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:

disclosure under the regulator's rules; voluntary disclosure (for example, from people not bound by the rules of the sport, or by bookmakers); and 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:

There has been wrongdoing (for example a corrupt betting activity); The respondent is involved in the wrongdoing (for example telephone services have been used to...