Wednesday, 4 July 2012

Norwich Pharmacal does not apply to evidence sought in aid of proceedings abroad?

This judgment from the P of the QB (Sir John Thomas) and Burnett J must have HMG rolling in the aisles.  This was a Norwich Pharmacal application from some chaps claiming to have been unlawfully rendered to Uganda with the alleged assistance of MI6.  They wanted any evidence MI6 might have about that alleged involvement to assist them in proceedings before the Constitutional Court of Uganda.  So like Binyam Mohamed, who sought evidence from MI6 to help him to defend himself against criminal charges in the USA, they issued a Norwich Pharmacal application.  Mohamed's case came before Thomas LJ and Lloyd-Jones J and who granted the application subject to PII (that led to another story before the C of A - see here).  Thomas LJ now P of QB seems to have changed his tune.  In Omar it would appear that Thomas or Burnett J or both took a point from the Bench (curious that it never been taken by Lord Sumption (as he is now) in Mohamed or by James Eadie QC (First Treasury Counsel) in Omar) that Norwich Pharmacal is not available where there is a statutory process for a foreign court to seek evidence in the UK - via letters of request.  As a a very junior counsel I used to spend some of my time conducting depositions for Spanish Magistrates before English District Judges where British holiday makers had had car accidents in Marbella etc.  This argument was said to have 2 flaws by the Claimants - which are that letters of request cannot be used to seek national security evidence nor can they be used to seek evidence from a servant of the Crown plus the Claimants told the Court that they would not make such an application in Uganda because of the allegedly corrupt nature of the justice and police system in that country.  Sir John batted away both of these objections - if Parliament had legislated to prevent a foreign court seeking national security evidence from MI6 in the UK then Norwich Pharmacal could not be used to subvert that statute and a UK Court could not go around breaching comity by making findings that judicial and police organs in other sovereign states are corrupt or ineffective.  Therefore, until such time as the C of A or SCUK overturn this judgment, the Admin Court has effectively found a means of ending NP applications relating to national security evidence to be used in foreign proceedings even before Parliament has passed JSB (see here).  As I said at the start - HMG must be cock-a-hoop.  

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