Re McMahon

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Crill, Bailiff and Jurats Vint and Rumfitt:
• Judgment Date: 07 April 1993
• Date: 07 April 1993

ROYAL COURT

Crill, Bailiff and Jurats Vint and Rumfitt:

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

R.J. Michel for the first representor;

G.R. Boxall for the second representor.

Cases cited:

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

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

(3) Council of Civil Service Unions v. Minister for the Civil Service, [1985] A.C. 374; [1984] 1 W.L.R. 1174; [1984] 3 All E.R. 935; [1985] I.C.R. 14, explained.

(4) Craven v. Island Dev. Cttee., 1970 J.J. 1425.

(5) D.P.P. v. Humphrys, [1977] A.C. 1; [1977] Crim. L.R. 421, dictum of Viscount Dilhorne applied.

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

(7) Housing Cttee. v. Phantesie Invs. Ltd., 1985-86 JLR 96.

(8) Moore Stephens v. Procureur, Royal Court of Guernsey, September 7th, 1992, unreported, applied.

(9) Padfield v. Minister of Agriculture, Fisheries & Food, [1968] A.C. 997; [1968] 1 All E.R. 694; (1968), 112 Sol. Jo. 171.

(10) R. v. Comptroller-Gen. of Patents, [1899] 1 Q.B. 909; (1899), 80 L.T. 777; 15 T.L.R. 310; 68 L.J.Q.B. 568, distinguished.

(11) R. v. Criminal Injuries Compensation Bd., ex p. Lain, [1967] 2 Q.B. 864; [1967] 2 All E.R. 770; (1967), 111 Sol. Jo. 331, dictum of Lord Parker, C.J. applied.

(12) R. v. Director of Serious Fraud Office, ex p. Saunders (1988), 138 N.L.J. 243, distinguished.

(13) R. v. Director of Serious Fraud Office, ex p. Smith, [1992] 3 All E.R. 456, distinguished.

(14) R. v. Leicester Crown Court, ex p. D.P.P., [1987] 1 W.L.R. 1371.

(15) R. v. Race Relations Bd., ex p. Selvarajan, [1975] 1 W.L.R. 1686; [1976] 1 All E.R. 12; (1975), 119 Sol. Jo. 644, dictum of Lord Denning, M.R. applied.

(16) Rees v. Kratzmann (1965), 114 C.L.R. 63.

(17) Taylor v. St. Helier (Constable), 1980 J.J. 29.

(18) Tett v. States, 1970 J.J. 1461; further proceedings, 1971 J.J. 1805; on appeal, 1972 J.J. 2249.

(19) Tournier v. Nat. Provncl. & Union Bank of England, [1924] 1 K.B. 461; [1923] All E.R. Rep. 550; (1923), 130 L.T. 682; 40 T.L.R. 214; 93 L.J.K.B. 449; 29 Com. Cas. 129; 68 Sol. Jo. 441.

Additional cases cited by counsel:

Anisminic v. Foreign Compensation Commn., [1969] 2 A.C. 147.

Att. Gen. v. Thwaites, 1978 J.J. 179.

Bagg's Case (1651), 11 Co. Rep. 93.

Bonalumi v. Home Secy., [1985] Q.B. 675.

Eng Sui Hang v. Govt. of the U.S.A., Re, Supreme Court of Hong Kong, No. 3484 of 1989.

Habin v. Gambling Licensing Auth., 1971 J.J. 1637.

Harbours & Airport Cttee., In re, 1991 JLR 316.

International Gen. Elec. Co. of New York v. Customs & Excise Commrs., [1962] Ch. 784.

Merricks v. Heathcoat-Amory, [1955] Ch. 567.

Mesch v. Housing Cttee., 1990 JLR 269.

Mohammed-Holgate v. Duke, [1984] A.C. 437.

R. v. Bar Council ex p. Percival, [1991] 1 Q.B. 212.

R. v. Barker (1762), 3 Burr. 1265.

R. v. Bristol Crown Court, ex p. Bristol Press & Picture Agency (1987), 85 Cr. App. R.190.

R. v. Chief Constable of Kent, ex p. L (1991), 93 Cr. App. R. 416.

R. v. Cowle (1759), 97 E.R. 587.

R. v. Manchester Crown Court, ex p. Taylor, [1980] 1 W.L.R. 705.

R. v. Panel on Take-overs & Mergers, ex p. Datafin PLC, [1987] Q.B. 815.

R. v. Home Secy., ex p. Everett, [1989] Q.B. 811.

R. v. Southwark Crown Court, ex p. Customs & Excise Commrs., [1989] 3 All E.R. 673.

Renouf v. Att. Gen., [1936] A.C. 445 ([1936] UKPC 27).

Legislation construed:

Investigation of Fraud (Jersey) Law 1991, art. 2: The relevant terms of this article are set out at page 40, lines 3-29 and page 42, line 40 - page 43, line 2.

Texts cited:

de Smith's Judicial Review of Administrative Action, 4th ed., at 281; at 296; at 297 (1980).

Edwards, The Attorney General, Politics and the Public Interest, at 131; at 135 (1984).

Fraud Trials Committee Report, para. 1, at 1; para. 2.62, at 32 (1986).

Halsbury's Laws of England, 4th ed., vol. 1(1), para. 42, at 57.

Wade, Administrative Law, 6th ed., at 668-669 (1988).

Banking—banker and customer—confidential information—confidential information between banker and customer not protected when required in criminal proceedings in Jersey or abroad and disclosure properly requested by Attorney General under statute, e.g. Investigation of Fraud (Jersey) Law 1991, art.2—no provision for customer to challenge request

Constitutional Law—Attorney General—constitutional responsibility—Attorney General acting as principal law officer of Crown not answerable to States or Royal Court unless sitting as trial court—decisions affecting public interest generally not subject to judicial review

Administrative Law—judicial review—Attorney General—no general judicial review of Attorney General's decision to request information relevant to criminal investigations in Jersey or abroad—court has limited power in appropriate cases to examine (a) existence of power to make request; (b) its extent; and (c) whether exercised in appropriate form

The representors sought an order of certiorari to quash a decision of the Attorney General to issue a notice under the Investigation of Fraud (Jersey) Law 1991, art. 2 requesting information on bank accounts held or controlled by them and an adjudication by the court of the lawfulness of the decision.

The Attorney General served notice on a Jersey bank under the Investigation of Fraud (Jersey) Law 1991, art. 2 to provide information on accounts held or controlled by the representors in connection with a foreign criminal investigation. The first representor made the present application for an order of certiorari to quash the Attorney General's decision to issue the notice and the second asked the court to determine the lawfulness or otherwise of the decision.

They submitted, inter alia, that since the court had an inherent power to supervise the exercise by the Attorney General of discretionary powers conferred on him by statute, it could examine all the circumstances concerning the notice, including its merits and the facts giving rise to its issue.

In reply, the Crown submitted, inter alia, that the court had only a very limited power to examine the decision to issue the notice under the Law, namely (a) whether the Attorney General had the power to make the decision; (b) the extent of any such power; and (c) whether it had been exercised in the appropriate form. Beyond that, in the absence of any statutory provision for appeal, the court could not, and should not, judicially review the exercise of the Attorney General's discretion in matters arising from a criminal investigation.

Held, dismissing the representations:

(1) The Investigation of Fraud (Jersey) Law 1991 made no provision for an applicant—whether a suspect or a third party—to challenge a request for information made under art. 2 by the Attorney General. It was instead made clear in art. 2(9) of the Law that confidential information between banker and customer was not protected against the Attorney General's request for disclosure (page 42, line 38 - page 43, line 7; page 43, line 35 - page 44, line 7).

(2) Nor could there be judicial review of the Attorney General's decision. There was no Jersey authority for the proposition that the court had any general supervisory power over the Attorney General, whose position was unlike that of the States and its Committees engaged in the administration of the Island. The Attorney General, in exercising his discretion in matters arising from criminal investigations in Jersey and abroad, was acting as principal law officer of the Crown and was answerable neither to the States nor to the Royal Court except when it was sitting as a court of trial. In any event, the Attorney General's decision to issue the notice was a political one affecting the public interest generally and was accordingly outside the range of discretionary action which the court should review (page 44, lines 19-32; page 47, lines 25-42; page 49, line 31 - page 50, line 39).

(3) Nevertheless, the court had a very limited power in appropriate cases to examine (a) whether the Attorney General had the power to make the decision; (b) the extent of any such power; and (c) whether it had been exercised in the appropriate form. Since the notice issued under the Law had been properly made to assist the proper administration of justice and not merely to "rummage about" in the affairs of the representors, the court could do nothing to interfere with it and the representations would accordingly be dismissed (page 51, lines 18-39).

CRILL, BAILIFF: The court is sitting to consider the representations of the owners or controllers of two accounts with A.I.B. (C.I.) Ltd., styled J. and N. McMahon and Ronald Colin George Probets respectively. The matter arises from the issue by Crown Advocate Whelan, with the authority of H.M. Attorney General, on November 24th, 1992, of a notice to A.I.B. (C.I.) Ltd. under the powers conferred on him by the Investigation of Fraud (Jersey) Law 1991. A slightly less detailed notice had been issued by the Crown Advocate on September 4th, but no point arises here as, in a covering letter to the bank of November 24th, the Attorney General withdrew the earlier notice.

The principal request in the McMahon representation is for an order of certiorari to quash the Attorney General's decision to issue the notice.

That of the Probets representation is to adjudge the lawfulness, or otherwise, of the decision. Both representations, of necessity, carry the clear inference that the Royal Court has an inherent power to supervise the exercise by the Attorney General of a discretionary power conferred on him by statute.

The question before the court, therefore, is whether the Attorney General's decision to issue the notice of November 24th, and for that matter any similar notice under the statute, is open to judicial review by the court and, if so...