Material seized during a criminal investigation is disclosable in civil proceedings - case law update

Under section 2 of the Criminal Justice Act 1987, the Director of the Serious Fraud Office (SFO) has various investigation powers. In particular, the Director can require a person under investigation to answer questions and provide information (s2(2)) or produce certain documents (s2(3)). Non-compliance is a criminal offence.

This power has been scrutinised recently in the UK courts in high profile cases such as KBR v SFO [2018] EWHC 2368 (Admin), which tested its extra territorial application.

The impact of section 2 investigations and document-gathering is now also being felt in the civil sphere. In the recent case of Omers v Tesco PLC [2019]EWHC 109 (Ch), Mr Justice Hildyard ruled that material seized by the SFO under s2 powers and subsequently returned to the defendant (here, Tesco PLC), could be disclosed by that defendant in civil proceedings, notwithstanding the various restrictions and confidentiality obligations attached to it. The SFO had provided certain documents and material to Tesco as part of the negotiations of its deferred prosecution agreement in 2017. That material was judged to be relevant to the scope of new civil proceedings - raising the question of whether disclosure of it was permissible.

Hildyard J neatly summarised the issue at hand in his judgment as follows:

"The Defendant is thus caught between its obligations to the parties to the litigation as regards to disclosure, and its obligations to keep the SFO Documents confidential and private, unless otherwise directed by the Court".

Despite this tension, Hildyard J ruled that the documents were disclosable. This case should therefore be of interest to any companies that have been the subject of an SFO investigation using section 2 powers - documents and material disclosed to the SFO may not stay entirely confidential if they are later sought by another party in other proceedings.