Tchenguiz & Anor v Rawlinson And Hunter Trustees SA & Ors

The Criminal Justice Act 1987 does not impose an absolute bar preventing the Serious Fraud Office from disclosing, pursuant to a court order in civil proceedings, documents obtained from third parties under its compulsory section 2 powers. The Act contains no express prohibition, and an implied restriction must not be created unless it is necessary, obvious or proper as a matter of statutory construction. A duty of confidence arising from compulsory powers is subject to the court’s order, absent clear statutory wording to the contrary. The existence of limited statutory disclosure gateways under section 3(5) does not alter that conclusion. Whether particular documents should be disclosed, or whether privilege or another statutory bar applies, remains a separate question.

The Serious Fraud Office sought a declaration in damages proceedings brought by the Tchenguiz claimants that the Criminal Justice Act 1987 did not prevent it from disclosing documents received from third parties in response to section 2 notices and permitting inspection of those documents.

Deutsche Bank opposed the application, contending that the Act imposed an implied restriction on disclosure where none of the section 3(5) gateways applied, overriding the disclosure obligation under CPR 31. The issue was confined to whether the Act created an absolute bar in principle; questions concerning particular documents, privilege and other statutory restrictions were left for later determination.

1. Declaration granted. The SFO was not prevented by the Criminal Justice Act 1987 from disclosing documents obtained from third parties under section 2 notices pursuant to the court’s disclosure order and permitting inspection.
2. The Act contained no express prohibition on disclosure. Although the absence of express words was not determinative, it was an important starting point. An absolute bar would be a strong restriction and could not properly be implied merely because section 3(5) identified limited circumstances in which the SFO could voluntarily disclose information.
3. The authorities supported the conclusion that compulsory acquisition creates duties of confidence, but that those duties are subject to an order of the court. Marcel v Commissioner of Police [1992] Ch 225 was of general assistance on that point, notwithstanding its different statutory context and the variation of the Vice-Chancellor’s order on appeal. Morris v Director of the SFO [1993] Ch 371 provided limited assistance because the issue of an absolute statutory bar had not been argued.
4. The express prohibitions in other statutes, including sections 19(2) of the Anti-Terrorism, Crime and Security Act 2001, 33(1) of the Serious Organised Crime and Police Act 2005, 82 of the Banking Act 1987 and 348 of the Financial Services and Markets Act 2000, reinforced the significance of the CJA’s omission of comparable wording. Rowell v Pratt [1938] AC 101 was distinguishable because the legislation there made disclosure a criminal offence. The reasoning in BCCI v Price Waterhouse [1998] Ch 84 likewise depended on an express statutory prohibition.
5. The public interest in confidentiality and the limited disclosure gateways might be relevant when deciding whether to order disclosure of particular material. That exercise was distinct from the present question of whether the Act imposed an absolute bar.

The parties were directed to agree a draft order, including costs and consequential matters, for approval; outstanding matters were to be determined if agreement failed.