construed purposively to achieve that end: See the principle of construction referred to at paragraph [68] above.
99. Mr Jones QC argued that the Order of HHJ Price QC in the section 59 proceedings merely permitted the MPS to retain the documents and other property but did not allow transmission by the Secretary of State. Mr Jones pointed out that the Judge himself recognised that the decision for transmission was not for him, but was for the Minister. In my view, the purpose of the Order (indeed its very raison d'être) permitting retention was to enable the Minister to decide to transmit (in accordance with her statutory duty). That is how the Order should be interpreted. Otherwise, the Order facilitates nothing but futility, which is not an interpretation that bears scrutiny or which accords with reality.

(c) Ground III: The Judge wrongly held that he could order retention purely for continuity purposes

100. The Claimant submits that there is no power under section 59 CJPA 2001 to make an order in relation to documents for continuity purposes. I disagree. Nothing in the Strasbourg Convention or in the EU convention excludes a requested state from seizing material which is relevant to foreign investigations for continuity reasons. The Dutch request included, inter alia, a request for material in digital form. It was explained in the Prosecutors report (paragraph [18] – cited above at paragraph [42]) that some of the digital material sought was to establish "continuity" and "providence" (which may be taken to refer to "provenance"). This was a subject which, according, to a review of the transcript, was aired before the judge in evidence and Ms Sachs was cross examined upon it. She explained the significance of continuity and provenance. The issue of continuity is, of course, very well understood in equivalent domestic proceedings. It had clear potential relevance to the Dutch proceedings. If a copy of a document is tendered in evidence and its authenticity or provenance is then challenged by the defendant the normal response of the Prosecution is to tender the original digital source in order to prove that the copy is authentic. If, however, that original digital version is destroyed the Defendant can demand that the Prosecution prove continuity in full knowledge and confidence that such is impossible. The digital material, so it was explained, related to matters largely concerning the financial affairs of the companies said to be at the heart of the fraud. In my view the Judge was perfectly entitled to be satisfied upon the evidence that he heard that the digital material was of substantial relevance to the Dutch proceedings for continuity reasons and to order its retention by the MPS lest the issue of relevance became live. In short there is nothing in the point.

E. Delay

101. In my view all of the grounds advanced fail on their merits. It has not in the circumstances been necessary to decide this case upon the basis of delay. I will nonetheless briefly set out my view upon delay.
102. The reasoned decision of HHJ Price QC was taken on 15^th August 2013; the application to challenge this judgment was made on 31^st October 2013. In my view, given the imminence of the criminal trial in the Netherlands starting on 3^rd December 2013, the Claimant was under a duty to move with real expedition and not to delay, as he did. Had proceedings been lodged shortly after 15^th August 2013 then, with expedition, they could have been determined quickly and that would have given the Minister the ability to transmit the document to the Dutch Authorities with at least some chance of the Dutch prosecutor being able to place them on the Court file in the criminal proceedings. The extreme tightness of the time available was obvious to all concerned; the effect of delaying 10 weeks to challenge the decision was also obvious. The inference that I draw from these dates is also obvious – the delay was tactical and intended to thwart transmission of the documents in time for the Dutch trial.
103. The Claimant submits in response that had he applied much earlier, and before the decision of the Secretary of State on 17^th October 2013, then he would have been vulnerable to an allegation that he had not exhausted his remedies because it was possible that the Secretary of State might decide not to transmit the documents in question. I do not accept this analysis. First, the Secretary of State has a duty to transmit: See paragraph [66] above. Once the Court permitted the MPS to retain the documents they had to be transmitted. Insofar as the Claimant seeks to justify the delay by reference to a perceived uncertainty as to the exercise of a power this is misconceived. Secondly, in any event, it is still not an impediment to expeditious issuance of proceedings since if the point had been taken then at worst the application could have been stayed pending the Secretary of State's decision. Thirdly, the strategy of the Claimant was in any event to write to the Secretary of State raising a host of arguments and objections a consequence of which would inevitably be to delay the taking by the Minister of the decision on transmission. The tactic was to delay the Secretary of State's decision and thereby defer the point in time when the challenge to the Crown Court decision had to be made. Fourthly, as set out above the Secretary of State encouraged the Claimant to bring proceedings following the judgment of HHJ Price QC on 15^th August 2013. In oral argument counsel for the Secretary of State explained that serious consideration had been given to the stance the Minister should take which would have the effect of least delaying the (inevitable) judicial review proceedings. Had the Claimant brought proceedings quickly the chances are that the Minster would have delayed her decision to allow all relevant arguments to be raised and resolved prior to the taking of a decision. There is nothing in a challenge to the Secretary of States decision that could not also have been raised in the challenge to the decision the Circuit Judge.
104. Instead the Claiming delayed until after the decision the Secretary of State on 17^th October 2013. Her letter was a detailed response to the 8 grounds raised in the letter of objection. The application for judicial review against the decision of the Judge (Application number CO16596/2013 was lodged on 31 October 2013 about 10 weeks after the judgment. The application against the decision of the Secretary of State (CO/16034/2013) was however brought on 22^nd October 2013, 9 days earlier.
105. Since it was known at all times that the December 3^rd 2013 trial date was looming a nigh on inevitable effect of the delay would be to increase very significantly the prospect of the High Court procedure clashing with the start of the trial in the Netherlands. This indeed is what happened: See paragraphs [46]-[52] above. It is hard to avoid the conclusion that this is exactly what the Claimant intended.
106. I have concluded that the Claimant's arguments are to be rejected on their merits. Had this not been the case, I would have found that there was serious delay in bringing proceedings and would have refused permission on this basis.

G. Postscript

107. The delay between the issuance of the Dutch letter of request to disposal of these applications and the position whereby the Minister can now in principle transmit the document has approached 3 years. This is, on any view, unacceptable. In this area of international and EU law the United Kingdom had a duty efficiently and expeditiously to assist the Dutch authorities to prepare for a trial which, when the request was first sent, was nearly three years away in the future.
108. It is important to recognise that the fault for this is not to be laid exclusively at the door of the Claimant. Any natural or legal person made the subject of the powers that may be exercised in this area is entitled to require the courts to protect his or her fundamental rights. Any process of mutual assistance must therefore build into its reckoning the distinct possibility of legal challenge. In this case fault lies all around. The MPS failed to take the requisite caution in seeking and obtaining the warrant; the time which elapsed from the Claimants application for judicial review of the warrant until disposal by the Divisional Court in December 2012 was circa 18 months (which was unacceptable); the time which has elapsed since then has been 12 months.
109. The United Kingdom has failed to provide the assistance to the Dutch authorities that the latter was entitled to expect; the process in this jurisdiction has not occurred swiftly or efficiently as the Strasbourg Convention and the EU Convention assume it should. And the trial in the Netherlands has proceeded with the prosecutors having had no chance to assess the value of or otherwise use in the trial process the seized material.
110. In future the following needs to be borne in mind: (i) the UKCA needs to ensure that at all times the Courts are kept fully aware of the state of progress of proceedings in the foreign jurisdiction since without this knowledge informed listings decisions cannot be made; (ii) the Courts need to ensure that listing decisions are taken with a view to ensuring as much expedition as is proper in the circumstances and if necessary designating a single judge to be responsible for case managing the process; (iii) the MPS needs to take greater care in seeking and enforcing warrants; and (iv), persons subject to mutual assistance order and interventions need to be made fully aware that in their entirely legitimate attempts to protect their rights, any unacceptable delay or abuse of process will be rigorously opposed and appropriate sanctions imposed.

Mr Justice Collins :

111. I agree with the reasons given by Green J for refusing permission in the claim against the decision of the Secretary of State and for dismissing the claim against Kingston Crown Court.
112. I also agree with what Green J sets out in the postscript. It is obviously important that any request for assistance made by a foreign state is dealt with as expeditiously as possible. This is all the more so when the requesting state is a member of the EU because of the Conventions to which Green J has referred. There has been a lamentable failure to act in an appropriate way.
113. Any request for assistance which is to be dealt with pursuant to the Crime (International Co-operation) Act 2003 must be dealt with as expeditiously as possible. The rights of the person affected by such a request must of course be protected and any application or claim made by that person will have to be dealt with. In this case the application for assistance was made by the Dutch authority in March 2011. The claims made by the claimant to try to prevent transmission of the relevant documentation were not finally dealt with until some 33 months had elapsed. A significant part of this unacceptable delay must be attributed to the court. Delay such as has occurred in this case will hardly impress the requesting authority and will convey a most unfortunate indication of the competence of our judicial procedures.
114. I endorse what Green J sets out in Paragraph 110 above.