UK: Investigatory Powers: Obtaining Evidence Under The Norwich Pharmacal Jurisdiction

The depressing case of the criminal convictions of Mohammad Amir, Salman Butt and Mohammad Asif for spot-fixing during Pakistan's 2010 test series against England was a sobering reminder that corruption is a live problem in sport.

In between hacking the phones of celebs and the families of child abduction victims, it was the News of the World which had compiled the preliminary evidence leading to the initial exposé of the spot-fixing scandal. However, press involvement to this degree is a rarity (and may become even rarer if the effect of the Leveson Inquiry is to chill the press' investigative efforts), and the driving force for discovering corruption remains sports governing bodies.

There are three main methods by which a sports regulator can gather the evidence necessary to investigate and prosecute cases of corruption:

1. disclosure under the regulator's rules;
2. voluntary disclosure (for example, from people not bound by the rules of the sport, or by bookmakers); and
3. disclosure ordered by the Court. This article focuses on disclosure ordered by the Court.

Background

Following the House of Lords decision in the case of Norwich Pharmacal Co and others v Customs and Excise Commissioners [1974] UKHL 6, the Court has provided applicants with a way to seek disclosure from a third party to enable the applicant to establish evidence of a wrongful act or evidence of the identity of a wrongdoer.

Typically these "Norwich Pharmacal Orders" can be sought against (innocent) third parties, such as telephone or internet service providers, who have inadvertently facilitated a wrongdoing. The orders have proved extremely beneficial to sports regulatory bodies over the years, with particular significance in corruption and betting investigations, where the information obtained under a Norwich Pharmacal Order can at times provide the final piece of the jigsaw. Telephone records featured heavily in the prosecution's case in the spot-fixing scandal.

In recent times, as applications for Norwich Pharmacal relief have become more commonplace, so too has the Court's apparent willingness to grant them. What are their underlying principles?

Norwich Pharmacal Orders in practice

When considering whether it is appropriate to seek Norwich Pharmacal relief, the following criteria will need to be satisfied:

1. There has been wrongdoing (for example a corrupt betting activity);
2. The respondent is involved in the wrongdoing (for example telephone services have been used to facilitate the transmission of information to assist in the corrupt betting);
3. The respondent is likely to have relevant documents or information relating to the wrongdoing (for example telephone records) and the parameters of the application are specific: an application will be defeated if it is seen as a 'fishing expedition'; and
4. The Norwich Pharmacal Order is necessary in the interests of justice.

"Necessary in the interests of justice"

The Court has a wide discretion when considering whether to make a Norwich Pharmacal Order and must balance the interests of privacy and confidentiality against the likely benefit to the applicant. In striking this balance, relevant considerations will include the consequence if the order was refused and the availability of other remedies: in other words, how important is disclosure and are there other ways in which a satisfactory result can be achieved?

In the case of Nikitin and others v Butler and others [2007] EWHC 173 (QB) the court adopted a restrictive interpretation of the requirement of necessity and held that there were two questions to be asked, namely:

This approach has been cast in doubt by recent court decisions, which would appear to show a shift towards a more liberal analysis of the requirement of necessity. In R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65 (which concerned evidence on the treatment of a Guantanamo Bay inmate), the Court of Appeal held that although the intrusiveness of a Norwich Pharmacal Order meant that it should not be granted unless it was necessary in the interests of justice, it did not believe that the test should extend further than that.

Conclusion

Norwich Pharmacal Orders continue to provide a useful means to obtain disclosure of critical information from persons who are either not bound to provide information under the rules governing sport, or they are bound but refuse to comply with such requirements. The key is to ensure that this is not a fishing exercise and that a sufficiently developed investigative case is presented to the Court, which requires corroboration by third party records. We have, for example, been able to obtain them on a number of occasions in our work with the British Horseracing Authority ("BHA") (and in its previous guises as the HRA and the Jockey Club) in its investigations into betting-related corruption.

The continued availability of the remedy has been demonstrated by further very recent successes by the BHA in obtaining Norwich Pharmacal Orders. Adam Brickell, Head of Legal and Compliance at the BHA, has commented as follows:

"The BHA has noticed a slight change in approach from the Courts and the telephone companies in this area. Both seem to be more familiar, and more comfortable, with these orders. Telephone companies tend not to oppose disclosure requests and state that in their published policies; some even go as far as to provide their preferred draft wording for orders. At Court, Masters are prepared to grant orders; it is no longer necessary to go in front of a Judge. As a result, as long as the criteria above are satisfied, these orders can be obtained more quickly and more cheaply than before. However, a couple of words of caution: telephone companies may only retain records for a limited period of time (typically 12 months), so it is important to consider this at an early stage of an investigation; and secondly, a sports governing body will need to show it has made some efforts to obtain the records directly from the owner of the telephone before running to Court for an order."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.