Introduction
There are a variety of mechanisms to recover stolen public funds and bribes, each with its own advantages and disadvantages and with the “best” mechanism very much depending on the particular circumstances of the case. Corruptly acquired assets may be recovered by confiscation following criminal conviction. They may also be recovered through civil forfeiture proceedings brought by the appropriate law enforcement agency. A victim state is also entitled to bring civil proceedings to recover assets and obtain compensation.
It is not uncommon for criminal and civil cases concerning corruption to run concurrently. A decision to make a civil claim may also follow a criminal investigation that has not led to a prosecution or conviction, for example, because the defendant has absconded or died.
That raises the question whether evidence, obtained in criminal proceedings, or as part of criminal investigations, can be obtained and used in civil cases that may involve the same facts and/or parties. That evidence may include witness statements taken by the police, documents provided voluntarily by witnesses, or documents seized or obtained by the police using powers of compulsion, whether from the defendants or from third parties such as the defendants’ banks and legal advisers.
Documents obtained by compulsion cannot simply be handed over for use in civil proceedings without the approval of the Court. Furthermore, no documents are likely to be provided, with or without a court order, if disclosure is likely to prejudice the criminal process. Nor, naturally, can criminal powers be used for the purpose of obtaining documents for civil proceedings. However, there are mechanisms, in appropriate cases, for the disclosure for use in civil cases of documents obtained for the purpose of criminal proceedings.
Sometimes the required evidence may already have been provided to a victim state under mutual legal assistance mechanisms, but only for use in criminal proceedings. Permission may then be needed for the use of those documents in a civil case, which will require consideration of similar principles to those outlined below.
Issues to consider when making a request directly to the CPS or Police
In England and Wales, evidence from criminal investigations or prosecutions may be held either by the Crown Prosecution Service ("CPS"), or the police. There are a number of general principles that apply to requests for this material.
Completion of proceedings
It is rare for material from criminal cases to be disclosed until those proceedings have been completed. This is to ensure that the criminal trial and any ongoing police enquiries are not prejudiced. As Lord Reid stated in Conway v Rimmer (1968) I All ER 874: "it would generally be wrong to require disclosure in a civil case of anything which might be material in a pending prosecution, but after a verdict has been given, or it has been decided to take no proceedings, there is not the same need for secrecy".
In general, it is more common for civil proceedings to follow criminal proceedings dealing with the same facts, or the completion of the criminal investigation. However, serious corruption cases can be exceptions to this rule.
Consent of witnesses
In relation to witness statements, the consent of the witness will usually first be sought by the police or CPS. If the witness refuses to provide consent, or to allow the requesting party to make direct contact to seek permission, then the CPS will give careful consideration as to whether the interests of justice require disclosure, and may override the wishes of the witness. It may be possible therefore to obtain this information without the need for an order of the Court.
Statements made by the defendant
It may not be appropriate to seek the consent of the defendant or its legal team for the disclosure of documents such as statements and records of interviews. In these circumstances, a Court order will be required.
Material seized by the police
Material seized or obtained by the police through compulsory powers must not be disclosed to a third party unless the owner has consented to the disclosure or the applicant has obtained a witness summons or other court order requiring disclosure.
Procedure for disclosing documents in the course of civil proceedings
A victim state that has brought a civil claim against corrupt defendants is able to make an application for disclosure against third parties that have relevant documents. That includes the police or Crown Prosecution Service.
A Court will only make an order for disclosure of documents by a third party if:
- the documents sought are likely to support the case of the applicant, or likely to adversely affect the case of one of the other parties to the proceedings; and
- such an order is necessary to dispose fairly of the claim or save costs.
Even if those two criteria are satisfied, however, the Court has a discretion whether or not to require disclosure. Public interest considerations will be paramount. The Court will balance the possibility of prejudice to the criminal process, the rights and interests of the owner of the documents, and the desire to have all relevant evidence available to a Judge hearing a civil case.
It would be surprising for relevant disclosure to be refused to a victim state pursuing a claim to recover corrupt assets, unless there was a risk of prejudice to a criminal investigation or prosecution, in which case the application for disclosure is unlikely to be made.
The case of Governor Alamieyeseigha
The case of Governor Alamieyeseigha of Bayelsa State in Nigeria is a good example of non party disclosure in the corruption context. It was a case brought by the Nigerian Government to recover the proceeds of corruption.
Alamieyeseigha was elected as Governor of Bayelsa State in 1999 and re-elected in 2003. His term of office was cut short by impeachment for corruption in December 2005. Between 1999 and 2005, Alamieyeseigha had accumulated (outside of Nigeria) properties, bank accounts, investments and cash exceeding £10 million in value, through a combination of theft of public funds and bribes.
Evidence of Alamieyeseigha's illicit activities had been gathered by London's Metropolitan Police, including documents obtained by compulsion from financial institutions and law firms. Alamieyeseigha was arrested and charged with counts of money laundering contrary to the Criminal Justice Act 1988 and the Proceeds of Crime Act 2002. After being released on bail, Alamieyeseigha absconded.
Nigeria brought civil proceedings in order to recover the laundered assets. To progress those proceedings, it needed the evidence obtained by the Metropolitan Police.
The police had a duty of confidence to owners of the documents and the witnesses, as explained above, meaning that Nigeria had to make an application to the Court for a non-party disclosure order against the police, which they duly did. Nigeria argued that it was in the public interest to disclose the evidence collated on the basis that: (a) it intended to use the documents to secure and recover the proceeds of corruption; (b) successful proceedings would assist in efforts to reduce corrupt activities; (c) it would demonstrate that the UK was not a safe haven for corruptly acquired assets; and (d) it would permit their recovery where Alamieyeseigha's flight would otherwise thwart the criminal confiscation process.
The police confirmed to the Court that the criminal investigation would not be jeopardised by the disclosure. The disclosure Order was granted by the Court. The material was then disclosed and used by Nigeria to support an application for a civil freezing injunction, and as evidence to support Nigeria’s successful civil claim.
Conclusion
The use of material obtained in criminal proceedings for the purpose of civil proceedings is the exception rather than the rule. It is likely in instances of grand corruption and cases where there is minimal or no risk of a criminal prosecution being prejudiced the public interest in allowing collateral usage should be satisfied. The case of Governor Alamieyeseigha is a prime example of where the exception should be applied, and where material obtained in criminal proceedings and provided for use in civil proceedings was invaluable in the pursuit and recovery of illicit gains.
