Civil and criminal proceedings: use of documents in civil proceedings

Key points

• Whether documents derived from a criminal investigation can be used in civil proceedings is often a contentious, complex and highly fact specific matter.
• Where a party seeks to use such material in civil proceedings, the court will be required to balance the public interests in the investigation and prosecution of serious crime against the due administration of civil justice.
• Factors which may influence the decision as to whether material derived from a criminal case can be used in civil proceedings include whether the criminal case has concluded, how the material was obtained and whether compulsion was used, the need to protect those who assist the authorities, and whether the disclosure might affect relationships with an overseas authority.

Using criminal investigation material in civil proceedings

Various types of documents may be generated and/or obtained by an investigating or prosecuting authority during the course of a criminal investigation and subsequent proceedings. Such documents may include the authority’s own work product; evidence seized pursuant to powers of search and seizure; witness statements; material disclosed voluntarily by third parties; and information shared by overseas or domestic regulators and authorities, pursuant to mutual legal assistance or other co-operation arrangements. There are a number of scenarios in which material from a criminal investigation may be relevant to matters at issue in civil proceedings. For example:

• A third party brings a civil action against a defendant to criminal proceedings, for harm suffered as a consequence of the defendant’s criminal acts.
• Documents relevant to a civil action between two third parties are in the hands of an authority, having been obtained pursuant to a criminal investigation concerning the same parties and/or series of events.
• A suspect in a criminal investigation or defendant to criminal proceedings brings a civil action against the relevant authority, for harm suffered as a consequence of the investigation.
• A suspect in a criminal investigation or defendant to criminal proceedings brings a civil action against a third party, believed to have had some involvement in or responsibility for a criminal investigation that has caused harm.

A number of specific public interests may be at play where such material is sought to be used in civil proceedings, including preserving the integrity of criminal investigations, protecting witnesses, informants and other third party information providers and maintaining relationships with co-operating foreign states.

Whilst those interests are not absolute, they must be given proper recognition by the court and may tip the balance against permitting use of the material concerned. However, the public interest in securing justice in civil proceedings is also an important consideration, and can, in certain circumstances, justify use of material derived from a criminal investigation.

The principles

In each case, the question of whether material derived from a criminal investigation can be relied on in civil proceedings will depend on the particular facts before the court. However, it is possible to identify some key principles from previous cases:

• Material derived from criminal cases is unlikely to be available to be used until those proceedings have concluded, to ensure that there is no prejudice to the on-going criminal process (Conway v Rimmer).
• Authority on this point is limited, but arguments in favour of use are likely to be most persuasive where the subject matter of the criminal and civil proceedings are closely linked, and the criminal investigation material sought to be used is highly relevant to the matters at issue in the civil case (Tchenguiz v Director of the SFO).
• The public interest in maintaining the confidentiality of documents which constitute or record communications between a domestic and foreign authority concerning a criminal investigation is a powerful one. Allowing such documents to be used could jeopardise the willingness of foreign states to co-operate in respect of future criminal investigations (Tchenguiz v Director of the SFO).
• There is a strong public interest in protecting those who provide information to prosecuting authorities from any wider dissemination of that information, other than in the resultant prosecution. Nonetheless, the protection of their privacy and confidentiality is subject to the overriding requirements of the interests of justice (Taylor v Director of the Serious Fraud Office).
• An authority owes a duty of confidence in respect of documents seized pursuant to the use of its compulsory powers, and cannot (subject to certain limited exceptions) voluntarily share such documents with other parties. However, this does not amount to an absolute bar to disclosure of the documents in civil proceedings, provided that a court order for disclosure has been made. The privacy and confidentiality of the third parties who provided the documents may be relevant when the court is deciding whether or not to make such an order (Tchenguiz v Director of the SFO).
• Where the proposed use to which documents disclosed in other proceedings are to be put is of a very limited nature, such as obtaining legal advice in respect of the documents (including as to whether there is a basis for seeking permission to deploy them in other proceedings), the court may be more likely to grant permission (Tchenguiz v Director of the SFO).
• There is no rule against collateral use where an authority obtains documents outside of the court process, including where that material is shared with a third party during the course of a criminal investigation. Accordingly there is no contempt of court or abuse of process where the recipient party relies on those documents in civil proceedings against another (Standard Life Assurance Ltd v Topland Co Ltd).

The court may also be more inclined to permit the use in civil proceedings of material derived from a criminal investigation where the parties are prepared to take steps to protect the documents and the information within them from falling into the public domain. Such steps may include in-private hearings, applying redactions, limiting references to sensitive material and allowing the relevant authority to be represented at the proceedings, to ensure that the documents are properly protected. Such protective measures may significantly increase the costs payable by the parties seeking to use the material.