Crown Prosecution Service and another v Gohil and another
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls |
| Judgment Date | 26 November 2012 |
| Neutral Citation | [2012] EWCA Civ 1550 |
| Docket Number | Case No: B6/2012/1418 & B6/2012/1422 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 November 2012 |
and
and
[2012] EWCA Civ 1550
The Master of the Rolls
Lady Justice Hallett
and
Lord Justice McFarlane
Case No: B6/2012/1418 & B6/2012/1422
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
FAMILY DIVISION, PRINCIPAL REGISTRY
MR JUSTICE MOYLAN
FD02D03678
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Julian B Knowles QC and Ms Esther Schutzer-Weissman (instructed by Crown Prosecution Services) for the First Appellant
Mr Jonathan Swift QC and Ms Melanie Cumberland (instructed by The Treasury Solicitor) for the Second Appellant
Mr Stephen Cobb QC and Miss Nicola Fox (instructed by Hodge Jones and Allen LLP) for the First Respondent
Mr James Turner QC and Ms Elissa Da Costa-Waldman (instructed by Duncan Lewis Solicitors) for the Second Respondent
Hearing date: 6 and 7 November 2012
Master of the RollsThis is the judgment of the court.
Introduction
The Crime (International Co-operation) Act 2003 ("the 2003 Act") provides for international mutual assistance in criminal matters. Section 7 provides, in relation to England and Wales and Northern Ireland, that a request may be made by a prosecuting authority for assistance outside the United Kingdom in obtaining any evidence specified in the request for use in criminal proceedings or in the investigation of an offence. Section 9 provides:
"(1) This section applies to evidence obtained pursuant to a request for assistance under section 7.
(2) The evidence may not without the consent of the appropriate overseas authority be used for any purpose other than that specified in the request.
(3) When the evidence is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it must be returned to the appropriate overseas authority, unless that authority indicates that it need not be returned."
The issue that arises on this appeal is whether section 9(2) of the 2003 Act permits the use in family proceedings of evidence obtained pursuant to a request under section 7.
The 2003 Act was the successor to the Crime (International Co-operation) Act 1990 ("the 1990 Act"), which was the first comprehensive piece of United Kingdom legislation on international mutual assistance in criminal matters. The 1990 Act contained provisions which corresponded closely with those in the 2003 Act. In particular, section 3(7) of the 1990 Act provided:
"Evidence obtained by virtue of a letter of request shall not without the consent of such an authority as is mentioned in subsection (4)(b) above 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 Crown Prosecution Service ("CPS") and the Secretary of State for the Home Department ("SSHD") appeal against the order of Moylan J that the CPS should disclose to Mrs Varsha Gohil various documents which the CPS had obtained from foreign states pursuant to letters of request under section 7 of the 2003 Act. She sought disclosure of the documents by her former husband, Bhadresh Babulal Gohil in the course of her application to set aside a consent ancillary relief order which had been made on 30 April 2004. She alleges that this order was procured by misrepresentation on his part. Moylan J held that he was bound by the decision of this court in BOC Limited v Instrument Technology Limited [2002] QB 537 (Mummery and Kay LJJ). In that case, the court held that section 3(7) of the 1990 Act implicitly prohibited the use of evidence obtained under a letter of request in criminal proceedings (other than the criminal proceedings specified in the letter of request), but that it did not prohibit its use in civil proceedings. The judge, therefore, held that he had a discretion whether or not to order disclosure. He exercised that discretion in favour of Mrs Gohil on the grounds that the material was necessary for the fair disposal of her application.
It is submitted on behalf of the CPS and SSHD that (i) the BOC decision is not binding on this court because (a) it was plainly wrong and per incuriam and (b) it should in any event be interpreted consistently with international treaties and conventions which have been ratified by the United Kingdom since the date of the BOC decision; and (ii) if (contrary to their primary case) the judge had a discretion, he exercised it wrongly.
The facts
Before we come to the law, we should briefly set out the factual background. Mr and Mrs Gohil were married in 1990. The marriage came to an end in 2002. Mrs Gohil commenced her application for financial remedy on 6 June 2002. This application was concluded by the making of a consent order by Baron J on 30 April 2004. The order recorded Mrs Gohil's belief that her husband had not made full and frank disclosure. During the course of the financial proceedings, Mr Gohil alleged that he had modest assets (around £170,000) and substantial debts. He said that it was only with the assistance of his family that he was able to pay the lump sum of £270,000 that was the subject of the consent order.
In 2007, fortified in her belief by further investigation that Mr Gohil had concealed assets, Mrs Gohil commenced proceedings in the Family Division of the High Court to set aside the consent order. She specifically alleged that there had been material non-disclosure, fraud and misrepresentation.
In 2010, Mr Gohil was prosecuted for various offences, including money laundering of approximately £25 million (the proceeds of theft and corruption by a former Governor of Delta State in Nigeria). On 22 November 2010, he was convicted at Southwark Crown Court. On 6 December 2010, he was also convicted on other charges, including conspiracy to defraud (the proceeds of this criminal activity were approximately $37 million). He was sentenced to a total of 10 years' imprisonment. Much of the evidence was heard by Mrs Gohil in open court. This included evidence which had been obtained by the CPS pursuant to requests under section 7 of the 2003 Act. The CPS also started confiscation proceedings under the Proceeds of Crime Act 2002, but it is unnecessary to consider these further.
In October 2011, Mrs Gohil made a wide-ranging application to the Family Court for disclosure by the CPS of the papers in the criminal proceedings. The CPS and SSHD were added as parties to the application. As we have said, much of the information contained in the documents whose disclosure was sought by Mrs Gohil comprised material which had been obtained from foreign states pursuant to section 7 of the 2003 Act. It seems that more than 90 letters of request were sent by the CPS and the SSHD between September 2006 and November 2011 to approximately 22 foreign states or authorities. The question of principle that the judge had to resolve was whether it was lawful to order disclosure to Mrs Gohil of material which the CPS had obtained by requests under section 7 of the 2003 Act.
We shall first consider whether the BOC decision was wrong and then, if it was wrong, whether it is binding on this court.
Was BOC wrongly decided?
Background
Before we come to the court's reasoning, we need to set the 1990 Act in its international context. The long title of the Act made clear that its purpose was to enable the United Kingdom to co-operate with other countries in criminal proceedings and investigations, and to enable it to ratify relevant international instruments. The long title provides:
"An Act to enable the United Kingdom to co-operate with other countries in criminal proceedings and investigations; to enable the United Kingdom to join with other countries in implementing the Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances; and to provide for the seizure, detention and forfeiture of drug trafficking money imported or exported in cash."
The Vienna Convention is specified in the long title, but the 1990 Act also enabled the United Kingdom (in 1991) to ratify the European Convention on Mutual Assistance in Criminal Matters, which had opened for signature in 1959 ("the 1959 Convention"). The position is summarised in McLean, International Co-operation in Civil and Criminal Matters (3 rd edition) p 225:
"In 1990 the United Kingdom enacted for the first time comprehensive legislation on mutual assistance in criminal matters. The Criminal Justice (International Co-operation) Act 1990 enabled the United Kingdom to comply with its moral obligations in respect of the Commonwealth Scheme and to ratify the European Convention on Mutual Assistance in Criminal Matters of 1959 and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, and it provides a legislative basis for the implementation of other bilateral and multilateral agreements."
Article 7 of the Vienna Convention provides:
"13. The requesting party shall not transmit nor use information or evidence furnished by the requested Party for investigations, prosecutions or proceedings other than those stated in the request without the prior consent of the requested Party."
The 1959 Convention...
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