Stuart Munro

What right does a party to litigation have to use information or documents recovered in that process for other purposes? That seemingly arcane question has loomed large over some very high profile disputes in recent months, including the Rangers malicious prosecution case and the parliamentary investigation into the Scottish government’s handling of harassment complaints against Alex Salmond.

The simple answer to the question is none – a party can only use the material in the litigation in which it was disclosed (unless it has properly come in to the public domain, such as through reference being made to it in open court). But whether or not that restriction can be overcome depends in part on whether the original proceedings were civil or criminal.

Information and documents recovered or disclosed in civil proceedings

David Whitehouse, a former administrator of Rangers, was arrested in November 2014 and charged with fraud. He appeared on petition at Glasgow Sheriff Court, before being indicted. He complained that the charges against him were irrelevant and lacked any evidential basis. The indictment was eventually dismissed in February 2016, with the Crown removing the threat of further proceedings several months later.

Mr Whitehouse then raised proceedings against the police and the Crown for wrongful arrest, malicious prosecution and breaches of Convention rights. During the long process he recovered a large quantity of material: some (such as statements) produced to comply with the court timetable, some voluntarily, and some through commissions. That material shone a light on the prosecution process. The action eventually settled, with the Lord Advocate paying damages, issuing an apology and telling Parliament that an inquiry would follow in due course.

But material recovered in a civil process is subject to an implied undertaking to the court that it will not be used for any purpose other than the conduct of the instant proceedings. That created a problem for Mr Whitehouse, who wanted to be able to report his concerns to the police and prosecuting authorities and to cooperate fully with any investigation, inquiry or prosecution that might follow. While there was nothing stopping him from making a report, the implied undertaking prevented him from saying anything about the recovered material, even to describe it in the broadest of terms.

The solution was to ask the court to extend the purposes to which the material could be put. That was done by lodging an ‘Iomega minute’ (following Lord President Rodger’s statement of the law in Iomega Corporation v. Myrica (UK) Ltd 1998 SC 636). The minute asked the court to grant permission to Mr Whitehouse to use the material for making reports and cooperating with investigations, inquiries and prosecutions. After a contested hearing, Lord Tyre issued an opinion on 24 March 2021 granting the minute (https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2021csoh033.pdf?sfvrsn=0, Whitehouse v. Chief Constable & Lord Advocate [2021] CSOH 33).

As the judge explained, when considering whether to grant permission the court is exercising its discretion, and the guiding principle will be the interests of justice. The court can apply whatever conditions it thinks fit.

Information disclosed in criminal proceedings

Unlike the common law approach in civil cases, disclosure in criminal proceedings is regulated by statute – Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010.

Following an accused’s first appearance, the Crown has a duty to disclose all relevant information in its possession (more precisely defined in s.121(3) – broadly, evidence relied on by the Crown, and information that would materially weaken the Crown case or materially strengthen the defence case).

Per s.162, that information (which will include witness statements, productions and other unused material) can only be used for the ‘proper preparation and presentation of the accused’s case in the proceedings in relation to which the information was disclosed’, or for taking an appeal arising out of those proceedings. It can’t be used for any other purpose; s.163 makes it an offence to do so.

The provisions in the Act are absolute. There is no mechanism by which an accused person can ask the court for permission to use the disclosed information elsewhere; Iomega minutes are not competent. Interestingly, the equivalent English legislation, the Criminal Procedure and Investigations Act 1996, does include such a mechanism; a similar provision was included in the original Scottish Bill, but fell victim to an attempt at simplification.

Following his acquittal at the High Court, Alex Salmond was invited to give evidence to the Scottish Parliament’s Committee on the Scottish government’s Handling of Harassment Complaints. He expressed his intention to share a list of documents disclosed to him in the criminal proceedings. However, because the Act prohibits the ‘use or disclosure of information’, rather than the sharing of the documents in which the information is contained, he was unable to do so. Ultimately the problem was overcome by Parliament requiring the Crown to supply certain documents, which it duly did; Parliament then came to its own view about their significance.

David Whitehouse had encountered a similar problem at the point of raising his malicious prosecution action. He had to aver that the Crown had lacked probable cause for the prosecution, but couldn’t fully do that without referring to the evidence that was disclosed. In his case, the problem was overcome by an application to the Nobile Officium (the inherent power of the High Court to provide a remedy where none exists). The Crown eventually agreed to redisclose material for the specific purpose of making averments in the civil action. Documents which were to be relied upon had to be recovered again (for the third time) through commission and diligence.

It’s worth noting that the provisions of the 2010 Act extend only to Crown disclosure. The position with other material – such as that produced by the defence, or in response to a petition for recovery – is less clear. At the very least such material is likely to be regarded as being subject to the same implied undertaking as in civil proceedings.

Conclusion

This can be a very tricky area for lawyers and their clients. Breaching the 2010 Act risks prosecution and a maximum sentence of two years’ imprisonment; breaching an undertaking risks a finding of contempt. At the very least, it’s essential to know what the rules are and tread very carefully.

• Stuart Munro acted for David Whitehouse in the original criminal proceedings, the nobile officium petition and the malicious prosecution action.