Whose knowledge is relevant when seeking search warrants in response to overseas mutual legal assistance requests?
On Friday 14 June 2024, the High Court handed down judgment in MCML Ltd & Anor, R (On the Application Of) v Southwark Crown Court (Re Permission to Appeal Application) [2024] EWHC 1470 (Admin) (14 June 2024), in which Lady Justice Whipple and Mr Justice Hilliard granted MCML Limited’s (“MCML”) application for certification of two questions of general public importance.
The application arose from the Court’s judgment in MCML Ltd & Anor, R (On the Application Of) v Southwark Crown Court [2024] EWHC 861 (Admin) (17 April 2024), in which MCML had sought to quash search warrants obtained by HMRC on behalf of overseas authorities on the grounds of material misstatement and non-disclosure by the overseas authorities. The Court had rejected such application because any such non-disclosure and misstatement was by the overseas authorities and not by HMRC. MCML subsequently sought leave to appeal this judgment and certification of two questions of general public importance: (1) where a domestic authority applies for a search warrant following a request for mutual legal assistance from an overseas authority, is the duty of full and frank disclosure to be tested by reference to the knowledge of the applicant domestic authority or that of the requesting overseas authority? And (2) for the purposes of applying the statutory test that methods of securing material other than a search warrant are “bound to fail”, is this concerned only with the belief of the domestic applicant authority or is the knowledge and belief of the requesting overseas authority relevant to the statutory test? Leave to appeal was refused but the questions were certified, such that MCML can now seek leave to appeal from the Supreme Court.
As the Court acknowledged at paragraph 7 of its judgment, the issue of general public importance common to both of the questions is whether it is HMRC’s or the Requesting Authority’s state of knowledge or belief which is material. This issue is of fundamental importance, as it pertains to applications for search warrants by UK authorities, where (in particular) cross-border mutual legal assistance is being sought, by overseas authorities. Due consideration of these points will be of assistance to both litigants, as well as authorities, more generally.
The Rosenblatt team which successfully applied for certification of these questions of importance, included Justin Nimmo (Partner), Luther Kisanga (Legal Director), Charlotte Woodward (Senior Associate), Joelle Bisimwa (Associate), and Anthony Field (Partner).
How we can help
Rosenblatt has a well-equipped and robust team, which is focused on dispute resolution, investigations, and a range of other services. For enquiries, please contact Luther Kisanga (luther.kisanga@rosenblatt.co.uk).
