Giving judgement in an application brought by the SFO in its ongoing litigation with the Tchenguiz brothers, Justice Eder ruled there was no general bar that could be read into the Criminal Justice Act 1987 (CJA), preventing the SFO from making disclosure of material obtained as part of its criminal investigation to a party to civil proceedings. The SFO has therefore been given the green light to hand over any such material which its own review determines to be disclosable, under the usual civil disclosure rules.
The third parties who had provided the documents to the SFO argued that implicit in the CJA was a requirement that documents provided to the SFO by third parties would not be disclosed in civil proceedings such as these. The third parties expected the documents to remain with the SFO, or at the very most be used as evidence in future criminal proceedings only: section 3(5) of the CJA expressly allows for the use of such documents in criminal proceedings but there is no similar provision dealing with their use in civil proceedings.
This ruling may require that recipients of section 2 CJA Notices consider seeking undertakings from the SFO limiting the use of the material to the criminal proceedings. Such undertakings are commonplace when the SFO seeks evidence from overseas.
The judgment is available at http://www.bailii.org/ew/cases/EWHC/QB/2013/2128.html.