Jersey Unreported Judgments

[2005]JRC096

royal court

(Samedi Division)

 

13^th July 2005

 

 

 

 

 

Request for assistance from United States District Court.

 

 

Advocate C. Lakeman for the Representor.

Advocate J Hawgood for the Respondent.

 

 

 

judgment

 

the bailiff:

1.        This is a representation issued by Dr Oliver Hilsenrath, (to whom we refer as "Dr Hilsenrath"), seeking orders in relation to action taken by the Attorney General pursuant to Article 5 of the Criminal Justice International Co-operation (Jersey) Law 2001, (to which we refer as the "2001 law"). 

2.        The background to the application is that criminal proceedings have been instituted in the United States of America against Dr Hilsenrath alleging mail, wire and securities fraud, conspiracy to commit those acts and tax evasion.  That appears from a letter dated July 12, 2005 from the U.S. Attorney for the Northern District of California which is appended to an affidavit sworn by Rebecca Boxall, an assistant legal adviser in the Law Officers' Department. 

3.        The indictment has been amended several times but nothing, as it seems to us, turns upon that.  The current charges are as we have described them. 

4.        The trial is due to commence on 14^th November, 2005, and a pre-trial conference is scheduled to take place on 17^th October.  The relief sought by counsel for Dr Hilsenrath is two fold.

5.        In essence counsel for Dr Hilsenrath seeks:

A copy of the letter of request addressed to the Attorney General by the U.S. Attorney, and

An adjournment of the hearing which has been fixed for the taking of certain evidence before the Deputy Judicial Greffier on 21^st July and succeeding days.

6.        Article 5 of the 2001 law provides:

(1)       This Article applies where the Attorney General receives

(a)       from a court or tribunal exercising criminal jurisdiction in a country or territory outside the Island or a prosecuting authority in such a country or territory; or

(b)       from any other authority in such a country or territory which appears to him to have the function of making requests of the kind to which this Article applies a request for assistance in obtaining evidence in the Island in connection with criminal proceedings which have been instituted, or a criminal investigation that is being carried on, in that country or territory and the Attorney General is satisfied

i)         that an offence under the law of the country or territory in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed; and

ii)        that proceedings in respect of that offence have been instituted in that country or territory or that an investigation into that offence is being carried on there.

(2)       Where this Article applies the Attorney General may, if he thinks fit, issue a notice in writing

a)        specifying the evidence to be obtained in response to the request; and

b)        nominating a court or the Viscount to receive that evidence.

(3)       The Schedule to this Law shall have effect with regard to proceedings before a nominated court or the Viscount in pursuance of a notice under paragraph (2).

7.        The Attorney General has refused to release a copy of the Letter of Request received from the Unites States Attorney and the Notices issued pursuant to that request, on the ground that they are confidential documents and that Dr Hilsenrath has no right to see them.  Counsel for the Attorney General relies upon a decision of the English Court in R (Evans and another) -v- Director of the Serious Fraud Office 2003 1WLR 299 where, in relation to equivalent legislation in England, the claimants had sought disclosure of a letter of request.  That request was refused by the Secretary of State.  The claimant sought leave to seek judicial review of the Secretary of State's decision, but that application was refused.

8.        Counsel for Dr Hilsenrath accepts that on the authority of Evans the starting point is that documents are not liable to disclosure.  He submits, however, that in this case the interests of justice require the Letter of Request and the Notices to be disclosed.  In particular he submitted that the letter of request sent to the Swiss authorities contained material errors of fact, and he had therefore a strong suspicion that the Letter of Request addressed to the Attorney General might similarly contain errors.  The Letter of Request addressed to the Swiss authorities had been disclosed to Dr Hilsenrath.

9.        There is no authority directly in point in this jurisdiction.  Some assistance can however be drawn, in our judgment, from the decision in Acturus Properties Limited and others -v- Attorney General [2001]JLR043.  That was a case where a representation was made on behalf of a number of entities which were the subject of a criminal investigation.  A Jersey company had received notices to produce documents under the Investigation of Fraud (Jersey) Law 1991 relating to the affairs of the Representors.

10.      The applicants sought judicial review of the action of the Attorney General and challenged the issue of the notices under the 1991 law.  The Court held that the Representors did have locus standi to make the application but that there was a presumption of regularity on the part of the Attorney General.  The relevant part of the head note to the report of that case provides:

"Held, holding that the representors had locus standi but dismissing the application

(1)       The representors had locus standi to challenge the legality of the notices as the information sought concerned their confidential affairs and the recipients of the notices owed them a duty of confidentiality.  Any person whose confidential affairs were forcibly disclosed to investigating authorities should have standing to challenge the legality of the decision, as to hold otherwise would result in no-one being in a position to challenge its lawfulness.

(2)       The earlier Jersey authority suggesting that judicial review of decisions of the Attorney General pursuant to the 1991 Law was of a limited nature should be departed from.  Such decisions should be subject to judicial review on the normal grounds of illegality, irrationality and procedural impropriety.  There was no reason of public policy why the law of Jersey should be different from that in other jurisdictions which applied the traditional test in this area.  To this end, a decision of the Guernsey Court of Appeal, although not binding, could be highly persuasive, especially where the court was considering legislation in very similar terms to the relevant Jersey legislation.

(3)       Nevertheless, it had to be presumed that decisions of the Attorney General taken in pursuance of the 1991 Law had been properly taken and there was a clear onus on the representors to establish grounds for judicial review.  They had to adduce evidence which was incompatible with there being reasonable grounds for the Attorney General's belief that he should exercise his powers under the Law or alternatively that he had held such belief at all.  The representors' evidence came nowhere near to satisfying this test as they had shown nothing to suggest that the Attorney General had no valid grounds for his decision.  Judicial review proceedings could not be brought solely on the ground that the Attorney General had failed to give reasons for his decision since public interest immunity attached to information in the hands of any authorities conducting a criminal investigation.  Furthermore, the affidavits produced on behalf of the representors should have been sworn by someone with direct knowledge of the relevant matters, e.g. the beneficial owner of the appellant companies, and not by a solicitor on instructions, as had occurred in this case.

(4)       Similarly, the Attorney General was entitled to assume the correctness of the information contained in a letter of request and it would normally be inappropriate for him to question information given to him by the prosecuting authorities of a friendly jurisdiction.  He was under no duty to seek further evidence in support of the allegations made, though he should of course seek clarification or elaboration to ensure that any orders made under Article 2 (1) were not wider than necessary for the purposes of the investigation.

(5)       Nor was reliance on human rights of any assistance to the respondents' case.  It was unclear whether Article 1 of the First Protocol to the Convention had been infringed, as the original documents had been returned, but, even if it had, such interference could be justified as being in the public interest in this case.  Although the Attorney General had a duty to act proportionately and take into account that the documents sought were subject to confidentiality, the respondents had failed to produce any evidence that he had not observed these rules or that his decision was disproportionate.  Article 6 (1) was of no application as it concerned only criminal prosecutions, rather than, as here, merely an investigation which might or might not lead to such a prosecution.

11.      That was of course, a case where the criminal process was still at the investigatory stage.  In this case the requesting authority is seeking evidence for use at trial.  In so far as the actions of the Attorney General are concerned it seems to us on the face of it that the principles set out in Acturus would equally apply in relation to the Criminal Justice (International Co-operation) (Jersey) Law 2001 where a criminal investigation is in train.  There is a presumption of regularity on the part of the Attorney General.  The Attorney General's decisions are, however, subject to judicial review on the normal grounds of illegality, irrationality and procedural impropriety.  No such allegations are, however, made in this representation by Dr Hilsenrath.  If there had been, there might, we put it no higher than that, have been grounds for considering the ordering of the production of the letter of request in the interests of justice.

12.      We note that in Switzerland it is apparently the practice or perhaps even a legal obligation to release letters of request to a defendant in the circumstances of a case of this kind.  Although we can very well envisage circumstances in which there maybe grounds for withholding a letter of request in circumstances where evidence is sought from persons in Jersey, it seems to us, in general, that it is in the interests of justice that a letter of request should be disclosed.  In this case, however, we are satisfied that Dr Hilsenrath knows very well what is alleged against him and that no prejudice is, or would be, suffered by his not having had sight of the underlying letter of request. 

13.      As we understand the process of the courts in the United States, it will be open to him to object to the production at trial of any of the evidence obtained in Jersey.  Having reached that conclusion we turn to the request for an adjournment.  The Crown Advocate submits that an adjournment would disrupt the timetable for trial.  Whether that is right or not, we think that no compelling grounds have been made out by Dr Hilsenrath for postponing the taking of evidence from the witnesses resident in this jurisdiction.  The applications are accordingly refused.

[There followed a discussion on costs].

14.      My decision is that costs should follow the event and accordingly order Dr Hilsenrath to pay the costs of the Attorney General on the standard basis.  I refuse leave to appeal.

Authorities

Secretary of State for the Home Department ex parte Zardari [1998].

Greffier of the States -v- Les Pas Holdings [1998]JRC115.

Greffier of the States -v- Les Pas Holdings [1998]JLR Note 3A.

In R (Evans and another) -v- Director of the Serious Fraud Office 2003 1WLR 299.

Acturus Properties Limited and others -v- Attorney General [2001]JLR043.