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Evidence obtained under the Crime (International Co-operation) Act 2003 for use in criminal proceedings could not be used in civil proceedings without the permission of the authority from which it was obtained. The decision in BOC Limited v Instrument Technology Limited  QB 537 had been decided per incuriam.
26 November 2012
Court of Appeal
The Master of the Rolls, Hallett and McFarlane LJJ
(1) The claimant (CPS) appealed against the decision of Moylan J in the Family Division, that evidence obtained from an overseas authority for use in criminal proceedings or for the investigation of an offence under the Crime (International Co-operation) Act 2003 (the 2003 Act) should be disclosed to the appellant (G). G sought to have a consent order set aside on the basis that her ex-husband, in relation to whom the evidence had been obtained, had not given full disclosure of his financial situation.
(2) The CPS argued that the decision in BOC Limited v Instrument Technology Limited  QB 537, which the Family Division had been bound by, had been decided per incuriam. It further argued that if this was not the case the decision and the legislation concerned should be interpreted consistently with international agreements and treaties since ratified by the UK, and that the judge had exercised his discretion incorrectly in granting disclosure.
(2) The Master of the Rolls, giving the judgment of the court, held (i) that BOC had been decided wrongly. The case had been decided under the Crime (International Co-operation) Act 1990 (the 1990 Act), which contained no material differences to the relevant sections of the 2003 Act which had superseded it. This provided that evidence obtained from an overseas authority for use in criminal proceedings or the investigation of an offence could not be used for any other purpose without the permission of that authority. In BOC the Court of Appeal held that the statutory provisions contained an implied restriction to this prohibition, allowing use in civil, but not criminal matters. It did not follow from the fact that the provisions related only to information required in relation to a criminal matter that the prohibition on further use only extended to criminal matters. The proper functioning of international information sharing often depended upon the giving of guarantees that no additional use would be made of the material. As a matter of statutory interpretation, it was clear that there could only be one exception from the broad prohibition on further use. As Parliament had provided one explicit exception, it was unlikely that it would have intended there to be an implicit restriction on this exception. The Court should be reluctant to find any such implied restriction unless its existence was very clear or necessary to the working of the statute, which was not the case here. The statutory purpose of international co-operation in criminal investigations would be undermined by allowing evidence to be used in civil proceedings. The Court had failed to take into account both the requirement within the 1990 Act that information was to be returned once it had been used, and the principle that Parliament is presumed to have intended to legislate in line with its international obligations. Numerous international agreements and treaties contain the same prohibition on information being used in proceedings other than those stated when applying for the information  - . (ii) That BOC Limited was not binding on the Court. It had been decided per incuriam because the Court had failed to take into account the significance of restriction of use clauses in international agreements, and the principle that Parliament intends to legislate in accordance with its international obligations (Young v Bristol Aeroplane Co Ltd  KB 718 and Morrelle Limited v Wakeling  2 QB 389 considered)  - . (iii) That the meaning of the 2003 Act did not differ from that of the 1990 Act purely on the basis that the UK was now a signatory to or had ratified more international instruments on criminal co-operation that in 1990, as this was simply a question of volume rather than content; both Acts were enacted to enable the UK to co-operate with other countries in criminal matters and should be interpreted as such . (iv) No distinction could be drawn between the use of information and disclosure of information: disclosure existed to allow for use, and either would undermine the aim of co-operation, which often depends on assurances that the information shared will be used for no other purpose . (v) That the practical difficulties faced by G, who had heard the evidence adduced in open court but could not now rely on it, did not give rise to a different interpretation (R v Gooch  Cr App R (S) 283 considered). G could use the evidence she was aware of as a starting point for her own enquiries which could lead to other evidence, and it would be for a future judge to decide whether this amounted to adducing the prohibited documents  - .
 -  - Introduction
 -  - The facts
 -  - Background to the BOC case
 -  - The reasoning in BOC
 -  - Is BOC binding on this court?
 -  - The 2003 Act
 - Use and disclosure
 -  - Practical difficulties
 -  - Discretion
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