1. Petula Fitzpatrick 2. Bruce Wilkey and Another v The Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mr Justice Globe |
| Judgment Date | 11 January 2012 |
| Neutral Citation | [2012] EWHC 12 (QB) |
| Docket Number | Case No: TLQ/11/0637 |
| Court | Queen's Bench Division |
| Date | 11 January 2012 |
[2012] EWHC 12 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Globe
Case No: TLQ/11/0637
Mr. Ronald Thwaites QC and Mr. Dijen Basu (instructed by Director of Legal Services, Metropolitan Police Service) for the Defendant
Mr. Martin Westgate QC and Ms. Alison Gerry (instructed by Bhatt Murphy solicitors) for the Claimants
Hearing dates: 8, 9, 12, 13, 14 and 15 December 2011
The first Claimant, Petula Fitzpatrick ("Mrs Fitzpatrick") and the second Claimant, Bruce Wilkey ("Mr Wilkey") are solicitors employed by the Third Claimant firm, Thomas Boyd Whyte ("TBW").
Mrs Fitzpatrick and Mr Wilkey claim damages, including aggravated and exemplary damages, for assault, battery and false imprisonment, and in respect of a breach of Article 8 of the European Convention on Human Rights, as a result of the actions of the police between the 12 th September 2007 and 21 st June 2009. They also seek a declaration that their rights under Article 8 have been breached.
TBW claim damages, including aggravated and exemplary damages, for trespass and malicious procurement by the police of a search warrant upon its premises at 302 Broadway, Bexleyheath on the 12th September 2007.
The claims arise out of
1) The arrest without warrant of Mrs Fitzpatrick and Mr Wilkey in connection with money laundering offences on the 12 th September 2007;
2) A warrant to search TBW's business premises and the execution of that warrant on the 12 th September 2007; and
3) The continued interference with the private lives of Mrs Fitzpatrick and Mr Wilkey caused by them remaining on bail and subject to investigation until it was confirmed that no action would be taken against them in June 2009.
In addition to five days of evidence and a full day of closing submissions, I have been substantially assisted by comprehensive pleadings, numerous volumes of exhibits and authorities and detailed skeleton arguments and written closing submissions. It would be impossible to recite all of the evidence and submissions and I do not seek to do so. Suffice it to say that I have taken into account all of the material in the case.
Facts
The background to the case relates to an investigation called Operation Tarsal into the corrupt relationship between a Police Officer, Mark Bohannan, and a drug dealer, Syed Imtiaz Ahmed (Ahmed), both of whom were later convicted of conspiracy to commit misconduct in a public office. Ahmed was additionally convicted of conspiracy to supply Class A and Class C drugs. Both were sentenced to terms of imprisonment. DC Miller assisted the operational team but was principally assigned responsibility for the investigation into Ahmed's finances.
Prior to 10 th May 2007, authorisation was given for there to be a probe in Ahmed's car. Evidence from the probe included conversations about Ahmed owing Anthony Filugelli (Filugelli) £200,000 as part of a drug dealing debt, and about Ahmed having to transfer a four bedroom penthouse apartment in Cyprus to Filugelli via the creation of a Power of Attorney.
On the 10 th May 2007, Ahmed was arrested. One of the items in his possession was a contract for sale for a property in Northern Cyprus which had been purchased for £50,000. During the course of his subsequent no comment interview, he was represented by a member of TBW's criminal department. During the interview, it was put to him that he owed money to Filugelli for drugs.
Both Filugelli and Ahmed were clients of TBW. In relation to Filugelli, Mrs Fitzpatrick had dealt with his family law matters and Mr Wilkey had dealt with property matters. In relation to Ahmed, Mr Wilkey had dealt with contractual and property matters.
Mrs Fitzpatrick and Mr Wilkey found out about Ahmed's arrest and received information about what was being alleged against him and what had been put to him in interview. Mrs Fitzpatrick's recollection is that the firm's managing clerk, Derek Parker, who was then representing Ahmed in relation to his criminal case, told her that he had been informed by the member of the firm who had been present at the interview that it had been put to Ahmed in interview that the Police had a recording from a probe in Ahmed's car of Ahmed saying he owed Filugelli £500,000. Mrs Fitzpatrick said she thought that could have originated either from a drug debt or from something to do with investments she knew Filugelli had been making into a property development in Cyprus called Blue Bay. Whichever, she knew Ahmed had been arrested for drug dealing. She also knew that there had been a prior allegation by Filugelli's ex-partner that Filugelli had been a drug dealer. She had discounted that allegation at the time. However, the new allegations caused her to suspect that both men were involved in money laundering. She discussed the situation with Mr Wilkey. Mr Wilkey was the nominated money laundering reporting officer ("MLRO") for the firm. He decided to make a number of Suspicious Activity Reports ("SAR's") concerning Ahmed and Filugelli to the Serious and Organised Crime Agency ("SOCA") under the Proceeds of Crime Act (" POCA") procedure.
In relation to Filugelli, SAR's were made on the 16 th May, 18 th May and 11 th July in respect of three past and seven current property transactions, all of which related to UK properties. SOCA consent was sought to proceed with the current transactions. Consent was given by SOCA on the 5 th June and 18 th July on various conditions, one of which was that SOCA should be informed about the destination of any proceeds of sale, and another was that further disclosure should be considered if the circumstances detailed in the existing SARs changed in such a way as to give rise to further knowledge or suspicion of money laundering.
In relation to Ahmed, SAR's were made on the 18 th May and the 19 th June in relation to two past and one current property transactions, all of which related to UK properties. One of the past transactions referred to in the SAR of the 18 th May related to the granting of a nine year lease to Ahmed of his estate agency premises at 244a Broadway in Bexleyheath. The SAR dated 19 th June related to the prospective assignment of that lease. Consent to proceed with that transaction was sought.
On the 24 th May 2007, DC Miller wrote to Mr Wilkey informing him that he was employed by the Metropolitan Police on the Anti-Corruption Command as the financial investigator in charge of the investigation into Ahmed's financial affairs. He stated that on the 16th May 2007 Derek Parker had contacted him saying that he had a duty under the Money Laundering Regulations to inform him that Ahmed was attempting to sell the lease at 244a Broadway, that Mr Wilkey was acting for Ahmed in relation to his conveyancing matters, and Mr Wilkey would be contacting him to seek consent to proceed with the transaction. DC Miller pointed out that as yet he had received no telephone call and no application for consent had been made. DC Miller pointed out that, following Ahmed's arrest, he was in the process of obtaining a Restraint Order in relation to Ahmed's assets and any attempt to sell, gift or dispose of any of his assets would be construed as a breach of the Money Laundering Regulations. Further, he reminded Mr Wilkey of his responsibilities under the Money Laundering Regulations and POCA.
Derek Parker did not give evidence. It is therefore unclear as to what provisions of the Money Laundering Regulations and POCA were operating on his mind at the time he spoke to DC Miller. It was suggested to Mr Wilkey in evidence that the disclosure may have been pursuant to section 337 of the Act which covers a disclosure made by an employee who has come into possession of the information in the course of his employment by representing Ahmed in relation to his criminal case. The importance of that section is that it is relevant to an offence of Tipping Off pursuant to section 333 of the Act. Mr Wilkey gave evidence that he did not know why, or in what circumstances Derek Parker had made the disclosure.
Upon receipt of the letter of the 24 th May, Mr Wilkey telephoned DC Miller to discuss the matter, and during the course of the call he informed DC Miller of his approach. Mr Wilkey summarised the discussion in a letter to DC Miller dated 29 th May 2007. Mr Wilkey explained that he did not yet have instructions to proceed with the assignment of the lease. He was going to discuss the matter with Ahmed. If Ahmed wanted to proceed, he intended telling Ahmed that a report would have to be made to SOCA seeking consent to continue with the transaction. If Ahmed did not want a report to be made, then Mr Wilkey would cease to act and would then make a report under section 330 of POCA.
On the 31 st May, DC Miller wrote to Mr Wilkey objecting to his approach, stating that the disclosure process was intended to be covert, and requesting him not to inform Ahmed of any disclosures or related communications. He suggested that Mr Wilkey's proposed actions could prejudice his financial investigation and thereby be an offence under section 342 of POCA as it could alert Ahmed to a Restraint Order that DC Miller was at the time seeking against him. In evidence, DC Miller confirmed his view that Ahmed was a drug dealer and the suggestion that Ahmed would ever agree to report any part of his financial affairs to SOCA was unrealistic. He would just go...
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