INFORMATION OBTAINED FROM PROSECUTING AUTHORITY: ADMISSIBILITY IN CIVIL CASES

Ian Geering QC and Matthew Parker, 3 Verulam Buildings

BOC Ltd v Instrument Technology Ltd [2001] All ER (D) 53 (Jun) concerned the admissibility in civil proceedings of information obtained under s 3 of the Criminal Justice (International Co-operation) Act 1990.The Act implemented the 1959 European Convention on Mutual Assistance.

The claimants had obtained freezing injunctions limited to £1.4m against the defendants, together with associated disclosure orders, and had started proceedings for fraudulent misrepresentation. In the course of a criminal investigation into one of the defendants, Frederick Barlow, the police obtained information from the Swiss authorities in response to a letter of request under s 3 of the 1990 Act.  The prosecuting authority subsequently informed the claimant's solicitor that Mr Barlow controlled three Swiss bank accounts which had not been disclosed in accordance with the original disclosure orders.  On that evidence, Henriques J made a world-wide freezing order.  At the inter partes hearing, the defendants argued that the order should be discharged because it was based on evidence the use of which was expressly prohibited by s 3(7) of the 1990 Act.  Grigson J dismissed that submission ([2001] All ER (D) 187 (Feb).

Section 3(7) provides that 'Evidence obtained by virtue of a letter of request shall not without the consent of [the authority from whom the information was obtained] be used for any purpose other than that specified in the letter; and when any document or other article obtained pursuant to a letter of request is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it shall be returned to such an authority unless that authority indicates that the document or article need not be returned.'  The Swiss authorities' consent to the use of the evidence in civil proceedings had not been sought or given.

On appeal, the Court of Appeal (Mummery and Kay LJJ) held that s 3(7) did not impose a prohibition on the use of the information in civil proceedings.  The basis for that decision was that s 3 'was not directed at obtaining evidence for use in civil proceedings' and that the width of the prohibition in s 3(7) 'is implicitly restricted to the use of information by the prosecuting authority or the defendant in criminal investigations and proceedings.'  It appears from the judgment of Mummery LJ that s 3(7) applies only to the recipient of the information and that it prohibits only the use of the information for some unauthorised purpose in the criminal investigations or proceedings.

This gives rise to a number of considerations.  First, s 3(7) states that the evidence shall not be used for any unauthorised purpose, not that the recipient shall not use it for any unauthorised purpose.  Moreover, it states that the evidence shall not be used for any purpose other than that specified in the letter, not for any purpose in the relevant criminal proceedings other than that specified in the letter.

Second, if the recipient is prohibited from using the information for some unauthorised purpose in the criminal investigation, why should the recipient be permitted to use the information for some other purpose, for example in civil proceedings, or to provide that information to a third party?

Kay LJ could see no logical reason why, if s 3(7) imposed a blanket prohibition on unauthorised use of evidence in both criminal and civil proceedings, that should not continue to apply even after the evidence had been made public at a criminal trial.  He noted the concession of counsel for the defendants that, in those circumstances, it would be impossible for a court to exclude the evidence in subsequent civil proceedings.  He acknowledged, however, that even on the Court of Appeal’s interpretation of s 3(7), the evidence could not be used in subsequent criminal proceedings without the provider’s consent.  To do so would defeat the very object of the legislation.  But if the evidence could be excluded by the court in a subsequent criminal trial, why not in a subsequent civil trial?  As the Court of Appeal recognised, the courts have a discretion in any event to exclude evidence that has been obtained unlawfully: A-G’s Reference (No 3 of 1999) [2001] 1 All ER 577.

Mummery LJ asked why, when s 3 of the 1990 Act is not directed at obtaining evidence for use in civil proceedings, there should be any prohibition on its use in such proceedings?  The answer is that s 3 is designed to encourage other states to co-operate with prosecuting authorities in this country.  One means by which that co-operation is encouraged is by enabling the provider of information to be certain that it will be used only for the stated purpose.  If the information is required for another purpose, consent must be sought.  The effect of the Court of Appeal’s decision is that this protection has been swept away.  While the court may have achieved a just result for the claimants in this case, the decision may have an impact on the willingness of foreign authorities to assist in criminal investigations in this country.