National Crime Agency v Amir Azam & Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 31 July 2014 |
| Neutral Citation | [2014] EWHC 2722 (QB) |
| Docket Number | Case No: TLQ/12/1039 |
| Court | Queen's Bench Division |
| Date | 31 July 2014 |
[2014] EWHC 2722 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Andrews DBE
Case No: TLQ/12/1039
Andrew Sutcliffe QC and Jonathan Hall QC (instructed by National Crime Agency) for the Claimant
Philip Coppel QC and Oliver Powell (instructed by Litigaid Law) for the First Respondent
Hearing dates: 8–11, 14–18, 21 and 23 July 2014
Approved Judgment
This is a claim for a civil recovery order brought by the National Crime Agency ("the NCA") formerly known as the Serious Organised Crime Agency ("SOCA") under Part 5 of the Proceeds of Crime Act 2002 (" POCA"). The NCA may bring a claim for such an order under s.243(1) of POCA against any person whom it believes to hold recoverable property. "Recoverable property" is defined in s.304(1) as "property obtained through unlawful conduct" and includes property that represents the original property (s.305) and profits accruing in respect of the recoverable property (s.307). Property outside the jurisdiction may be recovered, provided there is a connection between the case and the relevant part of the United Kingdom (s.282A). There is no difficulty in establishing that connection in the present case.
Section 241(1) of POCA provides that "conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part." If conduct occurring outside the UK is relied upon, there is a "double criminality" requirement, in that it must be established that the conduct was a crime under the law of that other country and that it would have been a crime under domestic law if it had occurred within the jurisdiction (s.241(2)). Section 266(1) of POCA obliges the High Court to make a recovery order in circumstances where it is satisfied that the property is recoverable property, subject only to the proviso in s.266(3), to which I shall return in due course.
The right to recover property does not depend on the commission of unlawful conduct by the current holder. All that is required is that the property itself be tainted because it, or other property which it represents, was obtained by unlawful conduct. Since property might be recoverable from someone who is entirely innocent of wrongdoing, the NCA is required to establish clearly that the property in question was obtained by unlawful conduct. It is unnecessary for the NCA to prove the commission of any specified criminal offence, in the sense of proving that a particular person committed a particular offence on a particular occasion. However it is necessary for it to prove that specific property was obtained by or in return for a criminal offence of an identifiable kind or in return for one or other of a number of offences of an identifiable kind: Director of the Assets Recovery Agency v Szepietowski [2007] EWCA (Civ) 766, [2008] Lloyd's Rep FC 10, per Moore-Bick LJ at [106]–[107].
If the NCA alleges that the unlawful conduct from which the property is derived is money laundering, it must establish that the respondent concerned was handling money derived from criminal activity. There are two ways of doing this:
i) by establishing that the money was derived from unlawful conduct of a specific kind or kinds, or
ii) by establishing that the circumstances in which the money was handled are such as to give rise to the irresistible inference that it could only have been derived from crime.
See R v Anwoir and others [2008] EWCA Crim 1354 at [21] as applied by Griffith Williams J in SOCA v Gale [2010] Lloyd's Rep FC 39 at [17] (a judgment deservedly commended by both the Court of Appeal and the Supreme Court in that case as "meticulous and comprehensive"). Thus where money-laundering is relied upon there is no requirement to specify the predicate offence, only to satisfy the court that the evidence establishes that the property was obtained through laundering the proceeds of criminal activity.
The burden of proof lies on the NCA and the standard of proof to be applied is the civil standard of the balance of probabilities: s.241(3) POCA, and see the decision of the Supreme Court in SOCA v Gale [2011] 1 WLR 2760. In that case it was held that an acquittal in criminal proceedings does not preclude the Court from considering evidence that formed the basis of the charges against a respondent to proceedings for civil recovery. A court may find in such proceedings that, on the balance of probabilities, the respondent committed the same act of which he was acquitted on application of the criminal standard of proof. However, it is not open to the court to undermine the effect of an acquittal by saying or deciding anything that casts doubt upon it. As Kenneth Parker J. observed in SOCA v Hymans and others [2011] EWHC 3332 at [18]:
"This will not happen if the court's language and reasoning go no further than is necessary for the purpose of determining the issue before that court and without making imputations of criminal liability. The fact that the findings may implicitly cast doubt on the acquittal is not sufficient to bring Article 6(2) into play. It is clear that a finding to the civil standard that unlawful conduct has been committed by a respondent who was acquitted of the very same conduct in criminal proceedings, will not undermine the effect of that acquittal."
The property sought to be recovered in this case comprises (1) eight properties, including real estate in Spain ("the Spanish Property"); (2) the proceeds of rental income from six of the seven English properties; and (3) the balance of the sums originally standing to the credit of three English bank accounts and two bank accounts in Luxembourg. The money in one of the Luxembourg accounts was brought within the jurisdiction pursuant to an earlier court order, and what remains of it after making permitted payments is in a client account held by a firm of solicitors, Saunders Law Ltd ("Saunders"), to the order of the court. Two further properties in England, 40 Grange Road and 4 Ellison Gardens, were the subject of successful summary judgment proceedings before Supperstone J as long ago as 2 November 2011. The reasons why it has taken so long for the balance of the claim to be determined will soon become apparent.
The only person taking an active part in defending the claim is the First Respondent, Amir Azam ("Mr Azam"), also known as "Methu" or "Matt", who was born in 1971. The Second Respondent is his former wife, Kalsoom Amir ("Kalsoom"). She has submitted Points of Defence raising discrete issues (essentially in the nature of ancillary relief) which are to be heard separately at a later date. As with Kalsoom, in the course of this judgment, for convenience and brevity, and without intending to show any disrespect, I shall be referring to Mr Azam's family members by one of their given names.
Prior to his arranged marriage to Kalsoom in Pakistan in April 2001, Mr Azam was in a long-term relationship with Hardeep Grewal ("Hardeep"), who is the mother of his three older children, Sohail, Aisha and Deen. They met when Hardeep was 17 and still at school. Mr Azam was not much older. She converted to Islam and they were married in a Muslim ceremony in 1992. The relationship ended in 2000; although neither Mr Azam nor Hardeep has given any clear indication of when they parted, other evidence points to the relationship having broken down in around March, though there may have been an unsuccessful attempt at reconciliation a little later on. Mr Azam has custody of the children. The marriage to Kalsoom was arranged because Mr Azam's father considered that Mr Azam should not have to bring up the children alone. Mr Azam and Kalsoom have one child together, a daughter named Zahra, who is now 11 years old. She was born in Dubai in January 2003.
The remaining Respondents are all members of Mr Azam's family, including his mother, Zarina Begum ("Zarina"), and father, Mohammed Azam ("Mohammed"). Some, but not all, of them have appeared as witnesses. The claim was originally brought against seven Respondents, but the Sixth Respondent (Mr Azam's sister Asma) acknowledged service stating that she has no interest in any of the properties, and therefore was deleted from the claim.
Although the NCA's claim relates to eight real properties in total, only three of them are in the name of Mr Azam, namely, 1 Offley Place, purchased on 19 July 2002; 2a Wheatash Road, which was purchased on 17 August 2003 as a plot of land with planning permission, registered in the joint names of Mr Azam and Kalsoom, and on which they later built a property; and the Spanish Property, purchased on 21 May 2004, as evidenced by documents obtained from the Spanish Land Registry. None of these properties was purchased with the assistance of a mortgage.
It is common ground that the bulk of the money used to purchase 1 Offley Place came from the proceeds of sale of an earlier property, 2 Watery Lane, Northolt; the NCA's case is that this property was purchased in January 1996 with money derived from Mr Azam's criminal activities, and that its purchase was an act of money laundering. Therefore it is necessary to consider that property as well. Watery Lane was purchased in the name of Mr Azam's sister Shazia Ali, née Azam, ("Shazia") in whose name a mortgage was also obtained from the Woolwich Building Society; just over two years later, in March 1998, it was transferred into Zarina's name. Two days after that transfer she transferred it into the name of Mr Azam for no consideration.
Watery Lane is the only property that was purchased outside the primary limitation period. The effect of s.62(2)(b) of the Policing and Crime Act 2002 is that claims for which time was still running...
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