The Continued Restricted Use Of Information Obtained Via Mutual Legal Assistance Request

• Published date: 12 December 2022
• Subject Matter: Criminal Law, Crime
• Law Firm: WilmerHale
• Author: Mr Frederick Saugman

On 4 November 2022, in the case of FCA v Papadimitrakopoulos & Gryparis,¹ the UK High Court reaffirmed the principle that information obtained via Mutual Legal Assistance (MLA) requests can only be used for the purpose for which it was obtained, as articulated in the terms of the request, absent consent from the overseas authority.

Background

Following an investigation into suspected offences of publishing false and/or misleading accounting information between November 2010 and October 2015, the Financial Conduct Authority (FCA) concluded that both Defendants (the former CEO and CFO of Globo plc) were criminally liable. However, the FCA was unable to pursue UK criminal proceedings because it was unsuccessful in its attempts to extradite the Defendants from Greece. In the alternative, the FCA sought to bring UK market abuse proceedings against the Defendants in the civil courts.

The Defendants sought to strike out the civil claim on the basis that, in its application, the FCA made use of material obtained via MLA requests without first obtaining the consent of the relevant overseas authorities, contrary to the prohibition against the collateral use of MLA material contained in section 9(2) of the Crime (International Co-Operation) Act 2003 (CICA 2003).

The Law

Under CICA 2003, UK authorities may request assistance in obtaining evidence from overseas authorities if there are reasonable grounds for suspecting that an offence has been committed, the suspected offence is being investigated and the assistance is being requested for use in that investigation.²

Evidence obtained through this process may not be used for any purpose other than that specified in the request, without the consent of the overseas authority. When the information obtained is no longer required for the specified purpose, it must be returned to the overseas authority.³

The Decision

After the Defendants sought to strike out the UK civil proceedings, the FCA provided evidence that it was standard practice for it to run dual-track criminal and civil investigations and asserted that the vast majority of the evidence obtained via the MLA process was not relied on in its civil claim, although it was used to inform the continuing civil investigation. The FCA claimed that, in any event, it had consent for collateral use from the relevant foreign authorities.

Specific purpose

The FCA submitted that the prohibition against collateral use applied to use in evidence and not to use in support of the...