The High Court has held that the Serious Fraud Office (SFO) was not prevented from giving disclosure as a defendant to civil proceedings of documents received from third parties in response to notices issued under section 2 of the Criminal Justice Act 1987 (CJA): Tchenguiz & anor v Rawlinson and Hunter Trustees SA & ors [2013] EWHC 2128 (QB).

The court found, as a matter of principle, that the CJA does not act as a bar against the SFO giving disclosure of documents obtained under its compulsory powers. The court did not address the question of whether the documents in question might be subject to any other statutory bar to disclosure (for example under the Official Secrets Act) or claim to privilege.

As a result of this decision, parties who provide documents to the SFO in response to section 2 notices should be aware that such documents may be disclosable by the SFO in the (relatively uncommon) event that the SFO is itself subsequently obliged to give disclosure in subsequent civil proceedings.

Background

Under section 2 of the CJA, the SFO has broad powers to require any person to produce documents relevant to its investigations. The recipient of a section 2 notice is under a compulsory obligation to produce the relevant documents, enforceable by criminal sanction.

Section 3(5) of the CJA provides a number of statutory “gateways” which allow the SFO to disclose information it has received to specified third parties in specified circumstances. These do not include disclosure in civil litigation (although it has, for example, previously been held to be lawful for the SFO to disclose documents to a public body under one of the “gateways”, which that body subsequently used for the purposes of civil litigation).

In this case, the claimants had brought proceedings against the SFO seeking damages of approximately £300 million in respect of the SFO’s allegedly unlawful raids on their premises and associated arrests and investigations. Following the court’s order for disclosure in these proceedings, the SFO wrote to various third parties that had provided documents in response to section 2 notices in the course of the SFO’s investigations into the claimants’ affairs, requesting their observations as to whether the SFO should disclose the material they had provided.

Several third parties objected to such disclosure on the basis that the CJA prohibited the SFO disclosing such material without their consent. The SFO disagreed with the third parties’ position and sought a declaration to the effect that there was no such prohibition under the CJA.

Decision

The court (Eder J) granted the declaration sought.

It was common ground that the SFO owed a duty of confidence in respect of information received under its compulsory powers, subject to the statutory “gateways” which were not relevant here, and so could not disclose such documents voluntarily.

However, there was no implied restriction under the CJA so as to override the SFO’s obligation to provide disclosure pursuant to the court’s order or to prevent the court making such an order. The fact that the CJA contained no express restriction was an important starting point, though not necessarily determinative. Although there was no direct authority on the point, various authorities pointed against the existence of an absolute bar (for example Marcel v Commissioner of Police [1992] Ch 225 in the context of the Police and Criminal Evidence Act 1984). Further, the fact that other statutes did contain express prohibitions on disclosure, in “striking contrast” to the CJA, supported the SFO’s position.

The court was not persuaded that the public interest in maintaining the confidentiality of material provided to the SFO under its compulsory powers justified the implication of an absolute bar against disclosure. Eder J accepted that consideration of the public interest may be relevant in a particular case when the court is deciding whether or not to make an order for disclosure. That was however separate from the point of principle as to whether or not there was an absolute bar on disclosure under the CJA.