Acturus Properties Ltd and 47 others v Att Gen [Royal Ct]

CourtRoyal Court
JudgeBirt, Deputy Bailiff and Jurats Rumfitt and Allo,Birt, Deputy Bailiff and Jurats Querée and Allo),
Judgment Date12 January 2001
Date12 January 2001
Birt, Deputy Bailiff and Jurats Rumfitt and Allo

A.J. Clarke for the representors;

J.A. Clyde-Smith, Crown Advocate, for the respondent.

Cases cited:

(1) Ahluwalia (née Haley) v. Employment & Social Security Cttee., 2000 JLR N-1, distinguished.

(2) Att. Gen. v. Hall, 1995 JLR 102.

(3) Barclays Bank PLC v. Taylor, [1989] 1 W.L.R. 1066; [1989] 3 All E.R. 563, considered.

(4) Bassington v. H.M. Procureur, Guernsey Court of Appeal, December 2nd, 1998, unreported, not followed.

(5) Bertoli v. Malone, 1990-91 CILR 58; on appeal, 1992-93 CILR N-1, followed.

(6) Conway v. Rimmer, [1968] A.C. 910; [1968] 1 All E.R. 874; (1968), 112 Sol. Jo. 191, dictum of Lord Reid applied.

(7) Council of Civil Service Unions v. Minister for Civil Service, [1985] A.C. 374; [1984] 1 W.L.R. 1174; [1984] 3 All E.R. 935; [1985] I.C.R. 14; (1984), 128 Sol. Jo. 837; sub nom. R. v. Foreign & Commonwealth Secy., ex p. Council of Civil Service Unions, [1985] I.R.L.R. 28, followed.

(8) Frederiksen, In re, 1996-98 MLR 286; sub nom. Re Att. Gen. for the Isle of Man (1997/98), 1 O.F.L.R. 419, considered.

(9) Gouriet v. Union of Post Office Workers, [1978] A.C. 435; [1977] 3 All E.R. 70; (1977), 121 Sol. Jo. 543.

(10) Inland Rev. Commrs. v. Rossminster Ltd., [1980] A.C. 952; [1980] 1 All E.R. 80; [1980] S.T.C. 42; [1979] T.R. 427; (1979), 70 Cr. App. R. 157; 52 T.C. 160; 124 Sol. Jo. 18, applied.

(11) Knight v. Thackeray's Ltd., 1997 JLR 279, considered.

(12) McMahon, In re, 1993 JLR 35; on appeal, sub nom.McMahon v. Att. Gen., 1993 JLR 108, not followed.

(13) Planning & Environment Cttee. v. Lesquende Ltd., 1998 JLR 1, followed.

(14) R. v. Att. Gen., ex p. Ferrante, English High Court, July 6th, 1994, unreported, applied.

(15) R. v. Central Criminal Court, ex p. Propend Fin. Property Ltd., [1996] 2 Cr. App. R. 26; [1994] C.O.D. 386; sub nom. R. v. Home Secy., ex p. Propend Fin. Property Ltd., [1994] T.L.R. 196, followed.

(16) R. v. Commrs. of Inland Rev., ex p. Banque Intl. Luxembourg S.A., English High Court, June 23rd, 2000, unreported, considered.

(17) R. v. Director of Serious Fraud Office, ex p. Johnson, English High Court, January 12th, 1992, unreported, not followed.

(18) R. v. Director of Serious Fraud Office, ex p. Smith, English High Court, December 19th, 1991, unreported, not followed.

(19) R. v. Home Secy., ex p. Fininvest S.p.A., [1997] 1 W.L.R. 743; [1997] 1 All E.R. 947; [1997] 1 Cr. App. R. 257, followed.

(20) R. v. Inland Rev. Commrs., ex p. T.C. Coombs & Co., [1991] 2 A.C. 283; [1991] T.L.R. 80; [1991] STC 97; [1991] C.O.D. 339; (1991), 64 T.C. 124; 3 Admin. L.R. 501; sub nom. T.C. Coombs & Co. (a firm) v. Inland Rev. Commrs., [1991] 3 All E.R. 623, considered.

(21) R. v. Ministry of Defence, ex p. Smith, [1996] Q.B. 517; [1996] 1 All E.R. 257; [1995] T.L.R. 567; [1996] I.C.R. 740; [1996] I.R.L.R. 100; (1995), 145 New L.J. 1689; sub nom. R. v. Admiralty Bd. of the Defence Council, ex p. Lustig-Prean, [1996] C.O.D. 237; (1995), 8 Admin. L.R. 29, considered.

(22) R. v. Sol.-Gen., ex p. Taylor, [1995] T.L.R. 477; [1996] C.O.D. 61; (1995), 8 Admin. L.R. 206, considered.

(23) Saunders v. United Kingdom (1996), 23 E.H.R.R. 313.

(24) Sheikh Mahfouz, In re, C.A., February 17th, 1994, unreported, followed.

Additional case cited by counsel:

Associated Provncl. Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223.

Legislation construed:

Investigation of Fraud (Jersey) Law 1991, art. 2: The relevant terms of this article are set out at para. 2.

art. 3(3), as amended by the Investigation of Fraud (Amendment) (Jersey) Law 1997: The relevant terms of this paragraph are set out at para. 2.

European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4th, 1950; Treaty Series 71 (1953)) (Cmnd. 8969), art. 6(1): The relevant terms of this paragraph are set out at para. 55.

First Protocol (Paris, March 20th, 1952; UK Treaty Series 46 (1954), Cmnd. 9221), art. 1: The relevant terms of this article are set out at para. 55.

Text cited:

de Smith's Judicial Review of Administrative Action, 4th ed., at 286 (1980).

Administrative Law—judicial review—locus standi—person forced to disclose confidential information in investigation under Investigation of Fraud (Jersey) Law 1991 has locus standi to challenge decision to require disclosure

Criminal Law—fraud—investigation by Attorney General—decisions made under Investigation of Fraud (Jersey) Law 1991 subject to judicial review on normal grounds of illegality, irrationality and procedural impropriety—no review solely because Attorney General fails to give reasons for decisions under 1991 Law—public interest immunity in information relating to criminal investigations

Evidence—assistance in foreign proceedings—Attorney General's duties—no duty to seek evidence supporting allegations made by foreign jurisdiction requesting aid through powers under Investigation of Fraud (Jersey) Law 1991—may assume correctness of information, though can seek clarification or elaboration

Evidence—assistance in foreign proceedings—Attorney General's duties—duty to act proportionately, taking into account confidentiality of documents requested, for purposes of investigation under Investigation of Fraud (Jersey) Law 1991

The representors applied for judicial review of the Attorney General's decision to issue notices under the Investigation of Fraud (Jersey) Law 1991.

The representors were companies incorporated in the British Virgin Islands, two Jersey trusts and two companies incorporated in Jersey. S Ltd. was a company which was acting as administrator for the representors. The Attorney General received a letter of request from an agency of the Government of South Africa seeking his assistance with a criminal investigation there. That investigation was into the suspected fraudulent activities of a group of companies known as the Wheels of Africa Group, and there was reason to believe that the representors were involved in the activities under investigation. Pursuant to this, the Attorney General issued four notices under the Investigation of Fraud (Jersey) Law 1991, art. 2(1), the second of which required the production by S Ltd. of all documents relating to the representors.

The representors sought judicial review of this decision under r.12A of the Royal Court Rules. The Royal Court refused such leave on the grounds that r.12A only applied to civil proceedings, but allowed the representors to serve a representation under the inherent jurisdiction of the court (the proceedings are noted at 2000 JLR N-1). In support of their application, the representors presented three affidavits sworn by their advocate, which set out the points referred to in their submissions.

They submitted that (a) they had locus standi to challenge the notices as they were owed a duty of confidentiality by the recipient of the notices, S Ltd.; (b) Jersey authority suggesting a limited form of judicial review of decisions of the Attorney General should be departed from as it was out of touch with the wider test followed in similar offshore jurisdictions with virtually identical legislation, as could be seen through decisions of the Guernsey Court of Appeal; (c) the Attorney General's decision should be reviewed on the grounds that he (i) had failed to provide sufficient reasons for his decision to issue the notices, (ii) was under a duty to seek evidence to support the allegations contained in the letter of request and had not done so, (iii) had acted contrary to art. 1 of the First Protocol to the European Convention on Human Rights as he had deprived the representors of the peaceful possession of their documents, (iv) had acted contrary to art. 6(1) of the Convention, since ordering the production of the documents created the risk that S Ltd. would have to incriminate itself, and (v) had a duty to consult the Home Secretary before issuing notices under art. 2(1), as interpreted with regard to the 1959 European Convention on Mutual Assistance in Criminal Matters, and had not done so; (d) the second notice was in terms far wider than necessary, in that it required the production of all files relevant to the representors; and (e) the notices were invalid as they were addressed to the Wheels of Africa Group rather than a "person" as required by art. 2(1).

The Attorney General submitted in reply that (a) the representors did not have locus standi to challenge the notices as they were not the persons to whom they were addressed; (b) there were strong policy considerations for maintaining a narrower test for judicial review; (c) there was a presumption of regularity with regard to his decisions and the onus was on the respondents to show evidence inconsistent with his having reasonable grounds to believe that he should exercise his powers under art. 2(1); (d) the respondents had failed to produce any evidence which was inconsistent with his having such a belief; (e) in criminal investigations there was a public interest immunity which meant that there was no requirement that reasons be given for decisions; and (f) art. 1 of the First Protocol to the Convention had not been breached as the representors' original documents had been returned after copies had been made.

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 ( paras. 18-19).

(2) The earlier Jersey authority suggesting that judicial review of decisions of the Attorney...

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