DATES:  1992 May 5; 15

 

COUNSEL:  David Pannick Q.C. for the applicants.

A. W. H. Charles and Fernanda Pirie for the Treasury Solicitor.

 

SOLICITORS:  Frere Cholmeley; Treasury Solicitor.

 

JUDGES:  Lord Donaldson of Lymington M.R., Balcombe L.J. and Sir John Megaw

 

 

APPEAL from Mr. Simon Goldblatt Q.C. sitting as a deputy judge of the Queen’s Bench Division.

 

[Lord Donaldson of Lymington M.R. The appeal will be allowed for reasons to be given later.]

 

15 May. 

 

LORD DONALDSON OF LYMINGTON M.R.

 

Introductory

 

Proceedings are pending in the United States District Court for the Eastern District of New York in which representatives of the estates and families of passengers and crew members who died when Pan American World Airways Flight 103 crashed at Lockerbie on 21 December 1988 claim damages from Pan American World Airways Inc., Pan Am World Services Inc. and Alert Management Services Inc. On 24 January 1992 the Honourable Thomas C. Platt, Chief Judge of that court, issued a formal letter of request for international judicial assistance pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (1977) (Cmnd. 6727). The request was addressed to the Foreign and Commonwealth Office which is the central authority of the United Kingdom for the purposes of the Convention. It sought the examination of Dr. Thomas Hayes, formerly  [*858]  senior forensic scientist in the Forensic Explosives Laboratory of the Royal Armament Research and Development Establishment, Dr. Hayes having played a leading role in that capacity in the investigation of the crash.

 

The procedure for dealing with such requests is set out in R.S.C., Ord. 70 and often involves the Treasury Solicitor making application to the court under the Act of 1975: see Ord. 70, r. 3. The power to make orders under that Act pursuant to letters of request from a foreign court is assigned to the Queen’s Bench Division of the High Court: see Ord. 70, r. 1(2). Nothing turns on the procedure adopted in this case and it suffices to say that when, on 8 April 1992, the matter came before Mr. Simon Goldblatt Q.C., sitting as a deputy High Court judge, the application for an order under the Act of 1975 was made by those who are the defendants in the United States action and it was opposed by the Treasury Solicitor, although purists might perhaps have expected that any opposition would have been made by or on behalf of the Attorney-General, the objection being one taken on behalf of the Crown. That objection was quite simply that the courts of this country have no power to make the order applied for.

 

The judge ruled that he had power to make the order and did so, but action under that order was stayed pending the hearing of this appeal by an order of this court (Lord Donaldson of Lymington M.R. and Steyn L.J.) made on 14 April 1992. Skeleton written arguments were submitted by both parties in accordance with the usual procedures of this court and this was followed by oral argument in open court on 5 May 1992. At the conclusion of that argument we announced that the judge’s order would be set aside and the application refused for want of jurisdiction. However, in the light of the importance of this decision to the United States’ court, to the parties to the proceedings in that court and in clarifying the law of England, we announced our intention of expressing our full reasons in writing to be delivered at a later date. This we now do.

 

The issue

 

The issue is a narrow one, namely whether on the true construction of section 9(4) of the Act of 1975 and in the light of the facts that (a) Dr. Hayes was a servant of the Crown at the time when he made his investigation into the Lockerbie disaster, (b) he has since retired from the service of the Crown, and (c) the evidence sought relates to what he discovered when acting as such a servant, the court has any power to make the order sought.

 

Legislative history

 

The Act of 1975 was passed in May 1975, but only took effect from 4 May 1976. The Hague Convention had been signed on behalf of the United Kingdom in March 1970 and was undoubtedly in the contemplation of the legislature when passing the Act of 1975, notwithstanding that the Convention was only ratified by the United Kingdom on 16 July 1976: see In re Westinghouse Electric Corporation Uranium Contract Litigation  [*859]  M.D.L. Docket No. 235 (Nos. 1 and 2) [1978] A.C. 547, 608. It is common ground that any power to make the order sought must be found in the Act, since the English courts have no inherent jurisdiction to act in aid of a foreign court and, as a matter of English domestic law, treaties only take effect as part of that law to the extent that they are incorporated by statute, with or without modification. It was also, we think, common ground and is certainly correct that, against this background, any ambiguity in the Act should be resolved in favour of consistency between the Act and the Convention, the presumption being that the legislature was seeking to give effect to the principles of the Convention and would not lightly legislate inconsistently with the United Kingdom’s treaty obligations thereunder: see Garland v. British Rail Engineering Ltd. [1983] 2 A.C. 751, 771.

 

Public interest immunity

 

Although it has no bearing on our decision, it should be pointed out that had the courts had power to make the order sought, Dr. Hayes’ evidence would in any event have been circumscribed by two public interest immunity certificates issued on 13 April 1992 respectively by the Secretary of State for Transport relating to “security measures” and by the Lord Advocate in relation to potential criminal proceedings in Scotland. A third public interest immunity certificate of the same date issued by the Secretary of State for Transport, relating to particular details of the explosive device thought to have been involved in the disaster, has now been withdrawn. It should also be pointed out that the Crown, in the shape of the Ministry of Defence, has said that no objection would be raised to Dr. Hayes giving evidence in strictly controlled circumstances similar to those which applied in the case of evidence furnished by Mr. Feraday in accordance with an agreement dated 22 August 1991 exhibited to an affidavit of Mr. David Brummell dated 13 April 1992. The difference between the position of Dr. Hayes and Mr. Feraday lies solely in the fact that Dr. Hayes has, and Mr. Feraday has not, retired from the service of the Crown.

 

The Act of 1975

 

Section 1 provides that where an application is made which meets certain conditions, as is the case here:

 

“the High Court, Court of Session or High Court of Justice in Northern Ireland, as the case may be, shall have the powers conferred on it by the following provisions of this Act.”

 

Sections 2 to 6 inclusive then set out those powers, of which mention need only be made of section 3. This, so far as is material, is in the following terms:

 

“(1) A person shall not be compelled by virtue of an order under section 2 above to give any evidence which he could not be compelled to give - (a) in civil proceedings in the part of the United Kingdom in which the court that made the order exercises jurisdiction; or (b) . . . (3) Without prejudice to subsection (1)  [*860]  above, a person shall not be compelled by virtue of an order under section 2 above to give any evidence if his doing so would be prejudicial to the security of the United Kingdom; and a certificate signed by or on behalf of the Secretary of State to the effect that it would be so prejudicial for that person to do so shall be conclusive evidence of that fact.”

 

Section 9(4), which is the crucial provision, occurs under the general rubric of “Interpretation” and reads:

 

“Nothing in this Act shall be construed as enabling any court to make an order that is binding on the Crown or on any person in his capacity as an officer or servant of the Crown.”

 

The contrast between section 9(4) and section 3 lies in the fact that section 9(4) applies at the moment when the court is called upon to consider an application for an order under the Act, whereas section 3 applies only after and subject to an order being made. Furthermore the application of section 3 is not limited to officers or servants of the Crown.

 

The argument

 

Mr. David Pannick, appearing for the applicants, submitted that the language of section 9(4) focused not on the historic question of how the relevant information was acquired by the intended witness, but upon the contemporaneous question of the capacity in which the evidence is to be given. No one, he submitted, can give evidence “in his capacity as an officer or servant of the Crown” if he is no longer such an officer or servant. If section 9(4) was intended to have the effect contended for in the skeleton argument of Mr. William Charles, appearing for the Treasury Solicitor, appropriate words could easily have been found. Indeed they were found when Parliament enacted section 1(1) of the Official Secrets Act 1989:

 

“A person who is or has been . . . a member of the security and intelligence services . . . is guilty of an offence if without lawful authority he discloses any information . . . which is or has been in his possession by virtue of his position as a member of any of those services . . .”

 

Similarly in section 1(3): “A person who is or has been a Crown servant . . .”

 

As a matter of English law “The Crown” has no legal personality, but is a legal fiction denoting the executive branch of government which equally is devoid of legal personality: see Town Investments Ltd. v. Department of the Environment [1978] A.C. 359, 380-381. In order to overcome the problems which flow from this lack of legal personality, the Crown Proceedings Act 1947 was passed giving rights of action against the executive branch of government either by suing specified departments in their own name or by suing the Attorney-General on behalf of the Crown. But Parliament also took account of the fact that the Crown can only act through its officers or servants. In order to  [*861]  prevent the limited extent to which the Crown was amenable to the jurisdiction of the courts being outflanked and extended by suing individual officers of servants of the Crown, it was provided by section 21(2):

 

“The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown.” See Merricks v. Heathcoat-Amory [1955] Ch. 567.

 

In Mr. Pannick’s submission, section 9(4) of the Act of 1975 was intended to do no more than protect “the Crown” from being required by a court to give evidence in proceedings in a foreign court by stipulating that none of its officers or servants can be so required. So construed, section 9(4) would have some effect, because it would prevent a court from ordering a Crown officer or servant to give evidence of the executive branch’s current attitudes or policies, but it would be of very limited scope.

 

The improbability of Parliament having intended section 9(4) to have this limited effect was spotlit by a question from the court in the course of the oral argument. We know from the signed statement of the Secretary of State for Transport withdrawing the “explosive device” certificate of public interest immunity, and would in any event have assumed in the absence of evidence to the contrary, that “the Ministry of Defence retain the documents relating to Dr. Hayes’ work in respect of the Lockerbie air disaster.” The question was whether on any construction of section 9(4) the court would have power to order an officer or servant of the Crown currently working in the Ministry of Defence to produce or give evidence of the contents of these documents. In our judgment the answer has to be “No” and it would be peculiar in the extreme if Dr. Hayes could in effect be ordered to give evidence of their contents merely because he was no longer in Crown employment.

 

The Convention

 

Quite apart from the fact that we can detect no ambiguity in section 9(4) of the Act of 1975, the Convention gives Mr. Pannick no assistance. Article 11 provides that:

 

“In the execution of a letter of request the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence - (a) under the law of the state of execution; or (b) under the law of the state of origin . . .”

 

This is the basis of section 3 of the Act which, of course, only applies after an order has been made by the court for the taking of evidence. Article 12 provides separately for the circumstances in which the execution of a letter of request may be refused, namely,

 

“only to the extent that (a) in the state of execution the execution of the letter does not fall within the functions of the judiciary; or  [*862]  (b) the state addressed considers that its sovereignty or security would be prejudiced thereby.”

 

Mr. Pannick submits that the only justification for section 9(4) in terms of the Convention is that it is addressed to avoiding prejudice to the sovereignty of the Crown since the states party to the Convention can never have contemplated that one of their number could limit the scope of its own obligations simply by refraining from giving the judiciary power to execute letters of request in particular circumstances. The difficulty about this argument is that, if it is accepted, there is no scope for the operation of paragraph (a) of article 12. The states would always be under an obligation to give the judiciary all-embracing powers.

 

Conclusion

 

(1) The English court’s power to comply with letters of request from a foreign court is to be found in the Act of 1975 and nowhere else. (2) Section 9(4) is a paramount provision which limits all other provisions of the Act however expressed. (3) Factual evidence will always be historic in nature in the sense that the witness will be giving evidence of events and matters which have occurred before he gives evidence. Section 9(4), which operates at the time of the application for an order under the Act, looks back towards the time in relation to which the witness would give evidence if an order was made and not forward to the time at which he would do so. (4) The limiting words “in his capacity as an officer or servant of the Crown” leave the court free to order a witness to give evidence notwithstanding that at the relevant time he was an officer or servant of the Crown, if the matters in respect of which he is to give evidence did not come to his notice in that capacity, for example, the civil servant who, when on holiday or at home, happens to witness a road traffic accident. (5) The whole of the evidence sought from Dr. Hayes relates to matters which came to his notice in his capacity as an officer or servant of the Crown and accordingly section 9(4) applies. (6) Nothing in the Act or in the Convention prevents the Crown from facilitating the giving of evidence by its present or former officers or servants, subject to such conditions if any as it may deem appropriate, but the courts have no power to order anyone to give evidence in circumstances in which section 9(4) applies.

 

Appeal allowed with costs in Court of Appeal and below.

 

Leave to appeal refused.