Crown Prosecution Service & Ors v Gohil

Evidence obtained from an overseas authority under a request made pursuant to section 7 of the Crime (International Co-operation) Act 2003 may be used only for the purpose specified in the request, unless that authority consents to wider use. The prohibition in section 9(2) applies to civil proceedings as well as other criminal proceedings.

Disclosure to a third party for an unauthorised purpose is itself prohibited because its object would be to enable that party to use the evidence. The prohibition continues even after the evidence has been adduced in open court. Information learned from the evidence may, however, provide a springboard for independent enquiries producing other admissible evidence.

The Crown Prosecution Service and the Secretary of State appealed against Moylan J's order requiring disclosure to a former wife of documents obtained from foreign states under section 7 of the Crime (International Co-operation) Act 2003. She sought the documents for an application to set aside a consent financial order allegedly procured through her former husband's non-disclosure, fraud and misrepresentation.

Moylan J considered himself bound by BOC Ltd v Instrument Technology Ltd, which construed the equivalent provision in the Criminal Justice (International Co-operation) Act 1990 as restricting collateral use in criminal proceedings but not civil proceedings. He therefore exercised the disclosure power under rule 21.2 of the Family Procedure Rules 2010.

The central issue was whether section 9(2) permitted the evidence to be disclosed and used in family proceedings without the requested states' consent, and whether the earlier Court of Appeal decision remained binding.

1. Appeals allowed. Section 9(2) of the Crime (International Co-operation) Act 2003 prohibited the use, without the requested state's consent, of evidence obtained under section 7 for any purpose other than that specified in the request. The prohibition covered civil proceedings of every description as well as other criminal investigations and proceedings.

2. The equivalent language in section 3(7) of the Criminal Justice (International Co-operation) Act 1990 was clear. Its ordinary meaning imposed a general prohibition subject to one express exception: the overseas authority's consent. An implied limitation confining the prohibition to criminal matters was neither obvious nor necessary. It was also inconsistent with the statutory requirement to return documents when they were no longer needed for an authorised purpose.

3. BOC Ltd v Instrument Technology Ltd was plainly wrong and had been decided per incuriam. The earlier court had not been directed to the common-law presumption that Parliament legislates consistently with the United Kingdom's international obligations or to relevant international instruments restricting collateral use. The present court was therefore entitled not to follow that coordinate decision, notwithstanding the strict limits governing the per incuriam exception.

4. There was no material distinction between unauthorised use and disclosure. Disclosure to a third party would enable that person to use the evidence and would undermine international mutual assistance to the same extent as direct collateral use. The court consequently lacked power to order the requested disclosure.

5. The prohibition continued after documents obtained under a request had properly been adduced in open court. Such documents could not themselves be deployed in other proceedings. A person who learned information from them could nevertheless use that information as a springboard for independent enquiries and rely on separately obtained evidence. The trial judge would decide whether any attempted use crossed into the prohibited deployment of the requested documents.

6. Because section 9(2) precluded the disclosure order, it was unnecessary to decide whether Moylan J had otherwise exercised his discretion under rule 21.2 correctly.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 1550, allowed the appeals and held that section 9(2) prohibited the ordered disclosure and collateral use.
2. High Court, Family Division: Moylan J held that BOC Ltd v Instrument Technology Ltd bound him to treat the statutory prohibition as inapplicable to civil proceedings. He ordered disclosure under rule 21.2 of the Family Procedure Rules 2010 because the material was necessary for the fair disposal of the former wife's application.