QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE DINGEMANS
|R on the application of
|(1) Hardip Singh aka Peter VIRDEE
|(2) Dieter TRUTSCHLER
|- v -
|The National Crime Agency
|R on the application of
|(3) Hardip Singh aka Peter VIRDEE
|(4) Dieter TRUTSCHLER
|- v -
|The National Crime Agency
|The Central Criminal Court
Andrew Bird (instructed by GLD) for the First Defendant
Hearing dates: 19th April, 2018
Crown Copyright ©
Lord Justice Holroyde :
"In a communication dated 01 March 2017, the German defence counsels of the alleged perpetrator deny that the result of the above findings are the potential 'acts of bribery' by the alleged perpetrator Peter Singh Virdee to the benefit of members of the government (the acting Prime Minster … in particular) in Antigua and Barbuda. In addition to legal objections brought against these accusations, it is argued, in particular, that it was not the alleged perpetrator and also not Trutschler, but the minister there who made such a 'proposal' relevant under criminal law, and that this request was ultimately rejected by the alleged perpetrator and by Trutschler."
"What do you mean, 'I need 2 million'?, I said 'you can't just fucking take 2 million. You can't just say 'I need 2 million because I did a lot of gravy and this and you know, you guys are buying volume and that's why there should be more …'. I said 'That's why could afford to get fucked by you guys at 1.5 million on the back of the fact that we are buying volume. Had we not been buying volume, we could not have done that deal at 1.5 million. You go and you get 20, 30 people every day come into your office as Minister of Energy, you show me one of them saying to you they can do the same quality, same product everything for the price we have done it'."
Mr Virdee also said that "our friend" had wrongly claimed that Mr Virdee had promised his mother a car. He said to Mr Trutschler that there had been an occasion when he had been asked for his watch, and had taken it off and given it to the Minister. He continued:
"He gave me my watch back and he said to me 'Could you buy my mum a car?' I said 'I will think about it.' Then on my next visit he said 'You promised my mum a car'. I said 'I have no problem in buying you a car, no problem, but I can't be giving you chunks of the money that you are not entitled to beforehand and give money to the party and then go and buy you a car'. I said 'yes, we will buy you a car, it is not a problem, but just give us some breathing space.' And he's gone … and he has gone off on one to the point when he is just very obnoxious conversation and to the point you know I said to him 'You know what, go fuck yourself, I'm done with this, I can't be doing with this headache'."
"I am taking him and his entourage out for dinner this evening and then we have an after party, so be ready for a big bill, but in the interim he said he would like a nice watch. I said 'okay.' And then he called me this morning and he said 'Have you got my watch?', I said 'Oh I have got to pick your watch up'. So that is that. I spoke to him last Saturday, last Sunday at the airport hotel when he was in transit to Dubai and he said 'Look, I am in favour of this, I will send my minister down', I said 'But you telling me you are in favour of it, it doesn't help me, it really doesn't help me in what you are telling me because, you know, I need action behind the words, and at the moment I am not seeing any of that.' And I had a very stiff conversation with him, to the point I said 'Listen, you have got another 3, 3 and a half years. In 2 years' time you are going to start your election campaign, you are going to come to me and say 'Peter Virdee, I need some election funding' and I am going to say 'PM I can't help you, if I have not earned anything from this country' and then you are going to get upset and then we are going to fall out, so it is your call, how do you want to do this. …
Look, I have someone in the car … between me and you, I don't want to talk too much on the phone, I am going to have a very frank conversation with him, I mean as frank as I can get, and today's conversation is going to be 'Yes we are going to be in St Kitts' or 'No, we are not going to be in that region', simple, because I have not got time to go and entertain and go and meet him at airports and take him out for lunches and take eight of them out for dinner, and buy him a watch and buy him this and buy him shoes. I haven't got time for that. Now I don't mind nurturing a relationship, the guy is in power today, and if he ain't going to do nothing for me whilst he is in power, he is not going to do fuck all for me when he is out of power."
Mr Virdee went on to tell Mr Trutschler that he was on his way to Selfridge's to look for a watch:
"I had my guy out looking yesterday but they are just out of the budget I want to spend on him. I don't really want to be spending more than like 2,000 pound on him, on a watch."
"M: On the St Kitts agreement, how are we going to share that?
V: I don't think you want to be having that conversation on line [M] with the greatest of respect, you might want to have it with DT in person or me in person.
M: No, we can do it right now, I'm on a Vonage, it has nothing to do with Antigua.
V: But we are not on the Vonage.
M: It has nothing to do with Antigua. I am not doing nothing illegal, I'm getting you a job in St Kitts, I just wanted to find out, you know, because DT, when I spoke to DT about that he said that is a decision for you and Peter.
V: That is right, DT spoke to me and you mentioned to me, he said that originally you asked for 50%, then there was 30% and I agreed with you around 1.2 million, I said yes get the battery in and we can increase it. And then on St Kitts we can discuss.
M: No, let's move forward, let's not even go onto St Kitts yet, I never agreed to get a battery first to agree on anything. Antigua was a different thing. That is just sour grapes so let's not even speak about Antigua on the phone. We will speak about that in person so that is not correct, Antigua is something different. Let's speak about St Kitts -
V: Well, we need to sort Antigua out and then we can move on to St Kitts.
M: I don't want to speak on Antigua on the phone. We speak on Antigua in person. Or when you get a secure line you can call me."
In the conversation which followed, the Minister said he was not a greedy man, and mentioned a possible split of 50-50 or a three-way split. Mr Virdee in response spoke of the amount of money he would have to put up initially and the need to recover his cost of funds. The Minister then said he wanted 10% of the contract price, which he thought was 50 million with a profit element of 13.3 million dollars. Mr Virdee's response was –
"V: 13.3 million. You want 10% of 45 million which is 4.5 million, we are left with 8.5 million, there will be roughly 3 million to take care of what we need to take care of locally, take 2 million, 3 million, whatever it may be.
M: That is too much, come on, give me a break Peter. 2/3 million, come on.
V: He has already asked for two.
V: Our friend.
M: You have no right to be entertaining discussions with him about that, we agreed.
V: I have not entertained a discussion with him. I am just telling you what he has indicated.
M: I mean he can indicate whatever the fuck he wants to indicate.
V: Understood, but -
M: He gets a million, they are lucky.
V: Even if -
M: We are not giving him 2 million dollars Peter, come on, okay, I will determine that, I told you, leave those discussions to me. … I just prefer to come up with something on gross, if 10% is too much let's come up with something else. Okay. Think about it Peter, we got the incentive to close the thing with St Kitts, think about it. I really got to go. And DT we can speak next week when you come next Wednesday or Thursday morning, but think about it Peter.
V: I don't need to think about this. I'm not going to put in 20 million and walk away with 3.5 million. It doesn't work for me. If DT wants to do it he is more than welcome, if you want to do it, you are more than welcome. I am not front loading and financing and having all the bullshit I've had.
M: But we told you all your financing costs will come out, we said that, DT agreed and I agreed.
V: No, no, you said you want 10% of the gross.
M: Yes. The gross, yes. If 10% is too much we will work on a lower figure.
T: Look, gentlemen, why –
M: I am not working for nothing and you guys walk away with everything like in Antigua, I'm sorry."
The NCA's applications for production orders:
i) that on 12th March 2016 the claimants had discussed "our friend, the Minister of Energy" wanting "two million, a car for his mother and a donation to the party", and had further discussed Mr Virdee buying an expensive watch for the visiting Prime Minister of Antigua and planning to entertain him that evening;
ii) that on 5th August 2016 the claimants and the Antiguan Minister for Energy and Development had discussed how they were going to share the profits from the St Kitts agreement, that both claimants warned the Minister to be discreet, and that Mr Virdee said he had previously promised the Minister 1.2 million, but the Minister had asked for 1.5 million and had later asked for 10% of the total value of the project, which was too much in Mr Virdee's opinion;
iii) that the claimants had agreed to install solar energy equipment at the personal residence of the Antiguan Minister.
In each of those applications, the "sensitive reliable intelligence" was in fact the product of the German telephone intercepts which had been provided to the NCA. The third application was prepared at a later date, by which time the product of the intercepts had been provided by the German authorities to the NCA in evidential form pursuant to an international letter of request. It said that intercept material which had been legally obtained by the German authorities implicated the claimants in conspiring to bribe corrupt officials, indicated that they had discussed bribes demanded by and paid to the Antiguan Minister for Development and the Prime Minister of St Kitts, and included a recording of a conversation between the claimants and the Antiguan Minister negotiating the amount of money due to the Minister personally for introducing Mr Virdee to officials of St Lucia and St Kitts.
"1) The original information upon which this application relies is based on sensitive intelligence from a reliable source. I have no reason to doubt the accuracy of the intelligence. The intelligence is likely to be subject to a PII hearing should disclosure of it be sought.
2) There are reasonable grounds to believe that a bribe has been paid and this raises an obligation to investigate what may be serious offences under the Bribery Act 2010, as well as associated money laundering offences under the Proceeds of Crime Act 2002.
3) Virdee is likely to say that the payment and gifts do not amount to bribery. I am not aware of any legitimate system in Antigua and Barbuda, St Kitts or St Lucia whereby a fee may be paid to a Government Department or Cabinet Member for the award of a contract.
4) No material has been identified which is considered capable of undermining the grounds of the application."
In the third application, sub-paragraph (1) above was different.
The searches of premises by NCA officers:
"The decision of the NCA undated but received in writing not to return items seized following unlawful arrests and searches on 26th July 2017".
A detailed statement of grounds was attached to the claim form. In section 7 of the form, the remedy sought was stated as follows:
"A declaration that the arrests of the claimants and the searches and seizures of their property were unlawful.
Interim relief by the way of an interim injunction prohibiting the dissemination of any seized materials seized to third parties.
Damages in respect of the above.
An application for an interim injunction may be lodged within the next 48 hours unless the defendant agrees not to share seized materials until the issue of permission for judicial review is resolved".
"7/11/17 decision not to accept that material obtained under 9 production orders were obtained unlawfully due to the failure to give full and frank disclosure and the refusal to return/destroy the product from those production orders".
"The challenge to the decision of the NCA not to agree that they had acted unlawfully is quite hopeless, and a deliberate attempt to evade the rules in relation to extension of time".
The claim form and detailed statement of grounds were subsequently amended, so as to identify the challenged decisions as those of the CCC on 24th May, 16th June and 9th August 2017, and the relief sought as "a declaration that 9 production orders made at three without notice hearings, were obtained unlawfully and the quashing of those orders. The NCA failed to give full and frank disclosure to the judges concerned".
The legislative framework:
"2. The first set of access conditions is fulfilled if –
(a) there are reasonable grounds for believing -
i) that an indictable offence has been committed;
ii) that there is material which consists of special procedure material or includes special procedure material and does not also include excluded material on premises specified in the application, or on premises occupied or controlled by a person specified in the application (including all such premises on which there are reasonable grounds for believing that there is such material as it is reasonably practicable so to specify);
iii) that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and
iv) that the material is likely to be relevant evidence;
b) other methods of obtaining the material –
i) have been tried without success; or
ii) have not been tried because it appeared that they were bound to fail;
c) it is in the public interest, having regard –
i) to the benefit likely to accrue to the investigation if the material is obtained; and
ii) to the circumstances under which the person in possession of the material holds it,
that the material should be produced or that access to it should be given."
"Premises", for this purpose, include a vehicle: see section 23 of PACE.
"(8) The court must not make, vary or discharge an order unless the applicant states, in writing or orally, that to the best of the applicant's knowledge and belief –
(a) the application discloses all the information that is material to what the court must decide; and
(b) the content of the application is true."
"8. – Power of justice of the peace to authorise entry and search of premises.
(1) If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing –
(a) that an indictable offence has been committed; and
(b) that there is material on premises mentioned in subsection (1A) below which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and
(c) that the material is likely to be relevant evidence; and
(d) that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and
(e) that any of the conditions specified in subsection (3) below applies in relation to each set of premises specified in the application,
he may issue a warrant authorising a constable to enter and search the premises.
(1A) The premises referred to in subsection (1)(b) above are –
(a) one or more sets of premises specified in the application (in which case the application is for a "specific premises warrant"); or
(b) any premises occupied or controlled by a person specified in the application, including such sets of premises as are so specified (in which case the application is for an "all premises warrant").
(1B) If the application is for an all premises warrant, the justice of the peace must also be satisfied –
(a) that because of the particulars of the offence referred to in paragraph (a) of subsection (1) above, there are reasonable grounds for believing that it is necessary to search premises occupied or controlled by the person in question which are not specified in the application in order to find the material referred to in paragraph (b) of that subsection; and
(b) that it is not reasonably practicable to specify in the application all the premises which he occupies or controls and which might need to be searched.
(1C) The warrant may authorise entry to and search of premises on more than one occasion if, on the application, the justice of the peace is satisfied that it is necessary to authorise multiple entries in order to achieve the purpose for which he issues the warrant.
(1D) If it authorises multiple entries, the number of entries authorised may be unlimited, or limited to a maximum.
(2) A constable may seize and retain anything for which a search has been authorised under subsection (1) above.
(3) The conditions mentioned in subsection (1)(e) above are –
(a) that it is not practicable to communicate with any person entitled to grant entry to the premises;
(b) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence;
(c) that entry to the premises will not be granted unless a warrant is produced;
(d) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.
(4) In this Act "relevant evidence", in relation to an offence, means anything that would be admissible in evidence at a trial for the offence.
(5) The power to issue a warrant conferred by this section is in addition to any such power otherwise conferred.
"(1) This section and section 16 below have effect in relation to the issue to constables under any enactment … of warrants to enter and search premises; and an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below.
(2) Where a constable applies for any such warrant it shall be his duty –
(a) to state –
(i) the ground on which he makes the application;
(ii) the enactment under which the warrant would be issued; and
(iii) if the application is for a warrant authorising entry and search on more than one occasion, the ground on which he applies for such a warrant, and whether he seeks a warrant authorising an unlimited number of entries, or (if not) the maximum number of entries desired;
(b) to specify the matters set out in subsection (2A) below; and
(c) to identify, so far as is practicable, the articles or persons to be sought.
(2A) The matters which must be specified pursuant to subsection (2)(b) above are –
(a) if the application relates to one or more sets of premises specified in the application, each set of premises which it is desired to enter and search;
(b) if the application relates to any premises occupied or controlled by a person specified in the application –
(i) as many sets of premises which it is desired to enter and search as it is reasonably practicable to specify;
(ii) the person who is in occupation or control of those premise and any others which it is desired to enter and search;
(iii) why it is necessary to search more premises than those specified under sub-paragraph (i); and
(iv) why it is not reasonably practicable to specify all the premises which it is desired to enter and search.
(3) An application for such a warrant shall be made ex parte and supported by an information in writing.
(4) The constable shall answer on oath any question that the justice of the peace or judge hearing the application asks him.
"(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
(4) But the power of summary arrest conferred by subsection … (2) … is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question. (5) The reasons are …
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question."
"(1) A constable may search an arrested person, in any case where the person to be searched has been arrested at a place other than a police station, if the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others.
(2) Subject to subsections (3) to (5) below, a constable shall also have power in any such case –
(a) to search the arrested person for anything –
(i) which he might use to assist him to escape from lawful custody; or
(ii) which might be evidence relating to an offence; and
(b) if the offence for which he has been arrested is an indictable offence, to enter and search any premises in which he was when arrested or immediately before he was arrested for evidence relating to the offence.
(3) The power to search conferred by subsection (2) above is only a power to search to the extent that is reasonably required for the purpose of discovering any such thing or any such evidence.
(6) A constable may not search premises in the exercise of the power conferred by subsection 9(2)(b) above unless he has reasonable grounds for believing that there is evidence for which a search a search is permitted under that paragraph on the premises."
"(1) Subject to the following provisions of this section, a constable may enter and search any premises occupied or controlled by a person who is under arrest for an indictable offence, if he has reasonable grounds for suspecting that there is on the premises evidence, other than items subject to legal privilege, that relates –
a) to that offence; or
b) to some other indictable offence which is connected with or similar to that offence.
(2) A constable may seize and retain anything for which he may search under subsection (1) above.
(3) The power to search conferred by subsection (1) above is only a power to search to the extent that is reasonably required for the purpose of discovering such evidence.
(4) Subject to subsection (5) below, the powers conferred by this section may not be exercised unless an officer of the rank of inspector or above has authorised them in writing.
(5) A constable may conduct a search under subsection (1)
(a) before the person is taken to a police station or released … under section 30A, and
(b) without obtaining an authorisation under subsection (4), if the condition in subsection (5A) is satisfied.
(5A) The condition is that the presence of the person at a place (other than a police station) is necessary for the effective investigation of the offence.
"(1) The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises.
(2) The constable may seize anything which is on the premises if he has reasonable grounds for believing -
(a) that it has been obtained in consequence of the commission of an offence; and
(b) that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.
(3) The constable may seize anything which is on the premises if he has reasonable grounds for believing –
(a) that it is evidence in relation to an offence which he is investigating or any other offence; and
(b) that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.
(4) The constable may require any information which is stored in any electronic form and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible or from which it can readily be produced in a visible and legible form if he has reasonable grounds for believing –
(a) that -
(i)it is evidence in relation to an offence which he is investigating or any other offence; or
(ii)it has been obtained in consequence of the commission of an offence;
(c) that is necessary to do so in order to prevent it being concealed, lost, tampered with or destroyed.
(5) The powers conferred by this section are in addition to any power otherwise conferred.
(6) No power of seizure conferred on a constable under any enactment (including and enactment contained in an Act passed after this Act) is to be taken to authorise the seizure of an item which the constable exercising the power has reasonable grounds for believing to be subject to legal privilege."
The submissions of the parties: the first claim
"… the first case which deals directly with whether the authorities should obtain search warrants for planned and extensive searches of the sort carried out in this case or may dispense with the warrant process where arrests are planned".
"The appellants have brought this appeal in order to challenge the finding of the majority of the Divisional Court that RIPA was intended to extend to legal or medical consultations. The respondents did not cross-appeal against the making of the declarations, although their counsel did attempt to argue that the surveillance was proportionate, claiming to be able to do so on the terms of the certificate. The Secretary of State has however stated that she is willing to make an order under section 47(1)(b) of RIPA characterising surveillance of consultations between detainees and their legal advisers as intrusive surveillance, with the safeguards which go with that level of surveillance. If done, this would make consideration of directed surveillance of such consultations superfluous."
"Mr Simkus was not troubled with confiscation proceedings in the criminal prosecution, except that his assets were the subject of a restraining order. The prosecution decided not to pursue him under Part 2 of the 2002 Act. They did that because they thought they would recover more money for the public if the NCA proceeded under Part 5 of the Act for the reasons I have explained. I have no doubt that although each body took its own decisions they did so in a way which was designed to maximise the benefit of their work to the public. That is what they are for. The suggestion made by [counsel] who appears for Mr Simkus that in acting in concert those bodies may have been acting reprehensibly in some way is misconceived. The issue is whether, in acting as it has in the light of what had happened in the Crown Court, the NCA was guilty of abusing the process of the court."
"Where Parliament provides two different procedures which are available to the state in respect of the same subject matter, see section 240(2) of the Act, it is for the state to choose which to use. The state ought to choose the procedure which will produce the greatest benefit to the public, providing that no injustice is caused to the respondent. That is its duty, and that is what has happened here."
"We entirely accept that there can be situations in which a law enforcement agency has alternative powers or procedures available to it and is entitled to choose which to use. The key question in this case, however, is whether the procedure adopted by [the agency] was one which in the circumstances was lawfully available."
The submissions of the parties: the second claim
i) In the applications made on 24th May and 16th June 2016, reference was made only to "sensitive reliable intelligence", and the judges were not told that telephone conversations had been intercepted and that the recordings were available. The position was somewhat different in the third application, at which the judge was told that the material could be evidence in an English court if admitted.
ii) The transcripts of the intercepted calls were not put before any of the three judges, as they should have been, and the extracted product of the relevant intercepts was selected in a way which was unrepresentative of the conversation as a whole and thus misleading.
iii) Assertions of fact were made to the effect that both the Antiguan Minister of Energy and the Prime Minister of St Kitts had been paid bribes, when the recorded conversations did not justify any such assertion. Similarly, the terms in which the applications were made either asserted, or at least strongly implied, that PVE entered into a contract with St Kitts, when in fact there was no evidence that any such contract had ever been made.
iv) Nor were the judges told that both Mr Virdee and Mr Trutschler were aware (long before the dates when the production orders were sought) that telephone conversations had been intercepted, or that the German lawyers had made clear their case that requests for the payment of bribes had been made to them but had been refused. Instead, the judges were told – misleadingly – that Mr Virdee was likely to say "that the payment and gifts do not amount to bribery". The judges were therefore not informed that Mr Virdee's actual defence was that he had not made any relevant payment or gifts at all. Nor was the position made clear in relation to Mr Trutschler.
Mr Lennon also pointed out that none of the judges was told that the German authorities had taken a decision not to charge either Mr Virdee or Mr Trutschler with any bribery offence. He suggested that it is significant that the applications were prepared and presented by officers by the NCA without any apparent input from lawyers. In this regard, Mr Lennon pointed to The Queen on the application of Golfrate Property Management Ltd v The Crown Court at Southwark  EWHC 840 (Admin),  2 Cr App R 12 and other cases as showing the desirability of applications being drafted by lawyers. The result of the failures, he submitted, is that the judges may have understood – quite wrongly – that the "intelligence" had been provided by an informant and that bribes had in fact been paid.
i) The intelligence was accurately described. At the time of the first two applications, it was sensitive intelligence, because it had been provided by the German authorities on a police-to-police basis, and it was plainly reliable because it came from recordings of the claimants themselves. By the time of the third application it was still reliable, but it had now been provided in evidential form following an international letter of request and so was no longer sensitive. It was therefore differently, but again accurately, described to HH Judge Leonard QC. It was not necessary for the application to say more than was contained in those accurate descriptions, and in any event it is the content of the intelligence/evidence, not its form, which mattered. Mr Bird pointed out that when drafting applications of this nature, officers have to be alive to the possibility that at some future stage they may be disclosed to the suspects.
ii) The transcripts could have been exhibited (subject to a claim for PII), but to do so would have been contrary to the requirements of the Criminal Procedure Rules: see paragraph 67 above. The explanations which were given to each judge, of the grounds for the applicant's belief, were an accurate summary of what the intercept material showed.
iii) As to St Kitts, the summary referred to a "planned contract", which was accurate. None of the judges was told that a contract had actually been executed in relation to St Kitts.
iv) As to the defence case, Mr Bird submitted that the key question for a judge considering an application for a production order was whether there were reasonable grounds for believing an indictable offence had been committed. He pointed out that an offence under the Bribery Act was committed where the payment of a bribe was agreed or promised, and it was not necessary to prove an actual payment. He submitted by reference to the transcripts, in particular those of 12th March and 12th July 2016, that there was very clear evidence of an offence or offences. He accepted that the applications could have included a fuller reference to the likely defence, making clear that it was likely to be said that no bribe had been paid. But if that had been done, he submitted, the application would inevitably also have included fuller reference to the highly incriminating passages in the transcripts. However fully the likely defence were described, the transcripts provided an ample basis for believing that offences contrary to the Bribery Act had been committed.
Discussion: the first claim
Discussion: the second claim