“Where any information is subject to an obligation of secrecy imposed by or under any enactment other than an enactment contained in theTaxes Management Act 1970 , the obligation shall not have effect to prohibit the disclosure of that information to any person in his capacity as a member of the Serious Fraud Office but any information disclosed by virtue of this subsection may only be disclosed by a member of the Serious Fraud Office for the purposes of any prosecution in England and Wales, Northern Ireland or elsewhere and may only be disclosed by such a member if he is designated by the Director for the purposes of this subsection.”
“(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where – (a) the document has been read to or by the court, or referred to, at a hearing which has been held in public; or (b) the court gives permission; or (c) the party who disclosed the document and the person to whom the document belongs agree.” (a) the document has been read to or by the court, or referred to, at a hearing which has been held in public; or (b) the court gives permission; or (c) the party who disclosed the document and the person to whom the document belongs agree.”
“It requires one to hold that, with the sole exception of legal professional privilege, Parliament intended to sacrifice every aspect of the public interest which might require confidentiality to the overriding needs of the investigation of fraud” and ruling (at 552A) that – “a “reasonable excuse” in section 2(13) must include any case in which a person is required or entitled under some other rule of law to withhold the information.”
“I do not think that the answer is quite so simple. Section 3(3) deals with statutory obligations of secrecy but not, in my judgment, the heads of public policy which may justify non-disclosure. When one considers the various heads of public policy, such as national security, diplomatic relations and the administration of central government, which have been held to justify non-disclosure even for the purposes of justice, I find it impossible to suppose that the only public interest which Parliament thought capable of taking precedence over the investigation of fraud was the efficient collection of the revenue. The reason, in my judgment, why section 3(3) overrides most statutory obligations of secrecy is that these are expressed in statutory terms, or at any rate in terms which permit no exception for the needs of the S.F.O. But the doctrine of public policy, which may well underlie some of the statutory provisions, permits a balance to be struck between the public interest in preserving secrecy and the public interest in the investigation of fraud. There was no reason why these heads of public policy should have to be excluded from the concept of “reasonable excuse” and in my judgment section 3(3) does not have this effect.”
“It thus seems to me that the balance comes down clearly in favour of the direction being given. Put shortly, the liquidators may be assisted thereby and the S.F.O. have nothing to lose. I should in conclusion point out two differences from the balancing exercise which Phillips J. had to perform in Reg. v. Clowes. First, this is not a “class action”
“The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides, in its own distinctive fashion, through its rules about abuse of process and contempt of court”; Lord Keith of Kinkel (also of the majority) said (at 308G): “The implied obligation not to make improper use of discovered documents is, however, independent of any obligation arising under the general law relating to confidentiality. It affords a particular protection accorded in the interests of the proper administration of justice”; and Lord Scarman (who was of the minority) quoted Lord Denning MR in Riddick v. Thames Board Mills Ltd. [1977] Q.B. 881 at 896 as follows (at 312C) – “Compulsion [to disclose] is an invasion of a private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires”
“[these authorities]…illustrate no general principle beyond this, that the court will not release or modify the implied undertaking given upon discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery. As Nourse L.J. observed in the course of his judgment in the instant case (ante, p.840G), each case must turn on its own individual facts. In the instant case, the determinative point to my mind is that it is purely adventitious that there happened to be two actions.”
“Save in exceptional circumstances, it would not be right to authorise the bank voluntarily to make use of the material for any other purpose…However, voluntary disclosure is one thing; disclosure under compulsion of law is another. By enabling the bank to obtain information which it needs for the successful prosecution of its civil remedies, the court should not place the bank in an impossible position in which it must either infringe its undertaking to this court or find itself in breach of its duties under Greek law… “If the governor [of the Bank of Greece] obtains them, it will be a matter of Greek law to determine whether or not he should provide them to the examining magistrate and what use if any the examining magistrate should make of them. Such questions involve considerations of public policy, but in my judgment they are questions of Greek public policy, and they should be determined accordingly without the restraining hand of this court. If under Greek law, either the Governor of the Bank of Greece or the examining magistrate can compel the production of the audit reports, so be it. It is frequently the case that material obtained by a party to English civil proceedings may be required to be produced in criminal proceedings in England. By a parity of reasoning, I see no reason why the English court should be astute to prevent a party who has obtained material in this country by the use of the coercive powers of the English court from producing such material in a foreign jurisdiction if compellable to do so.”
“The 1987 Act makes it clear that the public interest in investigating serious fraud, and in assisting the authorities of other countries in their investigations into serious fraud, much of which is international in character, is so great that it takes priority over almost all statutory obligations of secrecy and almost all private rights of confidentiality. It is sufficient to take priority over the privilege of self-incrimination and must equally be sufficient to take priority over the public interest in ensuring that litigants comply with the duty of disclosure. Although one can contemplate situations in which the public interest in maintaining the confidentiality of information might be so great as to override the interest in the investigation and prosecution of serious fraud, so that public policy would favour withholding the relevant information, such situations are likely to be rare and each case will have to be considered on its merits. It is not suggested, however, that there are any special features of this case that would justify that conclusion.”