Kalsoom Sanam (formerly Kalsoom Amir) v National Crime Agency (formerly the Serious Organised Crime Agency)
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton |
| Judgment Date | 02 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1234 |
| Docket Number | Case No: A2/2014/3876 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 December 2015 |
[2015] EWCA Civ 1234
IN THE COURT OF APPEAL
(CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(The Honourable Mrs Justice Andrews DBE)
Royal Courts of Justice
Strand, London, WC2A 2LL
THE CHANCELLOR OF THE HIGH COURT
Lord Justice Patten
and
Lord Justice Christopher Clarke
Case No: A2/2014/3876
Andrew Bodnar (instructed by Messrs Brett Wilson LLP) for the Appellant
Jonathan Hall QC ( instructed by NCA Legal) for the Respondent
Hearing dates : 27 th October 2015
The Chancellor ( Sir Terence Etherton) :
This is the judgment of the Court.
This appeal concerns the competing rights of (1) the National Crime Agency ("the NCA") to obtain a civil recovery order ("a CRO") under Part 5 of the Proceeds of Crime Act 2002 (" POCA") in respect of property derived from unlawful conduct and (2) a wholly innocent former wife of the criminal, who would be left without any assets if such an order was made, to resist such an order on the grounds that it would be contrary to her rights under Article 1 of the First Protocol ("A1P1") to the European Convention on Human Rights ("the Convention").
The appeal is by the second respondent in these proceedings, Mrs Kalsoom Sanam (formerly Kalsoom Amir) from an order dated 30 October 2014 of Mrs Justice Andrews, by which it was ordered, among other things, that the properties at 5 Thurza Court, College Road, Isleworth, TW7 5DG ("Thurza Court"), and 2a Wheatash Road, Addleston, KT15 2ER ("Wheatash Road"), be vested in Jonathan McAlister of the NCA as the trustee for civil recovery pursuant to section 267 of POCA and that he be entitled to be registered as the proprietor of those two properties ("the Properties") at the Land Registry.
Background
The following facts were found by the Judge in (1) a judgment handed down on 31 July 2014 ( [2014] EWHC 2722 (QB)), which led to a CRO dated 24 September 2014 in respect of a number of properties owned by the first respondent to these proceedings, Amir Azam ("Mr Azam"), or held in the names of members of his family, and (2) her judgment handed down on 30 October 2014, leading to the order of the same date which extended the terms of the earlier CRO to Thurza Court and Wheatash Road and which is the subject of this appeal.
On 14 April 2001 Mrs Sanam married Mr Azam in Pakistan, where she had been living. She was just under 24 years of age. It was an arranged marriage and the wedding day was the first occasion on which they met. Mr Azam was resident in England. Mr Azam already had three children from an earlier relationship. The marriage was arranged at the behest of Mr Azam's father, Mohammed Azam, who was concerned by the fact that the children were growing up without a mother figure.
Mrs Sanam's family provided her with a dowry. It is a tradition in Islamic marriages that the groom's family will also provide the bride with a substantial wedding gift. The Azam family did not give anything at the time of the wedding but Mrs Sanam's understanding at that time, from what she was told by her father, was that assurances had been given by Mohammed Azam to her father that she would be given something "as security". She did not know what that would be.
Mrs Sanam believed that Mr Azam's family were well off, and that he was a successful businessman dealing predominantly in property transactions. The NCA's case is that Mr Azam was a career criminal, chiefly a drug dealer and money launderer. The Judge found that the Properties, which are the subject of this appeal, were acquired with the proceeds of Mr Azam's criminal conduct or with funds derived from property acquired with the proceeds of such property.
Mrs Sanam moved to England in May 2001. On the day she arrived Mr Azam was arrested. He remained in custody on remand until the charges against him were dropped in December 2001. She busied herself in home-making and looking after Mr Azam's three children from his previous relationship and, eventually, their daughter also.
Thurza Court was transferred by Mohammed Azam to Mrs Sanam on 1 May 2002. It had been bought by Mr Azam but was put by him in his father's name. Mr Azam's father had the legal title to the property but not the beneficial interest. Mrs Sanam did not know any of those matters. She only discovered she was going to get Thurza Court about a week beforehand when she was told by Mohammed Azam that he was giving it to her as a wedding gift and that it was intended not only as a capital asset but as a source of income. Mrs Sanam's only involvement with the transfer of Thurza Court was signing the TR1 form. Mr Azam knew about the transfer of Thurza Court and was actively instrumental in encouraging and procuring the transfer to Mrs Sanam and in creating the impression that she was receiving it as an outright gift. The Judge found that the transfer was not an act of money-laundering and that it was effective to transfer to her the beneficial interest as well as the legal title. Mrs Sanam genuinely believed that Thurza Court was hers to keep as a wedding gift.
Thurza Court was an investment property and the rental income was paid into Mrs Sanam's bank account. She did not use that money until she was told to do so by Mr Azam in August 2003 for the purpose of contributing to the purchase of the land at Wheatash Road. Some of that money went towards the purchase of the land, and that was why the land on which the house was subsequently built was registered in the joint names of herself and Mr Azam. Like Thurza Court, it was used as an investment property. Mr Azam and Mrs Sanam never lived there. Mrs Sanam had no idea how the money to fund the development of the plot of land was generated. The development was managed entirely by Mr Azam.
In 2002 Mr Azam and Mrs Sanam began living in Dubai. In 2006 Mr Azam was arrested and held in custody in Sharjah for drug trafficking and money laundering offences, for which he was subsequently convicted and given a custodial sentence. Up to that point, the marriage had been one of mutual tolerance and a degree of respect, but not much more. Following Mr Azam's arrest and imprisonment the relationship deteriorated. In September 2009 she moved back to the United Kingdom with the four children. Mr Azam's elder son moved out to live with his grandmother in 2010.
In January 2011 the NCA commenced the present proceedings under CPR Part 8 for a CRO under Part 5 of POCA in respect of several properties and other assets, including Thurza Court and Wheatash Road. When Mrs Sanam saw the NCA's evidence against her husband she began to realise the truth about his criminal activities. Following a heated telephone conversation between them in May 2011, and in accordance with Mr Azam's instructions, his other two children from the former marriage, went to live with his sister. Mrs Sanam has continued to take care of their daughter.
Mrs Sanam initiated divorce proceedings in Dubai because at the time her husband was in prison in Sharjah and she felt that this was the quickest and easiest way to achieve a divorce. She remained in England, and matters were handled by lawyers instructed by her brother to whom she had given power of attorney. The Sharia Court of First Instance issued a Khula (divorce by relinquishment of marital rights) on 1 August 2012. It appears that the basis on which she sought a divorce was that her husband had been imprisoned for more than six years. Mr Azam refused the Khula and objected to the divorce. He demanded that she should give back, among other things, "all real estate that he registered under her name". The Sharia Court did not accede to his demands and granted the divorce on terms that Mrs Sanam waived her rights to her dowry but each party to the marriage would keep the property registered in their own names.
On the appeal Mr Azam's lawyer argued that the Khula gave Mrs Sanam the right to half his property according to English law. Mrs Sanam's response was that Thurza Court was a gift from her husband's father and was not included in the Khula, and she had no rights in properties and buildings registered in the name of Mr Azam and he had no right in properties registered in her name. The Sharjah Federal Appeal Court dismissed Mr Azam's appeal. It held that "the Khula includes dowry and alimony only, and [the] parties [are] free with regard to the civilian rights in dispute between them."
The Judge (at [66]) described Mrs Sanam as "a complete innocent" caught up in the web of Mr Azam's conduct. The Judge described Mrs Sanam's conduct and position as follows:
"66. … She has done nothing to deserve the situation in which she has found herself. This is not a case of a wife who was happy to live "high on the hog" from the proceeds of crime with no questions asked, turning a blind eye to where the money was coming from. She was a dutiful young woman who entered without question into an arranged marriage and moved to a strange country where she had no friends and family in order to be a mother to her husband's three children by an earlier relationship. She did her best to be a good wife and mother to them and even Mr Azam had to concede that she treated her stepchildren as if they were her own. She followed her husband to Dubai, again without question, and continued to run the household and take care of the children, including their own daughter, whilst he carried on his business.
67. She genuinely believed that Thurza Court was hers to keep as a wedding gift; that was what she was told by...
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