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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Crown Prosecution Service & Ors v Gohil [2012] EWCA Civ 1550 (26 November 2012) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/1550.html Cite as: [2013] 1 FAM 276, [2013] 1 FLR 1095, [2012] EWCA Civ 1550, [2013] Fam 276, [2013] Fam Law 389, [2013] 2 WLR 1123, [2013] 1 Fam 276, [2012] WLR(D) 351, [2013] 1 FCR 371, [2013] Lloyd's Rep FC 115

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
FAMILY DIVISION, PRINCIPAL REGISTRY
MR JUSTICE MOYLAN
FD02D03678

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/11/2012

Master of the Rolls: This is the judgment of the court.

Introduction

1. The Crime (International Co-operation) Act 2003 ("the 2003 Act") provides for international mutual assistance in criminal matters. Section 7 provides, in relation to England and Wales and Northern Ireland, that a request may be made by a prosecuting authority for assistance outside the United Kingdom in obtaining any evidence specified in the request for use in criminal proceedings or in the investigation of an offence. Section 9 provides:

"(1) This section applies to evidence obtained pursuant to a request for assistance under section 7.

(2) The evidence may not without the consent of the appropriate overseas authority be used for any purpose other than that specified in the request.

(3) When the evidence is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it must be returned to the appropriate overseas authority, unless that authority indicates that it need not be returned."

2. The issue that arises on this appeal is whether section 9(2) of the 2003 Act permits the use in family proceedings of evidence obtained pursuant to a request under section 7.
3. The 2003 Act was the successor to the Crime (International Co-operation) Act 1990 ("the 1990 Act"), which was the first comprehensive piece of United Kingdom legislation on international mutual assistance in criminal matters. The 1990 Act contained provisions which corresponded closely with those in the 2003 Act. In particular, section 3(7) of the 1990 Act provided:

"Evidence obtained by virtue of a letter of request shall not without the consent of such an authority as is mentioned in subsection (4)(b) above be used for any purpose other than that specified in the letter; and when any document or other article obtained pursuant to a letter of request is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it shall be returned to such an authority unless that authority indicates that the document or article need not be returned."

4. The Crown Prosecution Service ("CPS") and the Secretary of State for the Home Department ("SSHD") appeal against the order of Moylan J that the CPS should disclose to Mrs Varsha Gohil various documents which the CPS had obtained from foreign states pursuant to letters of request under section 7 of the 2003 Act. She sought disclosure of the documents by her former husband, Bhadresh Babulal Gohil in the course of her application to set aside a consent ancillary relief order which had been made on 30 April 2004. She alleges that this order was procured by misrepresentation on his part. Moylan J held that he was bound by the decision of this court in BOC Limited v Instrument Technology Limited [2002] QB 537 (Mummery and Kay LJJ). In that case, the court held that section 3(7) of the 1990 Act implicitly prohibited the use of evidence obtained under a letter of request in criminal proceedings (other than the criminal proceedings specified in the letter of request), but that it did not prohibit its use in civil proceedings. The judge, therefore, held that he had a discretion whether or not to order disclosure. He exercised that discretion in favour of Mrs Gohil on the grounds that the material was necessary for the fair disposal of her application.
5. It is submitted on behalf of the CPS and SSHD that (i) the BOC decision is not binding on this court because (a) it was plainly wrong and per incuriam and (b) it should in any event be interpreted consistently with international treaties and conventions which have been ratified by the United Kingdom since the date of the BOC decision; and (ii) if (contrary to their primary case) the judge had a discretion, he exercised it wrongly.

The facts

6. Before we come to the law, we should briefly set out the factual background. Mr and Mrs Gohil were married in 1990. The marriage came to an end in 2002. Mrs Gohil commenced her application for financial remedy on 6 June 2002. This application was concluded by the making of a consent order by Baron J on 30 April 2004. The order recorded Mrs Gohil's belief that her husband had not made full and frank disclosure. During the course of the financial proceedings, Mr Gohil alleged that he had modest assets (around £170,000) and substantial debts. He said that it was only with the assistance of his family that he was able to pay the lump sum of £270,000 that was the subject of the consent order.
7. In 2007, fortified in her belief by further investigation that Mr Gohil had concealed assets, Mrs Gohil commenced proceedings in the Family Division of the High Court to set aside the consent order. She specifically alleged that there had been material non-disclosure, fraud and misrepresentation.
8. In 2010, Mr Gohil was prosecuted for various offences, including money laundering of approximately £25 million (the proceeds of theft and corruption by a former Governor of Delta State in Nigeria). On 22 November 2010, he was convicted at Southwark Crown Court. On 6 December 2010, he was also convicted on other charges, including conspiracy to defraud (the proceeds of this criminal activity were approximately $37 million). He was sentenced to a total of 10 years' imprisonment. Much of the evidence was heard by Mrs Gohil in open court. This included evidence which had been obtained by the CPS pursuant to requests under section 7 of the 2003 Act. The CPS also started confiscation proceedings under the Proceeds of Crime Act 2002, but it is unnecessary to consider these further.
9. In October 2011, Mrs Gohil made a wide-ranging application to the Family Court for disclosure by the CPS of the papers in the criminal proceedings. The CPS and SSHD were added as parties to the application. As we have said, much of the information contained in the documents whose disclosure was sought by Mrs Gohil comprised material which had been obtained from foreign states pursuant to section 7 of the 2003 Act. It seems that more than 90 letters of request were sent by the CPS and the SSHD between September 2006 and November 2011 to approximately 22 foreign states or authorities. The question of principle that the judge had to resolve was whether it was lawful to order disclosure to Mrs Gohil of material which the CPS had obtained by requests under section 7 of the 2003 Act.
10. We shall first consider whether the BOC decision was wrong and then, if it was wrong, whether it is binding on this court.

Was BOC wrongly decided?

Background

11. Before we come to the court's reasoning, we need to set the 1990 Act in its international context. The long title of the Act made clear that its purpose was to enable the United Kingdom to co-operate with other countries in criminal proceedings and investigations, and to enable it to ratify relevant international instruments. The long title provides:

"An Act to enable the United Kingdom to co-operate with other countries in criminal proceedings and investigations; to enable the United Kingdom to join with other countries in implementing the Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances; and to provide for the seizure, detention and forfeiture of drug trafficking money imported or exported in cash."

12. The Vienna Convention is specified in the long title, but the 1990 Act also enabled the United Kingdom (in 1991) to ratify the European Convention on Mutual Assistance in Criminal Matters, which had opened for signature in 1959 ("the 1959 Convention"). The position is summarised in McLean, International Co-operation in Civil and Criminal Matters (3^rd edition) p 225:

"In 1990 the United Kingdom enacted for the first time comprehensive legislation on mutual assistance in criminal matters. The Criminal Justice (International Co-operation) Act 1990 enabled the United Kingdom to comply with its moral obligations in respect of the Commonwealth Scheme and to ratify the European Convention on Mutual Assistance in Criminal Matters of 1959 and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, and it provides a legislative basis for the implementation of other bilateral and multilateral agreements."

13. Article 7 of the Vienna Convention provides:

"13. The requesting party shall not transmit nor use information or evidence furnished by the requested Party for investigations, prosecutions or proceedings other than those stated in the request without the prior consent of the requested Party."

14. The 1959 Convention contains no article restricting use, but 5 signatories (including Switzerland) entered a reservation regarding confidentiality.
15. Para 12 of the amended Commonwealth Scheme for Mutual Assistance in Criminal Matters ("the Harare Scheme") provides:

"The requesting country shall not use any information or evidence obtained in response to a request for assistance under this Scheme in connection with any matter other than the criminal matter specified in the request without the prior consent of the Central Authority of the requested country."

16. Since 2001, the United Kingdom has become party to an increasing number of conventions and bi-lateral and multi-lateral treaties which provide for international mutual legal assistance in criminal matters. These all contain provisions which restrict the use of evidence by the requesting state to the purpose specified in the request for assistance. Although these instruments postdate the decision in BOC, they illustrate the importance attached by the international community to such provisions for the effective working of these schemes for mutual assistance.
17. The purpose and policy underlying such provisions is explained in a witness statement by Nicholas Vamos. He is the Head of the United Kingdom Central Authority, which is the section within the Judicial Co-operation Unit of the Home Office responsible for mutual legal assistance in criminal matters. Provisions such as those referred to above provide the necessary guarantee that the material supplied will (i) only be used in criminal investigations and proceedings and (ii) only in the criminal investigations and proceedings specified in the request, unless the requested party consents to some wider use. Requests for assistance may involve the requested state using its powers of compulsion to gather and then forward sensitive or confidential information to the foreign requesting state. These provisions enable the requested state to retain an element of control over the material that it provides.
18. Restrictions on use ensure that states are not deterred from assisting each other in the prosecution of crime by the fear that material that they supply for one or more specified purposes might be used for other unrelated purposes. There may be legal issues under the national laws of the requested state (for example, relating to obligations of confidence) which would discourage or prevent the disclosure of material for the purposes of a criminal investigation, if it might then be used for other purposes, including civil litigation.
19. Mr Vamos says (para 39) that, if the United Kingdom were unable to give the guarantees and undertakings regarding collateral use required by some foreign states, there would be a reduction in the level of co-operation that they would be likely to provide. He also says (para 42) that, if the United Kingdom were unable to provide such guarantees and undertakings, it would be far more difficult for the United Kingdom to insist that such conditions were observed in relation to the evidence provided by it to its international partners. In short, these restrictions on collateral use of evidence provided by one state to another are necessary to ensure that the scheme of international mutual assistance in criminal matters works effectively.
20. This is the context in which the 1990 Act must be considered. Section 3(7) was passed to give effect to the United Kingdom's international undertakings that, absent the consent of the requested state, material obtained for the purpose of specified criminal investigations and proceedings would be used only for that purpose.

The reasoning in BOC

21. Against that background, we turn to the decision in BOC. It is sufficient to say that the appeal arose in proceedings concerning freezing and disclosure orders that had been made in civil proceedings. An application was made to discharge the orders on the grounds that they were based on evidence the use of which was expressly prohibited by section 3(7) of the 1990 Act.
22. Mummery LJ gave the lead judgment. At para 9, he explained that one of the purposes of the 1990 Act was to enable the United Kingdom to co-operate with other countries in criminal proceedings and investigations. In particular, it enabled the government to ratify the 1959 Convention. Having referred to section 3 of the 1990 Act, he noted three points at paras 12 to 14 of his judgment. First, the provisions of Part 1 were confined to mutual assistance in criminal proceedings and in the investigation of criminal offences. There was no reference to mutual assistance in civil proceedings or to the use of evidence in civil proceedings. Secondly, the sections did not expressly provide that the evidence requested and supplied should be inadmissible as evidence in civil proceedings or that its use in such proceedings would be a contempt of court. Thirdly, section 3(7) did not expressly identify the person or persons who were prohibited from using the evidence for a purpose different from that specified in the letter of request.
23. He expressed his conclusions at paras 28 to 33 of his judgment. He said that it was not disputed that the evidence to which objection was taken was highly relevant to the exercise of the discretion to make the freezing and disclosure orders. At para 31, he said that, apart from section 3(7) of the 1990 Act, there was no bar on the use and admissibility of the evidence in the current civil proceedings. He continued:

"32 As to section 3(7) the principal difficulty with the contention that it prohibits the claimants from using the evidence in their civil proceedings for fraud is that the relevant provisions of the 1990 Act are only concerned with the investigation and prosecution of criminal proceedings. Section 3 is not directed at obtaining evidence for use in civil proceedings; so, it may be asked, why should there be any prohibition of its use in such proceedings?

33 The scope of the prohibition must be coloured by the context of the relevant provisions of the 1990 Act. In my view, the width of the prohibition is implicitly restricted to the use of information by the prosecuting authority or the defendant in criminal investigations and proceedings. The provisions are aimed at collaboration in criminal proceedings. It is not therefore surprising to find that the provisions of the 1990 Act are silent on both (a) the use of documents and information in civil proceedings and (b) the use of documents and information by someone other than the person making a letter of request in the context of the investigation and prosecution of crime."

24. Kay LJ agreed with Mummery LJ. He added one other consideration at para 35. He said that, if section 3(7) provided the blanket prohibition in both criminal and civil proceedings contended for by counsel for the defendants, then there was no logical reason why it would not continue to apply after the evidence had been made public at a criminal trial. He added:

"[Counsel for the defendants] recognised that in respect of civil proceedings once the evidence is in the public forum, it would be impossible to exclude that evidence for example, in proceedings by the victim seeking to recover his loss. In criminal proceedings the fact that the evidence had been given publicly in other criminal proceedings would not permit the court to hear that evidence if its use had not been sanctioned by the foreign authority either by the inclusion of such matters in the letter of request or by subsequent consent. If it were otherwise it would defeat the very object of the legislation. Hence if the concession made by [counsel for the defendants] is right, as I consider it plainly is, a distinction between the applicability of section 3(7) to criminal proceedings and civil proceedings is inevitable. The only sensible distinction is that the subsection applies to criminal proceedings but not to civil proceedings. This is the conclusion to which Mummery LJ has come in his judgment. I too would dismiss the appeal."

25. We regret that we are unable to agree with the reasoning of either member of the court. First, we respectfully consider that para 32 of Mummery LJ's judgment is based on a non sequitur. It does not follow from the fact that (i) the relevant provisions of the 1990 Act are only concerned with the investigation and prosecution of crime (which they are) that (ii) the prohibition on the use of requested material should not extend to civil proceedings. There is nothing surprising or inherently improbable in the idea that one state should be willing to agree to provide evidence to another on condition that it is only used for the particular purpose for which it was requested, unless it gives consent for its wider use. Indeed, for the reasons already given, it would be surprising if a country did not wish to retain control of the use of such evidence.
26. Secondly, the language of section 3(7) of the 1990 Act could hardly be clearer: "evidence obtained by virtue of a letter of request shall not without the consent of such an authority as is mentioned in subsection (4)(b) above be used for any purpose other than that specified in the letter….". The starting point for any exercise of statutory interpretation is that the language of the statute should be given its ordinary meaning. The language of section 3(7) is straightforward and clear. The clear statutory prohibition is subject to a single express exception, namely that it does not apply if the requested authority consents to the wider use of the evidence.
27. Thirdly, any departure from giving the words their ordinary meaning requires cogent justification. The court interpreted the prohibition as implicitly subject to another restriction, namely that it applied to other criminal investigations and proceedings. There are several difficulties with this. (1) It is unlikely that Parliament intended to introduce an implicit restriction on the scope of the prohibition when it expressly provided that the restriction on use could be waived by the requested country. (2) The court should not find an implied restriction unless the implication is so obvious and/or necessary for the working of the statutory scheme that Parliament must have intended it. But it was not suggested by the court that either the test of obviousness or of necessity was satisfied here. (3) The justification advanced by Mummery LJ was that the statutory provisions were aimed at collaboration in criminal proceedings. But that purpose would not be served by prohibiting the use of the evidence in other criminal proceedings, but permitting it in civil proceedings. As explained by Mr Vamos, the objective of providing international mutual assistance is as likely to be placed at risk by the use of evidence in civil proceedings as in any other form of proceedings. (4) Kay LJ gave a different justification. This was based on a concession made by counsel for the defendants in respect of civil proceedings that, once the evidence was in the public forum in the criminal proceedings for which the requested country consented to its use, it would be impossible to exclude it, for example, in proceedings by the victim seeking to recover his loss. As we shall explain later, the concession was wrongly made. For all these reasons, we can find no justification, still less any cogent justification, for departing from the principle that statutory words should usually be given their ordinary meaning.
28. Fourthly, the court failed to take into account the fact that section 3(7) of the 1990 Act provides that, when any document or other article obtained pursuant to a letter of request is no longer required for the purpose specified in the letter (or for any other purpose for which consent had been obtained), it is to be returned to the requested authority. This express provision is inconsistent with the court's interpretation that the evidence (documents and other articles) could indeed be used after they were no longer required for the specified purpose, provided that they were not used in other criminal investigations/proceedings.
29. Fifthly, the court failed to have regard to the principle that Parliament is presumed to legislate in conformity with the United Kingdom's international obligations. This principle is well established: see, for example, Assange v Swedish Prosecution Authority [2012] UKSC 22, [2012] 2 WLR 1275 at paras 122, 201-206. The presumption has been described as "strong": see per Lord Hoffmann in R v Lyons [2003] 1 AC 976 at para 27. Section 3(7) of the 1990 Act should have been interpreted by the court in conformity with the United Kingdom's international obligations, including the restrictions in international instruments on the use of evidence obtained pursuant to letters of request. No reference was made by the court to this principle of statutory interpretation, still less did they explain why the presumption was rebutted in the particular circumstances of this case.

Is BOC binding on this court?

30. There is a general rule that a court is bound by previous decisions of other courts of co-ordinate jurisdiction. To this general rule, there are limited exceptions. The application of the rule to decisions of the Court of Appeal was the subject of close examination in the leading case of Young v Bristol Aeroplane Co Ltd [1944] KB 718. The judgment of the court, which was delivered by Lord Greene MR, emphasised the limited scope of the per incuriam exception to the general rule. This has been repeated in subsequent cases: see, for example, per Lord Diplock in Davis v Johnson [1979] AC 264, 326F where he cited what Scarman LJ said in Tiverton Estates Ltd v Wearwell Ltd [1975] Ch 146, 172-173, viz:

"If, therefore, throwing aside the restraints of Young v Bristol Aeroplane Co Ltd, one division of the [Court of Appeal] should refuse to follow another because it believed the other division of the court to be wrong, there would be a risk of confusion and doubt arising where there should be consistency and certainty. The appropriate forum for the correction of the Court of Appeal's errors is the House of Lords, where the decision will at least have the merit of being final and binding…."

31. What is the scope of the per incuriam exception? In Young v Bristol Aeroplane, the court gave some guidance about this:

"Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts."

32. A helpful statement of the scope of the exception was also given by Lord Evershed MR in Morrelle Ltd v Wakeling [1955] 2 QB 389 at 406:

"As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some feature of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. The definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence."

33. In our view, the BOC decision was reached per incuriam. We do not base this conclusion on the fact that the decision was wrong for the four reasons given at paras 25 to 28 above. Although in our view these four reasons demonstrate that the decision was plainly wrong as a matter of ordinary statutory interpretation, these may not be sufficient to enable us to hold that it was not binding on this court. We bear in mind the salutary comments by Lord Diplock and Scarman LJ to which we have referred at para 30 above.
34. It is the fifth reason that enables us to hold that the decision was reached per incuriam. It is true that the court was aware that the 1990 Act enabled the government to ratify the 1959 Convention and that the Swiss instrument of ratification of that Convention reserved to Switzerland the right to afford assistance under the Convention only on the express condition that the results of investigations made in Switzerland were used solely for the purpose of examining and trying the offences in respect of which the assistance was sought (see the argument reported at p 539G of the report). But that was as far as the submissions based on international instruments went. In particular, it seems that the attention of the court was not drawn to the limitation clauses in the Vienna Convention or the Harare Scheme. Its attention was only drawn to the 1959 Convention, which did not contain such a clause.
35. Mummery LJ referred to the 1959 Convention at para 9 of his judgment. But he did not refer to the Swiss reservation. The significance of the restriction on use clauses in international instruments was not mentioned in the reasoning of either judgment. That is not surprising, since the attention of the court was not drawn to the common law presumption to which we have referred at para 29 above. It was not submitted that section 3(7) of the 1990 Act should be construed in conformity with the international instruments to which the United Kingdom is a party and which provide for co-operation between the United Kingdom and other countries in relation to criminal proceedings and investigations and contain restrictions on the use of evidence which were reflected in section 3(7) of the 1990 Act.

The 2003 Act

36. So far, we have been considering the 1990 Act. In our view, there is no material difference between the language of section 3(7) of the 1990 Act and that of section 9(2) and (3) of the 2003 Act. It follows that, unless the requested country consents to its wider use, there is a statutory prohibition on the use of evidence for any purpose other than that specified in the request without the consent of the requested authority. The prohibition applies as much to the use of evidence in other criminal investigations and proceedings as it does to its use in civil proceedings of any description.
37. For completeness, we should mention that Mr Knowles QC submits that, even if the decision in BOC was correct or was wrong but not per incuriam, it is not binding on this court. This is because, since 8 June 2001 (when the judgment in BOC was given) the United Kingdom has become party to many more international instruments which contain prohibitions on the use of evidence (without the consent of the requested country) for any purpose other than that specified in a request. It is true that, in certain contexts, the meaning of a statute can develop to accommodate changed circumstances which were not envisaged at the time of enactment. But that principle can have no application here. Both the 1990 and 2003 Acts were passed to enable the United Kingdom to co-operate with other countries in criminal proceedings and investigations. Both statutes should be interpreted to further that objective. The fact that by 2003 there were more international instruments than had existed at the time of the enactment of the 1990 Act cannot affect the meaning of either statute. In our judgment, there is no basis for interpreting section 9(2) of the 2003 Act differently from section 3(7) of the 1990 Act. For all the reasons that we have given, the evidence obtained pursuant to a letter of request may not be used for any purpose other than that stated in the request.

Use and disclosure

38. There was discussion before us as to whether the decision in BOC could be distinguished on the ground that the issue in BOC was whether the evidence could be used for any purpose other than that specified in the request; whereas here the issue is whether the CPS should be ordered to disclose the evidence to Mrs Gohil for a purpose other than that specified in the letters of request. We do not consider this to be a material distinction. An interpretation which drew such a distinction would undermine the object of mutual assistance which the statutes were intended to promote. A requested country would be just as likely to be deterred from co-operating with a requesting country if it knew that the evidence might be disclosed for purposes other than those specified in the letter of request as if it knew that the evidence might be used for such other purpose. The only reason for disclosing the evidence to a third party would be to enable him or her to use it. That is the very thing that the statute prohibits.

Practical difficulties

39. We have referred at para 24 above to the concession made by counsel for the defendants in BOC to which Kay LJ attached considerable significance. There was some discussion before us about the practical problems inherent in the interpretation for which the CPS and SSHD contend and which we have accepted. The problem can be illustrated by the facts of the present case. Mrs Gohil was in court during the criminal proceedings. The content of some of the evidence obtained as a result of the letters of request has been adduced in open court. Mrs Gohil knows what it is. It contains material which is relevant to her application to set aside the consent order. Once it is in the public domain, can the use of the material be prohibited?
40. In our view, section 9(2) of the 2003 Act clearly prohibits the subsequent use of documents and other articles obtained as a result of the letters of request, even where they have been adduced in evidence in open court. In R v Gooch [1999] Cr App R (S) 283, part of the evidence relied on by the Crown in confiscation proceedings was obtained pursuant to letters of request. The letters did not state that the evidence was sought for use in those proceedings and the requested countries had not been asked for their consent to the evidence being so used. The Court of Appeal Criminal Division held (p 291) that the evidence was inadmissible because, contrary to section 3(7) of the 1990 Act, it had been used for a purpose other than that specified in the letters of request. We agree with this conclusion. Accordingly, documents obtained cannot be deployed as evidence in proceedings other than those specified in a letter of request, even where the documents have already been properly put into the public domain. That is why the concession that was made by counsel for the defendants in BOC and on which Kay LJ placed great reliance was wrongly made.
41. Thus Mrs Gohil cannot adduce the documents. But although she cannot adduce the documents, she can use the information contained in them as a springboard for conducting her own enquiries, with a view to obtaining other evidence on which she can rely without contravening section 9(2) of the 2003 Act. If there are difficulties in deciding whether she is in substance adducing the documents, then the judge conducting the hearing will have to decide whether she has crossed into forbidden territory. But whatever difficulties there may be, these cannot shed any light on the question of construction that we have to decide.

Discretion

42. For the reasons that we have given, the 2003 Act (like its predecessor) prohibits the use, without the consent of the requested state, of evidence for any purpose other than that stated in a letter of request. Taking the opposite view, the judge exercised the power conferred by rule 21.2 of the Family Procedure Rules 2010 to order disclosure to Mrs Gohil. He considered that the disclosure would not undermine the mutual assistance regime in any significant respect; and that the public interest in the evidence being available to Mrs Gohil and the court, so that justice could be done, outweighed the public interest in supporting the regime: see para 82 of his ruling.
43. The CPS submits that the judge's exercise of the power to order disclosure was flawed in a number of respects. Since we have concluded that the exercise of the power was precluded by section 9(2) of the 2003 Act, it is not appropriate for us to express our views on this aspect of the case.

Conclusion

44. It follows that this appeal must be allowed.