Judicial Review Was Available as a Remedy ; FRIDAY LAW REPORT 9 JUNE 2006 Regina (on the Application of Hafner and Others) V Secretary of State for the Home Department ( EWHC1259 (Admin)) Queen's Bench Division, Divisional Court (Lord Justice Maurice Kay and Mr Justice Keith) 26 May 2006
Kate O'Hanlon, The Independent (London, England)
Decisions made in the exercise of the Secretary of State's discretion under sections 13(1), 14(1) and 15(1) of the Crime (International Co-operation) Act 2003 were, in principle, susceptible to judicial review.
The Divisional Court dismissed an application for judicial review by Benno Hafner and others in which it was sought to quash various decisions of the Secretary of State for the Home Department in connection with letters of request for information under the Crime (International Co-operation) Act 2003.
Mr Hafner was a Swiss lawyer practising in Zurich. The Australian Securities and Investments Commission (Asic) was a statutory body responsible for monitoring and enforcing corporate law, the stock exchange and securities trading in Australia. It was carrying out an investigation involving three men who were alleged to have used two Swiss financial institutions to conceal their own beneficial ownership of shares in an Australian company.
Asic sought the assistance of the Secretary of State for the Home Department under the 2003 Act, requesting him to exercise his powers in sections 13, 14 and 15, as it was seeking information from various people who were working in London. The Secretary of State nominated Bow Street Magistrates' Court under section 15(1) of the Act.
Mr Hafner came to hear of the request and the fact that he would be referred to in written replies to questions and was referred to in the request documents. Mr Hafner or his firm, which was also a claimant, had acted for all but one of the persons named in the questions which accompanied the request.
His solicitors wrote to the Secretary of State indicating that the Secretary of State had acted unlawfully in the exercise of his discretion in the nomination of a court in that the proceedings in England were duplicative. They also asked to be provided with a copy of the request from Asic. …