National Crime Agency v Abacha
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 21 January 2015 |
| Neutral Citation | [2015] EWHC 357 (Admin) |
| Docket Number | CO/2986/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 January 2015 |
[2015] EWHC 357 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Elisabeth Laing
CO/2986/2014
Mr Jonathan Hall, QC and Mr Alexandra Cook (instructed by NCA Legal) appeared on behalf of the Claimant
Mr Paul Stanley, QC and Mr Peters (instructed by Byrne & Partners) appeared on behalf of the Defendant
There are three applications before me today. The first is an application for continuation of a prohibition order made by Foskett J on 2 July 2014 (which I shall refer to as "the prohibition order"). That froze over £100 million worth of assets which the United States of America alleges represent proceeds of the frauds of General Abacha and his associates. The second application, by two Respondents, which I shall refer to as "the Blue Companies", is for an order for disclosure by the National Crime Agency (which I will refer to as "the NCA") of the letters of request for mutual legal assistance sent by the United States of America to the United Kingdom. The third is an application for variation of the prohibition order to permit the Blue Companies' legal expenses to be met from the assets that were frozen pursuant to the prohibition order.
The procedural background is set out in the skeleton argument prepared for the NCA by Mr Hall QC and Alexandra Cook. I have also read the skeleton argument prepared by Mr Stanley QC and by Mr Peters. I refer to Mr Hall QC and Mr Stanley QC as "Mr Hall" and "Mr Stanley" respectively, just for the sake of brevity, and not meaning to indicate any disrespect to them.
So, as I have said, the prohibition order was made by Foskett J on 2 July 2014. At that stage there was a commercial freezing injunction in place in respect of the same assets which are the subject of the prohibition order. That had been obtained by the United States of America from Teare J on 25 February 2014. It was continued by Field J in April 2014. There was then an appeal to the Court of Appeal against the freezing injunction by the Blue Companies. The Court of Appeal allowed that appeal on the grounds, I am told, that it was not appropriate for an ordinary freezing injunction to be granted by the court in circumstances where there was a discrete statutory scheme applying to cases such as this case.
The prohibition order was expressed to take effect on the discharge of the freezing injunction. The freezing injunction was discharged on 9 October 2014. That brought the prohibition order into effect. The prohibition order has been varied by consent. I do not need to deal with details of that.
The prohibition order is an order in aid of proceedings in the United States in rem against assets which are said to have been derived from unlawful conduct, as is explained in the skeleton argument for the hearing on 2 July 2014.
There was a letter dated 16 January 2015 from the United States Department of Justice (which I will refer to as "the DOJ"). That indicated that significant progress had been made on the claim in the United States. A forfeiture judgment has been obtained from the US District Court for some US$477 million. Some of those funds are located in the United Kingdom, about $23 million. The court making that decision concluded that:
"Based on the government's well-pleaded allegations in this verified complaint….that [the forfeited] the defendant assets….were involved in transactions in violation of 18 USC paragraphs 1956 and 1957, or are traceable to such property."
That judgment is currently subject to an appeal. The United States continues to litigate in relation to the remaining US$148 worth of assets, with a hearing of a motion scheduled for early February 2015.
The legislative scheme
The power of the court to make or to continue prohibition order is conferred by Part 4A of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005/3184 (which I will refer to as "the 2005 Order", as amended. A prohibition order is an order that specifies or describes the property to which it applies and (subject to any exclusion) prohibits any person whose property it applies from dealing in any way with that property."
The NCA has summarised the effect of the statutory provisions as follows. Since the 11 November 2013 a court may on the application of the NCA, which is an enforcement authority, make a prohibition order if satisfied that
(1) it concerns property in England and Wales (a) in respect of which there are reasonable grounds to be believe that it may be needed to satisfy an external order (that is, an order made by an overseas court where property is found or believed to have been obtained as a result of or in connection with criminal conduct, and is for the recovery of specified property or a specified sum of money) which has been, or which may be made; and (b) which is identified in an "external request" that is "a request by an overseas authority to prohibit dealing with the relevant property which is identified in request." I will refer to that as "the first condition".
(2) Proceedings have not been taken in relation to the property under Chapter 2 of Part 5 of the 2005 Order. I will refer to that as "the second condition". Chapter 2 of Part 5 provides for the enforcement of "external orders" in the United Kingdom and is also the machinery which would be used to enforce any final order made by the United States courts. There is, as yet, no final order in this case.
(3) None of the exceptions listed in article 141F apply in respect of the relevant property. I will refer to that as "the third condition".
The background to the application
The NCA submits that, for the reasons set out in its skeleton argument for the 2 July hearing, the first, second and third conditions are met. The NCA relies on a witness statement by Katrina Angliss dated 19 January 2015 seeking a continuation of the prohibition order, and relies in particular in that context on the first witness statement of David Templeman dated 27 June 2014 (that the witness statement that was made in support of the application for the original prohibition order), and on the DOJ letter to which I have already referred, which sets out the continued need for the prohibition order, and which is exhibited to Miss Angliss' witness statement.
So that is the background to continuation of the prohibition order. Save to a limited extent, a procedural point really about the return date, continuation of the order is not opposed by the Blue Companies, subject to the disclosure point which I will deal with in a moment.
The disclosure application is for the letters of request on which triggered the making of the prohibition order. The statutory requirement under article 141C of the Order is that "….the court should be satisfied that an application for a prohibition order relates to property which is specified in an "external request"." The evidence about that is in Mr Templeman's affidavit. He states that the formal request for mutual assistance was received by the United Kingdom Central Authority from the United States of America. He furthers states that the property which was the subject of the application was "identified in the external request" from the DOJ and further, that the property which was the subject of the application was "relevant property identified in the external request received from the DOJ, and that that external request asks the United Kingdom prohibits the Respondents from dealing with the property so identified."
I pause there. Mr Stanley on behalf of the Blue Companies accepts, I think, that the property has been properly identified in the evidence before the court. The Blue Companies are seeking inspection of the requests for assistance and they argue that without that prohibition order ought to be discharged. So that is the disclosure application.
Submissions on the disclosure application
The submissions made about that by the NCA are really these. It is submitted that it is not a statutory requirement, or a requirement of the relevant legislative scheme, that the relevant external request is produced or disclosed, either to obtain prohibition order, or to prevent it from being discharged. All that is required, it is submitted, is that the court must continue to be satisfied that there has been a request by an overseas authority that prohibits dealing with relevant property which is identified in the request. The submission on behalf of the NCA is that to make the continuation of the prohibition order conditional on disclosure of the letters of request would be to insert an additional requirement into a carefully formulated statutory scheme and that there is no basis for any such requirement in the language of the legislation.
The second submission made by the NCA is that there is clear and unambiguous evidence that the statutory conditions had been satisfied and that it continues to be appropriate for the prohibition order to stay in force, and there is no reason for the court to require disclosure of the letters of request in its discretion on the facts of this case. It is submitted that Mr Templeman's affidavit is evidence that the United Kingdom has received the relevant external request and that the external request relied on identified relevant property.
It is submitted that the witness statement of Miss Angliss, and the DOJ letter which is exhibited to it, show that the prohibition order needs to continue in force. It is further...
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