Burgin v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judgment Date | 13 July 2011 |
| Neutral Citation | [2011] EWHC 1835 (Admin) |
| Docket Number | Case No: CO/5723/2010 CO/6227/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 July 2011 |
[2011] EWHC 1835 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt. Hon. Lord Justice Laws
The Hon. Mr. Justice Stadlen
Case No: CO/5723/2010 CO/6227/2010
Ms Clare Montgomery QC, Mr Alex Bailin QC and Ms Clare Sibson (instructed by BCL Burton Copeland) for the Claimants
Mr James Eadie QC and Mr Duncan Atkinson (instructed by Treasury Solicitors) for the FirstDefendant in CO/5723/2010 and the Second Interested Party in CO/6227/2010
Mr Jeremy Johnson QC (instructed by Director of Legal Services, Metropolitan Police and Weightmans LLP) for the Second and Third Interested Parties in CO/5723/2010 and the First and Second Defendants in CO/6227/2010
Hearing dates: 15 th April 2011
The Hon. Mr Justice Stadlen:
There are before the Court renewed applications for permission to proceed with claims for judicial review. They arise out of the same factual background. The Claimants in both applications are the same and some of the issues raised overlap. Accordingly they were heard together at one oral hearing, both applications having been dealt with on different dates on the papers by Mitting J.
In claim No. 5723 ("the search warrant claim") the Claimants applied for permission to challenge a decision of the Serious Fraud Office ("the SFO") to apply for and the City of Westminster Magistrates' Court to issue search warrants. The SFO and the Magistrates Court are the Defendants in that claim and the Interested parties in it include the Commissioner of Police for the Metropolis and the Chief Constables of Leicestershire and Staffordshire Police, officers from whose police forces executed the warrants.
In Claim No. 6227 ("the arrest claim") the Claimants challenge decisions of the Commissioner of Police for the Metropolis and the Chief Constable of Leicestershire Police, the Defendants in that Claim, to arrest them and the decision of the Commissioner of Police of the Metropolis to bail the first Claimant. The SFO is one of the interested parties in that claim.
Background
The SFO is currently conducting an investigation into suspected offences of bribery, corruption, false accounting and money laundering. The investigation is focused on the activities of several individuals and a number of corporate entities within the Alstom Group of Companies ("Alstom"). Alstom has its base in Paris but a number of corporate entities within Alstom are companies incorporated in the United Kingdom with a trading presence in England. According to the Information laid before the City of Westminster Magistrates' Court on the basis of which the search warrants were issued the matter came to the attention of the SFO in June 2009 on receipt of information from the Office of the Attorney General ("the OAG") in Switzerland. Letters of Request were received by the SFO from the OAG requesting assistance in criminal investigations being conducted by the OAG into the conduct of Bruno Kalin the former Compliance Manager for Alstom, and persons unknown on the strong suspicion of aggravated money laundering, bribery of foreign public officials and misconduct in the execution of administrative duties.
It appeared to the Director of the SFO based on information received from the OAG that there were reasonable grounds to suspect that offences amounting to serious or complex fraud had been and were continuing to be committed. As a result he authorised an investigation into the suspected corruption of officials and others, money laundering and other offences by Alstom and other companies in the UK and overseas. The SFO is working closely together with the OAG both in assisting it in its investigations and in the conduct of the SFO's investigation.
Alstom has approximately 80,000 employees worldwide and annual sales in 2009 totalling €18.73 billion. The Swiss investigation commenced in October 2007 and initially focused on the activities of Bruno Kalin and Alstom Prom AG ("Prom"). Mr Kalin was arrested and searches were made at the premises of Alstom (Switzerland) AG and Prom in Switzerland on 22 August 2008. In September 2008 Prom changed its name.
Alstom has about 30 trading locations in the UK employing over 4,000 people. The registered address of a large number of the Alstom companies in the UK is Newbold Road, Rugby, Warwickshire, but its flagship headquarters office in London is on the 8 th floor, The Place, 175 High Holborn in London. Information obtained from financial institutions in the UK suggested to the SFO that despite searches having been carried out at Alstom premises in France in 2007 and Switzerland in 2008 corrupt payments were continuing to be made in the UK. One of the companies trading from the Newbold Road site in Rugby was Alstom Network UK Ltd ("Network UK") (previously Alstom International Ltd (Network UK)).
Enquiries established that Alstom operated over 600 bank accounts in the UK since the 1990s but the SFO was unable to find one in the names of Network UK or Alstom International Ltd. However analysis of bank statements for three accounts held in the names of Alstom UK or Alsltom Ltd at Lloyds TSB up to 2004, ABN Amro between 2004 and 2006 and Barclays from 2006 to March 2010 revealed that over €90 million was received from other Alstom companies (mostly overseas) and subsequently remitted under the reference of Network UK or Alstom Interational to companies suspected of having acted as consultants. Many of those payments refer to consultancy agreements or have consultancy agreement reference numbers.
According to its annual accounts Network UK purports to be an undisclosed agent for Alstom Ltd which receives all of Network UK's income and pays all of its expenditure. Those accounts show turnover for 2008 and 2009 as £46,881 and £50,724 respectively. From an analysis from one of the Alstom Ltd bank accounts, the SFO identified payments totalling €16.3 million in 2008 and €12.2 million in 2009 in the names of Network UK or Alstom International. Enquiries revealed that the three banks referred to which managed the Alstom accounts were used to receive funds from Alstom companies and remit them to suspect consultants and that between 2000 and 2010 they always corresponded with the company at Newbold Road, Rugby. The bank statements for those accounts were always addressed to those premises although various different people were the named recipients. Officials from the banks made a number of visits to discuss the operation of the accounts and the meetings always took place at Newbold Road. The majority of visits by HMRC to the Alstom Group were made to the Newbold Road premises which were considered by HMRC to be the office where most of the company administration including finance was conducted. Bruno Kalin, the main subject of the OAG investigation, who was arrested in Switzerland was a Director of Network UK between 1 January 2001 and 31 December 2005.
The Company Secretary of Network UK as at the date when the Information in support of the search warrants was laid before the Magistrates' Court was Alton Cledwyn-Davies, who was appointed to the Board on 3 November 2000. He signed off all Directors' reports and financial statements from 2001 until the date of the Information. The first Claimant, Stephen Burgin was listed at Companies House as a current Director of Network UK and as having given his occupation as Country President. He became a Director of Alstom Ltd, Alstom UK Holdings Ltd, Alstom Power Ltd and Alstom Interational Ltd (which changed to Network UK on 5 June 2008) on 8 January 2008. He was described in the Information as the "figurehead" for the Alstom Group in the UK and was included in the list of Directors who attended a board meeting to approve the 2009 annual accounts of Network UK referred to above.
The second Claimant, Robert Purcell was listed as a current Director of Network UK at Companies House, where he gave his occupation as Finance Director. He joined the Board of Alstom Ltd, Alstom UK Holdings Ltd, Alstom Power Ltd and other Alstom companies on 1 October 2008 and was appointed to the Board of Network UK on 27 March 2009. He signed off the annual accounts for Network UK in April 2009 and remained as Finance Director at the time the Information was laid before the Magistrates' Court.
During its investigations the SFO identified ten UK Alstom companies as having made payments through Prom to consultants. The SFO suspected that those payments were solely for the purpose of paying bribes. Of those four, Alstom Power Ltd., Alstom Power UK Ltd., Alstom TND Ltd., and Alstom Power Plants Ltd., were believed to be continuing to trade, three were placed into voluntary liquidation and dissolved in 2008, an eighth was placed into voluntary liquidation and dissolved in 2005 and two were taken over by a company not a subject of the investigation respectively in 2004 and 2008.
On 18 March 2010 District Judge Evans issued a total of nine search warrants in respect of premises said to be connected to the SFO investigation. They were issued under Section 2 (4) of the Criminal Justice Act 1987 ("the 1987 Act"). The warrants were issued on the basis of the Information which had been delivered to the Court on 16 March 2010 in support of the SFO's application for the warrants. The contents of the Information were affirmed as true by...
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