(Court of Appeal, Lord Dyson, MR, Hallett, McFarlane LJJ, 26 November 2012)
The wife obtained a financial relief order following divorce but believed that the husband had failed to provide full and frank disclosure of his assets. The husband claimed he had only modest assets and substantial debts. Three years after the order the wife applied to have it set aside after her further investigations. Subsequently the husband was prosecuted for money laundering of £25m and conspiracy to defraud. He received a 10-year prison sentence.
During the criminal proceedings the wife heard evidence in open court obtained by the CPS under s 7 of the Crime (International Co-operation) Act 2003. The wife made an application to the family court for disclosure by the CPS of the papers from the criminal proceedings. Much of the information sought by the wife had been obtained from foreign states. The judge had to determine whether it was lawful to disclose the material to the wife.
The judge found that he was bound by the decision in BOC Limited v Instrument Technology Limited and had discretion whether or not to order disclosure to the wife. Disclosure to the wife was ordered on the basis that the ability of the court to achieve justice was likely to be substantially enhanced by disclosure of the material. The CPS and Secretary of State appealed the decision.
The appeal was allowed. The decision in BOC Limited v Instrument Technology Limited was not binding on the Court of Appeal and the material obtained from foreign states could not be used for any other purpose than that submitted in the request without consent. In addition the 2003 Act prohibited the use of the material even where it had been presented in open court, as here.