BOC Ltd v Instrument Technology Ltd

Information obtained by a prosecuting authority under a criminal mutual-assistance letter of request is not thereby barred from use in civil proceedings. Section 3(7) of the Criminal Justice (International Co-operation) Act 1990 must be read in its statutory context. It regulates use in criminal investigations and proceedings by the prosecuting authority or the person charged, and does not impose a blanket prohibition on a victim or other third party using the information in civil proceedings. There is no general common-law or European Convention rule requiring unlawfully obtained evidence to be excluded, although a court may exclude evidence in an appropriate exercise of discretion. Relevant information may therefore support freezing and disclosure orders where it was not unlawfully obtained by the civil party.

BOC Ltd and Edwards High Vacuum International Ltd brought civil fraud proceedings against Frederick and David Barlow, Instrument Technology Ltd and a former buyer. They alleged bribery, dishonest assistance, overcharging and invoicing for goods not supplied.

In related criminal proceedings, police obtained information about Swiss bank accounts through letters of request under section 3 of the Criminal Justice (International Co-operation) Act 1990. The information was supplied to the claimants’ solicitor. Henriques J made a worldwide freezing order, and Grigson J continued freezing and disclosure orders to trial, rejecting the argument that section 3(7) prohibited use of the information. The appeal concerned whether that information could be used in civil proceedings without the foreign authority’s consent.

Disposition

Mummery LJ gave the principal judgment, with Kay LJ agreeing and adding a further consideration. The appeal was dismissed with costs.

1. Statutory scope. Part 1 of the Criminal Justice (International Co-operation) Act 1990 is concerned with mutual assistance in criminal investigations and proceedings. Section 3(7) must be understood in that context. Its prohibition is implicitly restricted to use by the prosecuting authority or the person charged in criminal investigations and proceedings. It does not prohibit a civil claimant from using information supplied by a prosecuting authority in civil proceedings.
2. Third-party and derivative use. The Act is silent on the use of the material in civil proceedings and on use by someone other than the person who made the letter of request. Those omissions supported the conclusion that section 3(7) was not a blanket prohibition extending to civil claimants or derivative evidence.
3. Admissibility. There is no general common-law or European Convention principle that unlawfully obtained evidence is inadmissible, although evidence may be excluded in an appropriate exercise of judicial discretion. The information concerning the Swiss accounts had not been obtained unlawfully by the claimants’ solicitor. Apart from section 3(7), there was therefore no bar to its use or admissibility.
4. Kay LJ’s additional reasoning. A blanket prohibition applying in civil proceedings would logically continue even after the evidence had become public in a criminal trial. That would produce an untenable distinction. The sensible construction was that section 3(7) applied to criminal proceedings but not civil proceedings.

The evidence was highly relevant to the defendants’ alleged non-compliance with the earlier disclosure order and to the freezing and disclosure applications. The appeal was dismissed with costs summarily assessed at £13,988.96.

• Court of Appeal (Civil Division): [2001] EWCA Civ 854. Appeal dismissed with costs.
• Queen’s Bench Division: Grigson J, on 15 February 2001, continued to trial the freezing and disclosure orders made without notice by Henriques J, rejecting the objection under section 3(7) of the Criminal Justice (International Co-operation) Act 1990.
• Queen’s Bench Division: Langley J made the original without-notice freezing and asset-disclosure orders on 10 December 1999.