Varsha P (Applicant/Claimant) v Bhadresh P (Respondent/Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Moylan |
| Judgment Date | 30 May 2012 |
| Neutral Citation | [2012] EWHC 1733 (Fam) |
| Date | 30 May 2012 |
| Court | Family Division |
| Docket Number | Case No: FD02D03678 |
[2012] EWHC 1733 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Moylan
Case No: FD02D03678
Mr S Cobb QC and Ms N Fox (instructed by Hodge Jones & Allen) appeared on behalf of the Claimant
Ms E Da Costa-Waldman (instructed by Duncan Lewis) appeared on behalf of the Defendant
Ms Cumberland appeared on behalf of the Secretary of State
Ms Schutzer-Weissmann appeared on behalf of the Crown Prosecution Service
Approved Judgment
I am determining an application for disclosure made by a former wife in the course of her application to set aside an ancillary relief order made on 30 April 2004 which she alleges was procured by material misrepresentation.
The application is for disclosure by the Crown Prosecution Service of:
(i) A prosecutor's statement which it is believed was served on the husband on 5 September 2011, and any subsequent amended versions;
(ii) The defendant husband's response thereto. As I understand it, he has not yet filed a response but the date for him doing so has not yet occurred. There is no obligation on the husband to file a response.
(iii) The transcripts of the husband's interviews for the purposes of what are called the T2 trial and the V Mobile trial.
(iv) All amendments to restraint orders which have been made against the husband.
(v) The application, supporting statements and exhibits used in the restraint order application.
Disclosure is also sought against the husband, effectively of the same material, that material being in the possession of his solicitors instructed for the purposes of the criminal proceedings which I will describe shortly.
The parties to the application are the wife, as I will call her in this judgment, represented by Mr Cobb, QC and Ms Fox; the husband, as I will call him, represented by Ms Da Costa-Waldman; the Secretary of State for the Home Department represented by Ms Cumberland, and the Crown Prosecution Service ("CPS") represented by Ms Schutzer-Weissmann.
The application is opposed by the Secretary of State and the CPS on the basis that the documents which the wife seeks contain information consisting of or derived from material received from foreign governments or other authorities pursuant to requests for mutual legal assistance. It is submitted that I should, therefore, reject the application.
Mutual legal assistance ("MLA") is the process by which states and state authorities provide assistance to each other for the purposes of criminal investigations and prosecutions and ancillary proceedings such as confiscation or other civil recovery proceedings. The provision of MLA is governed by treaties, conventions and schemes but can also occur through, for example, informal co-operation between law enforcement agencies. According to the evidence in this case the furthest extent to which any evidence obtained by MLA might be used directly is in non-conviction based asset forfeiture proceedings under Part 5 of the Proceeds of Crime Act 2002.
MLA does not extend to civil proceedings and a third party — i.e. anyone other than a defendant in criminal or ancillary proceedings — is not able to make use of the MLA process.
But for the Court of Appeal decision in BOC Limited v Instrument Technology Limited [2002] QB 537, the Secretary of State and the CPS would submit that I would be bound to dismiss the wife's application pursuant to the provisions of section 9(2) of the Crime (International Co-operation) Act 2003 ("the 2003 Act"). They contend that BOC was wrongly decided and that section 9(2) imposes an absolute prohibition on the use of MLA material absent the consent of the requested state other than for the use specified in any letter of request. In BOC the Court of Appeal decided that the identical provisions of the previous statute (the Criminal Justice (International Co-Operation) Act 1990) did not impose an absolute bar as they only apply to criminal proceedings and not to civil proceedings.
It is, therefore, accepted for the purposes of this hearing that I have a discretion as to whether or not to order the disclosure of the documents sought by the wife. However, it is submitted on behalf of the Secretary of State and the CPS that the policy, public and international comity interests raised by this application weigh so strongly against the use of MLA material for any purpose other than that for which it was sought that my discretion can only properly be exercised by refusing the wife's application.
The husband, who was a solicitor, was charged with money laundering offences on 24 September 2008. He was convicted, after a trial, on 23 November 2010 of money laundering and other offences valued at over $20 million. The husband was also charged on 9 September 2009 with conspiracy to defraud and further money laundering offences. On 6 December 2010, the husband pleaded guilty to a number of offences including, as I understand it, fraud and six further counts of money laundering valued at approximately $37 million. These convictions were part of what have been called respectively, the Ibori (or T2) proceedings, after the name of the lead defendant, and the V Mobile shares proceedings named after the vehicle used to perpetrate the offences. The husband has been sentenced to imprisonment for terms totalling ten years. An application has been made by the CPS for a confiscation order against the husband under the provisions of the Proceeds of Crime Act 2002. That application is due to be determined by the Crown Court at a hearing commencing on 5 November 2012.
For the purposes of the Ibori proceedings and the V Mobile proceedings, the husband was interviewed on a number of occasions. Parts of the former interviews were read out to the jury in the course of the criminal trial which was conducted in open court. The latter interviews were, I am told, not referred to in open court during the course of the sentencing hearing.
For the purposes of the confiscation proceedings, the prosecutor has served a statement on the husband. In this it is alleged that the husband's particular benefit from criminality is valued at over £36 million and his general benefit is valued at an additional £9.4 million. It is also alleged that there are realisable assets of close to £35 million with other as yet unidentified assets.
As I have indicated, the husband has not yet served a response to the prosecutor's statement. As yet the prosecutor's statement and the information in it have not been disclosed in open court. The extent to which that information will become public will depend on the progress of the confiscation proceedings.
A restraint order was first made against the husband on 17 November 2008. This order has been subsequently varied but in substance continues. For the purposes of obtaining that order, the CPS will have prepared an application supported, I assume, by evidence in the form of statements and exhibits.
For the purposes of determining the wife's application, I have read the wife's affidavits, a witness statement dated 9 March 2012 from Mr Nicholas Vamos, Head of the United Kingdom Central Authority, provided on behalf of the Secretary of State, and a witness statement dated 23 March 2012 from Mr David Williams, a Senior Crown Prosecutor, provided on behalf of the CPS. I have read and heard submissions made on behalf of each of the parties to this application.
Dealing briefly with the background, the husband and wife were married in 1990. They have three children. Throughout the marriage the husband worked as a solicitor in a small practice in central London. The marriage came to an end in 2002 and the wife commenced her application for ancillary relief on 6 June 2002. The wife's application was determined by a consent order made by Baron J on 30 April 2004. That order records that the wife believes the husband has not provided full and frank disclosure and that she is compromising her claims despite this belief. During the course of the financial proceedings the husband alleged that he had no assets and only substantial debts. He also said that he was only able to pay the lump sum ordered, of £270,000, with the assistance of his family.
On 3 July 2007, the wife applied to set aside the order of 30 April 2004 on the basis of material financial non-disclosure, fraud and misrepresentation. Among other evidence, she relies on an affidavit from her former father-in-law. The wife's application has had something of a tortuous history and is currently adjourned part-heard in order to enable me to determine this application.
The husband was arrested on 7 November 2007 and I have briefly summarised the consequent criminal process.
Much of the information contained within the documents sought by the wife is said to consist of information and material obtained from foreign jurisdictions under MLA provisions. Letters of request have been sent to many different foreign governments or authorities, reflecting the length and scale of the investigation into the husband's activities. In excess of 90 letters of request have been sent on dates between September 2006 and November 2011 to approximately 22 foreign states or authorities as well as to Jersey and Guernsey. Material has been provided in response to those requests on various dates up to January 2012 and by approximately 18, perhaps a few more, states or state authorities.
This case therefore raises the issue of whether I should make an order that the identified...
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