Law Report: SFO need not give information before interview: Ex parte Maxwell - Queen's Bench Divisional Court (Lord Justice Mann and Mr Justice Leonard), 6 October 1992

The Serious Fraud Office, when conducting interviews under the inquisitorial regime imposed by the Criminal Justice Act 1987, is not required to provide the interviewee with advance information of the subject matter of the interview.

The Divisional Court refused a renewed application by Kevin Francis Herbert Maxwell for leave to apply for judicial review of decisions of the Serious Fraud Office.

Since 13 November 1991 the SFO, under its powers under section 1(3) of the Criminal Justice Act 1987, has been investigating the affairs of the late Robert Maxwell. The applicant, Kevin Maxwell, was among those investigated. The SFO had executed search warrants and seized large amounts of documents, discs and tapes. On 18 June 1992 Mr Maxwell was arrested and charged with offences of theft and conspiracy to defraud. On 22 June the SFO required him to attend for interviews under section 2(4) of the 1987 Act. There had been other interviews since and more had been fixed.

On 14 August, Mr Maxwell's solicitors requested advance disclosure of information under rule 4 of the Magistrates' Courts (Advance Information) Rules 1985. The SFO did not accept that the 1985 Rules applied to interviews conducted under section 2 of the 1987 Act and also stated that as the investigation, including section 2 interviews, was still continuing, advance information could result in 'the course of justice being interfered with': rule 5 of the 1985 Rules.

The SFO said that some pre-interview information would be given, and where advance copies of documents were not given, there was no objection to Mr Maxwell having a short break to consider the documents.

On 1 September the City of London magistrates refused an application by Mr Maxwell for advance information under rule 4 and adjourned the proceedings. The director of the SFO intends to give notice of transfer of proceedings to the Crown Court.

Mr Maxwell applied for leave to challenge: (1) the SFO's refusal to supply advance information under rule 4; (2) the SFO's decision under rule 5(1); (3) the SFO's refusal to serve or disclose the evidence and unused material in the case of R v Kevin Maxwell and others. Mr Maxwell sought inter alia, orders of mandamus requiring the SFO to supply the material sought.

It was argued that: (1) rule 4 imposed a duty which was enforceable against the director; (2) there was a general duty on a prosecuting authority, such as the director, to make a timeous disclosure of all material in his possession and that duty was enforceable by mandamus; (3) the director, in conducting an investigation under section 2, was obliged to act fairly and an aspect of fairness was that the interviewee should be put in possession of documents available to the interviewer.

Michael Beloff QC and Clare Montgomery (Peters & Peters) for Mr Maxwell; Roger Kaye QC and Paul Garlick (SFO) for the SFO.

LORD JUSTICE MANN said that there were two concurrent forms of process: one was investigative and the other judicial. Each was instigated by the director in the exercise of powers under section 1 of the 1987 Act and each could proceed despite the currency of the other.

It was common ground that the purpose of rules 2, 4, 5 and 7 of the 1985 Rules was to enable an accused person to make an informed choice as to his mode of trial. Mr Beloff accepted that the present purpose of seeking advance information under the 1985 Rules was not the purpose envisaged by the 1985 Rules, but submitted that so long as the application was bona fide, the motive for seeking the information was immaterial, and that the proviso in rule 5(1) was not satisfied.

His Lordship entertained grave doubts whether rule 4 was enforceable by order of mandamus. However, assuming mandamus would lie to enforce rule 4, there was no arguable basis for mandatory relief. There was none because the court would not order performance of a statutory duty to achieve a purpose admittedly and plainly not that for which the duty was imposed.

Turning to the second argument, performance of the common law duty of disclosure was a performance which must in any particular case attend on the operation of any established procedures: see the Attorney General's guidelines relating to unused material (1982) 74 Cr App R 302, the procedure whereby information accompanied transfer to the Crown Court and the procedure for preparatory hearings. There would come a time for disclosure under those procedures. The time was not yet. No authority was cited for a mandatory order in advance of those procedures.

Turning to the third argument, it was important to appreciate that the power to interview was a power given for an express statutory purpose identified in section 2(1): an investigatory purpose and not a judicial one. An inquisitorial regime was specified by statute.

No case showed that an investigator was obliged to furnish information bearing on questions. The process of interview might be more fruitful if information was given in advance and the director perceived that. However, it might be damaging to serve information about the subject matter of questions, eg. the revelation of location of assets.

If a statutory investigator abused his position, that abuse could be corrected by judicial review. However, there was no force in any argument suggesting it was an abuse, in a statutory inquisitorial regime, to question when in the possession of documents which the interviewee had not, or had not recently, seen. There was no arguable case for the relief sought.

Mr JUSTICE LEONARD agreed.

Order nisi for costs against legal aid board.