Israel Igo Perry and Others v Serious Organised Crime Agency
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hooper,Lord Justice Tomlinson,Lord Justice Maurice Kay |
| Judgment Date | 18 May 2011 |
| Neutral Citation | [2011] EWCA Civ 578 |
| Docket Number | Case No: C1/2010/1684 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 May 2011 |
[2011] EWCA Civ 578
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
MITTING J
POCA No 11592 of 2009
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Vice-President of the Court of Appeal Civil Division
Lord Justice Hooper
Lord Justice Tomlinson
Case No: C1/2010/1684
Philip Jones QC and Daniel Lightman (instructed by Asserson Law Offices) for the Appellants.
Anthony Peto QC and Donald Lilly (instructed by the Serious Organised Crime Agency) for the Respondent.
Hearing dates: 8 th & 9 th December 2010
Introduction
This appeal against the decision of Mitting J [2010] EWHC 1711 (Admin) [2010] 1 WLR 2761 raises the following issue:
Does a court in England and Wales have the power under Part 5 of the Proceeds of Crime Act 2002 (" POCA") to make a recovery order in favour of the trustee for civil recovery in respect of recoverable property outside this jurisdiction, whether moveable or immoveable?
Unusually I propose to give my answer to the question at this stage. I do so in order that the reader of this judgment can have in mind my answer when considering the various complex provisions which I shall be examining.
In my view, the court does have power to make such an order but in the case of property outside the jurisdiction, a civil recovery order gives the trustee for civil recovery a personal right against the person who is the subject of the civil recovery order to enforce the order and such other right, if any, to which the trustee is or becomes entitled under the law of the place where the property is situated. The effect of an order vesting property in the trustee is the same whether the property is here or abroad. If the property is situated here, the trustee has a personal right against the person who is the subject of the civil recovery order and such other conditional or unconditional rights to the property as English law (including POCA) provides. If the property is abroad, the trustee has a personal right against the person who is the subject of the civil recovery order and such other conditional or unconditional right to the property as the law of the place where the property is situated provides. The difference is that, in the latter case, it is unlikely that the law of the place where the property is situated will give the trustee the very full rights given to him by English law.
Part 5 of POCA grants the power to courts in the three jurisdictions of England and Wales, Scotland and Northern Ireland to make orders enabling the relevant enforcement authority 1 to recover in civil proceedings property which is, or represents, property obtained through unlawful conduct (see section 240). Part 5 also includes provisions for making various interim orders preventing the disposal of such property. 2 Part 5 also contains provisions for the forfeiture by a magistrates' court of cash found here, but these provisions are not relevant to the disposal of this appeal.
Part 5 as drafted and as subsequently amended is complex and contains some 100 sections, most of which (either wholly or partially) apply in all three of the jurisdictions. In so far as a particular provision applies in Northern Ireland and/or Scotland, then the interpretation given to the provision by a court in England and Wales should be the same as the interpretation which would be given to it in one or both of the other jurisdictions. In the instant appeal we have had to examine one particular section (section 286) which defines the scope of the powers of the Court of Session and which, so it is submitted by the appellants, is important when construing other sections. We have been provided with contradictory expert evidence about section 286.
Part 11 of POCA gives Her Majesty in Council power to make orders enabling the courts in the three jurisdictions to enforce overseas external requests. Although Her Majesty in Council is empowered to make provision for enforcing various POCA orders made in one of the three jurisdictions in the other two jurisdictions, that power does not include a power to make such provisions in respect of Part 5 orders.
We were not taken in oral argument to section 18 of the Civil Jurisdiction and Judgments Act 1982, which makes provision for the enforcement of United Kingdom judgments in other parts of the UK. I shall come back to that section later.
I have stated the issue in the way that I have (paragraph 1 above) because no part of the property with which this appeal is concerned is situated in Northern Ireland and Scotland. We therefore do not have to decide whether a court in England and Wales has the power under Part 5 of POCA to make a recovery order in respect of recoverable property in Scotland and Northern Ireland (or vice versa).
Recoverable property is defined as: "Property obtained through unlawful conduct" (section 304). By virtue of section 266 (1) if a court is satisfied that any property is recoverable, the court (subject to some exceptions not relevant to this appeal) must make a recovery order. By virtue of subsection (2), a recovery order "must vest the recoverable property in the trustee for civil recovery." Thus if the answer to the question in paragraph 1 is in the affirmative (as the respondent submits), the court must vest the property in the trustee for civil recovery (whatever that may mean). Until that moment the property is not vested in the trustee even though there may be a freezing order in place, see Director of the Assets Recovery Agency v Creaven and others [2005] EWHC 2726 (Admin); [2006] 1 W.L.R. 622.
At least some of the difficulties associated with the respondent's case might disappear if the court had been given the discretion to make a recovery order in relation to recoverable property situated outside this jurisdiction, as it has been given in relation to "associated property". A court making a recovery order may also make an order vesting in the trustee for civil recovery "associated property" (and, other than in Scotland, "joint property"). In simple terms if a person holds a property interest in the recoverable property and that property interest is itself not recoverable property, then that property interest constitutes "associated property" (see further section 245). It follows that if the answer to the question in paragraph 1 is "Yes", then the court may also vest in the trustee for civil recovery any associated property.
If property (recoverable or associated) is vested in the trustee for civil recovery by a court in this jurisdiction, the trustee will then dispose of the property (if able to do so) and account to the Serious Organised Crime Agency ("SOCA") for the proceeds. I shall look later in more detail at the position of the trustee in relation to property in England and Wales which has been vested in him. In simple terms the trustee in English law (including POCA) automatically becomes the legal and equitable owner of that property. If to complete his title, the trustee needs the person holding the recoverable or associated property to execute a document, such as a conveyance or contract, and that person refuses to do so after being ordered by the High Court so to do (or cannot after reasonable enquiry be found), then the Court may nominate a person to execute the document and the document executed by that person shall operate as if it had been executed by the person originally directed to execute it. See section 39 of the Senior Courts Act 1981.
The respondent accepts that in the case of property outside England and Wales, whether moveable or immoveable, the vesting of that property in the trustee gives the trustee a personal right against the person who is the subject of the civil recovery order. To enforce that personal right, so it is submitted by the respondent, the trustee may obtain a court order here against the person who holds the property requiring that person to take steps to assist the trustee to dispose of the property, orders for the breach of which that person may be punished for contempt and/or by sequestration of that person's property here. Counsel for the respondent appeared to accept in argument that section 39 of the Senior Courts Act could not be used in relation to property not within this jurisdiction.
If the answer to the question in paragraph 1 is in the positive, then, in addition to a personal right against the person who is the subject of the civil recovery order, it seems to me that the trustee for civil recovery will have such further rights to the property, if any, to which the trustee is or becomes entitled under the law of the place where the property is situated.
If the answer to the question posed in paragraph 1 is in the affirmative, then a court in this jurisdiction must on the application of an enforcement authority make a civil recovery order even though the unlawful conduct occurred outside the jurisdiction, the person responsible for that unlawful conduct has and has had no connection with this jurisdiction and all the recoverable property is situated abroad. This is, of course, an extreme example but it demonstrates the consequences of the respondent's arguments. In the words of the appellants, it would be startling if:
Parliament has conferred authority on the enforcement authorities to bring proceedings to vest in a trustee for civil recovery property situated abroad which derives entirely from unlawful conduct abroad where neither the holder of the property, nor any intermediate holders of the property, or property from which the holder's property is derived, have ever been...
To continue reading
Request your trial
-
Serious Organised Crime Agency v Perry
...Lord Kerr Lord Clarke Lord Wilson Lord Reed Sir Anthony Hughes THE SUPREME COURT Trinity Term On appeal from: [2010] EWCA Civ 907; [2011] EWCA Civ 578 Appellants Philip Jones QC David Johnston QC Daniel Lightman (Instructed by Asserson Law Offices) Respondent James Eadie QC Richard Keen Q......
-
Serious Organised Crime Agency v Trevor Hymans and Others
...11 A Court may make a civil recovery order, and vest property in the trustee, in respect of overseas property: Perry and others v SOCA [2011] EWCA Civ 578. 12 It is not necessary to specify the unlawful conduct precisely; it is enough for the enforcement authority to set out the matters whi......
-
National Crime Agency v Ronald Olden (Defendant/Applicant)
...which has caused them a great deal of inconvenience and expense. 10 As I endeavoured to point out in my judgment in Serious Organised Crime Agency v Perry & Others no 2 [2011] 1 WLR 2817, the extent to which any practical effect can be given to orders made under the Proceeds of Crime Act is......