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Access To Evidence Used in Criminal Proceedings
Date: 28/05/2024 Type: Articles Topic: Private Client | Trusts | Wills and Estates | Inheritance | Next Generation Wealth | Investment and HNWI’s | Tax |On occasion, evidence acquired during criminal investigations and/or proceedings can be useful in contested probate disputes. Aside from the crossover embodied in the well-known forfeiture rule, there are further intersections between the two areas. For example, issues relating to criminal conduct may be a relevant consideration when challenging a Will for forgery or fraud, or under section 3(1)(g) under the Inheritance (Provision for Family and Dependants) Act 1975 which states that in exercising its power the Court shall have regard to the conduct of the applicant or any other person. It is unsurprising that evidence regarding previous convictions, investigations and evidence are highly sought-after for probate disputes.
Further, relevant evidence may be held in respect of a criminal matter which did not (or may not) meet the criminal standard for conviction, but may be enough to meet the lower civil standard. For example, it might not be possible to prove beyond reasonable doubt who forged a Will, but it might be possible to rely on the same evidence to prove, on the balance of probabilities, that the Will was forged.
It is important that practitioners are aware of how to access such material and when to seek access. This may be held by a variety of relevant bodies (i.e., the potential respondent(s) to a disclosure application), for example: regional police force(s), crown prosecution service (CPS), serious fraud office (SFO), national crime agency (NCA), Her Majesty’s Revenue and Customs (HMRC) and/or the financial conduct authority (FCA).
The key questions in relation to the disclosure of information by the relevant bodies are:
- When to seek disclosure?
- How to seek disclosure?
- What will be disclosed?
- What is then admissible on disclosure?
Practitioners will likely have had prior warning that a person involved in a probate or inheritance dispute may have been involved in relevant criminal proceedings as these disputes typically involve individuals that are (or were) close to one another. Depending on the information available, consideration will need to be given as to whether it is proportionate to seek disclosure from the relevant body.
When To Seek Disclosure
CPR 31.16 and CPR 31.17 allow applications for disclosure to be made pre-action and against non-parties. However, an application under CPR 31.16 would have the undesirable effect of requiring the third party (e.g., the police) to be a potential defendant to the civil proceedings. Conversely, an application under CPR 31.17 necessitates that civil proceedings are already underway, again, this may not be appropriate if the disclosure is required to enable the claim to be brought.
Due to the potential impact on the main proceedings, disclosure should be sought at the earliest opportunity. As an aside, it is best to issue the main proceedings protectively and/or agree a standstill if running up against a limitation deadline, regardless of how disclosure is pursued.
How To Seek Disclosure
A useful solution is to seek disclosure from the relevant body by relying on Norwich Pharmacal Order (‘NPO’) principles (Norwich Pharmacal Co v Customs & Excise Commissioners [1974]). The application is not inexpensive and the applicant will usually have to bear their own costs in addition to paying the respondents legal costs and the costs incurred by them in complying with the order.
The respondent to the NPO application should be notified first, and it is worth asking for the disclosure to be voluntarily provided prior to commencing formal proceedings in case the respondent consents. However, the urgency of the situation may require an application to be made without notice or with informal notice. If the application is sought before the issue of probate proceedings against the wrongdoer, then the CPR Part 8 procedure applies. If it is sought after the issue of proceedings (or simultaneously), the procedure in CPR Part 23 applies.
What Will Be Disclosed
It is unlikely that concerns about confidentiality will apply where the respondent is an investigatory body, however, it is possible for the NPO itself to include a gagging order to prevent anybody else being informed about the application.
An NPO will not be granted unless the applicant can show that:
- It has a cause of action against the alleged wrongdoer on the basis of which the disclosure is sought; and
- The person or body from whom disclosure is considered more than a “mere witness” (Various Claimants v News Group Newspapers Ltd and another [2013]).
The above is not an exhaustive list, and amongst other issues, the Court will consider the necessity and proportionality of the disclosure requested. The jurisdiction is an exceptional one and the order sought should be no wider than is strictly necessary to allow the proposed claims to be pursued (Chancery Guide 2022, para 14.82).
Not all material gathered by the relevant body is necessarily disclosable and disclosure is at the Court’s discretion. If an allegation has not been prosecuted then the presumption of innocence will cause the Court to be wary of releasing evidence that enables parties to trawl through information which had merely led to suspicion. Such principles do not act as a bar on disclosure, and may be counteracted by others such as the due administration of civil justice.
Admissibility
The defendant in the civil proceedings may seek to challenge the admissibility regardless of an NPO. Some key factors which may impact the decision include: whether the criminal case has concluded (Conway v Rimmer [1968]); how the material was obtained and whether compulsion was used; the need to protect those who assist with investigations (Taylor v Director of the Serious Fraud Office [1999]); and, maintaining relationships with co-operating foreign states (Tchenguiz v Director of the SFO). The Court may be more inclined to permit the use of material where protective steps are taken to limit what falls into the public domain e.g., appropriately redacting documents; hearings being held in-private; and, limiting references to sensitive material.
In respect of admissibility of the factual findings of a criminal Court, the general rule in Hollington v F. Hewthorn & Co [1943] is that such findings are not admissible. Nonetheless, there is an exception within section 11 of the Civil Evidence Act 1968 where a previous conviction is admissible for the purpose of proving that a person committed that offence. This is not conclusive but places on the convicted person a high burden to discharge in showing otherwise. It should be noted that this exception only applies to UK proceedings (Daley v Bakiyev [2016]).
There is no contempt of Court or abuse of process where a party in civil proceedings relies on documents disclosed to it (during criminal investigation) outside of the Court process (Standard Life Assurance Ltd and another v Topland Col Ltd and others). This rule does not necessarily prohibit injunctive relief on the basis of breach of confidence. It is generally best in all circumstances to seek the consent of third parties for the use of their material e.g., witness statements.
Summary
Given the cost and time associated with obtaining disclosure, an early assessment needs to be undertaken as to the benefit (if any) of the exercise, and if the application is considered worthwhile then this should be sought quickly. If information is voluntarily obtained outside the formal court process, in most cases an NPO (by consent) is still preferable, otherwise there is a risk that disclosure may breach legislation and/or confidentiality.
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