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Martin KenneyManaging Partner at Martin Kenney & Co., Solicitors
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Obtaining Evidence for Foreign Proceedings not possible via Norwich Pharmacal

October 01, 2012 by Martin Kenney

 

The English High Court recently handed down a rather contentious decision in the case of R (on the application of Omar) v Secretary of State for Foreign & Commonwealth Affairs [2012] EWHC 1737 (Admin), where it held that a Norwich Pharmacal order cannot compel the provision of evidence for use in foreign proceedings. The Court distinguished evidence from information, while admitting that the distinction was not a clear one.   In this case the Applicants, (arrested in connection with the fatal bombing in Kampala during the 2010 FIFA World Cup Final) sought to compel the production of evidence that they would then use before the Constitutional Court of Uganda, where they had instituted proceedings claiming that their rendition from Kenya to Uganda, and alleged torture at the hands of agents of Kenya, Tanzania, Uganda, the U.S. and the U.K. tainted the criminal process against them.  Thus they did not require the information to enable them to inititiate proceedings, these were already underway, the disclosure that they sought from the U.K. Foreign Secretary was to enable them to prove their case, as opposed to bring it in the first place. 

 

Burnett J dismissed the application, he stated that the Norwich Pharmacal jurisdiction  must be “developed within the confines of the existence of the statutory regime through which evidence in proceedings overseas must be obtained. Norwich Pharmacal proceedings are not ousted, but where proceedings, such as the present proceedings, are brought to obtain evidence, the court as a matter of principle ought to decline to make orders for the provision of evidence, as distinct from information, for use in overseas proceedings”   

 

The Judge obviously meant that the courts will not order the provision of evidence for use in foreign proceedings, as opposed to information to enable those proceedings to be brought.  The turn of phrase however does not make this clear, and the distinction between evidence and information is one which has vexed the English Courts for some time. In Binyam Mohamed (No 1) [2008] EWHC 2048 (Admin), the court noted the distinction as being one related to enabling proceedings to be brought as opposed to providing evidence for use in them, but preferred to focus on whether what was being sought was in fact evidence.   In that case Binyam Mohamed sought information also from the Foreign Secretary, the Court considered however that what he sought was not evidence but information essential to a fair consideration of his case and a fair trial. In that case the Applicant had not been given any information about his custody, treatment or location during a defined period by the United States authorities. It was the Court’s view that without the information held by the UK Government, he could not have his case fairly considered by the Convening Authority or have a fair trial as he would not be able to try to establish the only answer he had to the confessions – namely that they were involuntary and abstracted from him by wrongful treatment. In summary the court found that the information was as essential to a fair trial in which he was the defendant as it would be if he were pursuing a claim.  Indeed the decision in Binyam Mohamed was relied on heavily by the Applicants in the instant case, but was rejected by the Court on the basis that the issue of statutory exclusivity had not been raised and therefore considered. The Foreign Secretary had argued that as Parliament had legislated in relation to the provision of assistance to overseas states in connection with legal proceedings, the courts should be respectful of the statutory regime and should not permit it to be bypassed through the use of the Norwich Pharmacal procedure. 

 

In England there is a series of statutory regimes for the provision of evidence for proceedings in foreign courts, for example criminal proceedings are governed by the Crime (International Co-operation) Act 2003. In this case it was accepted by the parties that the proceedings should be characterised as criminal.  Under the aforementioned statute however there is an exception where the provision of information would prejudice the security of the United Kingdom.  The compulsion of information from a person in his capacity as an officer or servant of the Crown is also exempted under this statute.  Thus, this statutory regime in effect did not assist the Applicants, furthermore, their claim could not succeed under the legislation either, as the request for information emanated from the Applicants, not the Constitutional Court of Uganda. 

 

The Court was not, in the end, satisfied that the condition of necessity had been satisfied as the Applicants had not applied for discovery in Uganda in relation to their arrest.  As to whether those for whom the Foreign Secretary was responsible were mixed up in the worngdoing complained of, the Court’s answer to this question was set out in a closed Annex.  In the Court’s judgment it was also irrelevant that there was no procedure in Uganda for the obtaining of evidence from the U.K. for use in its Courts.  The crux of the decision is that in the presence of a statutory regime, which leaving aside its exceptions, could in theory enable the information or evidence to be obtained, there is no room for Norwich Pharmacal relief.  In the Court’s view to enable evidence to be gathered via the equitable route where Parliament had clearly provided a statutory one, and especially had provided for legislative exceptions, would be to defeat the plain terms of a Statute. 

 

The Court’s refusal to follow the approach set down in Binyam Mohamed is noteworthy, it is not apparent that there was any consideration of whether the U.K.’s obligations under the various Conventions to which it is a signatory had an impact, such as for example the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or indeed the European Convention on Human Rights.  The Applicants in this case face the death sentence if convicted, it appeared to be accepted in this case that there was evidence of wrongdoing.  It is far from clear that the Applicants will be in a position to procure the initiation by the Constitutional Court of Uganda of a request for the information in question, as in the case of Binyam Mohamed, in the absence of the information required a fair trial cannot be guaranteed.  In this case it appears that the English judiciary have washed their hands of any responsibility to assist, albeit alleged, victims of torture.  This judgment represents a row back in terms of facilitating access to justice, it remains to be seen whether the decision will be appealled. 

 

  

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