Kent Pharmaceuticals Ltd, R (on the application of) v Serious Fraud Office & Ors [2004] EWCA Civ 1494

Case No C1/2004/0030[2004] EWCA Civ 1494
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
(Mr Justice Maurice Kay and Mr Justice MacKay
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 11 th November 2004
Before
LORD JUSTICE KENNEDYLORD JUSTICE CHADWICKLORD JUSTICE DYSON
Between
R (Kent Pharmaceuticals Ltd)Appellant
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Stuart Isaacs QC and Clive Lewis (instructed by Brachers Solicitors, Maidstone) for appellantDavid Perry, Mark Lucraft and Ben Hooper (instructed by Treasury Solicitor) for respondent and David Perry and Ben Hooper the SS for the Home DepartmentPhilip Jones (instructed by Peters & Peters) for SS for Health
Judgment
[1]This is an appeal from a decision of the Divisional Court refusing to grant to the appellants (KP) any relief in respect of the decision of the respondent (SFO) to disclose to the Department of Health copies of documents seized by the SFO from KP. In the Divisional Court the Secretary of State for Health appeared as an interested party. In this court the Secretary of State for the Home Department has also appeared in the same capacity because it has emerged that one of the forms of relief claimed is a declaration of incompatibility in relation to primary legislation.[2]The basic facts are not in dispute. Early in 2002 the SFO was investigating allegations that drug companies were selling generic drugs, including penicillin-based antibiotics and warfarin, to the National Health Service at artificially sustained prices. That investigation, we were told, is still in progress, but KP have not thus far been charged with any offence.[3]In order to further the investigation the SFO on 2nd April 2002 obtained at Bow Street Magistrates’ Court 31 search warrants, only four of which were in any way connected with KP. The warrants were obtained under section 2(4) of the Criminal Justice Act 1987, and they were executed on 10th April 2002. Thus the SFO obtained a substantial amount of documentation from KP and others. KP attempted to challenge in the Administrative Court the decisions to seek, grant and execute the warrants, but leave to seek judicial review was refused on paper on 25th July 2002 and, after an oral hearing, it was also refused by a constitution of the Divisional Court presided over by the Lord Chief Justice on 22nd November 2002.[4]Part I of the 1987 Act deals with fraud, and in that Part section 2 deals with the investigatory powers of the Director of the SFO. They include the power to obtain documents by means of search warrants. Section 3 deals with disclosure of information which the SFO has obtained in the course of an investigation. So, where the SFO obtains information subject to a statutory obligation of secrecy that information may be used for a relevant prosecution but not otherwise (subsections (1) to (3)) and the Director is empowered by sub section (4) to agree to receive or supply information on the basis that it will only be used for a specified purpose. Then subsection (5), so far as relevant, provides – “…information obtained by any person in his capacity as a member of the Serious Fraud Office may be disclosed by any member of that Office designated by the Director for the purposes of this subsection –(a) to any government department or Northern Ireland department or other authority or body discharging its functions on behalf of the Crown ….(b) to any competent authority;(c) for the purposes of any prosecution in England and Wales, Northern Ireland or elsewhere; and(d) for the purposes of assisting any public or other authority for the time being designated for the purposes of this paragraph by an order made by the Secretary of State to discharge any functions which are specified in the order.” Subsection (6) deals with who are competent authorities for the purposes of subsection (5)(b). They include for example, an inspector appointed under Part XIV of the Companies Act 1985, an Official Receiver and others charged with duties to investigate and regulate. (a) to any government department or Northern Ireland department or other authority or body discharging its functions on behalf of the Crown …. (b) to any competent authority; (c) for the purposes of any prosecution in England and Wales, Northern Ireland or elsewhere; and (d) for the purposes of assisting any public or other authority for the time being designated for the purposes of this paragraph by an order made by the Secretary of State to discharge any functions which are specified in the order.”[5]So, in the present case, the Director of the SFO had express statutory powers to disclose the information obtained from KP to a government department. However any exercise of that power had to take into consideration the requirements of Article 8 of the European Convention on Human Rights. KP and the two individuals named in the four relevant warrants enjoyed a right to respect for their correspondence, and Article 8.2 provides – “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with law and necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, or the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.”[6]The Counter Fraud Service of the NHS had itself obtained evidence to suggest that anti-competitive arrangements in respect of warfarin had been put in place by pharmaceutical companies to take effect from January 1997 onwards, and the Secretary of State for Health was therefore anxious to start civil proceedings before it could be said that part of the claim was statute-barred. That was why on 20th December 2002 civil proceedings were commenced in relation to warfarin against three groups of companies. They did not include KP because at that stage the Secretary of State did not have sufficient evidence to justify joining KP as a defendant. The Secretary of State also sought from the SFO urgent disclosure of any warfarin-related documents obtained when the warrants had been executed in April 2002. On 13th January 2003 the SFO wrote to KP’s solicitors saying – “The Department of Health commenced proceedings in relation to some of the searchees in December 2002 in relation to warfarin and an urgent requirement for access to warfarin related documents has arisen. Immediate steps have been taken as a result of which we expect to send this week to the relevant parties copies of the warfarin documents which we have been able to identify.” What was contemplated was, of course, an exercise of the power granted to certain members of the SFO by section 3(5)(a) of the 1987 Act, and on 16th January 2003 the SFO wrote a further letter to KP’s solicitors saying – “I can inform you that the Director received a request from the Department of Health that she exercise her discretion under section 3(5) Criminal Justice Act 1987 to provide disclosure of documents obtained on the searches. That request was carefully considered and the Director has exercised her discretion under section 3(5). Accordingly on 14th January 2003 copies of the enclosed documents obtained from your client’s premises in April 2002 were supplied to the Department of Health.” So KP was told precisely what had been disclosed, but they had been given only a minimal amount of time in which to consider the proposed disclosure and to take any steps to try to prevent it.[7]Disclosure of the documentation enabled the Secretary of State to give further particulars in the proceedings already commenced, and to commence fresh proceedings on 11th February 2003 involving KP.[8]On 4th April 2003 KP commenced these proceedings in which they challenge the Director’s decision of 14th January 2003 to disclose to the Secretary of State documents seized from KP.[9]On 14th August 2003 the SFO disclosed six thousand more documents to the Secretary of State, and there are separate proceedings for judicial review in relation to that disclosure of which some warning was given to KP’s solicitors in a letter written to them by the Secretary of State on 22nd July 2003.[10]In the Divisional Court the first ground on which relief was sought was that some of the documents disclosed in January 2003 had been unlawfully seized in April 2002. That ground failed, and it is not pursued in this court.[11]The next unsuccessful ground was that the disclosure was not, for the purposes of Article 8.2 “in accordance with law”, and Mr Stuart Isaacs QC for KP has renewed that submission before us.[12]Ground 3 in the Divisional Court was that in January 2003 the SFO acted unfairly by not allowing time for representations prior to disclosure. That submission was upheld by the Divisional Court, but it did not lead to the granting of any relief. The court was, in the words of Maurice Kay J, “wholly unconvinced that KP could have made any meaningful representations had they had an opportunity to do so”.[13]There was also a fourth ground argued in the Divisional Court, namely that after the SFO has made a disclosure to a government department or other authorised recipient under section 3(5) it is obliged to inform the owner of the disclosed information. I have some difficulty in understanding how that could be said to arise in relation to the January 2003 disclosure because KP was told promptly what had been disclosed, but as to the fourth ground Maurice Kay J, giving the judgment of the court, said – “On the facts of the present case, if (as we have held) it was incumbent on the SFO to give KP advance notice of the intended disclosure to the DoH, with a reasonable time allowed for KP to make representations or (if so advised) to apply to the Court, it follows that, in the absence of such advance notice, it is incumbent upon the SFO to give notice as soon as possible after the disclosure for the same purposes.” As I have already indicated, no relief was granted.[14]Before us Mr Isaacs submits that the Divisional Court was wrong to hold that the Director’s exercise of her discretion under section 3(5)(a) of the 1987 Act to disclose documents on 14th January 2003 was in accordance with law as required by Article 8.2 of the Convention. Unless that is substantiated KP cannot obtain any relief, because there is no challenge to the conclusion reached by the Divisional Court in relation to relief if its conclusions in relation to the four grounds are allowed to stand.[15]Nevertheless Mr David Perry, for the SFO and for the Secretary of State for the Home Department, and Mr Philip Jones for the Secretary of State for Health, submit that the Divisional Court reached the wrong conclusions in relation to grounds 3 and 4 as to the need for notice, and as to whether the SFO did act unfairly in this case. An appropriate Respondent’s Notice has been served.[16]Mr Isaacs drew our attention to paragraphs 47 and 49 of the decision of the European Court of Human Rights in Sunday Times v UK (1979) 2 EHRR 245. The court made it clear that “prescribed by law”, (which for present purposes, is the same as “in accordance with law”) covers not only statute but also unwritten law. Then paragraph 49 states – “In the Court’s opinion, the following are two of the requirements that flow from the expression ‘prescribed by law’. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.” Mr Isaacs submits that the wording of section 3(5)(a) of the 1987 Act does not meet the requirements of precision. It does not enable the individual – “(1) To know how or in what circumstances the discretion may be exercised by the SFO; (2) To know for what purpose or purposes the government department may use the information disclosed; and (3) It imposes no restrictions on the disclosure or the use that may be made of the documents and provides no safeguards thereto.[17]As an example of how the European Court applies the principles set out in the Sunday Times case Mr Isaacs drew our attention to Domenichini v Italy (2001) 32 EHRR 68 which was concerned with an Italian law which permitted censorship of a prisoner’s correspondence when that course was ordered by a judge. At paragraph 32 the court said – “The Court reiterates that while a law which confers a discretion must indicate the scope of that discretion, it is impossible to attain absolute certainty in the framing of the law, and the likely outcome of any search for certainty would be excessive rigidity. In this instance, however, Law No. 354 leaves the authorities too much latitude. In particular, it goes no further than identifying the category of persons whose correspondence may be censored and the competent court, without saying anything about the length of the measure or the reasons that may warrant it.” Mr Isaacs submitted that the present case is stronger than the case of Domenichini because in that case the discretion was exercised by a judge who could be expected to give reasons, but of course knowing who takes the decision and that he will give reasons does not assist the affected individual to know in advance what the decision will be, and that was what was at the heart of the Sunday Times decision. So the law needs to be formulated with sufficient precision to enable the citizen to regulate his conduct. In Domenichini there does not seem to have been any formulation at all, and certainly, for example, there was no provision to exclude from censorship correspondence with lawyers.[18]Mr Perry submits that persons in the position of KP can know how the power granted to the SFO by section 3(5)(a) will be exercised. It is not an unfettered discretion, as can be seen from the statutory provisions which –(1) Limit those by whom it may be exercised. It must be a person designated by the Director for the purposes of the subsection:(2) Preserve obligations of secrecy imposed by statute or agreed to by the Director:(3) Restrict those to whom disclosure can be made. The identification of the bodies makes it clear that in almost every case disclosure will be sought or granted to assist in an investigation or a prosecution, but it may, as in this case, be sought for some allied purpose, which falls within the range of activities properly undertaken by a government department. It would not, Mr Perry submits, be practicable in legislation to spell out such purposes because they are so many and varied, but it is noteworthy that the nominated representative of the SFO is not required to disclose. He is granted a discretion, to be exercised having regard to the purpose for which disclosure is sought, the policy and objects of the 1987 Act (cf Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1030 B-C) and the way in which access to the documents has been obtained. So, as it seems to me, the representative would refuse to disclose if disclosure were sought simply to give the requesting government department a commercial advantage when negotiating with a third party, but that is not this case.[19]There are decisions of the European Court which at first sight seem to require legislation permitting infringement of the rights enshrined in Article 8 to be tightly worded. In Klass v Germany (1978) 2 EHRR 214 the court said at paragraph 50 – “The Court must be satisfied that, whatever system of surveillance is adopted, there exist adequate and effective guarantees against abuse.” In Herczegfalvy v Austria (1992) 15 EHRR 437 one of the complaints of a psychiatric patient related to interference with his correspondence, and at paragraph 91 the European Court said- “These vaguely worded provisions do not specify the scope or conditions of exercise of the discretionary power which was at the origin of the measures complained of. But such specifications appear all the more necessary in the field of detention in psychiatric institutions in that the persons concerned are frequently at the mercy of the medical authorities, so that their correspondence is their only contact with the outside world. Admittedly, as the court has previously stated, it would scarcely be possible to formulate a law to cover every eventuality. For all that, in the absence of any detail at all as to the kind of restrictions permitted or their purpose, duration and extent, or the arrangements for their review, the above provisions do not offer a minimum of degree of protection against arbitrariness required by the rule of law in a democratic society. According to the information provided to the Court, there has been no case law to remedy this state of affairs. There has therefore been a violation of Article 8 of the Convention.” The decision was obviously related to its own facts, but the reasoning indicates what the court considered that the domestic legislation could try to achieve. Then, in Valenzuela Contreras v Spain (1998) 28 EHRR 483. which concerned the monitoring of a telephone line, the court at paragraph 46, spelt out the sort of safeguards required in domestic law. But, as Mr Perry submitted, interceptions of telephone communications are rather a special case, in relation to which the European Court has called for a degree of precision of permissive legislation not encountered elsewhere, and in Chorherr v Austria (1993) 17 EHRR 358 the court said – “…the level of precision required of the domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument considered, the field it is designed to cover and the number and status of those to whom it is addressed.”[20]Mr Perry submits that any attempt to give further guidance in section 3(5)(a) as to the circumstances in which the discretion to make further disclosure may be exercised would introduce undesirable rigidity. I agree. It must always be exercised reasonably, and in good faith, and decisions of the European Court such as Z v Finland (1997) 25 EHRR 371 and MS v Sweden (1997) 28 EHRR 313, both of which dealt with disclosure of medical records, show that the European Court recognises the need for provisions sanctioning disclosure often to be worded in wide terms, even when dealing with material as sensitive as medical records.[21]As was pointed out in the Divisional Court, if the person affected learns of the disclosure he can challenge it in proceedings for judicial review on traditional public law grounds, and he may also be able to raise the issue of proportionality. If the material is used against him in criminal or civil proceedings he may also be able to challenge its use in the context of those proceedings, so if there is disclosure when there should not have been he will not normally be without redress. In the context of the present case disclosure was clearly appropriate, and Mr Isaacs does not argue otherwise. However restrictively section 3(5)(a) might be worded it would clearly allow the nominated representative of the SFO to disclose to a government department to assist that department to prosecute a civil action seeking to recover losses allegedly caused by the fraud under investigation.[22]So, in my judgment, the Divisional Court was right to conclude that the decision to disclose made on 14th January 2003 cannot be impugned on the basis that it was not made in accordance with law, and I would therefore dismiss KP’s appeal.[23]I turn now to the Respondent’s Notice. The statute does not require the SFO or any one else to inform the owner of documents seized by the SFO that their documents are about to be or have been further disclosed, and Mr Perry submits that the omission is deliberate because informing the owner should be the exception rather than the rule. Mr Jones even went so far as to submit that the owner should never be informed.[24]The Divisional Court when dealing with this issue referred to three decisions – Woolgar v Chief Constable of Sussex Police [2000] 1 WLR 25, R v Chief Constable of North Wales Police ex p Thorpe and another [1999] QB 397 and Marcel v Commissioner of Police [1992] Ch 225.[25]In Marcel’s case a subpoena duces tecum had been issued requiring the production by the police for use in civil proceedings of documents seized during a criminal investigation, and the court clearly envisaged the owner of the documents being informed and given the opportunity to intervene. At 259B Dillon LJ said - “Even where a subpoena has been served, the police should not disclose the seized documents to the advisers of a party to civil proceedings in advance of the attendance at court required by the subpoena, unless at the least the police have first given to the true owner of the documents notice of the service of the subpoena and of the wish of the police to produce the documents in advance of the attendance at court required by the subpoena, and have given the true owner a reasonable opportunity to state his objections, if any, to that course. ” Nolan LJ and Sir Christopher Slade both expressly agreed, and that was applied to the Director of the SFO by Sir Donald Nicholls V.C. in Morris v Director of SFO [1993] Ch 372, but not in relation to disclosure pursuant to section 3(5)(a). The disclosure was sought under section 236 of the Insolvency Act 1986.[26]In R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 the House of Lords was considering what a prisoner sentenced to a life sentence should be told about the judicial view as to the appropriate tariff, and the reasons of the Secretary of State for the tariff chosen. At 560D Lord Mustill said – “What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that(1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.(4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal administrative system within which the decision is taken.(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken with a view to procuring its modification; or both.(6) Since the person affected cannot usually make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.” The North Wales case concerned the disclosure by the police to a caravan site owner of the paedophile convictions of offenders who had served their sentences. At 428B Lord Woolf MR said – “Disclosure should only be made when there is a pressing need for that disclosure. Before reaching their decision as to whether to disclose the police require as much information as can reasonably practicably be obtained in the circumstances. In the majority of the situations which can be anticipated, it will be obvious that the subject of the possible disclosure will often be in the best position to provide information which will be valuable when assessing the risk.” So disclosure to the person affected was clearly envisaged, and the Master of the Rolls continued – “The applicants might have had information which would have caused the detective sergeant to re-assess the degree of risk.”[27]In Woolgar’s case the police had obtained a statement from a nurse when investigating a death at a nursing home, and wanted to pass that statement to her professional regulatory body. At 36E I said – “Where a regulatory body such as UKCC, operating in the field of public health and safety, seeks access to confidential material in the possession of the police, being material which the police are reasonably persuaded is of some relevance to the subject matter of an inquiry being conducted by the regulatory body, then a countervailing public interest is shown to exist which, as in this case, entitles the police to release the material to the regulatory body on the basis that, save in so far as may be used by the regulatory body for the purposes of its own enquiry, the confidentiality which already attaches to the material will be maintained.” Mr Perry does not take issue with that line of authority, but he submits that it does not apply where, as in the present case, there is a statute dealing directly with disclosure and providing its own statutory gateway. In such a situation he submits that the starting point should be Wiseman v Borneman [1971] AC 297, which concerned a tax payer’s application to be heard by a tribunal. At 308 B Lord Reid said – “Natural justice requires that the procedure for any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard and fast rules. For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice, and that to require additional steps would not frustrate the apparent purpose of the legislation.” In the present case Mr Perry, supported by Mr Jones, submits that it is far from clear that the statutory procedure is insufficient to achieve justice, and that to require additional steps might well frustrate the apparent purpose of the legislation. He invited our attention to the decision of the Court of Appeal Criminal Division in R v Brady [2004] 3 All E R 520 where it was held to be unobjectionable for one prosecuting authority to pass to another such authority information which it had obtained by the use of compulsory powers without notice to the person who has provided the material. At 528 C Tuckey LJ said- “It is self-evidently in the public interest that the appropriate prosecuting authority should have such material to aid its investigation which might well be considerably hampered by any requirements to obtain court approval or to give notice to the person who had provided the material.” That, as it seems to me, illustrates what is common ground, namely that the Director of the SFO should decide on a case by case basis, whether or not to advise the owner of documents which have been seized by SFO that the SFO proposes to disclose some or all of the documents pursuant to section 3(5)(a). In some cases it will be inappropriate to say anything to the owner of the documents because they are simply being passed to another investigating or prosecuting authority, or are required for investigation which may be hampered if the owner knows that the documents have been further disclosed. But in other cases, like the present, nothing will be lost by telling the owner of the documents (and in this case we are not concerned with any one else) what is happening to his confidential material. It may be that he will want to raise some objection. For example, he might want to have one or two documents containing commercially sensitive information retained by the SFO on the basis that they can be of no interest to the proposed recipient but could cause serious damage to the document owner’s legitimate business if they fell into the hands of competitors. So I would expect the SFO in normal circumstances to give notice of impending disclosure in sufficient time to enable the document owner to raise an objection of that kind. But that is not to say that the SFO should allow itself to become drawn into satellite litigation.[28]During the course of the submissions made to us we were reminded of the volume of material likely to be involved, and I am conscious of that. In his skeleton argument Mr Perry submitted that “the legitimate aim served by the disclosure regime would be severely undermined if consideration had to be given in every case to whether or not disclosure should be on notice”. But in any given case the SFO would have come into possession of the material as a result of the execution of a warrant, so it must be presumed to be already satisfied that all of the material falls within the terms of the warrant, and if the designated member of the SFO is to exercise properly the discretion entrusted to him by section 3(5)(a) he must have some knowledge of what he is deciding to disclose, and of the purpose for which it is required.[29]In some cases it may not be appropriate or practicable to give notice of proposed disclosure either at all or in time to enable the owner of the documents to have an opportunity to respond. The documents may be urgently required elsewhere, or it may appear that disclosure would hamper investigations. In such a case the designated member of the SFO would not, in my judgment, be acting unfairly if he decided to go ahead without giving the sort of notice which in other circumstances would be required. But, having disclosed the documents, he would then have to consider whether the owner of the documents should be told what had taken place. It may be that he should not be told in order to protect ongoing investigations, but in my judgment the starting point should always be that the owner of the documents is entitled to be kept informed rather than the reverse. That is what, as it seems to me, fairness demands, not only because the documents are his, subject to his right to confidentiality save insofar as his rights have been curtailed by statute, but also because he cannot exercise his remaining rights in any way unless he knows what is going on. If the matter is approached in the right way it may be that in most cases, for good reason, no notice will be given. That seems to me to be immaterial. What is important is to recognise the approach that fairness demands.[30]Mr Isaacs sought further support for his submissions in relation to the need for notice by drawing our attention to Article 6 of the European Convention, which, amongst other things, guarantees the rights of access to the court. He submits, with some force, that the document owner cannot seek the assistance of the courts to challenge impending or recent disclosure if he knows nothing of it, so keeping him in ignorance curtails his right and that curtailment needs to be justified.[31]In Golder v UK (1975) 1 EHRR 524 a prisoner was refused access to a solicitor whom he wanted to consult about the possibility of bringing libel proceedings against a prison officer whom he was alleged to have assaulted, after the allegation of assault had been abandoned. At paragraph 35 of the judgment the court said that one of the two questions which it had to consider was – “Is Article 6(1) limited to guaranteeing in substance the right to a fair trial in legal proceedings which are already pending, or does it in addition secure a right of access to the courts for every person wishing to commence an action in order to have his civil rights and obligations determined?” The court concluded at paragraph 36 that the right of access constitutes an element which is inherent in the right stated by Article 6(1), and that the refusal of access to a solicitor was a breach of that right.[32]In Tinnelly v UK (1998) 27 EHRR 249 the applicants were Catholics in the construction industry in Northern Ireland complaining to a tribunal of unfair discrimination in the awarding of contracts, but the presentation of their case was hampered because the Secretary of State had certified that contracts had not been awarded to them on security grounds, and the High Court felt unable to investigate the justification for the certificate. The European Court accepted at paragraph 72 of its judgment that the right of access to the courts is not absolute. It may be subject to limitations, as to which states enjoy a margin of appreciation, but in the end the European Court must be satisfied that the limitations – “Do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.” In Tinnelly’s case the issue of the certificates was held to constitute a disproportionate response to the applicants’ rights of access to a court or tribunal.[33]Mr Perry submits that Golder and Tinnelly can be distinguished because they were concerned with persons who wanted to commence or had commenced actions to have their civil rights and obligations determined, whereas KP is seeking to establish a prior right, outside the ambit of Article 6, namely a right to be notified of facts which might lead them to decide that there is a dispute which they want to bring before the court. In H v Belgium (1987) 10 EHRR 339 the European Court was concerned with the procedure for restoration to the roll of avocat in Belgium, and at paragraph 40 it was said that – “Article 6(1) extends only to ‘contestations’ (disputes) over ‘(civil) rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law.”[34]In MS v Sweden (supra) it was held at paragraphs 49 to 50 that a right to prevent a communication of medical data could not on arguable grounds be said to be recognised under international law, so Article 6(1) was not applicable.[35]If I am right as to what fairness requires under domestic law then Mr Isaacs does not need to resort to Article 6(1) and at this stage I would prefer to leave open the question of whether he is entitled to do so.[36]Turning to the particular facts of this case I am not persuaded that when the matter is considered in the round the SFO did act unfairly. Admittedly KP was given very little notice of the SFO’s intention to disclose copies of warfarin documents to the Secretary of State for Health, but there was some explanation for that. Although the documents had been seized in April 2002 the final decision about the legality of that seizure was not made until 22nd November 2002, and it seems to have been only thereafter that the Secretary of State for Health began to press the SFO to disclose. I do not regard the explanation for giving late notification as adequate, but the disclosure was followed almost immediately by full notification of what had been done, and the circumstances were such that the SFO could not have envisaged any meaningful objection being raised to what had been done. If KP had wanted to seek to restrain the Secretary of State for Health from using the documents they had an opportunity to do so, and, as the Divisional Court found, the reality is that KP could not and cannot prove damage of any kind.[37]For those reasons, which differ to some extent from the reasoning of the Divisional Court, I would dismiss the appeal and uphold the orders made by that court. I have not referred to the circumstances of the August disclosure, because that disclosure is not an issue in these proceedings, and having found no contravention of Article 8 I have not found it necessary to explore the question of possible remedies had a contravention been proved.[38]I agree that this appeal should be dismissed. For the reasons given by Lord Justice Kennedy it cannot be said that the disclosure of documents under the power conferred by section 3(5)(a) of the Criminal Justice Act 1987 was not “in accordance with law” for the purposes of article 8.2 of the Convention for the Protection of Human Rights and Fundamental Freedoms.[39]That is sufficient to dispose of the appeal. But, as Lord Justice Kennedy has pointed out, the Divisional Court upheld the applicant’s contention (under ground 3 of the challenge which was before it) that the Serious Fraud Office did not act fairly in making disclosure on 14 January 2003 without giving the applicant a reasonable opportunity to make representations in response to its letter of 13 January 2003 (in which notice of intention to disclose was first given). By a respondent’s notice the Director sought to upset that finding. In particular, she sought to persuade this Court to hold(i) that there was no requirement to give notice of intention to disclose in this case and(ii) that, in the events which happened, the Serious Fraud Office did not act unfairly. The Secretary of State for Health, as an interested party, has gone further, in submitting that there can never be a requirement to give notice of intention to disclose under the power in section 3(5) of the 1987 Act.[40]Lord Justice Kennedy has rejected the submission that there can never be a requirement to give notice of intention to disclose. I agree with his analysis of the authorities, and with his conclusion. Like him, I would hold that, unless there is good reason not to do so in the particular case, the person from whom documents have been seized under the powers conferred by the 1987 Act (and, if seized from some person other than the owner, the owner of the documents) ought to be told if and when the Serious Fraud Office determines that it will exercise the power to disclose those documents to others. I would hold, also, that – in the circumstances of the present case – it is not open to the Serious Fraud Office to contend that there was some good reason not to give notice of intention to disclose. Notice was given, before disclosure, on 13 January 2003. The letter of that date, the relevant passage in which has been set out by Lord Justice Kennedy in his judgment, is itself an answer to any such contention.[41]The unfairness in the present case was identified by the Divisional Court at paragraphs 28 and 32 of its judgment:
“28. . . . [Counsel] submits that fairness required the SFO to give KP the opportunity to make representations on the proposed disclosure and to give sufficient time for this to happen. If he is right, it is clear that, whilst the SFO forewarned KP of the request of the DoH for disclosure by letter dated 13 January 2003 and indicated that it expected to send the Warfarin documents to the DoH by the end of the week, in fact the disclosure was made on the very next day, 14 January. If there is a duty to allow a reasonable time for representations, it was not complied with in January.” 32. We do not doubt that . . . in some cases the desirability of informing an interested party so as to permit representations may be overridden by other factors. However, we are not persuaded that there were any such . . . factors in the present case in January . . . To that extent, we are satisfied that the SFO did not act fairly.”
[42]Lord Justice Kennedy has differed from the Divisional Court on that point. He has taken the view that, when considered in the round, the Serious Fraud Office did not act unfairly. I find myself unable to agree. The purpose of the letter of 13 January 2003 (which was a Monday) was to put the addressee on notice that the Serious Fraud Office was expecting to make disclosure of warfarin related documents to the Department of Health “by the end of the week”. The applicant was entitled to think that it had a few days to make representations or to seek an injunction. To pre-empt such representations, or an application for injunctive relief, by making disclosure on the following day – in the absence of some compelling reason why that had to be done – seems to me unfair. And, to my mind, it is no answer to that charge of unfairness to say that the Serious Fraud Office could not have envisaged any meaningful objection to disclosure being raised. As Lord Justice Kennedy has pointed out, in an earlier passage of his judgment, it is just because the person making the disclosure may not have the information which would enable him to identify, and so to consider, an objection to disclosure, that an opportunity to make representations ought, normally, to be given.[43]I should make it clear, however, that the failure to give a proper opportunity to make representations in response to the letter of 13 January 2003 did not prejudice the applicant. This is because, in the events which happened, had the applicant wanted to restrain the Secretary of State for Health from using the documents, it had an opportunity to do so (which it did not take); and, as the Divisional Court found, the absence of any proper opportunity to make representations to the Serious Fraud Office has not been the cause of any damage to which the applicant can point.[44]I agree that the appeal should be dismissed for the reasons given by Kennedy LJ. I also agree with his analysis of the fairness issue raised by the Respondent’s Notice. But for the reasons given by the Divisional Court and Chadwick LJ, I consider that the SFO did act unfairly on the facts of this case.

Order

Appeal dismissed and with no order re costs. Permission to appeal to House of Lords refused. (Order does not form part of approved judgment)

Cited in 6 later judgments