The Court of Appeal has confirmed that the English courts do not have jurisdiction to make a Norwich Pharmacal order that evidence be produced for use in foreign criminal proceedings: R (on the application of Omar) v Secretary of State for Foreign & Commonwealth Affairs  [2013] EWCA Civ 118. Rather, the regime by which a third party can be ordered to provide evidence for use in foreign proceedings is exclusively statutory. This broadly confirms the first instance decision on which we commented here and raises questions as to whether a similar approach would be adopted in relation to civil proceedings governed by the Hague Evidence Convention and the Evidence (Proceedings in Other Jurisdictions) Act 1975.

Court of Appeal decision

In a short judgment, the Court of Appeal (comprised of the Lord Chief Justice, Kay and Richards LJJ) concluded unanimously that the common law Norwich Pharmacal remedy does not penetrate an area that has been “fenced off” by statute.

Kay LJ compares the regime established by the Crime (International Cooperation) Act 2003 with Norwich Pharmacal principles in order to reason, adopting the approach of Lord Dyson in another case, that Parliament must have intended to displace the common law remedy because the relevant statutory factors are so different. On Kay LJ’s analysis, the recent and well-known case of R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2011] QB 218 would probably have been decided differently if this question of jurisdiction had been raised. Insofar as the Justice and Security Bill currently before Parliament aims to address the “governmental vulnerability” to Norwich Pharmacal arising from the Binyam Mohamed case, Kay LJ suggests that it is based on an erroneous assumption.

In addition to this important ruling on jurisdiction, a number of interesting points arise from the way the Court of Appeal approached this case. While obiter, they may be of significance in future cases.

Evidence versus information

A distinction was drawn at first instance between providing “evidence” versus “information”, so that even if the English court did not have jurisdiction to order the provision of “evidence” for use in foreign proceedings, it could still order that certain “information” be provided. Kay LJ was unimpressed by this distinction, describing it as elusive or illusory.

Test of necessity

As the High Court did at first instance, the Court of Appeal reasoned further that, even if it had jurisdiction, it would not have made a Norwich Pharmacal order in any event. The Court of Appeal concluded that the appellants had not demonstrated that Norwich Pharmacal relief was “necessary”.

Kay LJ said that, although the decision to make the application in England was “rational”, it was not the only rational approach and so the test of necessity was not satisfied. The appellants could have applied for disclosure against the Ugandan Government in the Ugandan courts, rather than seeking an English court order that the British government provide evidence. The principles of comity required the English court in these circumstances not to act without a request from the Ugandan court.

Mixed up?

The judgment also contains important dicta as to the requisite degree of involvement in alleged wrongdoing that an applicant must demonstrate in order to obtain Norwich Pharmacal relief.

It had been suggested at first instance that an applicant must establish that the respondent had facilitated wrongdoing. Kay LJ held that this was too high a threshold. Rather, a respondent to a Norwich Pharmacal application merely needs to be in some way involved in wrongdoing. The detailed allegations of alleged UK “involvement” in others’ alleged wrongdoing were reserved to a closed judgment.

What next?

It will be interesting to compare the progress of the Justice and Security Bill through Parliament and any application for leave to appeal to the Supreme Court in this case. One would expect an application for permission to appeal to be made because the jurisdictional point was so crucial. However, if the Bill becomes law, any further appeal in this case may be deemed of lesser general public importance because Parliament would have unequivocally changed the legislative landscape.