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Disclosure and the interface between criminal and family law

Date:24 JAN 2013

Elissa da Costa-Waldman


This article is an analysis of the recent Court of Appeal decision in Crown Prosecution Service and Another v Gohil [2012] EWCA Civ 1550, [2013] 1 FLR (forthcoming) and its interpretation of s 9 of the Crime (International Co Operation) Act 2003 together with its impact on disclosure in matrimonial financial cases.  Here the court had to grapple with what Parliament intended when it drafted the legislation and the manner in which that had previously been interpreted by an earlier and differently constituted Court of Appeal.   The Court had to decide whether a previous decision of its own was decided  per incuriam having failed to consider International Treaties to which the UK was a party and which had an impact on the specific purpose for which evidence obtained pursuant to Letters of Request to foreign jurisdictions could be used.   In allowing the appeal, it was clear that the respondent wife was not permitted to use the evidence for a collateral purpose such as her application to set aside the consent order in the financial remedy proceedings.  But what if the material obtained had already been aired in open court and heard by others, not only the wife, such that it was in the public domain?  Following R v Gooch [1999] Cr App R (S) 283 the Court held that the wife could not use the material itself because of its having been obtained for a specific purpose but she could use her knowledge of it as a 'springboard for her enquiries' but such enquiries would have to be made using the normal FPR 2010 route such as Pt 24.

The full version of this article appears in the February 2013 issue of Family Law.