[2025] EWHC 2243 (KB)

Section 184(1) of the DCC (as translated into English by Professor Nelemans, at Nelemans 1, paragraph 93) provides as follows (numbering added for ease of reference):-

“[LIMB 1] anyone who intentionally fails to comply with an order or a demand made pursuant to a statutory provision by an official charged with or authorized to detect or investigate criminal offences, as well as;

[LIMB 2] anyone who intentionally prevents, hinders or thwarts any action undertaken by one of those officials in implementation of any legal provision

shall be punished with a prison term or not more than three months or a fine of the second category”.

The section deals with a demand of an official charged with or authorised to detect or investigate criminal offences. As is common ground between the parties, section 184(1) contains two limbs, and provides for two separate criminal offences:-

It is common ground between the parties that the first limb of section 184(1) (failure to comply with an order or demand) does not apply in the present case (see Nelemans 1 at paragraph 94; Brouwer 1, at paragraph 15).

The difference between the parties (and the experts) is whether disclosure of the FIOD Documents could amount to a violation of the second limb of s.184(1) on the basis that disclosure would intentionally prevent, hinder or thwart an action undertaken by the DPPO (and if so whether there is a real risk of prosecution in relation to the same).

The approach to be taken in this case is thus a staged process:-

There is extensive correspondence between De Brauw (the Dutch lawyers acting for Glencore) and the DPPO. As a preliminary point, and as the Claimants note, De Brauw are in Chambers and Partners and in Legal 500 both in Europe and the Netherlands in Band 1 for financial crime, and as such they can be assumed to have an extensive knowledge of Dutch criminal provisions yet (as will appear) it never appears to have crossed their mind, when seeking to flush out the DPPO’s position in correspondence, that an offence under Limb 2 of section 184(1) might be committed or that the DPPO might think that it would be.

The Claimants say rightly so because on their case the second limb of section 184(1) is not even a “text or empty vessel” (see Tugushev at [33]) but simply does not apply, and the only suggestion that it might apply comes from a tentative suggestion for Professor Nelemans adopting an academic approach. The Claimants submit (with some force) that neither De Brauw, nor the DPPO, in the relevant correspondence, identified any possible breach of the second limb of section 184(1) by reason of disclosure of the documents under consideration in the English Proceedings. On any view, the correspondence reflects CC’s and De Brauw’s contemporary understanding of any potential criminal offences.

A further preliminary point to note is that it is common ground between the experts that whilst Glencore has sought consent from the DPPO to disclose the FIOD Documents in these proceedings, and the DPPO has declined to give such consent, the DPPO does not in fact have any power to give consent, even had it wished to do so (see Nelemans 1, at paragraph 85 which is not contested in Brouwer 1). That needs to be borne in mind when considering statements made by the DPPO.

A final preliminary point is that Mr Hill KC rightly acknowledged that the proper construction of such correspondence is ultimately a matter for this Court (rather than for the experts, though, of course, the experts may also express their views about such correspondence, which they do, and which the Court will bear in mind, though not necessarily accept).

On 7 October 2024, De Brauw wrote to the DPPO identifying that Glencore had been ordered by the English High Court to provide documents relevant to the English Proceedings which included documents originating from the DPPO and FIOD, and identified documents and correspondence falling with such category and asked whether there was any objection to the provision of the same to CC for possible production in the UK. Mention was also made of the possibility that to the extent necessary personal or sensitive information could be redacted.

The DPPO responded on 15 October 2024, the DPPO stated:-

“You have requested me to inform you whether there are any objections on the side of the [DPPO] to provide 1) documents from the file in the criminal investigation into Samos [i.e., the DPPO Glencore Investigation] and 2) e-mail correspondence between you and the [DPPO] regarding the investigation into Samos in a civil lawsuit in the United Kingdom in which Glencore is involved.

Seeing that the criminal investigation in respect of the co-defendants has not been completed yet, there is a risk of damage to the criminal case if judicial data, such as documents from the criminal file or e-mails between you and the [DPPO] regarding the investigation into Samos were to be submitted in other court proceedings. Seeing the public’s familiarity with the case and (one of) the co-defendants, redacting the names of the co-defendants does not offer any solace for this either.

In addition, the Dutch Judicial Data Act does not offer any basis for the (further) provision either, so that there is no possibility of providing judicial data to third parties for this purpose anyway.

I therefore do not give you permission to share documents from the criminal file or e-mail correspondence between you and the [DPPO] in the criminal investigation into Samos with third parties”.

(emphasis added)

The DPPO’s position therefore was (and as will be seen, remained in DPPO’s emails of 4 November 2024 and 14 February 2025) no more than that, “… there is a risk of damage to the criminal case if judicial data, such as documents from the criminal file or e-mails between you and the [DPPO] regarding the investigation into Samos were to be submitted in other court proceedings”. The DPPO has never identified that disclosure would breach any provision of Dutch criminal law, or that if disclosure took place Glencore or anyone associated with them would be prosecuted. Such points have to be seen in the context of the fact that very detailed correspondence with the DPPO ensued (as addressed below).

On 30 October 2024, De Brauw thanked the DPPO for their 15 October letter and asked if their answer would be different if the documents were to be shared within the framework of a confidentiality ring that the Claimants would be prepared to agree to which CC has passed on to De Brauw.

On 4 November 2024, the DPPO replied, stating as follows:-

“As we communicated on 15 October last, the [DPPO] does also not give permission to share documents from the file with third parties, not even to a limited number of persons. We therefore reject the proposal of Clifford Chance for the ‘confidentiality ring’”.

On 13 January 2025, CC wrote a further letter to the DPPO. The letter set out in extensive detail the subject matter of the English Proceedings and Glencore’s disclosure obligations therein. That was then followed with a section headed “Summary of our understanding as to why Glencore is restricted from disclosing the DPPO Documents in the Proceedings”.

Immediately below that in paragraph 19 CC stated as follows:-

“Based on our previous discussions with De Brauw, our current understanding is there are a number of restrictions under Dutch law concerning Glencore’s disclosure of the DPPO Documents in the Proceedings. We summarise our current understanding of the applicable restrictions below”.

There then followed reference to a previous undertaking with the DPPO, Article 142 and 144 of the Dutch Judicial Organization Act (“DJOA”) and section 39f of the DJDCRA. None of those points in fact remain alive, but the relevance is that such references (together with what was said about section 184(1) in the next paragraph) on any view reflected the contemporary understanding of De Brauw and CC in relation to any relevant provisions of Dutch Criminal law (given what was then asked of the DPPO), and that did not include any express reference to the second limb of section 184(1).

In paragraph 23 CC did make reference to section 184(1):-

“We also understand that a contravention of an instruction from the DPPO to Glencore and its Dutch legal representatives to keep the DPPO Documents confidential may result in Glencore committing a crime by violating section 184 of the Dutch Penal Code (failure to abide by a binding instruction) and may also expose Glencore's Dutch counsel to disciplinary actions based on violations of its professional standards obligations (article 46 of the Dutch Lawyers Act)”.

The express reference to a violation of section 184(1) is to a “failure to abide by a binding instruction”. This is either a reference to Limb 1 of section 184(1) or that phrase is being used by way of shorthand to identify section 184(1). Either is possible but I consider that the former is more likely for two reasons. First the more likely (the Claimants would say only likely) potential contender for a violation of section 184(1) is a failure to abide by a binding instruction (Limb 1). Secondly, it appears that neither CC nor De Brauw considered the second limb of section 184(1) to be of any relevance at this time (the Claimants would say rightly). In any event, and on any view, the attention of the DPPO was expressly drawn to section 184(1).

The CC letter then continued as follows at paragraph 24:-

“To the extent that the DPPO's understanding of the applicable restrictions concerning the DPPO Documents under Dutch law differs from the summary provided in paragraphs 20-23 above, or if there are further restrictions which the DPPO has identified, we respectfully request that the DPPO outline its difference in understanding or the further restrictions”.

(emphasis added)

The DPPO were therefore being asked if their view differed from that which had been set out, or if there were further restrictions which the DPPO had identified, and if so the DPPO was being asked to outline its differences in understanding or any further restrictions it had identified.

The CC letter then provided at paragraph 25 as follows:-

“While we respect the DPPO's initial denial of De Brauw's request, we hereby respectfully request that that the DPPO reconsider its position. In order to support the DPPO in its consideration of the request, we set out below the potential consequences for Glencore if the consent is not granted and the next steps that we expect would follow should the DPPO grant its consent for the DPPO Documents to be disclosed to the Claimants in the Proceedings”.

CC then set out such steps, as well as identifying the approach of the English Court and Bank Mellat factors, and then asking, in terms of next steps, the DPPO to respond by 20 January 2025 if it was not willing to give consent, stating (amongst other matters), “whether the DPPO agrees with our summary of the applicable restrictions under Dutch law concerning the DPPO Documents, and whether the DPPO has identified any additional restrictions”.

What in fact happened is that on 13 February 2025, De Brauw sent an email to the DPPO asking further questions and also referring to, and asking about when the DPPO would be able to react to CC’s letter of 13 January 2025. De Brauw’s email, and the DPPO’s response thereto (including as to CC’s letter of 13 January 2025) are of some considerable importance in relation to the issues that arise viz any applicability of, and any violation of, the second limb of section 184(1) and any risk of prosecution in relation thereto. They accordingly merit detailed analysis.

The DPPO responded to De Brauw’s email of 13 February 2025 on 14 February 2025 (i.e. the following day). They did so in these terms, “Please find below our reaction to your questions in blue. We hope we have provided you with sufficient information with the above”. For ease of distinction, I set out the DPPO’s response (i.e. the blue text) in italics, in what follows.

Towards the start of De Brauw’s email they state as follows:-

“We have learned – as also explained in the letter you received from Clifford Chance UK on 13 January 2025 – that Clifford Chance UK must explain to the High Court of England and Wales why the documents cannot be shared. For this purpose, they have engaged an expert, Mr. Matthijs Nelemans, professor in Tilburg (the Netherlands). In his draft export report, Mr. Matthijs Nelemans explains, among other things, the applicable limitations and/or restrictions under Dutch law for sharing such documents. Clifford Chance UK (currently) intends to submit this report to the High Court of England and Wales on 14 February 2024”.

(emphasis added)

This is an important revelation in the light of the arguments now pursued by Glencore and Mr Glasenberg. It is clear that by the stage of De Brauw’s email of 13 February 2025 (and the matters asked therein), though I am told not at the time of the CC letter of 13 January 2025, Professor Nelemans had been instructed on behalf of Glencore. What is more it is clear that, as at 13 February 2025, Glencore and De Brauw had his draft report (the latter expressly refers to what Professor Nelemans explains in his draft report), and such report must have been near completion given that it was contemplated that it would be served on 14 February 2025, and Nelemans 1 was in fact dated 28 February 2025.

Accordingly, such (tentative) views as Professor Nelemans had on the second limb of section 184(1) must therefore have already existed and been known to Glencore and De Brauw. It would be remarkable therefore if they did not intend to refer to the second limb of section 184(1) unless, De Brauw, no doubt well versed in Dutch criminal law, did not feel that even merited an express reference to the second limb of section 184(1) in their email of 13 February 2025. However, the former is surely the more likely explanation as they knew that Professor Nelemans would be referring to the second limb (however tentatively).

De Brauw then stated that “In order to ensure that the information in the expert report is as accurate as possible and corresponds with your view of the above, we have four questions for you. It would be much appreciated by us if you could have a look at them” (emphasis added). It seems therefore, that they were seeking to ensure that the information in the report corresponded with the DPPO’s views. It would be all the more remarkable therefore, if De Brauw was not intending to refer to both limbs of section 184(1).

The first question was as follows:-

“1.

Regarding the denial of permission for the (further) provision (emails from the PPS dated 15 October and 4 November 2024):

We read your emails dated 15 October and 4 November 2024 as a ban on sharing the following documents and emails with third parties, including lawyers, external counsel for claimants and the experts appointed by the High Court:

• [redacted]

• [redacted]

• [redacted], and

• [redacted]

According to Section 184 of the Dutch Criminal Code, the deliberate failure to comply with an order or demand or restricting or obstructing the implementation of a legal requirement – in short – is a criminal offense. Could you let us know whether the ban in the sense referred to above should indeed be considered, in the opinion of the PPS, as an “order” within the meaning of Section 184 of the Dutch Criminal Code or can be brought under the scope of that Section otherwise?”.

(emphasis in bold added)

De Brauw is thus referring in the first lines to the opening part of section 184(1) i.e. Limb 1, but they also ask “or can be brought under the scope of that Section otherwise” which therefore contemplates whether the ban can be brought under the rest of section 184(1) which would include Limb 2 (albeit its terms are not expressly referred to).

The DPPO response is as follows:-

“No, you asked us for permission to submit the documents mentioned by you above in the civil lawsuit in the UK. We have indicated several times that we cannot grant permission for this, because the wsjg (Dutch Criminal Data Act) does not allow this. And also because it would be harmful for the criminal case against the co-defendants. This, however, is not an order within the meaning of Section 184 of the Dutch Criminal Code.”

The answer “No” could be to section 184(1) generally, but it goes on to refer to, and give an unequivocal answer to the first limb: “This, however, is not an order within the meaning of Section 184 of the Dutch Criminal Code”. On any view, this is an unequivocal confirmation that there is no violation of the first limb of section 184(1) (which accords with the experts’ views and is common ground between the parties). However, the parties agree that it is ambiguous as to whether it is a confirmation that it cannot be brought within the second limb of section 184(1).

Nevertheless, it would be remarkable if the DPPO would have given the answer it did if it considered that any aspect of Glencore’s conduct (specifically, disclosing the documents in the English Proceedings) would give rise to a violation of the second limb of section 184(1), given, first, that the DPPO is being asked about section 184(1) as a whole (“or can be brought under the scope of that Section otherwise”); second, it will surely have put its mind to that matter having been asked that question and; third, there is no suggestion that the DPPO is doing anything other than being helpful in responding to what it is being asked (including as to whether there is a violation of a criminal provision), and with knowledge of why it is being asked. In other words, if the DPPO had believed there was any possible violation of the second limb of section 184(1), it would surely have shared that belief and said so, given that De Brauw are candidly enquiring whether there has been any violation of a criminal provision (section 184(1)).

Question 4 was as follows:-

“4.

As for the letter from Clifford Chance UK: We would like to know, at the request of Clifford Chance UK, when you think you will be able to react to the letter you received from them on 13 January 2025”.

The DPPO responded in these terms which was clearly their intended response to CC’s letter of 13 January 2025:-

“This is our reaction to this letter. We will limit our reaction to the questions that concern Dutch law. This means we will not deal with the questions with number 34 and following. Again, we have indicated several times that we do not give permission to share the documents with third parties. This is because it is harmful for our criminal case and also because the wsjg does not provide for this. In addition to this, we also observe that sharing information from the criminal file falls under the scope of the GDPR. You will have to weigh the importance of sharing the information with third parties against the importance of confidentiality in view of the criminal case that is still pending.

As far as we are concerned, the importance of the criminal case carries more weight. We do not share your view that the sharing of the information from the criminal file constitutes a violation within the meaning of Section 184 of the Dutch Criminal Code (this in response to paragraph 23 of the letter from Clifford Chance). The reference to Section 142 of the RO (Dutch Judicial Organization Act) (paragraph 21) is incorrect in our view, as this provision concerns the observation by a judicial officer. In our view, the “undertaking” merely concerns the presentation given by De Brauw Blackstone and the correspondence on that matter and the substantive discussions between the parties, but not the criminal file itself”.

(emphasis added)

There are number of points to note:-

In the above circumstances, and for the above reasons, 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). Whilst this is jumping ahead to a consideration of the risk of prosecution, I can see no prospect whatsoever of prosecution in such circumstances.

In any event, and as addressed in due course below, I am in no doubt that what the DPPO stated in their response would also give rise to an affirmatory defence in the inherently improbable scenario of a prosecution. It is an inherently improbable scenario for the additional reason that the fact that there would be (or even would be likely to be) an affirmatory defence, factors back in to the risk of prosecution, as it is inherently improbable that the DPPO would consider it in the public interest to prosecute if Glencore had an affirmatory defence as a result of what the DPPO had itself said (quite apart from other affirmatory defences in the context of compulsion as a result of the English order).

It will be recalled that in Nelemans 1, and the issue as to whether there would be any commission of a criminal offence, Professor Nelemans repeatedly puts it no higher than that disclosure of the FIOD Documents may amount to an offence under section 184 of the DCC (second part). He does so both in terms and implicitly by contrast with his opinions about the DPPO/FIOD Correspondence (where his views are much more forthright). The difference in language (and conclusions) is striking, and clearly shows a more tentative, and less certain, opinion in relation to the FIOD Documents. Thus:-

Such (tentative) suggestions as to a violation of Limb 2 of section 184(1) in relation to the FIOD Documents are to be contrasted with the views expressed by Professor Nelemans in relation to the DPPO/FIOD Correspondence (Nelemans 1, at paragraph 113):-

“To the extent that GIAG were to disclose the DPPO/FIOD Correspondence to Glencore and its counsel, this would likely result in a breach of the Undertaking, as well as a violation of section 272 DCC. If Glencore (once it had received the DPPO/FIOD Correspondence from GIAG) were to disclose the correspondence in the Proceedings, this would likely result in a violation of section 272 DCC, but it would not be a breach of the Undertaking since Glencore is not a party to the Undertaking.”

(emphasis added)

If one then seeks to identify the basis on which Professor Nelemans considered that there was a chance of a violation of the second limb of section 184(1) at the time of his first report it is difficult to identify any such basis. It seems to be based almost entirely on his own interpretation of the correspondence between De Brauw, CC and the DPPO, yet as appears above, such correspondence does not evidence there being any such chance (low though Professor Nelemans is at this stage expressing such chance).

It will be recalled that Limb 2 of section 184 provides that, “anyone who intentionally prevents, hinders or thwarts any action undertaken by one of those officials in implementation of any legal provision shall be punished with a prison term or not more than three months of a fine of the second category”. In paragraph 95 of Nelemans 1 Professor Nelemans gives his reason for there being a chance (as quoted above) as “Given that the DPPO has indicated and repeated that the criminal investigation into the co-suspects is ongoing and that it considers disclosure (as well as the DPPO/FIOD Correspondence) detrimental to the investigation (referring to sections 132a DCCP and section 3 of the Police Act 2012) the DPPO may conclude that disclosure by GIAG intentionally hinders the ongoing investigation” (emphasis added) which he (presumably) then equates with “hinder[ing] any action undertaken by one of those officials in implementation of any legal provision” and so amounting to a violation of Limb 2 of section 184(1).

However the fundamental difficulty with that opinion (tentatively expressed though it is) is that despite the fact that the DPPO has repeatedly stated in the correspondence with De Brauw (and CC) that, “there is a risk of damage to the criminal case if judicial documents such as documents from the criminal file…were to be submitted in other court proceedings” the DPPO have not expressed the view that the disclosure would amount to a violation of Limb 2 of section 184(1), and indeed what they have said (as analysed above) is inconsistent with them holding such a view, and with the answers they gave, and it is inconceivable that they would not have stated that it amounted to a breach of section184 (1) when asked about that very section, if that was the view they held. Yet further, and having made such statements, it is inherently improbable that the DPPO would reach a contrary view (or act on such a contrary view) in the future. So Professor Nelemans’ speculative hypothesis as to what the DPPO “may conclude” is contrary to what is actually known (as a matter of fact) as to the stance of the DPPO.

It appears that Professor Nelemans may well have recognised that such hypothesis was on shaky foundations as he addresses what he describes as the “ambivalence of the DPPO’s statement” (in its 14 February 2025 response), stating:-

“At least, the ambivalence of the DPPO’s statements would make it more difficult for the DPPO to prosecute under section 184 DCC, as a prospective defendant that disclosed the FIOD Documents and was prosecuted under section 184 DCC would raise the defence of absence of any culpability (also known as an AVAS-defence) and argue that they relied on the earlier statements by the DPPO on the applicability of section 184 DCC”.

But the DPPO’s stance is more than ambivalent. As addressed above, not only did it make statements about the absence of a violation of section 184 of the DCC, it is clear that it did not itself consider that there was any violation within the meaning of section 184 of the DCC as a whole, and had it so considered it surely would have stated the same (given what it was being asked). Yet further, Professor Nelemans’ reliance on the possibility of an affirmative defence (which he was to back track on in Nelemans 2), is itself a recognition that if the DPPO wished to prosecute Glencore for a breach of section 184(1) it would have to change the stance it currently had (reflected in the statements to Glencore), and Professor Nelemans identifies no basis for any belief that the DPPO would do so (not least given that he recognises that if the DPPO did so Glencore might have an affirmative defence, which would be a very good reason for the DPPO not to change its stance).

It is difficult to see Professor Nelemans’ hypothesis in Nelemans 1 as anything other than academic speculation as to what might be argued (if one were seeking to argue that an offence arose) that is not grounded in anything that the DPPO had said. Equally, and as Professor Nelemans candidly recognised, “There is no case that is highly analogous to the facts at hand”. That is hardly a propitious start in circumstances where the very foundations of the hypothesis are based on a construction of the correspondence with the DPPO that it does not bear.

Professor Brouwer concludes (at paragraph 27 of his report) that the disclosure of documents in the context of civil proceedings in the UK cannot give rise to concerns in the context of the second limb of section 184(1) of the DCC. In this regard he sets out his views as follows at paragraphs 26 and 27:-

“26.

In the present case, we are considering the disclosure of documents. Even if the disclosure of documents and the information contained therein would be viewed as theoretically having some impact on the DPPO’s investigation or the FIOD’s activities, I do not see how an investigative act already undertaken can be ‘prevented’ or ‘obstructed’ within the meaning of section 184(1) DCC by the subsequent physical act of disclosing certain documents in the context of civil proceedings taking place in the United Kingdom (“UK”). For the same reasons, I also do not see how such official acts could be considered ‘foiled’. Disclosure will not result in the official acts already undertaken ‘being rendered powerless’ (krachteloos maken) nor do they ‘fail’ (mislukken) ‘because they are deprived of their intended consequence’ (doordat daaraan het beoogde gevolg wordt ontnomen). As discussed, any official acts that the DPPO or the FIOD may want to engage in at some time in the future, after the disclosure of the documents, need not even be considered in this context.

27.

I therefore conclude – and state as my opinion – that the disclosure of documents in the context of civil proceedings in the UK cannot give rise to concerns in the context of the second offence in section 184(1) DCC. In this respect no distinction can or needs to be made between the different documents that are the subject of this opinion. Neither the disclosure of the FIOD Documents, nor the disclosure of the DPPO/FIOD Correspondence, nor the disclosure of the MLAT Request, as physical acts can detrimentally impact the execution or completion of any physical official act that has already been undertaken, or is in the process of being executed, at the moment of disclosure”.

In the course of his report Professor Brouwer expresses the view that in order to qualify as an official act for the purposes of section 184(1), the act must be a “physical act” (see Brouwer 1, paragraph 21) and cannot be committed in relation to an official act defined as broadly as “the ongoing investigation” (Brouwer 1, paragraph 22). He further states that an ongoing investigation is not a concrete/physical official act (although interrogations, or “other physical investigative actions already undertaken” may be (Brouwer 1, paragraph 25).

In this regard he refers to a decision of the Dutch Supreme Court (the “HR”) and the associated opinion of the Advocate General, which he addresses at paragraphs 19 and 20 of his report, before concluding at paragraphs 21 to 24 as follows:-

“21.

From this established case law, it follows that the official act itself must be viewed as a physical act. In this, section 184(1) DCC can be assumed to be closely related to the very physical offence of ‘resisting arrest through violence’, which can be found close by, in section 180 DCC, and which is also placed in Title VIII (“Crimes against the public authorities”) of Book 2 of the DCC.

22.

There is no authority (caselaw or otherwise) expanding the concept of ‘official act’ in section 184(1) DCC beyond a physical act, for instance to a more abstract or general activity or to a range of acts. The second offence in section 184(1) DCC has not been interpreted or regarded by the courts as a more abstract “obstruction of justice”-offence. This stands to reason since another element of section 184(1) DCC is that the ‘official act’ prevented/obstructed/foiled must always be undertaken ‘in the execution of any legal provision’ (ondernomen ter uitvoering van enig wettelijk voorschrift). Criminal liability can therefore only attach in respect of lawful official acts, which may give rise to a defence if the particular ‘official act’ was not carried out in accordance with domestic law or had no basis in domestic law. It is apparent that such an assessment cannot be made if the scope of section 184(1) DCC is expanded to abstract or theoretical investigative acts in a criminal case. It is clear, therefore, that the second offence in section 184(1) DCC cannot be committed in relation to an official act defined as broadly as e.g. “the ongoing investigation into GIAG’s co-suspects” or what Mr Tolaini’s seventh witness statement calls “the Ongoing DPPO Investigation”.

23.

From this it also follows that still abstract, theoretical official acts – acts that may or may not be undertaken sometime in the future – cannot give rise to a concern in relation to section 184(1) DCC. See in this context Prof. Mr. A.J. Machielse, with whom I concur: “The syntax here implies that a future action cannot be considered. Something must therefore have been undertaken, or at least begun.”

24.

The case cited above makes clear that the second offence in section 184(1) DCC (preventing, obstructing or foiling an official act) can only be committed in relation to an official act that has either already been concluded (foiling) or has been undertaken (preventing or obstructing). This requires that the official act must at least have started, must have commenced, which, in turn, means it must have found expression in the form, of an initial beginning of the execution of the official act. From this caselaw it is also apparent that that the second offence in section 184(1) DCC is only applicable to acts countervailing an undertaken physical official act, that have the effect of preventing or obstructing the further execution or completion of that physical official act. Such countervailing acts should be sufficiently material to be capable of actually preventing or obstructing the physical official act…”.

He then explains why he disagrees with Nelemans 1 paragraph 95 in his paragraph 25:-

“25.

On the grounds set out above, I disagree with Nelemans 1 [95], which claims that “the DPPO may conclude that a disclosure by GIAG intentionally hinders the ongoing investigation […] interrogations or specific ongoing investigative actions […] by the DPPO.” As I have explained above, an “ongoing investigation” is not a concrete official act and therefore cannot be prevented, obstructed or foiled within the meaning of section 184(1) DCC. Interrogations (already undertaken or ongoing) are such official acts but they can only be ‘prevented’ or ‘obstructed’ within the meaning of section 184(1) DCC by acts which physically impact the execution or completion thereof (such as physically disturbing or cutting short the interview between the FIOD officials and their interviewees). The same holds true for other specific physical investigative actions already undertaken”.

Professor Brouwer’s view that in order to qualify as an official act for the purposes of section 184(1) the act must be a physical act, is itself very much disagreed with in Nelemans 2. Professor Nelemans considers that for the purposes of s.184(1) of the DCC, the “act” does not have to be physical, but in any event, an official act will always involve some physical expression of the official’s intention, and an investigation will comprise individual independent physical acts (see Nelemans 2, at paragraphs 31-37 and 54). He also considers that the execution of the investigation is an official act (Nelemans 2, paragraphs 37-44 and 55). He further considers that in any event, the DPPO’s repeated refusal to give consent to the disclosure of the documents can itself be regarded as a separate act, a point first raised in Nelemans 2 (see Nelemans 2, paragraphs 44 and 56).

I have to say that this difference of view led to a wholly disproportionate, and quite unnecessary, debate in the oral submissions as to whether Professor Brouwer was correct or not that in order to qualify as an official act for the purposes of section 184(1) the act must be a physical act and cannot be committed in relation to an official act defined broadly as the “ongoing investigation”. I do not find it necessary to determine this issue as it is, I am satisfied, a red herring. The issue is whether the disclosure of the documents in the English Proceedings amounts to a violation of Limb 2 of section 184(1). I do not consider that this issue is answered by reference to the debate as to whether the act must be a physical act, or that it is necessary to reach a conclusion as to which Professor’s evidence is to be preferred on such issue in determining whether there would be a violation of Limb 2 of section 184(1).

For the reasons that I have already identified, 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). There is nothing in Nelemans 1 that justifies a different view (for the reasons that I have given). Brouwer 1 is consistent with that view (even if one puts to one side the opinions he expresses about the issue of “physical acts”). That leaves the question of whether there is anything in Nelemans 2 that would lead to a different conclusion (were I to accept the views of Professor Nelemans in Nelemans 2), to which I will now turn.

I have, as already foreshadowed, considerable difficulty in relation to Professor Nelemans’ firming up of his opinions in Nelemans 2 both in relation to Limb 2 of section 184 and in relation to the risk of prosecution. I only address the former in this section.

First, in Nelemans 2, Professor Nelemans now suggested that disclosure in the English proceedings will also prevent, obstruct or foil the DPPO’s refusal of consent to disclosure (i.e., fulfil the second limb of s. 184(1) for this reason: see for example Nelemans 2, at 200(a)). As already noted, it is difficult to see how this can be characterised (as Mr Hill KC sought to characterise it) as a “rebuttal point”, but even if it were appropriate to characterise it as a rebuttal point, Professor Nelemans then reaches a much stronger conclusion than in Nelemans 1, concluding (at Nelemans 2, paragraph 57 that):-

“preventing, obstructing or foiling the ongoing investigation and/or specific investigative acts by disclosing the FIOD Documents […] and/or the MLAT Request or acting contrary to the DPPO’s refusal to consent with disclosing these documents, would in my opinion be a violation of the second part of section 184(1) DCC. I note that this is a stronger conclusion than in Nelemans 1 (paragraph [95]) and is derived from the foregoing more detailed analysis of section 184(1) DCC”.

(emphasis added)

The difficulty I have with Professor Nelemans’ asserted reason for this shift (“more detailed analysis of s.184”) is that, in reality, his “more detailed analysis” amounts to little more than his disagreement with Professor Brouwer about the intended scope of s.184 (itself something of a red herring as I have already identified), and to the extent that he is relying on the correspondence with the DPPO, as addressed above, I do not consider that such correspondence supports his much stronger conclusion – very much the reverse in circumstances where the DPPO stated that “We do not share your view that the sharing of the information from the criminal file constitutes a violation within the meaning of section 184 of the Dutch Criminal Code”. Nowhere in any of that correspondence did the DPPO say that disclosure of the documents in the English Proceedings would constitute a violation of section 184(1) and it is clear that they were not of that view.

I do not consider that there is anything in Nelemans 2 that either justifies the views he expressed in Nelemans 1, or the even stronger conclusion he expressed in Nelemans 2 that there would be a violation of the second part of section 184(1). Once again, Professor Nelemans appears to rely upon his reading of the correspondence (which does not bear the interpretation he places upon it) and his views on the wording of Limb 2 of section 184. Once again it is notable that he cites no case law or commentary to support his expressed view as to a violation of the second Limb of section 184, and it is a view that is neither consistent with, nor accords with, what is said by the DPPO.

I also note that Professor Nelemans has not identified any situation analogous to the present one in which a criminal offence has been found to have been committed.

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).