P v P [2012] EWHC 1733 (Fam)

Case No FD02D03678[2012] EWHC 1733 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Wednesday, 30 May 2012
Strand
London WC2A 2LL
Before
MR JUSTICE MOYLAN
Between
PRespondent/Defendant
Digital Transcript of Wordwave International, a Merrill Communications Company101 Finsbury Pavement London EC2A 1ERTel No: 020 7422 6131 Fax No: 020 7422 6134Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com(Official Shorthand Writers to the Court)
MR S COBB QC and MS N FOX (instructed by Hodge Jones & Allen) appeared for ClaimantMS E DA COSTA-WALDMAN (instructed by Duncan Lewis) appeared for DefendantMS CUMBERLAND appeared for Secretary of StateMS SCHUTZER-WEISSMANN appeared for Crown Prosecution Service
Judgment
[1]MR JUSTICE MOYLAN: 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.[2]The application is for disclosure by the Crown Prosecution Service of (i)A prosecutor's statement which was served on the husband, 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 A trial and the B 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[3]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.[4]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.[5]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.[6]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.[7]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.[8]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.[9]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.[10]The husband, who was a solicitor, was charged with money laundering offences in 2008. He was convicted, after a trial, in 2010 of money laundering and other offences valued at over $20 million. The husband was also charged in 2009 with conspiracy to defraud and further money laundering offences. In 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 A proceedings, and the B proceedings. 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 in November 2012.[11]For the purposes of the A proceedings and the B 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.[12]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.[13]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.[14]A restraint order was first made against the husband in 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.[15]For the purposes of determining the wife's application, I have read the wife's affidavits, a witness statement dated 9 March 2012 from the Head of the United Kingdom Central Authority, provided on behalf of the Secretary of State, and a witness statement dated 23 March 2012 from 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.[16]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.[17]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.[18]The husband was arrested in 2007 and I have briefly summarised the consequent criminal process.[19]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.[20]This case therefore raises the issue of whether I should make an order that the identified documents should be disclosed to the wife when this would result in information and material obtained pursuant to MLA requests and provisions being made available to her for the purposes of her application to set aside the ancillary relief order and/or, if that is successful, in her reinstated application for financial provision.[21]During the course of his submissions, Mr Cobb made it clear that the wife does not seek to assert a claim in respect of any asset or resources which are tainted by the husband's criminal activities. She seeks to identify untainted assets against which she would, she asserts, have a legitimate claim under the provisions of the Matrimonial Causes Act 1973.[22]The wife seeks disclosure of the identified material on the basis that it is necessary in order to dispose fairly of the proceedings and, I would add, to save costs, pursuant to the provisions of Rule 21 of the Family Procedure Rules 2010. Part 21 of the FPR contains "Miscellaneous rules about disclosure and inspection of documents" and includes provisions dealing with orders for disclosure against a person not a party. Rule 21.2(1) states:
"This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings. Then rule 21.2(3) provides: 23. "
The court may make an order under this rule only where disclosure is necessary in order to dispose fairly of the proceedings or to save costs."[23]Accordingly, the wife submits, as I have indicated, that the material she seeks is necessary in order to enable the court to dispose fairly of the substantive proceedings with which I am dealing.[24]The Secretary of State and the CPS oppose the disclosure of the material sought on the basis that to do so would conflict with the provisions of section 9(2) of the 2003 Act and would be contrary to the public interest in this case as disclosure would, it is submitted, significantly undermine the MLA regime.[25]Chapter 2 of the 2003 Act deals with the "Mutual provision of evidence" and, in particular, assistance in obtaining evidence abroad. Section 7 provides:
"(1) If it appears to a judicial authority in the United Kingdom on an application made by a person mentioned in subsection (3)- (a) that an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed, and (b) that proceedings in respect of the offence have been instituted or that the offence is being investigated, the judicial authority may request assistance under this section. (2) The assistance that may be requested under this section is assistance in obtaining outside the United Kingdom any evidence specified in the request for use in the proceedings or investigation. (3) The application may be made – (a) in relation to England and Wales and Northern Ireland, by a prosecuting authority, (b) in relation to Scotland, by the Lord Advocate or a procurator fiscal, (c) where proceedings have been instituted, by the person charged in those proceedings … (5) In relation to England and Wales and Northern Ireland, a designated prosecuting authority may itself request assistance under this section if- (a) it appears to the authority that an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed, and (b) the authority has instituted proceedings in respect of the offence in question or it is being investigated. 'Designated' means designated by an order made by the Secretary of State."
[26]Section 9 deals with the use of evidence obtained:
"(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."
[27]These provisions replaced the identical provisions in section 3 of the Criminal Justice International Co-operation Act 1990. The Explanatory Notes to the 2003 Act state:
"It implements the mutual legal assistance provisions of the Schengen Implementing Convention of 14 June 1985, the Convention on Mutual Assistance in Criminal Matters 2000, and the evidence-freezing provisions of the 2003 Framework Decision on the execution in the European Union of orders freezing property or evidence adopted by the Council of the European Union on 22 July 2003."
[28]The provisions of the Explanatory Notes led me to suggest during the course of the hearing that the interpretation and application of section 9(2) should perhaps be considered in part by reference to these and other international instruments. Nobody responded to that suggestion with any enthusiasm. Ms Cumberland submitted, in my view correctly, that the meaning of section 9(2) could not depend on the nature of the provisions under which the particular information had been provided because this would or could result in a variable meaning being applied. She suggested that section 9(2) probably reflects the broadest provisions of the range of those contained in the international instruments, and also reflects the approach taken by Parliament to this issue. She also submitted that this was not a necessary exercise, given that it is the practice of the United Kingdom authorities in all cases to provide an undertaking or assurance that the information will not be used for any purpose other than that stated in the letter of request without the consent of the remitting state.[29]It was also submitted by the parties that it was not necessary for me to embark on this exercise because I am bound by the Court of Appeal's decision in BOC, namely that the statutory provisions apply only to criminal proceedings and not to the use of material in civil proceedings.[30]I have, nevertheless, looked at some of the international instruments. On a brief analysis, their focus appears to be on the use which state authorities can make of the information and material supplied. For example, the Harari Scheme, which governs the provision of MLA within the Commonwealth, provides by Article 12:
"The requesting country shall not use any information or evidence obtained in response to a request for assistance under this scheme in connection with any matter other than the criminal matter specified in the request without the prior consent of the Central Authority of the requested country."
[31]Interestingly, in addition, Article 11 of the Harari Scheme provides:
"The Central Authorities and the competent authorities of the requesting and requested countries shall use their best efforts to keep confidential a request and its contents and the information and materials supplied in compliance with a request except for disclosure in criminal proceedings and where otherwise authorised by the Central Authority of the other country."
This latter provision makes plain the obligation on the requesting state authorities to keep confidential the information and material supplied pursuant to a request.[32]Article 46 of the United Nations Convention Against Corruption 2003, which also deals with mutual legal assistance, provides in paragraph 19:
"The requesting State Party shall not transmit or use information or evidence furnished by the requested State Party for investigations, prosecutions or judicial proceedings other than those stated in the request without the prior consent of the requested State Party."
[33]The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism 2005 has a chapter dealing with international co-operation. Article 42 is headed "Restriction of Use". Paragraph 1 provides:
"The requested Party may make the execution of a request dependent on the condition that the information or evidence obtained will not, without its prior consent, be used or transmitted by the authorities of the requesting Party for investigations or proceedings other than those specified in the request."
[34]Paragraph 2:
"Each State or the European Community may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by declaration addressed to the Secretary General of the Council of Europe, declare that, without its prior consent, information or evidence provided by it under this chapter may not be used or transmitted by the authorities of the requesting Party in investigations or proceedings other than those specified in the request."
[35]Article 43 deals with confidentiality and by paragraph 2 provides:
"The requesting Party shall, if not contrary to basic principles of its national law and if so requested, keep confidential any evidence and information provided by the requested Party, except to the extent that its disclosure is necessary for the investigations or proceedings described in the request."
[36]The Schengen Implementing Convention 1990 contains provisions which differ as between asylum claims and criminal proceedings. Under the chapter which deals with responsibility for processing applications for asylum, it is provided by Article 38.5 that information provided by one state to another in connection with an application for asylum may "only be used for the purposes laid down in paragraph 1" (that is an application for determining asylum):
"… Such information may only be communicated to the authorities and courts and tribunals responsible for: determining the Contracting Party responsible for processing the application for asylum, processing the application for asylum, implementing obligations arising under this chapter."
[37]Under the chapter which deals with mutual assistance in criminal matters, it is provided by Article 50.3:
"The requesting Contracting Party shall not forward or use information or evidence obtained from the requested Contracting Party for investigations, prosecutions or proceedings other than those referred to in its request without the prior consent of the requested Contracting Party."
[38]This short appraisal of some of the international instruments might suggest that they largely focus on the requesting country and state authorities and do not address or impose an absolute embargo on the use of the material by third parties for the purposes of civil proceedings. However, this does not diminish the weight of the public interest and policy arguments made on behalf of the Secretary of State and the CPS which are reflected, for example, in Article 11 of the Harari Scheme and in the undertakings provided by prosecuting authorities as referred to above (and below). Further, as I am bound by BOC, I do not propose to debate this issue further. Another factor is that material can be provided as a result of informal co-operation between law enforcement agencies, as well as pursuant to conventions, treaties and memoranda of understanding.[39]Turning now to the evidence. In his statement, the Head of the United Kingdom Central Authority expresses the opinion that requiring the CPS to disclose to the wife any material which it holds as a result of any MLA request:
"… may (i) place the UK in breach of its international obligations in relation to these MLA requests; (ii) have the potential to place the UK in breach of its international obligations (and I would add undertakings provided) in respect of all other current mutual legal assistance requests; and thus (iii) undermine significantly the effectiveness of the UK's mutual legal assistance scheme."
[40]He identifies the undoubted significance of MLA. In paragraph 11 he says:
"Assisting foreign investigative, prosecuting and judicial authorities in combating international and cross-border crime is naturally a matter of great significance to the UK's broader interests. An increasing number of crimes have an international or transnational element and MLA is a vital tool for the investigation and prosecution of such cases in the UK and overseas. As such, the Home Office is committed to giving the widest measure of assistance to its international partners."
[41]The Head of the United Kingdom Central Authority also refers to the importance in the practical operation of MLA of mutual trust. The UKCA handles over 5,000 requests per year and has an active caseload of 4,000 cases. When a request is made by a UK prosecuting authority, it provides an undertaking in the body of the letter of request, as a matter of course, that the evidence provided will not be used for any purpose other than that specified in the request without the requested state's consent. In one section of his statement the Head of the United Kingdom Central Authority summarises the potential significance of collateral use of the information provided to the United Kingdom. He says:
"[It] may be perceived by a requested state as a way of circumventing a likely refusal of assistance or avoiding conditions which would otherwise have been imposed. In turn, this could undermine trust between the states concerned and therefore prejudice future co-operation. Such action could also place the UK in breach of obligations imposed by an international agreement."
[42]He points to:
"[The] significant practical advantage to the inclusion of collateral or subsequent use restrictions in multi-lateral and bilateral treaties, conventions and schemes: they remove the need for a detailed enquiry every time an MLA request is made as to the possible use the evidence could be put - which would obviously delay the provision of assistance."
[43]He says that if disclosure were to be ordered, it would be necessary for the Home Office to consider whether this would place the UK in breach of any international agreement and whether requested states should be informed of this risk as a matter of course thereby potentially delaying or impeding the whole process. It would also lead to the risk that foreign states would likewise permit or fail to prevent such use which in turn, he says, might limit the circumstances in which the UK would be willing to provide MLA. These potential consequences would, the Head of the United Kingdom Central Authority says, risk severely undermining the important purpose behind requests for MLA, namely combating crime and, in particular, international or transnational crime.[44]The Senior Crown Prosecutor who has provided a statement, supports the matters raised by the Head of the United Kingdom Central Authority and provides additional evidence in respect of requests for MLA made directly by the CPS. It is made clear in such a request that the purposes for which evidence is sought are confined to criminal investigations, criminal proceedings, and proceedings ancillary to criminal proceedings. The Senior Crown Prosecutor exhibits to his statement an example of an undertaking which is required by the authorities in Jersey. It reads:
"I … undertake that any information and documents obtained for the purposes of the above investigation on behalf of the Crown Prosecution Service by Her Majesty's Attorney General for Jersey, pursuant to the powers conferred upon him by the Investigation of Fraud (Jersey) Law 2001, will only be used by the said Crown Prosecution Service for the purposes of that investigation, any prosecution arising out of that investigation, and any connected criminal confiscation proceedings and will not be released by the said Crown Prosecution Service to any person or any other enforcement agency without the express consent of Her Majesty's Attorney General for Jersey."
[45]Then in the second paragraph:
"I further undertake that in the event of any application to a court or tribunal in respect of which the Crown Prosecution Service has notice to disclose the information and documents obtained from Jersey in relation to the above criminal investigation/prosecution, Her Majesty's Attorney General for Jersey will be notified and consulted on the approach the Crown Prosecution Service might take in relation to that application."
[46]As a result of this and other similar undertakings, the Senior Crown Prosecutor expresses concern that if the court were to order disclosure the CPS and any Crown Prosecutor in his position could or would be in breach of this and other similar undertakings. In respect of the issue of consent, the Senior Crown Prosecutor says in his statement:
"I have considered whether it is feasible and appropriate to seek the consent of the requested states in the letter set out above, so as to permit disclosure to the petitioner in this case. In my view, to seek consent would not be feasible or appropriate; nor would it be a proportionate use of public resources dedicated to the investigation and prosecution of serious or complex criminal offences. In my view consent would not be given. In addition such a request would serve to undermine the trust and confidence of the requested states in the observance of the undertakings sought and given. This would do damage to the important and necessary process of mutual legal assistance."
[47]I say straight away that for the reasons adduced by the Secretary of State and the CPS, I accept that it would not have been practicable for consent to have been sought from the requested states for the disclosure to the wife of the documents she seeks. I accept that the material which has been obtained pursuant to the MLA regime is dispersed throughout these documents and overlapping, such that it would be extremely difficult for the CPS to identify whose consent was required for which parts of which document.[48]Turning now to the parties' submissions. Mr Cobb on behalf of the applicant, the wife, submits that the disclosure sought by her is highly material to her application against the husband and accordingly that its disclosure is necessary for the fair disposal of that application. He submits that the information contained in the documents sought by the wife will significantly assist her and the court in determining the extent of any non-disclosure by the husband and the extent of his resources. Indeed, Mr Cobb submits that to refuse the disclosure sought by the wife would be likely to result in the wife being deprived of her legitimate claims against the husband, given the likely materiality and significance to the wife's application of the information in the documents she seeks. Mr Cobb submits that in this case, the public interest in ensuring a party to litigation and separately the court have all the material necessary to ensure that justice is done in the particular case outweighs the public interest in maintaining the confidentiality of material, the disclosure of which may prejudice or inhibit relationships between public bodies charged with the investigation and prosecution of international crime.[49]Mr Cobb has referred me to the well known case of D v NSPCC [1978] AC 171 in which Lord Edmund-Davies said, at p. 242:
"It is a serious step to exclude evidence relevant to an issue, for it is in the public interest that the search for truth should, in general, be unfettered. Accordingly, any hindrance to its seeker needs to be justified by a convincing demonstration that an even higher public interest requires that only part of the truth should be told."
[50]In that case it was decided by the House of Lords that the identity of NSPCC informants should not be disclosed because of the public interest in protecting the effective functioning of an organisation authorised by statute to bring proceedings for the protection of children. If their identity was disclosed, these sources of information would be likely to dry up and the NSPCC would consequently be severely hindered in performing its statutory functions. On the broader point, it was decided that the fact that information had been communicated in confidence was not of itself a sufficient ground for protecting it from disclosure in a court of law if that would assist the court to ascertain relevant facts. The "touchstone", as referred to by Lord Edmund-Davies, is the public interest.[51]In conducting the balancing exercise Mr Cobb additionally relies on the following:(a) that some of the information has already been disclosed in open court and that other parts may be disclosed during the course of the confiscation hearing or subsequently during enforcement proceedings. This, he submits, diminishes the effect of the whole picture being disclosed to the wife when part is available to her and part has indeed already been deployed by her during the course of her substantive application, being material obtained by MLA and disclosed in open court;(b) that the information is to be used for the purposes of family proceedings which are confidential and are heard in private;(c) that the wife offers an express undertaking not to disclose the documents or information to anyone other than her legal advisors, this being offered in addition to the implied undertaking which would apply in any event.[52]Finally, Mr Cobb comments that the decision in BOC does not appear materially to have damaged international co-operation in the investigation of crime or materially to have affected the manner in which the system of co-operation or MLA is operated. This, he submits, puts in context the submissions advanced on behalf of the Secretary of State and the CPS that to order disclosure in this case would materially damage such co-operation and the MLA regime.[53]The commendably succinct written submissions of the Secretary of State have been prepared by Mr Perry QC and Ms Cumberland. As referred to earlier in this judgment, the Secretary of State submits that section 9(2) imposes an absolute bar and that BOC was wrongly decided. However, recognising that I am bound by the decision in BOC, it is argued that I should exercise my discretion by refusing the wife's application. It is submitted that only a stringent approach to section 9 and the provision of MLA will properly safeguard the long-term policy objectives behind the statutory provisions, will protect the integrity of the MLA regime and will enable the UK to give meaningful undertakings to its international partners. Relying on the matters set out in the statement from the Head of the United Kingdom Central Authority, it is submitted that the balance lies firmly against granting the wife's application in respect of MLA material. Indeed, as referred to earlier in this judgment, Ms Cumberland submits that the policy, public interest and international comity interests weighs so strongly that my discretion can only properly be exercised by refusing the application. As I have also indicated, she submits that the provisions of the Act are structured to operate widely so as to encompass all the international arrangements which exist in a variety of forms.[54]Ms Cumberland emphasises the following matters:(a) that MLA and co-operation between prosecuting and other state authorities are matters of great significance in combating international crime. MLA is a vital tool in the investigation and prosecution of crimes. The scale can be seen from the volume of cases handled by the UKCA. The UKCA is naturally concerned to ensure that nothing is done which would undermine the integrity and effectiveness of the MLA regime. It depends on mutual trust and a willingness to co-operate, which are also features of other international instruments.(b) The UK authorities always provide undertakings that the material supplied will not be used for any purpose, other than that specified in the request, without consent. This is a promise made on behalf of one state to another and the UK needs to be able to honour these commitments.(c) The MLA regime is entirely voluntary. The collateral use of material might lead to the conclusion that the UK cannot be relied upon to honour its obligations and result in a request being refused. The fact that the proceedings are in private, that the wife will undertake not to disclose, and that some of the information has been adduced in criminal proceedings, lessens the public impact of the proposed collateral use but, Ms Cumberland submits, these factors do not diminish the seriousness or potential seriousness of the breach of treaty or other provisions or of undertakings which have been provided.[55]In summary therefore, the Secretary of State submits that the harm to the MLA regime and to effective co-operation between states in the fight against crime lead to the conclusion that disclosure should not be ordered in this case. The public interest against disclosure outweighs the public interest in disclosure. This, Ms Cumberland submits, is not to minimise the wife's claims, nor the importance of getting at the truth, but simply to submit that the public interest in supporting the MLA regime outweighs these factors.[56]Ms Schutzer-Weissmann, on behalf of the CPS, supports the Secretary of State's submissions. She raises the particular concern, which I have mentioned, that disclosure would or might constitute a breach of the undertakings provided by the CPS and individual prosecutors.[57]Ms Da Costa-Waldman, on behalf of the husband, supports the Secretary of State and the CPS.[58]As already referred to in this judgment, all parties agree that I am bound by the Court of Appeal's decision in BOC Ltd v Instrument Technology Ltd. In BOC, the Court of Appeal considered the question of:
"What use can properly be made in civil proceedings of information which has been obtained by a party to the civil proceedings from a prosecuting authority, that information having been acquired by the prosecuting authority as a result of letters of request under the provisions of the Criminal Justice (International Co-operation) Act 1990 ("the 1990 Act")."
[59]The information in that case had been supplied by the prosecuting authority, in the course of a criminal investigation, to solicitors for the claimants, or perhaps to the claimants direct, in the civil proceedings. The parties to the hearing before the Court of Appeal were only the parties to the civil proceedings. Neither the Secretary of State nor the CPS was involved. The defendants in the civil proceedings appealed against a decision that the claimants were entitled, or permitted, to make use of the disclosed material for the purposes of those proceedings. The appeal was dismissed.[60]Grigson J had rejected the defendant's submission that a freezing order should be discharged on the basis that it had been obtained in part in reliance on evidence the use of which was expressly prohibited by the 1990 Act. His reasons for doing so, as recorded in the Court of Appeal's judgment, were, and I quote starting at paragraph 16:
"16. The information supplied by the police to the claimant's solicitor was prima facie evidence of deliberate concealment of assets and of a breach of the 1999 disclosure order. 17. The purpose of the letter of request to the Swiss authorities was investigation of the allegation of fraud against the Barlows and Mr Youngman. 18. The 1990 Act is solely concerned with criminal proceedings. 19. The prosecuting authorities and the person charged with a criminal offence are the only persons entitled to request information under the 1990 Act and they are the only persons governed by the restriction in section 3(7). The claimants could not have made the request direct to the Swiss authorities under the 1990 Act. 20. As for the contentions that the police were bound by an express or implied undertaking not to use the material for a purpose other than that for which it was acquired, or were bound by a duty of confidentiality to the defendants, the police had a positive duty to disclose relevant information to the alleged victim of crime i.e. the claimants; see Preston BC v McGrath (unreported CA Transcript). 21. Once the information was in the hands of the claimants, neither the police nor the operation of section 3(7) could prevent the claimants from using it in a proper way. 22. The victim of the alleged criminal offence was entitled to use the information in civil proceedings and the evidence was admissible in such proceedings."
[61]In the Court of Appeal, counsel for the defendants submitted that the 1990 Act imposed an absolute blanket prohibition on any collateral use of information obtained under MLA provisions. He also submitted:
"In balancing the competing aspects of the public interest the most important aspect is in encouraging international co-operation by the provision of information under the treaty for the purpose of prosecuting crime. The course was for the police to seek the consent of the Swiss authorities in relation to the use of the material in civil proceedings."
[62]During the course of his judgment, Mummery LJ said (and I quote from paragraph 12):
"First, the provisions in this Part of the 1990 Act are confined to mutual assistance in criminal proceedings and in the investigation of criminal offences. There is no reference at all to mutual assistance in civil proceedings or to the use of evidence in civil proceedings. 13. Secondly, the sections do not expressly provide that the evidence requested and supplied shall be inadmissible as evidence in civil proceedings or that its use in such proceedings would be a contempt of court. No penalty, sanction or other consequence of any kind is expressly attached to contravention of the prohibition in section 3(7). This is in contrast to the provisions in section 18 in Part 1 of the Criminal Procedure and Investigations Act 1996 to the effect that it is a contempt of court for a person knowingly to use or disclose an object or information recorded in it if the use or disclosure is in contravention of an obligation of confidentiality imposed by section 17 (see section 18(1)) and that information is inadmissible as evidence in civil proceedings if to adduce it would, in the opinion of the court, be likely to constitute a contempt (see section 18(9)). 14. Thirdly, section 3(7) does not expressly identify the person or persons who are prohibited from using the evidence for a purpose different from that specified in the letter of request. It does not expressly refer to the use of derivative evidence by a third person i.e. by one who has been supplied with the information by the person who has obtained it pursuant to a letter of request."
[63]Turning next to paragraph 29:
"29. It is not disputed that the evidence to which objection is taken is highly relevant to the exercise of the discretion to make a freezing order and a disclosure order. Its truth has not been challenged on this application. It is evidence that the defendants did not comply with the earlier disclosure order and gave false evidence to the court. It accordingly is of assistance to the victim of the alleged crime in pursuing his rights to damages in civil proceedings and possibly an application for contempt of court. 30. The critical question is this: is there any valid legal objection to the claimants tendering that cogent evidence to the court in civil proceedings brought for the protection of their legitimate interests or to the court in admitting and acting on such evidence? 31. As to the law of evidence there is no general principle of common law or of European Convention law that unlawfully obtained evidence is inadmissible, though it may be excluded in certain circumstances in the exercise of judicial discretion. … This is an a fortiori case, as it is not suggested that the evidence concerning the Swiss bank accounts was obtained by unlawful means by the claimants' solicitor from the police or from anyone else. Apart from section 3(7) there is no bar on the use and admissibility of the evidence in these proceedings. 32. As to section 3(7) the principal difficulty with the contention that it prohibits the claimants from using the evidence in their civil proceedings for fraud is that the relevant provisions of the 1990 Act are only concerned with the investigation and prosecution of criminal proceedings. Section 3 is not directed at obtaining evidence for use in civil proceedings; so, it may be asked, why should there be any prohibition of its use in such proceedings. 33. The scope of the prohibition must be coloured by the context of the relevant provisions of the 1990 Act. In my view, the width of the prohibition is implicitly restricted to the use of information by the prosecuting authority or the defendant in criminal investigations and proceedings. The provisions are aimed at collaboration in criminal proceedings. It is not therefore surprising to find that the provisions of the 1990 Act are silent on both (a) the use of documents and information in civil proceedings and (b) the use of documents and information by someone other than the person making a letter of request in the context of the investigation and prosecution of crime."
[64]Kay LJ said (and I quote from paragraph 35):
"If Section 3(7) of the 1990 Act was held to provide the blanket prohibition in both criminal and civil proceedings contended for by Mr Ralls QC, then I can see no logical reason why it would not continue to apply even after the evidence has been made public at a criminal trial. Mr Ralls recognised that in respect of civil proceedings once the evidence is in the public forum, it would be impossible to exclude that evidence for example, in proceedings by the victim seeking to recover his loss. In criminal proceedings the fact that the evidence had been given public in other criminal proceedings would not permit the court to hear that evidence if its use had not been sanctioned by the foreign authority either by the inclusion of such matters in the letter of request or by subsequent consent. If it were otherwise it would defeat the very object of the legislation. Hence if the concession made by Mr Ralls is right, as I consider it plainly is, a distinction between the applicability of Section 3(7) to criminal proceedings and civil proceedings is inevitable. The only sensible distinction is that the subsection applies to criminal proceedings but not to civil proceedings."
[65]The circumstances of the present case are different in that it does not involve a third party to the criminal proceedings who has already been provided with the information and subsequently seeks to use it in civil proceedings, but a third party who seeks to obtain the information from the defendant husband or the CPS for the purposes of civil proceedings.[66]I have also been referred to the case ofR v Gooch [1999] 1 Cr App R 283 in which the Court of Appeal decided that evidence should not have been used in confiscation proceedings when this was outside the scope of the purposes for which it had been obtained under letters of request. This was held to be in contravention of the provisions of the 1990 Act which debarred the admission of that evidence in confiscation proceedings. In the course of the judgment, Mantell LJ said the language of the relevant section, section 3(7), was clear.[67]In XYZ v HM Revenue and Customs & Anor [2010] EWHC 1645 (Ch) the Secretary of State did intervene and submitted:
"[62] … Mr Perry QC made it clear that the Secretary of State considered that BOC was wrongly decided and that he would so contend on appeal, if necessary to the Supreme Court. In any event, he submitted, the fact that an assurance had been given in such terms, leading the Dutch authorities to believe the document would not be used for any purpose to which they had not consented, would be a powerful reason for a court to refuse to sanction any such proposed use."
[68]Then in paragraph 23:
"The Secretary of State's argument is that there was no justification for the implication drawn by the Court of Appeal. The wording of the subsection is clear and unequivocal. Its obvious purpose is to ensure that foreign prosecution authorities, which might otherwise have been willing and anxious to provide documents and information to assist in the fight against crime, should not be deterred by any risk that such documents or information might be used for other purposes. The concerns expressed in the correspondence in this case demonstrate that there might well be legal issues under national laws (for example relating to obligations of confidence) which would prevent the disclosure of documents and information for the purposes of a criminal investigation if they might then be used for other purposes including civil litigation. It is important that the authorities here should be in a position to give an assurance that this could not happen."
[69]In Megantic Services Ltd v Commissioner for HM Revenue and Customs [2011] WL 1589 it was common ground between counsel appearing in that case that BOC was wrongly decided. The Secretary of State had been notified of the appeal but had not intervened. The appellant, Megantic, appealed from a decision of the First Tier Tribunal, granting HMRC permission to rely on evidence, asserting that it was inadmissible pursuant to the provisions of section 9(2) of the 2003 Act. Arnold J decided that BOC could not be distinguished. He also referred to (I quote from paragraph 45):
"… the well-established principle of statutory interpretation that, where the courts have interpreted a statutory provision and Parliament subsequently uses the same words in the same or a similar context, Parliament is presumed to intend the words to bear the same meaning. … It follows that Parliament is presumed when enacting section 9(2) of the 2003 Act to have intended that it be interpreted in the same manner as section 3(7) of the 1990 Act was interpreted in BOC. There is nothing in section 9(2) of the 2003 Act or Part 1 of the 2003 Act more generally, or in the 2001 Protocol, to show that the section 9(2) of the 2003 Act should be interpreted in a different manner to section 3(7) of the 2003 Act."
[70]Turning to my conclusions, the first issue I propose to address is whether the disclosure sought by the wife is necessary for the fair disposal of her substantive application. As the Head of the United Kingdom Central Authority correctly identifies in his statement, the wife's application for disclosure is for the purposes of assisting her to ascertain the extent of the husband's financial worth. As he also says, it appears that such disclosure has not been forthcoming from the husband himself. I would also add that it is for the purposes of assisting the court to determine whether the husband failed properly to disclose the true extent of his financial resources and, if he did, to enable the court to do justice between the husband and the wife, and discharge its statutory obligations under the Matrimonial Causes Act 1973.[71]I have come to the clear conclusion that the prospects of the court being able to effect justice would be likely to be very considerably enhanced by the disclosure of the information sought by the wife. Indeed, I can see the achievement of justice being potentially very seriously impeded if the requested disclosure is not effected.[72]At this hearing I have only a very limited insight into the full extent of the information which would become available to the wife and to the court if I were to order disclosure because I have not seen the documents of which disclosure is sought.[73]I have read the wife's evidence, notes prepared by prosecuting counsel for the husband's trial in 2010 and for his sentencing hearing in 2011, and transcripts of a pre-trial hearing which took place in 2010. The brief glimpses which these documents provide are sufficient to enable me to decide that the information in the documents sought by the wife is very likely to be of considerable significance to her set-aside application and, if that is successful, to her substantive financial application. There are references to significant resources which are alleged to be the husband's dating from 2000. In an affidavit referred to during the September 2010 hearing (and obtained pursuant to a MLA request), it is alleged by an employee of Merrill Lynch, and I quote:
"The Y account was a non-discretionary meaning I could not make investments or otherwise dispose of the assets in the account without the approval of Y. Documents provided by me (I think that should be to me) by Z Corporation at the time Mr P opened the account identified Mr P as the beneficial owner of Y. From time to time between 2000 and 2007 I saw Mr P in person. [Then a bit later] In or around July 2002 Mr P told me that he and his wife were divorcing. Mr P stated that if lawyers representing his wife's interest were to contact Merrill Lynch, I should not disclose any information about the Y account including the identity of the beneficial owner of the account. [a bit later] During a subsequent conversation, Mr P contacted me and stated in substance that his divorce had become acrimonious. He instructed me going forward not to use the word 'your' in my correspondence with him and instead to use the words 'our mutual client'."
[74]Then, to quote from Ms Schutzer-Weissmann's submissions at that hearing:
"So here is Mr C in his evidence saying that Mr P is telling him firstly not to disclose Mr P's own beneficial ownership but to create a fiction of the bank belonging to a mutual client."
[75]Whilst the husband challenges that these were his resources, these limited references alone provide justification for the conclusion that the information contained in the documents sought by the wife is clearly necessary for the fair disposal of the wife's application.[76]Having come to that conclusion, I must balance this against the undoubted public interest which underlies the MLA regime. The effective investigation and prosecution of international crimes is clearly a powerful public interest. The MLA regime is clearly also an integral part of this and depends on international co-operation and comity. I fully accept the submission that is made on behalf of the Secretary of State and the CPS that the MLA regime should not be undermined or hindered in its operation. The issue in this case is whether ordering the disclosure sought by the wife would be likely to have that effect, at least to the extent that the public interest in supporting the MLA regime outweighs the public interest that the wife's application should be determined on all the relevant evidence.[77]If section 9(2) creates an absolute bar, that would be the end of the issue. However, as I have referred to more than once, it is accepted that I am bound by BOC to the effect that it does not create an absolute bar and that, accordingly, I have a discretion. In any event, I see difficulties with interpreting the section as imposing an absolute bar. It would, for example, be surprising if it applied even once information had been made public as identified in Kay LJ's judgment in BOC. It would be surprising if a victim of a defendant's crime could not make use of information for any recovery proceedings they might institute as was the case in BOC. Taking the matter forward, if a confiscation order is made and enforcement proceedings taken, it is difficult to see how any third party could be denied sight of the information relied upon to support an assertion that a particular asset was the defendant's when that third party wished to challenge that assertion and claim the asset for themselves. This would, to my mind, also apply in respect of restraint orders.[78]Webber v Webber [2007] 2 FLR 116 addresses the interplay between the Proceeds of Crime Act 2002 and the Matrimonial Causes Act 1973, and contains Potter P's conclusion that it is "plainly preferable" (to use his words) that an ancillary relief application should be determined first.[79]In the present case, all the information sought by the wife is already in the hands of the other party to her application; namely the husband. If the husband sought to deploy that information in the substantive proceedings with which I am concerned, I find it difficult to conceive that the court would be likely to debar him from doing so on an application by the CPS. In my judgment, the wife should be in the same position as the husband. She and the court already have some of the information obtained under the MLA regime. That information has already been deployed in the substantive proceedings. The fact that some of the information has already been deployed and the fact that the court will be ordering the disclosure of additional information only to the extent that it has already been disclosed to the husband militates against any detrimental effect such disclosure might have on the MLA regime. The court will be ordering the disclosure so that the full, rather than merely a partial, picture is available. Otherwise there is a clear risk that the wife and the court would obtain an inaccurate picture from the limited details currently available.[80]I am also persuaded that the fact that disclosure is sought by an alleged victim of the husband's alleged deceit during the course of confidential/private proceedings, and would be the subject of an undertaking not to disclose that information outside these proceedings, further diminishes any potential damage to the MLA regime.[81]I must additionally deal with the point raised that disclosure would or could cause the CPS and Crown Prosecutors to be in breach of undertakings given in letters of request. I do not accept that disclosure would have that effect. In my view, if the CPS was acting under the compulsion of a court order, it and any Crown Prosecutor would not thereby be in breach of any general undertaking to the effect that the information would be used only for the purposes set out in the letter. They would not be acting in breach of their undertakings because the court would have compelled disclosure pursuant to its order. Further, such a possibility seems to be envisaged in the second paragraph of the Jersey undertaking. I say "seems" because if I understand her submissions correctly, Ms Schutzer-Weissmann submits that this paragraph only applies to criminal investigations or prosecutions and not to any proposed use for the purposes of civil proceedings. The structure of the undertaking has inherent difficulties in that, for example, if the information and documents are used for the purposes of a prosecution, they will necessarily be released to defendants and their solicitors. Further, as appears to have occurred in BOC, information may well have to be released to others for the purposes of the investigation and for the purposes of any prosecution. If the first paragraph of the undertaking was to be interpreted literally, then this could not occur. There must therefore be implicit agreement to the release of information and documents, at least for the purposes of any investigation or prosecution. If I am right in this interpretation, it leaves me to question Ms Schutzer-Weissmann's submissions in respect of the scope of the second paragraph. Accordingly, in my view, the existence and nature of the undertakings constitute part of the case advanced by the Secretary of State and the CPS that disclosure would undermine the MLA regime but not to the extent that disclosure consequent on a court order would result in the CPS or Crown Prosecutors being in breach of any such undertakings.[82]I fully appreciate that if orders for disclosure of information obtained under the MLA regime were made too readily or even other than very sparingly, the effectiveness of the regime could well be undermined. However, I do not consider, provided such orders are made only on very limited occasions and in closely confined circumstances, that the MLA regime is likely to be materially damaged. In this case, for the reasons I have sought to identify in this judgment, I consider that to order the disclosure sought by the wife would not undermine the MLA regime in any significant respect and not to the extent that the public interest in supporting the MLA regime outweighs the public interest in the evidence being available to the wife and the court so that justice can be done in her application. As Mr Cobb noted during the course of his submissions, the decision in BOC does not appear to have had any detrimental effect on the operation of the MLA regime and I do not see why disclosure in this case would be likely to have any greater effect.[83]In conclusion, in the circumstances of this case the balance comes down in favour of my exercising my discretion to order the disclosure of the documents sought by the wife to be used solely for the purposes of her application to set aside the ancillary relief order and, if successful, her substantive ancillary relief application. I consider it preferable that I order the husband, by his criminal solicitors, to disclose the documents sought but what I would propose, and I will hear counsel on this in a moment, is that if disclosure has not been effected by them by a certain date, then I should order the Crown Prosecution Service to disclose the documents in their stead. -------------------- (Later)[84]Consequent on the judgment I have just delivered, I must now deal with a number of consequential matters. First, an undertaking is offered by Mrs P that she will not disclose or otherwise use the material which I am ordering to be disclosed to her save for the purposes of the proceedings number FD02D03678. In offering that undertaking, I must make clear to Mrs P that if she acts in breach of her undertaking, the court has power to punish her, including by sending her to prison, so it is extremely important that she abide by that undertaking.[85]So far as the mechanism for disclosure is concerned, at the end of my judgment, I indicated that I was proposing to make an order that the husband's criminal solicitors should disclose the information and, only if they failed to do so, would I make an order against the Crown Prosecution Service. I considered that such an order would ameliorate the perceived consequences of my order. Having heard the submissions of the parties, that does not seem to be correct.[86]First, from a practical perspective, it is not known which of the husband's criminal solicitors (and there appear possibly to have been three firms) has the documents and if they are retained by one of those firms, where they are retained. Secondly, it does not appear that the Crown Prosecution Service sees any particular advantage to my making the order in the form that I proposed, so I propose to make an order direct against the Crown Prosecution Service that they disclose the listed material. I will come to when in a moment.[87]It is agreed that an expedited transcript of my judgment should be obtained and that the cost of that should be shared between the four parties to this application.[88]That leaves only applications for permission to appeal with a consequent application for a stay and an application on behalf of the wife for costs.[89]Dealing first of all with the applications for permission to appeal made by the Secretary of State and the CPS. It is submitted that there is a real prospect of an appeal succeeding. It is submitted that there is a cogent basis for arguing that the Court of Appeal's decision in BOC was wrong and that the Court of Appeal fell into error in reaching the conclusion that the relevant statutory provisions do not impose an absolute prohibition upon the use of material obtained under the MLA regime. If the relevant statutory provisions do impose an absolute bar, then clearly my decision would have been incorrectly reached.[90]It is also submitted that there is a compelling reason for my granting permission to appeal because there is a need for clarity as to whether the relevant statutory provisions do or do not impose an absolute bar.[91]I see the force of the submissions made in support of the application for permission to appeal by both Ms Cumberland on behalf of the Secretary of State and Ms Schutzer-Weissmann on behalf of the Crown Prosecution Service. However, from a general perspective I question whether this case provides the right vehicle for the issues raised by the Secretary of State and the Crown Prosecution Service to be determined by the Court of Appeal. Notwithstanding the force of the submissions, I do not propose to give permission to appeal because I want to give the Secretary of State and the Crown Prosecution Service an opportunity to reflect as to whether, as I say, this case does provide the right vehicle for the determination of those issues.[92]On the question of the date by when the documents must be supplied and the consequent issue of a stay, what I propose to do is order that the information is to be supplied to Mrs P's solicitors by 4.00pm on Tuesday, 12 June. If, however, by 4.00pm on 12 June the Secretary of State or the Crown Prosecution Service has filed a notice of appeal and an application for a stay, then my order for disclosure will be stayed pending the Court of Appeal determining the application for permission to appeal and the consequent application for a stay.[93]That leaves only the question of costs. Mr Cobb, on behalf of Mrs P, seeks an order for costs against the Crown Prosecution Service. It is submitted that the wife has succeeded in her application and that, accordingly, costs should follow the event and he also prays in aid the financial effect on the wife of the costs which have been incurred. A schedule of costs for the hearing on the 24 and the 25 have been prepared showing that the total costs potentially incurred amount to just over £30,000.[94]That application is opposed by the Crown Prosecution Service on the basis that the very broad application that was initially made by Mrs P has only been partially successful, I having rejected a substantial element of it at the hearing on 17 February 2012. It is also submitted that the Crown Prosecution Service was obliged to put the issue before the court having regard to the MLA regime and structure and to the undertakings which have been provided by the Crown Prosecution Service as part of the operation of the MLA regime. Alternatively, it is submitted that if I were to make an order for costs that those costs should be shared.[95]The application by the wife of 18 October 2011 was an extremely broad application for very wide disclosure by the CPS. The application was before the court for directions on 16 November 2011 and, as I have indicated, was before the court again on 17 February.[96]On 17 February, having heard submissions on behalf of the Crown Prosecution Service and on behalf of the Secretary of State for the Home Department, I dismissed the wife's application for general disclosure and confined her application to a number of specific documents. In the light of the Secretary of State's request to intervene in the application and to be given the opportunity to consider properly what position should be taken, I gave directions for this hearing to take place.[97]It is clear to me that the Crown Prosecution Service was under an obligation to put the issue of disclosure before the court. I do not consider that the Crown Prosecution Service has acted other than in accordance with the obligation placed on it pursuant to what I am calling broadly "the structure of the MLA regime" and in particular the undertakings offered during the course of its operation.[98]In addition, I dismissed a significant part of the wife's application for disclosure at the hearing on 17 February 2012. Although Mr Cobb is, of course, able to make his application for costs on the basis that costs should follow the event, in the unusual circumstances of this case, as between Mrs P and the Secretary of State and the Crown Prosecution Service, it would in my view be fair and just to make no order for costs. I consider that the CPS and, for that matter, the Secretary of State were putting issues before the court that required consideration by the Court as part of the exercise of its powers and, as I have set out in my substantive judgment, were necessary for the court properly to be able to exercise its discretion.[99]In respect of the costs as between the husband and the wife; I propose to reserve the costs. I will deal with the costs as between them when I deal substantively with the application to set the ancillary relief order aside.

Cited in 1 later judgment