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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Crown Prosecution Service & Ors v Gohil  EWCA Civ 1550 (26 November 2012)
Cite as:  EWCA Civ 1550,  1 Fam 276,  2 WLR 1123,  1 FAM 276,  WLR(D) 351,  Fam 276,  Lloyd's Rep FC 115,  1 FCR 371,  1 FLR 1095,  Fam Law 389
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ON APPEAL FROM THE HIGH COURT OF JUSTICE,
FAMILY DIVISION, PRINCIPAL REGISTRY
MR JUSTICE MOYLAN
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALLETT
LORD JUSTICE MCFARLANE
| CROWN PROSECUTION SERVICE
|- and –
SECRETARY OF STATE FOR THE HOME DEPARTMENT
- and –
VARSHA BHADRESH GOHIL
- and –
|BHADRESH BABULAL GOHIL
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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
Crown Copyright ©
Master of the Rolls: This is the judgment of the court.
"(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."
"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."
Was BOC wrongly decided?
"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."
"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."
"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 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."
The reasoning in BOC
"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."
"[Counsel for the defendants] 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 publicly 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 [counsel for the defendants] 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. This is the conclusion to which Mummery LJ has come in his judgment. I too would dismiss the appeal."
Is BOC binding on this court?
"If, therefore, throwing aside the restraints of Young v Bristol Aeroplane Co Ltd, one division of the [Court of Appeal] should refuse to follow another because it believed the other division of the court to be wrong, there would be a risk of confusion and doubt arising where there should be consistency and certainty. The appropriate forum for the correction of the Court of Appeal's errors is the House of Lords, where the decision will at least have the merit of being final and binding…."
"Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts."
"As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some feature of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. The definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence."
The 2003 Act
Use and disclosure