R v Westminster Mags Court & ASIC ex p Hafner & Ors
Reference:  EWHC 524 (Admin)
Court: Divisional Court
Judge: Lord Phillips LCJ, Silber J
Date of judgment: 5 Mar 2008
Summary: Criminal evidence - Mutual assistance - Private documents - Article 8, European Convention on Human Rights - s.15, Crime (International Co-operation) Act 2003
Instructing Solicitors: Kingsley Knapley for Cs; Peters & Peters for Interested Party
Claimants applied for judicial review of a district judge’s decision in proceedings for the taking of evidence pursuant to a request for legal assistance under s. 13 the Crime (International co-operation) Act 2003 by a foreign regulator. The request was for answers to questions and the taking of documents. Third parties became aware that they were referred to in documents sought, and that disclosure would contravene legal professional privilege and Swiss laws of confidence. Proceedings to determine the evidence to be produced were ordered, giving a right of challenge to parties whose Article 8 rights were affected. The district judge did not follow this procedure and stated that Article 8 was not engaged. Cs sought to quash the district judge’s decision.
Whether the district judge conducting proceedings under the Crime (international Co-operation) Act 2003 had erred in deciding that Article 8 was not engaged and that there should be a right to challenge the disclosure requests made by the foreign regulator.
Acceding to the applicaton,
(1) Article 8 was engaged. Public authorities that obtained documents by compulsion engaged the right to respect for private life and correspondence in respect of obtaining, storage and subsequent use of that material.
(2) When considering evidence, a court nominated under s.15 had to have regard to the rights conferred by Art.8(1) of the Convention.
A reminder that business confidences can be protected as ‘correspondence’ under Article 8(1). These rights may be asserted by third parties that the request for mutual assistance does not directly relate to. In directing what disclosure should be given, a court will consider what will be necessary for the prevention of crime (within Article 8(2)) and restrain from disclosure documents not meeting that purpose.