AS TO THE ADMISSIBILITY OF
Application no. 9355/03
by KENT PHARMACEUTICALS LIMITED and Others
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 11 October 2005 as a Chamber composed of:
Mr J. Casadevall, President,
Sir Nicolas Bratza,
Mr M. Pellonpää,
Mr R. Maruste,
Mr K. Traja,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr Michael O’Boyle , Section Registrar,
Having regard to the above application lodged on 6 March 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants are Kent Pharmaceuticals Ltd, a limited liability wholesaler and manufacturer of generic drugs with its registered office in Ashford, Kent; Denis O’Neill, the managing director of the first applicant who was born in 1960 and lives in Hythe, Kent, and John Clark, an employee and former director of the first applicant who was also born in 1960 and lives in Dover, Kent. The applicants are represented by Messrs Brachers, solicitors of Maidstone, Kent. The respondent Government are represented by their Agent, Ms E. Willmott, of the Foreign and Commonwealth Office, London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In September 2000, in response to investigations into the reasons for a substantial increase in the cost of generic drugs to the National Health Service, the Serious Fraud Office (SFO) was asked to assist. On 9 December 2001, an article appeared in a national Sunday newspaper in the United Kingdom reporting that the SFO was engaged in an investigation into a potential £400 million fraud on the National Health Service (NHS) involving alleged illegal activities in the fixing of the pricing and supply of drugs.
On 27 March 2002, a district judge was asked to consider a written application for warrants to search premises on which it was believed there was evidence of criminal wrongdoing. In particular, the SFO held information which suggested that the increase in cost was caused by a criminal conspiracy or conspiracies within the drugs industry. On 2 April 2002, the district judge considered the application by the SFO – as far as the applicants were concerned - for warrants under Section 2(4) of the Criminal Justice Act 1987 (CJA) to enter and search business premises of the first applicant and the homes of the second and third applicants. The overall operation involved some 300 personnel, including police, lawyers, financial investigators and computer forensic specialists. The representative of the SFO stated to the district judge that “This is an application for warrants in connection with a very serious conspiracy to defraud, so the matters are fully set out in the information: the addresses to be searched, the justification for the searching, the details of what is presently known about the suspected offences and, sir, we have dealt in particular with the procedures to be adopted by the SFO in relation to legal professional privilege should that arise as an issue at any of the sites where searches are carried out”. The judge was then prepared to sign the warrants, which provided for the entry and search of the specified premises for the:
“... following documents including information recorded in any form from July 1997 through to December 2000 which appears to relate to any matter relevant to the investigation into production, supply and pricing of penicillin-based antibiotics ...
The information includes:
(a) Examples of identical or similar schedules and correspondence to those provided to the investigation.
(b) Material which is relevant to meetings at which it is alleged that the conspiracy was discussed: this includes reception logs, diaries, agendas, set-up paperwork including invitations, papers for discussions, minutes or notes”.
The warrants were executed on 10-11 April 2002. In the course of the search at the second applicant’s home, which began at 6.20 am according to the applicants (at about 6.30 am according to the Government), material was removed, including a confidential diary relating to the relationship of the second applicant and his wife, and some 300 computer-stored images of the second applicant’s wife, who is a model. The search of the third applicant’s home began at 6 am according to the applicants (at about 6.30 according to the Government) when six plain-clothed policemen and a policewomen sought entry. The third applicant was absent, and the third applicant’s wife arranged for the children in the house to be dressed and collected at 6.40 a.m.
Documents removed from all premises (the first applicant’s business premises, and the second and third applicants’ homes) included:
- current files relating to post-December 2000 business clients;
- tax documents relating to periods post-December 2000;
- large numbers of diaries, files, reports, paying-in books, visitor books;
- other documents allegedly outside the parameters of the warrants including (but not only) documents relating to the market in warfarin (which is not a penicillin-based antibiotic).
The SFO issued a press release about the operation which referred to the first applicant, amongst other companies.
The applicants applied for permission to apply for judicial review of the decisions to apply for and to issue the warrants, and the execution of the warrants. The application was refused by a single judge on 25 July 2002, and the applicants’ renewed application was refused on 22 November 2002. The Lord Chief Justice, giving the judgment of the High Court, first rejected the applicants’ contentions that the searches at the second and third applicants’ homes had not been carried out at a reasonable hour because it was important, if the warrants were to be executed in the least inconvenient manner, that the applicants should be present if possible. He next considered the applicants’ contentions that the SFO should have used the less onerous provisions of Section 2(3) of the CJA because, if the applicants had been minded to hide or destroy information, they would have done so as soon as information about the operation appeared in the newspapers in December 2001. The Lord Chief Justice accepted that that might have happened, but found that it would nevertheless be perfectly possible for a judge to come to the conclusion that there were reasonable grounds for accepting a Section 2(4) warrant.
The Lord Chief Justice found that the definition of “documents” in Section 18 of the CJA applied to information recorded in any form, and therefore included documents which were held on the hard drive of a computer. By reference to the SFO’s description of what occurred before the district judge, the Lord Chief Justice accepted that the district judge had given sufficient reasons to satisfy the legislation and also Articles 6 and 8 of the Convention. With specific reference to Article 8 of the Convention, he held “The need to consider Article 8 only arises if Sections 15 and 16 [of the Police and Criminal Evidence Act 1984] do not provide sufficient protection in themselves. In my judgment they do. Article 8 in a case of this sort does not add anything to what has been the position hitherto.”
As to the seizure of material, it was noted that Section 19 of the Police and Criminal Evidence Act:
“limits the powers of those executing the warrant as to what they are entitled to seize. It is argued that here it cannot be shown that it was necessary to seize the material and that there is no evidence that those executing the warrants did consider whether it was necessary to seize “in order to prevent it being concealed ... damaged ... or destroyed”. In my judgment, on the facts of this case ... it is obvious that there were concerns that if the material was not seized the very objective of the search would be defeated ...”
Finally, it was noted that there might be problems with the provision of copies of seized material to the applicants, and the applicants were given leave to apply to a master of the Queen’s Bench Division if difficulties arose. It was agreed that the transcript of the proceedings before the district judge would be forwarded to the applicants’ representatives: in this regard the applicants contended that they had not previously been aware of the transcript of the proceedings, although the Government note that the SFO’s Acknowledgement of Service in the judicial review proceedings expressly stated that the “SFO took the precaution of ensuring that the proceedings before the district judge were properly recorded”, from which they contend that it was clear that there was a full recording of what happened. Permission to apply for judicial review was refused.
B. Relevant domestic law and practice
Section 2(2) and (3) of the Criminal Justice Act 1987 (CJA) give the director of the Serious Fraud Office (SFO) power to serve a written notice requiring persons to answer questions or provide information or requiring the production of documents.
Section 2(4) of the CJA provides that where a justice of the peace is satisfied, in relation to any documents, that there are reasonable grounds for believing:
“(a) that -
(i) a person has failed to comply with an obligation under this section to produce them;
(ii) it is not practicable to serve a notice under subsection (3) above in relation to them; or
(iii) the service of a notice in relation to them might seriously prejudice the investigation; and
(b) that they are on the premises specified ...,
he may issue ... a warrant as is mentioned in subsection (5) below.”
Section 2(5) provides that:
“The warrant referred to above is a warrant authorising any constable;
(a) to enter (using such force as is reasonably necessary for the purpose) and search the premises, and
(b) to take possession of any documents appearing to be documents of the description specified in the information or to take in relation to any documents so appearing any other steps which may appear to be necessary for preserving them and preventing interference with them.”
Sections 15 and 16 of the Police and Criminal Evidence Act 1984 (PACE) provide for safeguards on the issue of search warrants and for the procedure on their execution. For example, they require an applicant to provide the court with information relating to the ground for the application, the statute relied on, and the premises to be searched and the articles sought, and they require a warrant to be executed by a police constable, at a reasonable hour, and they provide that a warrant must be executed within a month of its issue. Section 19 of PACE provides, amongst other things, that a constable who is lawfully on any premises may seize anything if he has reasonable grounds for believing:
- that it has been obtained in consequence of the commission of an offence, and that it is necessary to seize it to prevent it being concealed or destroyed (Section 19 (2)), or
- that it is evidence in relation to an offence which he is investigating or any other offence, and that it is necessary to seize it to prevent it being concealed or destroyed (Section 19 (3)).
The statutory provisions are supplemented by a Code of Practice, issued pursuant to Section 66 of PACE. The Code of Practice requires the police to check that information is recent and accurate, to ascertain as specifically as possible the circumstances and nature of the articles and their location, and to make reasonable enquiries about the premises and the likely occupier.
At common law, constables must not retain property which has been seized for any longer than reasonably necessary to complete their investigation or preserve it for evidence. Section 22 of PACE provides that anything seized for the purpose of criminal investigations may be retained for use as evidence at trial for an offence or for forensic examination.
The applicants alleged violations of Articles 8 and 6 of the Convention.
The first applicant claimed that the entry, search and removal of information from its business premises violated its Article 8 rights in that even if the investigation was related to the prevention of crime, the searches and seizures were not necessary or proportionate. In particular, it pointed out that the scale of the seizure was enormous, as was inevitable given the broad wording of the documents; that it was not possible to establish from the warrants what was, and what was not covered; that the adverse publicity was aggravated by the press release issued by the SFO; that certain documents which fell outside the scope of the warrant because they were not included in the time parameters permitted by the warrant should not have been seized at all.
As to the second applicant, it was contended that the entry into the home and the seizure of the documents were not necessary or proportionate as some of the information was highly personal and irrelevant to the investigation. In particular, the timing was disproportionate, as it would have been perfectly feasible to search an hour later. The diary and the photographs should not have been seized at all.
As to the third applicant, again it was contended that the timing of the search rendered it disproportionate.
The applicants also alleged a violation of Article 6 because they were not given any meaningful opportunity to challenge the decision of the district judge: they were not given notice of the hearing, the judge gave no reasons for his decision, and they did not receive a transcript of the proceedings before the district judge until after the decision of the High Court. They also complain that in the High Court proceedings, the judge relied on unsupported assertions by the SFO.
1. The applicants alleged a violation of Article 8 of the Convention as regards the search of the applicants’ business premises and homes, and the seizure and subsequent retention of materials in the course of the search. Article 8 provides, so far as relevant, as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ...for the prevention of disorder or crime....”
The Government contended that the applicants have failed to exhaust domestic remedies in a number of respects. It would have been open to them to bring civil proceedings in respect of the alleged seizure of or failure to return documents which fell outside the scope of the search warrant. The proceedings would have been for trespass to goods in respect of the seizure of allegedly extraneous material. In addition, as regards continued retention of goods, the applicants could have claimed that the police’s right to retain the goods had come to an end.
The Government accepted that the search and seizure of property constituted an interference with the right to respect for home or private life, but considered that in the present case the searches and seizure were in accordance with the law and for the prevention of disorder and crime, and that the interferences were proportionate. In particular, as to the issue of the warrants, the Government noted that before issuing the warrants under Section 2(4) of the Criminal Justice Act 1987, the district judge must have been satisfied that the director of the SFO was investigating a case of serious or complex fraud, that there were reasonable grounds for believing that relevant documents were on the specified premises, and that the service of a notice to produce the documents might seriously prejudice the investigation. They added that, as the High Court also found, Sections 15 and 16 of PACE were complied with, and that the seizure of material which might have gone beyond the scope of the warrants was permitted by Section 19(3) of PACE.
As to the personal and confidential material relating to the second applicant and his wife – the second applicant’s diary for 2000 and the computer-stored images of the second applicant’s wife - the Government submitted a detailed account of correspondence between the applicants’ solicitors and the SFO from which it is clear that the SFO went to considerable lengths to limit access to the non-relevant material, for example by creating a master copy of the diary for the investigation, made up of (a) pages containing no personal information (photocopy) (b) pages containing personal information which could be redacted clearly, and (c) pages containing personal information which had been written over potentially relevant material which could not be clearly redacted: the applicants and their solicitors were to have the opportunity to review the pages under category (c) and make any representations. The position appeared, in March 2004, to have been agreed by the applicants’ representatives. As to the computer-stored images of the second applicant’s wife, the SFO undertook in the course of the judicial review proceedings to supply a copy of any extraction made from the home computer so that the second applicant could be satisfied that the photographs of his wife were not being made available to the investigation. The applicants’ representatives did not anticipate problems with the proposal. A CD containing extracts from the computer image and which was made up of material which was likely to be evidence in any future proceedings was sent by the SFO to the representatives. It did not contain any photographs of the second applicant’s wife, as an employee of the first applicant later confirmed. The Government stated that the original image of the computer remains in the possession of the SFO, and no-one save the case controller or his deputy has access to it, and even then a series of technical processes is necessary before it can be accessed.
As to the timing of the searches, the Government noted that for obvious operational reasons, the searches all began at approximately the same time, and they were timed to commence before the occupants left for work. The presence of the occupants made it possible for them to oversee the search and make representations concerning the seizure of any item.
As to the issuing of a press release, the Government stated that where a company with a Stock Exchange listing is involved in a search and seizure operation, the SFO believes that it has an obligation to take steps to avoid a disorderly market, and it therefore notifies the Stock Exchange Regulatory News Service of its actions in such a case.
The applicants did not accept that any domestic remedies were available to them, but they did not contradict any of the Government’s factual contentions. They considered that the timing of the searches, the absence from home of the third applicant, the presence of the families, the disturbance of the families during normal sleeping hours, the second applicant’s known health problems and the absence of any explanation for conducting the searches at that time in such a way amounted to a violation of Article 8. They considered that in the absence of any domestic remedies to bring about return of the photographs and the diary, their continued retention was also in violation of Article 8. Similarly, as to the continued retention of material outside the scope of the search warrants, the applicants (save that they sought to exclude the warfarin documents from the scope of the application) maintained that in the absence of any effective domestic remedies, continued retention is in violation of Article 8.
In connection with the Government’s contention that the applicants have not exhausted the domestic remedies available to them, the Court recalls that an applicant may be required to pursue more than one avenue of challenge where he raises a series of complaints arising out of one search and seizure (see Jordan v. the United Kingdom, no. 22567/02, decision of 23 November 2004). In the present case, the Court is not required to determine each of the Government’s pleas of non-exhaustion separately, as the application is in any event manifestly ill-founded for the following reasons.
The Court agrees with the parties that the searches and the seizure of material in the present case amounted to interferences with the applicants’ various Article 8 rights. The Court considers that the searches and the seizures were all “in accordance with the law”, as required by Article 8 § 2, in that the Criminal Justice Act 1987 (“CJA”) provided for the issue of search warrants by a magistrate in serious fraud cases, and the Police and Criminal Evidence Act 1984 (“PACE”) and the Code of Practice issued under PACE, provided for extensive procedural safeguards. The seizure of the various categories of material was authorised under the common law or PACE, and the subsequent retention of the materials was also provided for by a combination of the common law and PACE (see the “Relevant Domestic Law”, above).
As to the existence of a legitimate aim for the searches and seizures, the Court notes that the Serious Fraud Office (“SFO”) were conducting a major investigation into alleged illegal activities in the fixing of the pricing and supply of drugs. Such an investigation in a commercial context may well be considered to call for unannounced searches and seizures, and the Court accepts that in deciding on and executing the measures, the domestic authorities were pursuing a legitimate aim, namely the “economic well-being of the country [and] the prevention of disorder or crime”.
The Court recalls that the notion of “necessity” implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. In determining whether an interference is “necessary in a democratic society” the Court will take into account that a certain margin of appreciation is left to the Contracting States, although the exceptions provided for in paragraph 2 of Article 8 are to be interpreted narrowly, and the need for them in a given case must be convincingly established (see, with further references, Buck v. Germany, no. 41604/98, § 45, ECHR 2005-).
As regards, in particular, searches of premises and seizures, the Court has consistently held that the Contracting States may consider it necessary to resort to such measures in order to obtain evidence of certain offences. The Court will assess whether the reasons adduced to justify such measures were relevant and sufficient and whether the proportionality principle has been adhered to. In this respect, the Court must first ensure that the relevant legislation and practice afford adequate and effective safeguards against abuse. Secondly, the Court must consider the particular circumstances of the case in order to determine whether the interference in question was proportionate to the aim pursued (see Camenzind v. Switzerland, judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, § 45). The criteria the Court has taken into consideration in determining this latter issue include the severity of the offence in connection with which the search and seizure was effected, the manner and circumstances in which the order was issued, in particular the availability at that time of other evidence available at that time, the content and scope of the order, having particular regard to the nature of the premises searched and the safeguards taken in order to confine the impact of the measure to reasonable bounds, and the extent of possible repercussions on the reputation of the person affected by the search (see Chappell v. the United Kingdom, judgment of 30 March 1989, Series A no. 152-A, § 60; Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, § 37; Funke v. France, judgment of 25 February 1993, Series A no. 256-A, § 57; Camenzind, cited above, § 46 and Buck, also cited above, § 45).
As to the safeguards afforded against abuse by the legislation and practice, the Court again notes the safeguards provided by the CJA and PACE. The district judge could only issue the warrants under Section 2(4) of the CJA if he was satisfied that the director of the SFA was investigating a case of serious or complex fraud, that there were reasonable grounds for believing that relevant documents were on the specified premises, and that the service of a notice to produce the documents might seriously prejudice the investigation. PACE and the Code of Practice provided in some detail the framework for the searches. The Court accepts that the statutory framework provided for reasonable safeguards in the present case. The applicants do not suggest that the legislation itself is in any way faulty.
As to the proportionality of the interference with the aim in the particular circumstances of the case, the Court first notes, and it is not contested by the applicants, that the investigation in the case was a major operation into suspected fraud which may have increased the National Health Service’s expenditure on drugs by over £200 million over a relatively short period. The scope of the investigation was much broader than the events relating to the applicants, and involved six companies which were listed at the Stock Exchange (including the first applicant) and 31 warrants; the searches of 10/11 April 2002 involved 28 premises and some 300 personnel.
The search was authorised, as it had to be, by a judge, who read the extensive information over the weekend and heard counsel for the SFO on the Monday morning. Inevitably, in a case of this kind, the applicants could not be given prior notice of the searches because – on the assumption that relevant materials were to be found – notice might well have undermined the purpose of the operation. Although the types of documents and articles referred to in the warrants were broadly phrased, it would have been evident to an investigator who was familiar with the investigation whether an article was included in the scope of the warrant. It is true that it was therefore not open to the applicants during the searches to contend that material was not covered by the warrant because they, unlike the investigators, did not know what material the SFO held. It was, however, open to them subsequently to ask for irrelevant material to be returned. As to the personal and confidential material relating to the second applicant’s wife, it appears from the Government’s account of the subsequent discussions between the applicants’ solicitors and the SFO (summarised above and not contested by the applicants) that the SFO went to considerable lengths to come to agreement with the applicants as to how access to certain documents could be limited. There is no indication in that correspondence that the applicants’ solicitors were particularly interested in having any specific items returned.
The Court agrees with the Government that the searches had to be co-ordinated.
As to the material allegedly outside the scope of the warrants which was taken from all applicants’ premises – principally, documents which were dated after December 2000, although the warrants authorised a search for information “recorded in any form from July 1997 through to December 2000” - the Court notes that Section 19 (3) of PACE – independently of authority flowing from a search warrant - authorises the seizure of material if there are reasonable grounds for believing that it was evidence in relation to an offence under investigation, and that its seizure is necessary to prevent it being lost or destroyed. It was therefore open to the authorities to seize material “reasonably believed” to be connected to the conspiracy under investigation, and if the belief had been unreasonable, the applicants could have challenged it.
In respect of the early morning searches at the second and third applicants’ homes, the Court notes that the Lord Chief Justice held that the hour was appropriate because it was important for the applicants to be present if possible. It cannot be said that the searches began so early – the earliest time which has been put forward is 6.00, in respect of the search at third applicant’s home – that the hour was plainly unreasonable.
As to the material which was taken away from the residential premises, the applicants do not contest the Government’s account of the correspondence between the SFO and the applicant’s solicitors. It is accordingly not clear whether the applicants maintain their claim in this respect. In any event, in the light of that correspondence, it is not open to them to complain about the continued retention.
Finally, in connection with the publicity given to the case by the SFO, the Court notes that the publicity took the form of a press release concerning the six companies involved in the investigation (including the first applicant) which had a Stock Exchange listing. Listed companies are frequently and reasonably subject to greater requirements of transparency in the public interest than strictly private companies and individuals, and the Court sees nothing untoward in the fact or content of the press release. The Court would underline that the second and third applicants, and their families, were not referred to in the press release.
Having reviewed the various heads of complaint, the Court finds that the interference with the respective applicants’ Article 8 rights was proportionate to the legitimate aim being pursued.
If follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be dismissed pursuant to Article 35 § 4.
2. The applicants also allege a violation of Article 6 of the Convention, which provides, so far as relevant, as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The proceedings which the applicants brought were to challenge the search warrant in the case and its execution by way of an application for permission to apply for judicial review, that is, a “public law” remedy. The applicants did not pursue private law remedies, such as an action for trespass to goods, although, as the Lord Chief Justice commented, it would have been open to them to do so. The Court will assume that Article 6 applied to the proceedings, although it would note that the determination at issue began only once the applicants applied for permission to apply for judicial review.
The application to the judge by the SFO for a search warrant provided the applicants with a certain procedural safeguard, in that the proposed warrant was tested by an authority independent of the SFO. That does not, however, mean that the applicants should have been given notice of the application for the warrant as to do so – assuming there to have been relevant material in the respective premises – might have defeated the objective of the operation. Although the judge did not give reasons for his decision as such, given the statutory framework of the application for the warrant, he plainly considered that the conditions of Section 2(4) of the CJA were met. The Court therefore considers that the applicants were not prejudiced by having to mount their challenge to the search warrant decision on its terms. The Court also notes that the document on which the applicants contend the Lord Chief Justice unfairly relied was the 87-page Acknowledgement of Service, and there is no suggestion that it was not open to the applicants to challenge any errors or misrepresentations in that document.
The Court thus sees no unfairness or lack of access to court in the judicial review application made by the applicants, and concludes that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3, and that it must be declared inadmissible pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’Boyle Josep Casadevall
KENT PHARMACEUTICALS LIMITED and Others v. THE UNITED KINGDOM
KENT PHARMACEUTICALS LIMITED and Others v. THE UNITED KINGDOM