[2025] EWHC 2243 (KB)

The Glasenberg Disclosure Restriction Application concerns Mr Glasenberg’s application to withhold inspection of one document, the MLAT Request. Such letters of request for mutual legal assistance are inter-governmental documents setting out a request for investigative information or other legal assistance. The MLAT Request at issue in the present case was made by the DPPO and the FIOD to seek mutual legal assistance from the Swiss OAG and was dated 3 November 2023. I have already set out details of the Dutch Investigations in Section B.4 (paragraphs 59 to 63 above).

As already foreshadowed (at paragraph 64 and following above), but as will be repeated at this point for ease of reference, Mr Glasenberg’s involvement in the Dutch and Swiss investigation into GIAG was as an interviewee. As explained in paragraphs 11 and 12 of the first witness statement of Ms Osborne (Osborne 1):-

It was as a result of the Swiss OAG providing Mr Glasenberg’s Swiss counsel with a copy of the MLAT Request that it came to be within Mr Glasenberg’s control. It is not a document that he created or to which he was a party, and the reason he has a copy is because the Swiss OAG wanted to afford him due process before providing his interview statements to the DPPO/FIOD thereunder.

As the MLAT Request is within his control in the circumstances described, Mr Glasenberg considers the MLAT Request to be a document falling within his disclosure obligations under the CMC2 Order and he duly identified it in his first disclosure certificate.

As regards inspection, his solicitors sought permission from the Swiss OAG and the DPPO/FIOD to provide the MLAT Request to the Claimants. The Swiss OAG confirmed it had no objection to that. However the DDPO/FIOD did object in the correspondence that is addressed below. This led to Mr Glasenberg making the Glasenberg Disclosure Restriction Application.

On 20 January 2025 Mr Glasenberg’s lawyers (Steptoe International(UK) LLP) emailed Ms Schaafsma (Senior Public Prosecutor at the DPPO) seeking the DPPO’s consent. Its terms are instructive (in terms of the recognition as to why disclosure was required in the English Proceedings). The email provided, amongst other matters as follows:-

“As you may be aware, this firm represented Mr. Ivan Glasenberg in relation to the criminal investigations by the Swiss OAG, UK SFO and your offices into the activities of Glencore. Together with my colleagues Reid Weingarten and Brian Heberlig, I attended the various interviews of Mr. Glasenberg by the OAG and SFO (at which Mr. Arjan Meijer was also in attendance) in September 2023, November 2023 and March 2024. This firm is also instructed by Mr. Glasenberg to defend civil claims that have been commenced in the English High Court against Glencore and Mr. Glasenberg (and others), by various former and current shareholders of Glencore.

In relation to the civil litigation in the English High Court, Mr. Glasenberg is required to disclose to the Claimants: (a) documents on which he relies and any documents that adversely affects his own case or support the Claimants’ case, and (b) which have been or are within his control, except where the documents are privileged. As part of Mr. Glasenberg’s obligations in the UK civil proceedings, we have identified a number of documents relating to his interviews with law enforcement that need to be disclosed to the Claimants (including, for example, the audio recording of his interview with the UK SFO in March 2024). We are in contact with both the Swiss OAG and UK SFO to seek their respective permissions to disclose the relevant documents to the Claimants.

The reason that we are writing to you is that we have also identified the attached request from your office which we consider is disclosable to the Claimants. We should be grateful for your confirmation that you have no objection to our disclosing the attached letter to the Claimants. If you do object, we will be required to make an application to the English High Court and seek its permission to withhold the document. If you object, it would accordingly be very helpful if you could set out the reason for your objection and any legal basis for refusing disclosure. For the sake of completeness, we have also provided advance notice to the Swiss OAG of Mr. Glasenberg’s disclosure obligations as set out above. The OAG has stated that it has no objections to Mr. Glasenberg providing disclosure of the attached letter”.

(emphasis added)

It will be seen that it was specifically requested that if the DPPO objected it would be very helpful if they could set out the reason for the objection and any legal basis for refusing the disclosure. Given that the request was being made to the Dutch prosecutor one might reasonably expect any response to identify if the DPPO considered that disclosure would violate any provision of the DCC.

Ms Schaafsma did not immediately respond, and on 29 January 2025 Steptoe International (UK) LLP chased the DPPO for a response in these terms:-

“With apologies for following up, we wonder whether you have had the time to consider our request and, if so, whether you have any objection to our disclosing the attached document to the Claimants in the U.K. civil litigation, please? If you do object, we will need to prepare an application in the next week to the English High Court to vary our client’s disclosure obligations, which will also need to set out the basis upon which you object for the English High Court’s consideration”.

(emphasis added)

It is now known, of course, as is common ground between the experts, that the DPPO/FIOD has no power to give its consent (even if it wished to do so). In the event Ms Schaafsma declined to give the DPPO’s consent in similar (though even shorter) terms than in the correspondence with Glencore, in a response the same day (29 January 2025):-

“My apologies for this late response. I do object to the disclosure of our Mutual Request for Legal assistance to the Claimants in the U.K. civil litigation. The criminal investigation is still ongoing in the Netherlands with regard to other suspects. Therefore sharing information from our investigation could be detrimental. Furthermore, the Dutch Judicial Data and Criminal Records Act does not provide a basis for sharing this information. I hope this provides sufficient information to object to the requested disclosure.

Kind regards,

Annemarie Schaafsma

Senior Public Prosecutor Dutch National Prosecutors’ Office for serious fraud, environmental crime and asset confiscation Anti-corruption division”.

The two reasons given for the objection are therefore (1) that, “the criminal investigation is still ongoing in the Netherlands with regard to other suspects” and “sharing information from our investigation could be detrimental”, and (2) that “the Dutch Judicial Data and Criminal Records Act does not provide a basis for sharing this information”.

Although expressed more briefly, these are the same two reasons given by the DPPO/FIOD to Glencore in respect of its request for permission to disclose certain other DPPO/FIOD documents on 15 October 2024 (as already addressed above in Section F.1), namely that, because “the investigation into the co-suspects has not yet been completed, there is a risk of harm to the criminal case” and the DJDCRA “does not include a ground for such provision or passing on”.

It is clear, therefore, that the DPPO is treating the Glasenberg request in exactly the same way as the Glencore request and for the same reasons. There is, therefore, no reason to distinguish between the two in terms of the attitude of the DPPO to any disclosure in the English Proceedings. As in relation to the Glencore request, the DPPO does not suggest that disclosure in the English Proceedings would amount to any violation of any provision of the DCC.

As Glencore has redacted the identity of the individual(s) at the DPPO responding to Glencore, their identity is not known. However, Mr Glasenberg has not redacted the identity of Ms Schaafsma or her role (Senior Public Prosecutor Dutch National Prosecutors’ Office for serious fraud, environmental crime and asset confiscation Anti-corruption division). It would be remarkable if someone in that role would not have stated if the DPPO considered that disclosure in the English Proceedings would violate any provision of the DCC given her knowledge of what Mr Glasenberg was proposing to do, and given the express request to identify any legal basis for refusing disclosure.

In this regard, and as Professor Nelemans acknowledges (and I do not understand Mr Glasenberg to suggest to the contrary) there is no reason to consider that the position of the DPPO in relation to section 184(1) and the MLAT Request would be any different to that in relation to the FIOD Documents and so each of Glencore and Mr Glasenberg would have the same affirmative defences in case of prosecution. As Professor Nelemans states in Nelemans 1 at paragraph 137 (only to backtrack viz the chance of affirmative defences succeeding in Nelemans 2):-

“137.

If Mr Glasenberg were to disclose the MLAT Request, ignoring the DPPO’s objection, there is a chance that this would result in a violation of the second part of section 184 DCC. The DPPO may conclude that a disclosure by Mr Glasenberg intentionally hinders its investigation or specific investigative actions. A complicating factor for the DPPO is that it has stated that the disclosure of the information from the criminal file does not result in a contravention within the meaning of section 184 DCC. If this is the DPPO’s position as regards information from the criminal file, it is likely that the same position applies to the MLAT Request since I assume that it contains background information on the investigation and partly concerns information from the FIOD. At least, the ambivalence of the DPPO’s statement would make it more difficult for the DPPO to prosecute under section 184 DCC as it allows for the defence of absence of any culpability (also known as an AVAS-defence) and reliance on the earlier statements by the DPPO on the absence of applicability of section 184 DCC. Even though the DPPO has not directly indicated this to Mr Glasenberg’s counsel, the DPPO’s position is known to Mr Glasenberg and its counsel (and there are no reasons to assume that the DPPO would take a different position in relation to section 184 DCC if Mr Glasenberg were to raise the same question to the DPPO) and therefore provides a compelling argument to support an AVAS-defence”.

(emphasis added)

I agree that it is an appropriate assumption that the DPPO would take the same position in relation to the MLAT Request as the FIOD Documents (and I do not understand Mr Glasenberg to submit otherwise), and the position that it has expressed is that it does not consider that disclosure of the same would constitute a violation within the meaning of section 184(1) of the DCC. As addressed below, my conclusions as to whether an offence would be committed under section 184(1) and as to the risk of prosecution under section 184(1) are accordingly the same in relation to the MLAT Request as the FIOD Documents.

I repeat Section F above. I do not consider that Glencore and Mr Glasenberg have demonstrated that disclosure of the documents (the three documents and the MLAT Request) in the English Proceedings would constitute a violation within the meaning of section 184(1) whether under the first or second limb. I would go further than that. I consider that in their 14 February email, the DPPO are confirming that their view is that the sharing of the information from the criminal file does not constitute a violation within the meaning of section 184 of the DCC. Given that the DPPO are the relevant prosecuting authority, I consider that this is the best possible evidence that disclosure will not involve a breach of section 184(1) of the DCC (whether under the first or second limb), and I so find.

Accordingly, as a matter of Dutch law, I do not consider that disclosure of the three FIOD Documents and the MLAT Request would amount to an offence under the second limb of section 184 of the DCC, and that is consistent with the approach of the DPPO in relation thereto (stage 1).

I repeat Section G above. I consider that all the factors I identified in Section F as to why there is no real (actual) risk of prosecution of Glencore under section 184(1) apply mutatis mutandis in relation to Mr Glasenberg and any prosecution of Mr Glasenberg under section 184(1).

I do not consider that there are any factors specific to Mr Glasenberg that either increase, or reduce still further (if that was possible), the risk of prosecution.

In this regard I have considered whether any violation of section 272 of the DCC by Mr Glasenberg, and any risk of prosecution of Mr Glasenberg thereunder, would increase the risk of a prosecution of Mr Glasenberg under section 184(1). I do not consider that it would, not least given the DPPO’s expressed view on section 184(1). The point is, however, academic, as is addressed in due course below.

For the reasons set out in Section G (and Sections I.4.1 and I.4.2 above), I do not consider that there is any risk of prosecution of Mr Glasenberg under section 184(1) of the DCC, still less a real, or actual, risk of prosecution. Strictly speaking, it suffices for me to find (as I do find) that Mr Glasenberg has not discharged the burden that is upon him to prove that there is a real risk of his prosecution under section 184(1).

Whilst the balancing exercise at stage 3 does not arise in such circumstances, I will consider such balancing exercise (as I did in the case of Glencore). However, it is convenient to do so after having first addressed section 272 of the DCC.

Section 272 of the DCC criminalises “a person who intentionally violates any secret which he knows or should reasonably suspect that he is obliged to keep by virtue of … statutory provisions”. The statutory provisions referenced therein refer to section 52 of the DJDCRA and section 7 of the DPDA.

Section 52 of the DJDCRA provides that “… anyone, who by virtue of this act, gains access to data regarding a third party is obliged to maintain confidentiality, except insofar as a regulation given by or pursuant to this act permits communication, or the execution of the task for which the information was provided necessitates communication thereof”.

It is common ground that section 52 of the DJDCRA does not apply to Mr Glasenberg because he is a secondary recipient of criminal justice information - the MLAT Request was first sent to the Swiss OAG and only then received by Mr Glasenberg.

Section 7 of the DPDA provides that “… the person to whom police data has been provided is obliged to maintain confidentiality, except insofar as a regulation given by or pursuant to the law requires disclosure or his duties necessitate such disclosure” (emphasis added).

It is common ground that if the MLAT Request contains criminal justice information to which the DJDCRA applies and/or police data to which the DPDA applies, then section 272 of the DCC makes it a crime for the recipient of that information intentionally to disclose it in circumstances where the recipient knows, or reasonably suspects, that they are bound by these statutory confidentiality provisions (unless one of the stated exceptions applies).

I have addressed the correspondence with the DPPO in section I.2 above. Whilst the DPPO did not address section 272 of the DCC, in addition to addressing section 184(1) of the DCC in its correspondence with Glencore, I do not consider there is any reason to assume that the DPPO considers that disclosure of the MLAT Request would violate section 272 of the DCC. Certainly, it has not expressed any such view, and the DPPO would surely have done so in its response of 29 January 2025 if it had considered that the disclosure of the MLAT Request in the English Proceedings would violate any provision of the DCC, including section 272 thereof.

The gist of Professor Nelemans’ opinion in Nelemans 1 is that disclosure of the MLAT Request would be a violation of section 272 of the DCC because of the duty of secrecy under section 7 of the DPDA (see Nelemans 1 at paragraph 138).

Professor Nelemans starts his analysis by distinguishing between three types of documents to demonstrate how different confidentiality regimes apply. In this regard:-

“(a)

The FIOD Documents have been produced by the FIOD to the DPPO. Hence, both the FIOD and the DPPO are in possession of the FIOD Documents. The DPPO (as a processor of data) will have to comply with the DJDCRA and the FIOD (as a processor of data) has to comply with the DPDA. Any disclosure by the DPPO to the suspect further to section 30(1) DCCP would not contravene section 7 DPDA (and section 52 DJDCRA) as this is a disclosure pursuant to the DCCP and not the DPDA (or the DJDCRA). It also means that the suspect and its counsel are not subject to the confidentiality obligations in section 7 DPDA (and section 52 DJDCRA). In paragraphs 123-124, I refer to a case in which a Dutch lawyer has been prosecuted for sharing police data with a third party, another suspect in the case (by having the other suspect listening in on an interrogation with the DPPO). This was considered a violation of section 7 DPDA. The information in that case, however, was not provided by the DPPO to the lawyer and its client, but by the police itself.

(b)

The DPPO/FIOD Correspondence contains email correspondence and is thus held by the two organisations (DPPO and FIOD), GIAG and its counsel. The DPPO (as a processor of the data) will have to comply with the DJDCRA and the FIOD (as a processor of data) has to comply with the DPDA. The DPPO/FIOD Correspondence contains email communications and do not fall under the regime of section 30(1) DCCP (as also indicated by the DPPO to GIAG and its counsel). Accordingly, the DJDCRA and DPDA are applicable to this information. It also means that GIAG and its counsel are subject to confidentiality obligations in section 7 DPDA (and section 52 DJDCRA). In this context, I refer to the case discussed in paragraphs 123-124, in which a Dutch lawyer has been prosecuted for sharing police data in violation of section 7 DPDA.

(c)

The MLAT Request has been produced by the DPPO and includes information on the investigation, meaning that it also includes information from the FIOD. The DPPO (as a processor of information) will have to comply with the DJDCRA and DPDA. This MLAT Request has been sent to the Swiss Public Prosecutor. It was not received by Mr Glasenberg on the basis of the DCCP but Mr Glasenberg is subject to the confidentiality obligations in section 7 DPDA”.

(emphasis added)

I make the following initial observations in respect of the above:-

Professor Nelemans takes the position that section 7 of the DPDA applies to any recipient of police data and not only the first recipient (see Nelemans 1, paragraph 113): “section 7 of the DPDA applies to any recipient of the information”. The only support for this conclusion is footnote 34, which provides an observation of the Minister of Justice in the Explanatory Memorandum to the bill submitted to Parliament which provides:-

“The premise of the article is that everyone is obliged to maintain confidentiality when given access to police data relating to third parties. This applies not only to persons who are charged with processing police data or who have received the data directly from the police, but also to any second and subsequent recipients who have received the data. They are also bound by a duty of confidentiality. This means that, subject to the exceptions discussed below, the obligation of confidentiality arising from this article precludes the provision of the data”.

Whilst Mr Lodder stated that such statements are said to carry weight in construing the meaning of Dutch acts, that is not, in and of itself, in any way determinative of the proper construction of a section of a Dutch statute.

Professor Nelemans states that a person that has been provided with police data is obliged to keep the data confidential, and that in relation to the filed documents, section 30(1) of the DCCP overrides this obligation. In this regard:-

“Since the FIOD Documents, DPPO/FIOD Correspondence and the MLAT Request contain information from the FIOD, the confidentiality obligation in section 7 DPDA is relevant. Section 7(2) DPDA reads as follows: ‘The person to whom police information has been provided is obliged to keep it confidential except insofar as a rule given by or under the law requires disclosure or his duty requires it.’

According to this section, the person to whom police data has been provided (i.e. the DPPO) is obliged to keep the data confidential, except to the extent that a rule given by or under the law requires disclosure or his duty requires this.

…

Where it concerns the FIOD Documents, it is noted that information provided by the DPPO to the suspect under section 30(1) DCCP is accordingly not subject to the duties of confidentiality in the DJDCRA and DPDA. The DCCP does not provide a separate confidentiality obligation for the suspect”.

At this point I would only foreshadow that the reference to section 30(1) of the DCCP, which is then expanded on in Nelemans 2, does not engage with the fact that the MLAT Request was provided to the Swiss authorities pursuant to section 5.1.2 of the DCCP (or as to the circumstances in which the Swiss authorities then provided it to Mr Glasenberg’s lawyers).

Professor Brouwer’s opinion is that there cannot be a breach of section 7, and thus a violation of section 272, because the MLAT Request was never provided in that context. The MLAT Request was provided to the Swiss authorities under section 5.1.2(1) and (3) of the DCCP and therefore the DPDA does not apply at all to the subsequent recipient thereof (Mr Glasenberg).

In this regard:-

“111.

As to the MLAT Request: section 5.1.2., paragraphs 1 and 3 DCCP read, insofar as relevant here:

‘1. The public prosecutor, the examining magistrate and the court of first instance handling a criminal case are authorised to submit a request for legal assistance to the authorities of a foreign state’

“112.

From this section, it is apparent that the MLAT Request was also provided to the Swiss authorities on the basis of the DCCP – and not on the basis of the DJDCRA or the DPDA. The further transfer of the MLAT Request by the Swiss prosecutor to Mr Glasenberg then followed pursuant to provisions of Swiss law – and therefore also not on the basis of the DJDCRA or the DPDA. From this it is apparent, in my opinion, that the MLAT Request has not been provided to Mr Glasenberg pursuant to the DJDCRA or the DPDA and thus section 7 DPDA and section 52 DJDCRA do not apply”.

(emphasis added)

Professor Brouwer opines that, “there can be no doubt that the MLAT Request was provided to the Swiss authorities on the basis of section 5.1.2.(1) and (3) DCCP” (see Brouwer 1, paragraph 128). Accordingly, he concludes that the confidentiality obligations under the DJDCRA and the DPDA do not apply to the MLAT Request.

In this regard Professor Brouwer also referred to a decision by the Dutch Supreme Court, including the following:-

“3.2.2

The DPDA regulates the processing of police data obtained in the context of the execution of police duties. The processing of data is also understood to include the provision of such data (section 1, under c, DPDA). In the DPDA, the possibility of providing police data is not limited to authorities with a public task. The DPDA also allows for the provision of data to private persons and organizations in the interest of a compelling public interest”.

…

“3.2.3

Section 7, paragraph 1 of the DPDA contains a duty of confidentiality and stipulates that the police officer or the person to whom police data has been made available is obliged to maintain confidentiality. Therefore, anyone who gains access to data relating to a third party pursuant to the DPDA may not pass on the data obtained”.

(emphasis added)

Professor Brouwer addresses the position taken in Nelemans 1 that section 7 DPDA applies to any recipient of police data. He starts by pointing out that section 7 of the DPDA “does not contain the sentence ‘Anyone who, by virtue of this act, gains access…’, unlike section 52 of the DJDCRA (which both experts agree does not impose confidentiality obligations on subsequent recipients). Professor Brouwer notes that the same and the Explanatory Memorandum (which I cited above) are “indeed arguments for the position taken in Nelemans 1 [113] that section 7 DPDA would apply to any recipient of police data – not only the first recipient”.

He then goes on to say that “it is my opinion that there are arguments in favour of a different interpretation that leads to a more restricted scope of section 7 DPDA” (see paragraph 76 of Brouwer 1). He bases this on four arguments: (1) Nelemans 1 unsubstantiated construction of section 7 DPDA; (2) the far reaching consequences of the proposed construction of section 7; (3) further context to the Explanatory Memorandum; (4) case law of the Dutch Supreme Court (as quoted above).

In this regards Professor Brouwer opines as follows:-

“77.

First, it should be noted that the reasoning in Nelemans 1 constructing the meaning of section 7 DPDA is not very explicit, not very clear and not complete. More specifically, Nelemans 1 does not discuss other significant differences in the texts of section 52 DJDCRA and section 7 DPDA and does not reflect on the meaning of these textual differences in light of the interpretation of section 7 DPDA that is being put forward. In my opinion, there is ample reason to do so.

78.

Section 52 DJDCRA holds, inter alia that “anyone who, by virtue of this act, gains access to data etc.” In contrast, section 7 DPDA reads: “The person to whom police data has been provided etc.”. On the basis of these differences it is apparent that the strict text of section 7 DPDA does not limit the confidentiality obligation to data that has been provide pursuant to the DPDA, or by virtue of the DPDA. Taken literally, the text of section 7 DPDA would therefore also apply to police data that has not been provided pursuant to the DPDA. This means that a literal reading of section 7 DPDA must lead to the result that also police data that is incorporated in information that has been provided on the basis of other Acts – e.g. section 30(1) DCCP – would fall under the confidentiality obligation of section 7 DPDA.

79.

However, Nelemans 1 does not draw that conclusion. Nelemans 1 [79(a)] confirms that under Dutch law the suspect and his counsel are not subject to the confidentiality obligation of section 7 DPDA with regards to the case file that has been provided pursuant to section 30(1) DCCP. I agree with this position, but cannot fail to note that, in choosing this interpretation of section 7 DPDA, Nelemans 1 diverges from the strict text of the Act without being explicit and without giving any reasoning for that divergence. Nelemans 1 therefore seems to introduce a limitation on the scope of section 7 DPDA, which appears to entail that the confidentiality obligation in that section only applies to police data that has initially been provided pursuant to the DPDA – or, alternatively, that the confidentiality obligation ceases to apply once police data is provided to a party on the basis of the DCCP.

80.

If that inference is correct, it must then be noted that Nelemans 1 does not discuss this limitation, does not give any reasons for this limitation, and – more importantly – does not apply that limitation in a consistent manner. As will be discussed below, the MLAT Request has been provided to the Swiss authorities on the basis of section 5.1.2(1) and (3) DCCP – not under the DPDA. According to the limitation on the scope of section 7 DPDA that Nelemans 1 appears to introduce, the conclusion with respect to the MLAT Request should therefore be that the confidentiality obligation in section 7 DPDA does not apply. However, Nelemans 1 [136] comes to a different conclusion. This sheds doubt on the quality of the reasoning in Nelemans 1.

81.

The second argument is that the interpretation of section 7 DPDA chosen in Nelemans 1 has such far-reaching, and sometimes even absurd consequences that I for myself would want to see more authority than just one paragraph in the Explanatory Memorandum of the Act to accept such an interpretation. However, Nelemans 1 does not support its far-reaching conclusion with caselaw or academic discussion.

82.

Leaving aside for now the issue we addressed above – the implicit limitation that the confidentiality obligation in that section apparently only seems to apply to police data that has initially been provided pursuant to the DPDA – the text of section 7 DPDA, in connection with the quoted paragraph form the Explanatory Memorandum of the Act, would seem to support the position in Nelemans 1 that not only the first recipient, but also all subsequent recipients of police data are bound to secrecy.

83.

If this were the correct interpretation of section 7 DPDA, there is no end to the confidentiality of information. No matter how many times police data would be passed on, the confidentiality obligation of section 7 DPDA must be deemed to apply and to continue to apply. It is apparent that this would lead to outcomes that are difficult to accept as reasonable. Consider a scenario where a school is informed that one of their staff is suspected of sexually abusing pupils. In the Netherlands it is not uncommon for schools to organize an information meeting for parents to inform them about the police investigation. If only the father of a pupil would attend this meeting, and the confidentiality obligation of section 7 DPDA would apply to any recipient of police data, then the father would not be allowed to discuss any police data shared in the meeting with the mother of his child, with his wider family, with his lawyer, with a doctor or with the child’s therapist. Similarly, if police data would be discussed in court during a public hearing, journalists present would be barred from publishing any police data that has been discussed in the trial.

84.

It is my opinion that a legal interpretation of a statute that leads to such far-reaching results, must be doubted – and therefore should be convincingly supported with commensurate authority. I note that – apart from one paragraph I an Explanatory Memorandum, such authority is lacking in Nelemans 1. I further note that such authority is not available in the Dutch legal sphere.

85.

A third argument relies on a different paragraph in the Parliamentary discussions on the DPDA. When asked a question related to the scope of section 7 DPDA during the discussion of the bill in Parliament, the Minister of Justice did not refer to any subsequent recipients:

‘The members of the PvdA asked whether there is a duty of confidentiality on the part of the receiving third parties. This is indeed the case. Pursuant to Section 7 of the bill, the recipient is bound by an obligation of confidentiality, except insofar as a regulation given by or pursuant to the law requires disclosure or his task necessitates it. Furthermore, the recipient is bound by the specific privacy regulations that apply to the data processing he or she carries out for the further processing of the data within his or her own organization. This will usually be the Personal Data Protection Act. Under this act, personal data may not be further processed in a way that is incompatible with the purposes for which it was obtained.” (My translation).’

86.

For the fourth argument, I refer to case law of the Dutch Supreme Court. In the case already discussed above about the law firm suing the Dutch State (DPPO) for violations of attorney-client privilege, the State and its witnesses not only relied on the confidentiality obligation in section 52 DJDCRA but also on the confidentiality obligation in section 7 DPDA. As with section 52 DJDCRA, the Supreme Court rejected the argument that the confidentiality obligation of section 7 DPDA was accompanied by a right to refuse to give evidence (verschoningsrecht). This limitation to the confidentiality obligation of section 52 DJDCRA in disclosure proceedings discussed above (see para. 67-70) therefore equally applies to section 7 DPDA. The reasoning of the Supreme Court to arrive at this conclusion is, however, also of importance to the issue of the scope of the confidentiality obligation of section 7 DPDA, more specifically the question of whether the scope of section 7 DPDA substantially differs from other similar provisions, including section 52 DJDCRA”.

(emphasis added)

I do not consider Mr Lodder’s criticism of Professor Brouwer’s attempt at elucidating section 7 of the DPDA as justified. Professor Brouwer provided a clear opinion based on four detailed and analysed arguments as to the construction of section 7 of the DPDA, supported by case law as well as further detail regarding the Explanatory Memorandum. It is, perhaps, more telling that Professor Nelemans did not refer to the fact that the Minister of Justice did not refer to any subsequent recipients when asked a question related to the scope of section 7 of the DPDA. This somewhat undermines the views expressed by Professor Nelemans.

Professor Nelemans maintains his views in Nelemans 2. Thus he states at paragraph 79(a):-

“The MLAT Request was not provided via section 30(1) DCCP, so the obligations under section 52(1) DJDCRA (to the Swiss authorities) and section 7 DPDA (to the Swiss authorities and Mr Glasenberg) apply. So, disclosure of the FIOD Documents would not constitute a violation of section 272 DCC, while disclosure of the DPPO/FIOD Correspondence and the MLAT Request would constitute a violation of this section. As noted above, nevertheless, for each of the FIOD Documents, DPPO/FIOD Correspondence and the MLAT Request, it is my opinion that disclosure would in any case be a violation of the second part of section 184(1) DCC”.

(emphasis added)

However by this stage Professor Nelemans was fully aware of the contents of Professor Brouwer’s report, including the fact that the MLAT Request was provided pursuant to section 5.1.2 of the DCCP, as can be seen from paragraph 62 in Nelemans 2, but he does not engage with the same (or Professor Brouwer’s views in respect of the same):-

“…

b.

The MLAT Request was not provided via section 30(1) DCCP, so, as set out in Nelemans 1, paragraphs [134]-[136], it is my view that the obligations under section 52(1) DJDCRA and section 7 DPDA apply, along with the corresponding sanctions for breach of those obligations under section 272 DCC.

c.

The Swiss authorities have received the information request from the DPPO and as a recipient of this information, there is a confidentiality obligation under the DJDCRA and the DPDA. Brouwer 1 has not shown that these confidentiality obligations have been set aside on the basis of the DCCP, in particular sections 5.1.2(1) and (3) DCCP”.

(emphasis added)

Whilst he seeks to deflect matters onto Professor Brouwer (when the burden is upon Mr Glasenberg to show any breach of section 272) it is Professor Nelemans who fails to engage with section 5.1.2(1) of the DCCP, which it will be recalled provides:-

Professor Nelemans fails to grapple with the fact that the MLAT Request was provided to the Swiss authorities on the basis of the DCCP, and not on the basis of the DJDCRA or the DPDA. The further transfer of the MLAT Request by the Swiss prosecutor to Mr Glasenberg then followed pursuant to provisions of Swiss law – and therefore also not on the basis of the DJDCRA or the DPDA. He does not justify why, in circumstances where the MLAT Request has not been provided to Mr Glasenberg pursuant to the DJDCRA or the DPDA either section 52 of the DJDCRA or section 7 of the DPDA applies. In this regard he also fails to recognise that any receipt by Mr Glasenberg is pursuant to the Swiss authorities discharging their own responsibilities towards Mr Glasenberg.

Professor Nelemans also does not expressly engage with what Professor Brouwer had stated at paragraphs 78 and 79 of his report in relation to section 52 of the DJDCRA and section 7 of the DPDA:-

“78.

Section 52 DJDCRA holds, inter alia that “anyone who, by virtue of this act, gains access to data etc.” In contrast, section 7 DPDA reads: “The person to whom police data has been provided etc.”. On the basis of these differences it is apparent that the strict text of section 7 DPDA does not limit the confidentiality obligation to data that has been provide pursuant to the DPDA, or by virtue of the DPDA. Taken literally, the text of section 7 DPDA would therefore also apply to police data that has not been provided pursuant to the DPDA. This means that a literal reading of section 7 DPDA must lead to the result that also police data that is incorporated in information that has been provided on the basis of other Acts – e.g. section 30(1) DCCP – would fall under the confidentiality obligation of section 7 DPDA.

79.

However, Nelemans 1 does not draw that conclusion. Nelemans 1 [79(a)] confirms that under Dutch law the suspect and his counsel are not subject to the confidentiality obligation of section 7 DPDA with regards to the case file that has been provided pursuant to section 30(1) DCCP. I agree with this position, but cannot fail to note that, in choosing this interpretation of section 7 DPDA, Nelemans 1 diverges from the strict text of the Act without being explicit and without giving any reasoning for that divergence. Nelemans 1 therefore seems to introduce a limitation on the scope of section 7 DPDA, which appears to entail that the confidentiality obligation in that section only applies to police data that has initially been provided pursuant to the DPDA – or, alternatively, that the confidentiality obligation ceases to apply once police data is provided to a party on the basis of the DCCP”.

(emphasis added)

Professor Nelemans continues to focus on section 30(1) of the DCCP in later parts of Nelemans 2, but again without grappling with the basis on which the MLAT Request was made to the Swiss authorities:-

“85.

Since the DPPO states that there are no grounds in the DJDCRA for De Brauw and/or Glencore to pass on the information, it suggests that the FIOD Documents and the DPPO/FIOD Correspondence provided to De Brauw and/or Glencore are completely or partly subject to the DJDCRA. In the same correspondence, the DPPO also stated that some documents have been provided on the basis of section 30(1) DCCP. Even though the law is unclear on this point, it should be assumed that the obligations set out in section 52(1) DJDCRA do not apply to the documents that have been provided on the basis of section 30(1) DCCP (see also Nelemans 1, paragraphs [76]-[78]). The most obvious legal mechanism here at work, although there is some legal uncertainty, is that the confidentiality obligation in one law is set aside by another formal law, without this being made explicit by the legislator. Nevertheless, it is generally accepted that documents obtained under section 30(1) DCCP are not subject to the confidentiality obligation. In addition, there is no indication that these documents automatically fall under the DJDCRA after the dismissal of the case.

…

89.

Insofar as these sections do not provide for disclosure to persons or authorities, police data may be disclosed to third parties pursuant to section 19 (incidental cases) and section 20 DPDA (structural). Disclosure to a third party may take place at the request of that party or on the initiative of the controller:

‘Police data may only be provided if a number of requirements are met: the DPDA applies, the disclosure is for specific purposes, there is a compelling public interest and, if necessary, and, insofar as the police data in question have been processed in the context of criminal law enforcement, the disclosure should be discussed with the DPPO.’

In this regard references to section 30(1) are not in point because the relevant question is whether obligations under section 272 can be breached in the context of the receipt of the MLAT Request under section 5.1.2 of the DCCP – not under section 30(1) of the DCCP. It should be noted that at this stage, Professor Nelemans is fully aware of the contents of Professor Brouwer’s report, including that the MLAT Request was provided pursuant to section 5.1.2 of the DCCP and not section 30(1) of the DCCP.

In Nelemans 2 Professor Nelemans fails to engage with the fact that the MLAT Request was provided to the Swiss authorities pursuant to section 5.1.2 of the DCCP. To the extent that there is any engagement at all, it is, at best, oblique. For example, at paragraph 82 of Nelemans 2 it is stated as follows:-

“The DJDCRA, the DPDA and the DCCP coexist, and each contains certain legal grounds (sometimes overlapping) for the provision of information in the context of investigations of criminal offences. And insofar as criminal investigation data and police data go hand in hand, there must be coordination between the DPPO and the police regarding the provision of data. The instruction I have referred to in paragraph [85] also describes how this should be done in the case of incidental provision: “In the case of incidental disclosure, the data controller shall decide on a case-by-case basis whether it is necessary in the light of a material public interest and whether the purpose is compatible with the listed purposes”.

Ultimately (and apart from three passing references to sections 5.1.2(1) and (3) of the DCCP), Professor Nelemans does not engage with the same, and simply does not grapple with the fact that the MLAT Request was provided to the Swiss authorities by the DPPO pursuant to sections 5.1.2(1) and (3) of the DCCP or with the fact that Mr Glasenberg’s lawyers received the MLAT Request from the Swiss authorities pursuant to their own responsibilities.

In the above circumstances (and quite apart from my more general findings in relation to Professor Nelemans, and his evidence, as addressed above, which lead me to prefer the views expressed by Professor Brouwer over those expressed by Professor Nelemans where their views differ) I prefer the views expressed by Professor Brouwer to those expressed by Professor Nelemans as to whether disclosure in the English Proceedings of the MLAT Request would amount to a breach of section 272.

In this case the DPPO submitted a request for legal assistance to the authorities of a foreign state under section 5.1.2(1) of the DCCP, and not on the basis of the DJDCRA or the DPDA, and the further transfer of the MLAT Request by the Swiss prosecutor to Mr Glasenberg then followed pursuant to provisions of Swiss law (and therefore also not on the basis of the DJDCRA or the DPDA). In such circumstances, and as Professor Brouwer opines, the MLAT Request has not been provided to Mr Glasenberg pursuant to the DJDCRA or the DPDA and thus section 7 DPDA and section 52 DJDCRA do not apply.

I do not consider that Mr Glasenberg has demonstrated that the disclosure of the MLAT Request in the English Proceedings would constitute a violation of section 272 of the DCC.

I would go further than that. On the evidence before me I consider that there would be no violation of section 272 of the DCC. First, in the correspondence with the DPPO, the DPPO did not address section 272 of the DCC, and I do not consider there is any reason to assume that the DPPO considers that disclosure of the MLAT Request would violate section 272 of the DCC. As already noted, it has not expressed any such view, and the DPPO would surely have done so in its response of 29 January 2025 if it had considered that the disclosure of the MLAT Request in the English Proceedings would violate any provision of the DCC, including section 272 thereof. This leads me to the conclusion that the DPPO did not consider any offence under section 272 would be committed, which is entirely consistent with the evidence of Professor Brouwer, which I accept.

Secondly, I am satisfied that, as addressed in Section I.5.2 above, in the circumstances where the MLAT Request was received by Mr Glasenberg from the Swiss prosecuting authority under section 5.1.2(1) of the DCCP, the DPDA is not engaged, and there is no relevant statutory requirement of confidentiality under section 7 of the DPDA, and there can be no violation of section 272 of the DCC. In this regard, and for the reasons identified in Section I.5.2, I prefer the evidence of Professor Brouwer over that of Professor Nelemans as to any possible violation of section 272.

In the light of my conclusion at stage 1, I consider that it is inherently improbable that there would be any prosecution in the Netherlands of Mr Glasenberg (or anyone associated with him) in relation to section 272 of the DCC, and as such that there is no real risk of prosecution or indeed any risk of prosecution.

However, given that there is a difference between the Claimants, and Mr Glasenberg (and indeed their respective experts) as to whether or not there is a real risk of prosecution in the event of disclosure of the MLAT Request, in the context of section 272 of the DCC, and given that I have heard full argument on the same, I will address the risk of prosecution in this Section.

I repeat Section G above. I consider that all the factors I identified in Section F as to why there is no real (actual) risk of prosecution of Glencore and Mr Glasenberg under section 184(1) apply mutatis mutandis in relation to Mr Glasenberg and section 272. Indeed in a number of respects (for example in relation to potential affirmative defences) Section G has already addressed the position in relation to section 272 in tandem with that in relation to section 184.

I do not consider that there are any factors specific to Mr Glasenberg, or section 272, that increase the risk of prosecution of Mr Glasenberg whether in relation to section 272 (or section 184(1)).

Indeed there are factors specific to section 272 which themselves would reduce the risk of prosecution. In Nelemans 1, Professor Nelemans did not express any conclusion on the risk of prosecution, but he did identify three factors that would reduce the risk of prosecution. Thus he states at paragraph 148(c) that:-

“The considerations in relation to disclosure of the DPPO/FIOD Correspondence set out above (in paragraph 148(b)) also apply to disclosure of the MLAT Request, except that it does not involve a breach of the Undertaking. In my view, three factors would have a negative effect on the likelihood of prosecution. Firstly, it concerns only one document. Secondly, Mr Glasenberg is not the first recipient of the MLAT Request (the Swiss Public Prosecutor was). Thirdly, the DPPO could be selective to achieve its goal of deterrence and GIAG is the most obvious defendant. Accordingly, this makes it, in my view, less likely that the DPPO will (also) prosecute Mr Glasenberg if he were to instruct his counsel to disclose the MLAT Request”.

Professor Brouwer addresses the risk of prosecution in some detail. I accept his evidence. In addition to the above points made by Professor Nelemans (with which Professor Brouwer agrees):-

As with section 184 of the DCC, and notwithstanding the range of potential penalties under section 272, the evidence of Professor Brouwer (and paragraph 172 of his report) is that (whilst):-

“There is no guidance on sentencing under section 272 DCC from the courts or the DPPO, however, case law suggests that – excluding in cases concerning corrupt leaking police officers – violations also tend to fully end in (fully conditional) fines or community service”.

Mr Glasenberg does not reside in, nor is he present, in the Netherlands, and accordingly the likely penalty would (at most) be a fine and, yet further, Professor Brouwer’s opinion (which was neither contradicted nor engaged with in Nelemans 2), is that a fine would be fully conditional (i.e., suspended and so long as the offence was not committed again, it would not even have to be paid). Once again the likely penalty would militate against any prosecution in the first place.

Again, to the extent that (contrary to the views expressed above) there is uncertainty about whether there would be a breach of section 272, the natural inference is that prosecution would be less likely in such circumstances (see PIFFS, supra at [156], and O v C at [22(iv)]). Equally (and once again) I reject the suggestion that there is a real risk of prosecution because of any alleged social need to clarify the law in this area on the basis that there is no relevant case law. The suggestion again amounts to mere speculation and, in any event, I consider it inherently unlikely that the DPPO would wish to prosecute for such reason in the context of the uncertainties as to whether any offence has been committed, the matters identified in Nelemans 1, and the terms of the correspondence to which the DPPO is party.

There is one additional factor that I consider further reduces the risk of prosecution under section 272 (if that were possible) and that is the question of whether the Dutch court has jurisdiction over Mr Glasenberg in relation to an offence under section 272 in the first place. Once again there is a difference of opinion between the experts.

Professor Brouwer refers to jurisdiction in terms of “the doctrine of the constitutive consequence”. He notes, relying on an article by W Geelhoed, that “it has been accepted that the principle of prosecutorial discretion should prevent the prosecution in situations where there is a negligible link to the Netherlands” (see paragraph 162 of Brouwer 1). He then identifies that the weight of the alleged conduct did not occur in the Netherlands, involved exclusively non-Dutch persons located outside of the Netherlands and with no apparent ties to the Netherlands.

On the other hand, Professor Nelemans at paragraph 148(c) of Nelemans 1 opines that:-

“the DPPO may have jurisdiction with regard to Mr Glasenberg but that this is not certain. I refer to paragraph 114 in relation to jurisdiction and extraterritorial application. In my opinion, the DPPO would probably have no interest in prosecuting Mr Glasenberg’s counsel”.

(emphasis added)

This is hardly a confident expression that the Dutch Court would have jurisdiction. However (once again) Professor Nelemans somewhat “firms up” his views in Nelemans 2 in which he states at paragraph 150 (citing a Dutch Supreme Court authority):-

“As explained in paragraph [71] above, the Supreme Court has indicated when there is a breach. It has not taken a position on where the breach of secrecy occurs. The breach of confidential data occurs where that secret is located. Accordingly, there could be a constitutive consequence in the Netherlands, irrespective of whether the information would be shared from the Netherlands (by De Brauw) to the UK, from Switzerland (by GIAG) to the UK or within the UK (by Glencore). This is also relevant for the MLAT Request, which contains details about the DPPO’s investigation, in the sense that a disclosure from a country outside the Netherlands to the UK would result in a breach where the confidential data is located, i.e. in the Netherlands with the Dutch authorities (on their computers or servers), in addition to potential other jurisdictions where the confidential data is located (such as Switzerland)”.

The views expressed as to where there would or might be a breach seem to be those of Professor Nelemans alone, unsupported by authority. In circumstances in which there appears to be limited links (if not a negligible link) to the Netherlands, I consider that prosecutorial discretion would be likely to prevent a prosecution in such a situation (consistent with the views expressed by Professor Brouwer).

In any event, and on any view, there is some uncertainty as to whether the Dutch courts would have jurisdiction, which can only (further) reduce the risk of prosecution.

For the reasons set out in Section G, and the further reasons addressed in this Section, I do not consider that there is any risk of prosecution of Mr Glasenberg under section 272 of the DCC, still less a real, or actual, risk of prosecution.

Strictly speaking, it suffices for me to find (as I do find) that Mr Glasenberg has not discharged the burden that is upon him to prove that there is a real risk of his prosecution under section 272 of the DCC.

In such circumstances, stage 3 and the balancing exercise is not reached, and the Glasenberg Disclosure Application stands to be dismissed.

However, as I have heard full argument on stage 3, and lest there be any possibility of a violation of the DCC, and any risk of prosecution, I will also address stage 3 for completeness.

I repeat the general observations in relation to the balancing exercise that I set in Section H.1 above. They are equally applicable at this point.

Mr Glasenberg is a Swiss citizen and a resident in Switzerland. He has been given what he admits, is a relevant document, the MLAT Request, by the Swiss prosecution authorities. This was given as part of the Swiss authority’s process of considering whether to accede to the Dutch MLAT Request that they have received. The Swiss authorities have been expressly asked by Mr Glasenberg whether they object to his disclosure of the MLAT Request, and they have confirmed that they do not. Mr Glasenberg alleges (though I have found to the contrary) that if he were to give disclosure of this document in the English Proceedings, pursuant to a lawful court order, he would nevertheless face a prosecution in the Netherlands.

As the MLAT Request is within his control in the circumstances described, Mr Glasenberg considers the MLAT Request to be a document falling within his disclosure obligations under the CMC2 Order and he duly identified it in his first disclosure certificate.

It will be seen therefore that in contradistinction to the stance of Glencore in relation to the FIOD Documents (that they have not seen the three documents concerned and do not even accept that they will necessarily be relevant and disclosable when they review the same), Mr Glasenberg accepts that he is required to disclose the MLAT Request pursuant to his existing disclosure obligations.

He seeks, however, to downplay the MLAT Request’s potential importance and submits that its disclosure is not necessary for a fair trial of the allegations in the English Proceedings including those advanced by the Claimants against Mr Glasenberg. It is said that it is not itself a primary document or evidence in the Swiss OAG investigation that led to the imposition of the summary penalty order on GIAG, or in the related DPPO/FIOD investigation. It is said to be “merely a procedural document: a letter of request from the Dutch authorities to the Swiss authorities seeking assistance with their investigation” and it is said that any underlying documentary or other evidence referred to in or requested pursuant to the MLAT Request could only be obtained by the Claimants via other requests for disclosure (which the Claimants have done by seeking and obtaining production from Glencore of documents from the Swiss OAG investigation that is the subject of the MLAT Request).

I do not consider that this categorisation of the MLAT Request bears examination. As a preliminary point, however, the submission advanced by Mr Lodder on Mr Glasenberg’s behalf is somewhat contradictory in nature. On the one hand he submits that if there is disclosure and it does affect the Dutch Investigation, there would be a public interest in a prosecution (which rather recognises there being material of considerable importance in the context of the investigation into corruption in the DRC). Yet on the other hand, and in the same breath, he contends that the MLAT Request is a bland and general request for assistance. Whilst Mr Lodder sought to argue that there was no tension between such submissions, I was not convinced. If there was a risk that the content could cause a witness or a suspect to abscond or cause someone to destroy relevant evidence and affect the Dutch Investigations (as posited by Mr Lodder), this vividly illustrates that matters identified in the MLAT Request could be of very considerable importance in the English Proceedings, in terms of identifying individuals and documentation in relation to the central allegations in the English Proceedings (given that both the English Proceedings and the Dutch Investigation concerned corruption in the DRC).

The real gravamen of Mr Lodder’s submission is that the MLAT Request is (so it is said) a long way from a document that needs to be disclosed for the fair disposal of the English Proceedings, and he asks (rhetorically) whether it is worth requiring Mr Glasenberg to disclose the MLAT Request for inspection if in doing so he is exposed to the risk of criminal prosecution? The difficulty I have with this question (quite apart from the fact that I do not consider there is a risk of criminal prosecution) is that I do not consider that it fairly characterises (1) a request such as the MLAT Request, or (2) the likely importance of matters within the MLAT Request in the context of the English Proceedings.

In this regard Mr Glasenberg’s (alleged) knowledge of the alleged DRC corruption is a very significant issue in the English Proceedings as a whole. As such any bearing on that personal knowledge, as may be revealed in the MLAT Request is itself of considerable importance so as to ensure the fair disposal of the English Proceedings. This can be illustrated by reference to paragraph 41.3B of Glencore’s Defence which relies on what Mr Glasenberg did personally:-

“Glencore understands that, after Mr Glasenberg was introduced to Mr Gertler in 2007, and at various times thereafter, Mr Glasenberg personally made enquiries into Mr Gertler and that, as a result of these enquiries, Mr Glasenberg was satisfied that there was no credible evidence that Mr Gertler had used, or would use, Corrupt Means in the DRC. Any such enquiries as were made by Mr Glasenberg in this regard were made on behalf of Glencore, and Glencore will therefore rely on such matters as Mr Glasenberg may plead and prove in this regard”.

If nothing else, this shows the central importance of Mr Glasenberg’s knowledge and any enquiries he may have made in relation to, and any interaction he may have had with, Mr Gertler (shedding light on such knowledge). Given that the MLAT Request was a request which included a request for mutual assistance concerning Mr Glasenberg (it is being made to the Swiss authorities who had interviewed Mr Glasenberg), it has the potential to contain information of considerable importance in relation to Mr Glasenberg’s knowledge. In this regard (and as previously noted) sight should not be lost of that fact that the Dutch authorities were conducting their own investigation (and so may have had their own sources of information and documentation) that are not necessarily confined to matters within Glencore’s knowledge or within the scope of the Swiss OAG investigation.

The reality is that the knowledge of Mr Glasenberg is at the very heart of the Claimants’ claim, as was amply demonstrated by Mr Mott during the course of his commendable oral submissions made by reference to the Claimants’ pleaded case and in particular paragraphs 30, 42, 44.1, 57, 59.4(e) and 62 thereof. It is clear that the Claimants’ case is that the knowledge of the corrupt arrangement between Glencore and Mr Gertler went direct to the top of Glencore in the form of Mr Glasenberg and his personal management of the relationship with Mr Gertler, and Mr Glasenberg’s knowledge of the alleged DRC corruption is, on any view, a very significant issue in the Claimants’ case as a whole. Self-evidently, any document bearing on the personal knowledge of Mr Glasenberg would be of key importance.

I also consider that in submitting that it is “inherently unlikely the MLAT Request is important” and characterising it as “merely a procedural document” and “merely an intergovernmental letter of request” those acting on behalf of Mr Glasenberg mischaracterise the nature of requests for mutual legal assistance and their likely importance, and the likely importance of the MLAT Request itself.

In this regard I have been referred to a Mutual Legal Assistance Manual 2013 produced under the auspices of the Council of Europe (the “Manual”). That presents a very different picture as to the nature of requests for mutual legal assistance and their likely content than that sought to be portrayed on behalf of Mr Glasenberg in relation to the MLAT Request. The Manual provides, amongst other matters, as follows:-

“The Form of the Letter of Request

The requesting authority should compile a letter that is a stand-alone document. It should provide the requested State with all the information needed to decide whether assistance should be given and to undertake the requested enquiries.

…

Principal conditions to be satisfied within the Letter of Request

…

The letter must contain a description of the facts which form the basis of the investigations/proceedings. Such a description must be as detailed as possible and should indicate in what way the evidence being sought is necessary.

…

Requests made to a foreign state

Where national authorities extend a letter of request to a foreign authority, or submit a request without a formal letter, they will be obliged to approach such foreign authority expressing its utmost respect and reverence, to enter the file number of their case, elaborate and describe in detail all the facts ...

…

It is necessary to give a very detailed description of reasons and grounds for reasonable doubt, in order to avoid the return of the letter of request as incomplete

…

Matters for the Prosecutor or Judicial Authority to Have in Mind Before Issuing the Letter

…

Has enough factual information about the case been given to provide a proper basis for the assistance to be sought?

…

Does the assistance to be sought amount to little more than a fishing expedition?”.

It is clear, therefore, that a request for mutual legal assistance, such as the MLAT Request, is required to include a very detailed description of the facts which form the basis of the investigations/proceedings and all the information is needed to decide whether assistance should be given and to undertake the requested enquiries.

The same can be seen from the Guide on Requesting Mutual Legal Assistance in Criminal Matters from the Netherlands’ (2023), to which I have also been referred, which identifies the Netherlands’ approach in relation to requests for mutual assistance made to it. This provides, amongst other matters:-

“Step 4: SUMMARIZE THE CASE

Provide a detailed outline of the case under investigation or prosecution, including a summary of the evidence that supports the investigation/prosecution. This summary should clearly link the facts of the case and the assistance requested, as well as the importance of the evidence requested for the investigation. Where possible, the identity and nationality of the person concerned should include.”

It is an appropriate inference to draw that the MLAT Request itself would include such matters, including a summary of the evidence that supports the investigation, given that those drafting the MLAT Request would be familiar with the Netherlands own requirements in relation to such requests and it would be logical to include the same in any request made by the Netherlands.

Here, the MLAT Request relates to the Dutch authorities’ investigation into Glencore's (and other individuals) suspected involvement in DRC corruption. The MLAT Request was clearly considered to be necessary to further such investigation and it needed to include a very detailed description of the facts which formed the basis of the investigation (as well as a summary of the evidence that supports the investigation per the Netherlands’ own approach). In this regard it is telling that the MLAT Request was not rejected as incomplete or inadequate by the Swiss authorities.

It is also clear from what the DPPO itself has said in the correspondence to which reference has been made, that the DPPO declined to give permission to Glencore and Mr Glasenberg to disclose the documents because it is “information from our investigation” (emphasis added) which shows that the Dutch authorities have conducted their own investigation and that the MLAT Request contains information from the Dutch Investigation.

In such circumstances, and in setting out a very detailed description of the facts which form the basis of the investigations/proceedings and all the information that is needed to decide whether assistance should be given and to undertake the requested enquiries, the MLAT Request will (by its very nature) contain information from the Dutch Investigation, and a summary of the evidence that supports the investigation. In this regard there is also no basis for assuming that such investigation, and associated sources of material, are limited to material from Glencore (very much the reverse as one would envisage that a prosecuting authority would undertake its own investigation in relation to all sources that were available to it).

Further, and as already noted, Mr Glasenberg’s lawyers have acknowledged that the MLAT Request is relevant and thus disclosable. They do not resile from that. Equally, Osborne 1 did not assert that the MLAT Request is, although relevant, likely peripheral, or duplicative of primary documents that will be disclosed. In this regard it is telling to note what Ms Osborne does and does not state at paragraph 15 of her witness statement. What she states is as follows:-

“Based on [Nelemans 1] I understand that there are restrictions under Dutch law on (i) the ability of the DPPO to give Mr. Glasenberg permission ... and (ii) the ability of Mr. Glasenberg or his counsel to permit inspection of the MLAT Request, which would be a crime under section 272 of the [DCC] and arguably also section 184 of the Dutch Criminal Code. I also understand from the Dutch Expert Report that there is a risk that Mr. Glasenberg would be prosecuted for any such violation.”

What she does not state is that the contents of the MLAT Request are not of any relevance or importance to the issues arising in the English Proceedings (and in giving disclosure the former is acknowledged). Had that been the view of those acting for Mr Glasenberg something along such lines would be expected (even if chapter and verse could not be given due to confidentiality concerns).

As already addressed the reality is that the knowledge of Mr Glasenberg is at the very heart of the Claimants’ claim, and documents bearing on the personal knowledge of Mr Glasenberg would be of key importance. By the very nature of the MLAT Request, relating as it did to a Dutch investigation, the MLAT Request will contain information from the Dutch Investigation, and a summary of the evidence that supports the investigation, and Mr Glasenberg is at the heart of matters not only in relation to the Claimants’ case, but also knowledge of matters in the DRC and Mr Gertler. In such circumstances I consider that the MLAT Request is likely to be of importance and significance for the fair disposal of the English Proceedings having regard to its subject matter and likely content.

I would add again that, as is clear from the EuroChem case itself, which concerned a single document, an individual document can, in and of itself, be important. I consider this to be particularly so in the context of a document that was itself a request for mutual legal assistance, given what such a request should include. It is a document generated by an investigating authority themselves and may (indeed in relation to a request for mutual assistance is likely to be) the product of “all their own work”.

I consider that the likely importance and significance of the MLAT Request weighs very heavily in the balance (in reality overwhelmingly so given the limited risk of prosecution even if there were, contrary to my findings, a real risk of prosecution).

Again there are the comity considerations. I consider that these also weigh heavily in the balance and in favour of disclosure at stage 3 (as well at stage 2). This Court can, and should, reasonably expect that considerations of comity will influence the foreign state (here the Netherlands) in deciding whether or not to prosecute Mr Glasenberg (see Bank Mellat at [63(vi)]) not least given that the whole purpose of disclosure and inspection is to further the fair trial of English Proceedings which are themselves concerned with alleged international bribery and corruption, the prevention of which is no doubt a shared goal in both jurisdictions.

Yet further, and again weighing heavily in the balance and in favour of disclosure, is that this Court can and will, craft its Order (including the recitals thereto) in a manner which will reduce, so far as possible, any risk of exposing Mr Glasenberg to prosecution, and I am satisfied that an Order in the terms of Annex A hereto (as finalised upon hand down) will further that aim, and is likely to do so.

Equally, I consider that the Confidentiality Club that I will impose, will ensure that the MLAT Request is not publicly available, and will go some considerable further way to ensure that disclosure will not impede the ongoing Dutch Investigation.

For all the above reasons I consider that undertaking the balancing exercise between (i) the risk of prosecution in the Netherlands (even if such risk is real, in contradistinction to my findings) and (ii) the importance of the document of which inspection is ordered to the fair disposal of the proceedings (coupled with the comity considerations and the terms of the Order I propose), the later far outweighs the former.

Accordingly, Mr Glasenberg’s disclosure and inspection obligations in the English Proceedings in relation to the MLAT Request remain, and the Glasenberg Disclosure Restriction Application is dismissed.

AABAR HOLDINGS S.À.R.L

GLENCORE PLC

MR IVAN GLASENBERG

The First Defendant is not required to give disclosure of documents (if any) within the DPPO/FIOD Correspondence that would otherwise be disclosable in accordance with paragraphs 22(a) and 24 of the CMC 1 Order or for any other reason.

The First Defendant's application for an order that its disclosure obligations be varied such that it is not required to disclose the DPPO Documents, in light of its evidence as to Dutch law and the position taken by the DPPO, is otherwise dismissed. Accordingly, subject to paragraph 1 of this order, the First Defendant shall provide disclosure in accordance with paragraphs 22(a) and 24 of the CMC 1 Order (and paragraph 4 below) of documents (if any) within the DPPO Documents (including the FIOD Documents) that fall to be disclosed pursuant to an Order of the Court in these proceedings by [14 or 28 days' time]. For the avoidance of doubt, such documents may be appropriately redacted to remove irrelevant confidential or personal information.

The Second Defendant's application for an order that his disclosure obligations be varied such that he be permitted to withhold inspection of the MLAT Request, made in reliance on his expert evidence as to Dutch law and the position taken by the DPPO, is dismissed. Accordingly, the Second Defendant shall produce the MLAT Request in accordance with paragraphs 18 and 19 of the CMC 2 Order (and paragraph 4 below) by [14 or 28 days' time].

Any production of the FIOD Documents and MLAT Request is to be in accordance with the confidentiality ring provisions set out in Annex 1 to this Order, subject to further Order of the Court.

Insofar as the First Defendant's Application concerns its obligation to provide disclosure of documents (if any) within the OSC Category 2 Documents that would otherwise be disclosable in accordance with paragraphs 22(a) and 24 of the CMC 1 Order or for any other reason, that aspect of the Application is adjourned.

The First Defendant is not required to provide disclosure of documents (if any) within the OAG AP Documents that would otherwise be disclosable in accordance with paragraphs 22(a) and 24 of the CMC 1 Order or for any other reason.

Liberty to apply.