National Crime Agency v Amir Azam
| Jurisdiction | England & Wales |
| Judge | Mr Justice Walker: |
| Judgment Date | 06 May 2014 |
| Neutral Citation | [2014] EWHC 4742 (QB) |
| Date | 06 May 2014 |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLQ/12/1039 |
[2014] EWHC 4742 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Strand
London
WC2A 2LL
The Honourable Mr Justice Walker
Case No: TLQ/12/1039
Mr Andrew Sutcliffe, QC (instructed by CRT Legal) appeared on behalf of the Claimant
Mr Philip Coppel, QC andMr Oliver Powell (instructed by Litigaid Law) appeared on behalf of the Defendant
Approved Judgment
Introduction
By an amended application notice dated 23 April 2014, the applicant, which I shall refer to as "the NCA" sought an order that:
"If the first respondent wishes to rely on the evidence of Shahid Tanveer, Sheikh Ilyas, Nadeem Chaudhry and Samir Jarshey at the trial scheduled to commence on 7 July 2014, they must be called as witnesses either by video link or in person and make themselves available for cross-examination."
The notice asserts that such an order can be made pursuant to CPR 32.1 and CPR 33.4(1).
Argument in support of the application has been advanced by Mr Andrew Sutcliffe QC. The application is opposed by the first respondent, whom I shall refer to as "Mr Azam." Mr Philip Coppel QC and Mr Oliver Powell appear today on behalf of Mr Azam.
Background
The background to the application is described by Ms Katrina Jameson of the NCA in her first witness statement dated 10 April 2014 ("Jameson"). At paragraphs 5 to 9 of that statement, Ms Jameson says this.
"5. The NCA (previously the Serious Organised Crime Agency "SOCA") issued a claim for a Civil Recovery Order on 19 January 2011 pursuant to section 266 and 246, Chapter 2 of Part 5 of the Proceeds of Crime Act, as amended. Prior to this, on 22 February 2010, Silber J granted a Property Freezing Order ("PFO") to restrain the assets which are now subject to the NCA's claim.
6. The property subject to the NCA's claim is held by five members of the same value. The net value of the claim is approximately £3.3 million. The NCA's case is that all of the property subject to the claim is, or represents the proceeds of unlawful conduct by Mr Azam, a British National, who is the First Respondent to the claim.
7. The crux of the NCA's case is that Mr Azam is a career drug trafficker and money launderer. The NCA believes that Mr Azam has utilised a variety of methods to launder money, including the transfer of cash through money service businesses; the acquisition of properties in the names of numerous family members; and a British Virgin Islands registered company; the acquisition of property in Spain; and the concealment of funds in bank accounts held in Luxembourg.
8. Mr Azam was previously resident in the UAE, where from 2006 onwards he was incarcerated in Sharjah Prison having been charged and then convicted of drug trafficking and money laundering offences. Mr Azam's conviction for drug trafficking has since been set aside. Consequently, Mr Azam was deported back to the United Kingdom in early 2013, following his release from custody, and remains resident in the United Kingdom.
9. The trial in relation to the NCA's claim has been fixed to commence on 7 July 2014, with a time estimate of 12 days."
Witness statements and hearsay notices
On 3 February 2014, Eder J, gave directions for the trial. Those directions included in paragraph 4(b).
"Permission is given to the First Respondent to file and serve by no later than 4.00pm on Friday 28 March 2014 any further witness statements (including his own) of all witnesses of fact on whom he intends to rely at trial, together with any supporting evidence and any notices of intention to rely on hearsay evidence."
In accordance with that paragraph, Mr Azam's legal representatives Litigaid Law ("Litigaid") on 28 March 2014 served numerous witness statements. Accompanying those witness statements were hearsay notices in respect of 14 witnesses. By a letter dated 3 April 2014, the NCA gave notice to Litigaid that it "intended to apply to cross-examine" certain witnesses. The second to last paragraph of the letter of 3 April 2014 sought confirmation that:
"In light of the fact that the NCA is prepared to agree to the exclusions as outlined above, we ask that you confirm the following by 4pm on Tuesday 4 April:
(i) that the above witnesses will now be able to attend court (either in person or via video-link) to be cross-examined;
(ii) that, in respect of overseas witnesses, you will begin putting place arrangements for the purpose of their attendance via video link."
The final paragraph of the letter of 3 April 2014 stated that in the absence of such confirmation, an application would be made under CPR 33.4(1).
Discussions between the legal representatives achieved a measure of agreement. When describing that agreement I shall refer to assets which fell within the property freezing order, as it existed in April this year, as "frozen assets."
As regards various witnesses, it was agreed that frozen assets could be used to fund their travel expenses or the cost of an interpreter.
The parties also agreed upon the terms of a consent order made by Hamblen J on 15 April 2014, identifying that five of Mr Azam's witnesses were to be cross-examined at trial either in person or by video link. Agreement could not be reached, however, in relation to four of Mr Azam's witnesses. It is these four witnesses who are named in the amended application notice in the passage that I have cited earlier. I shall refer to them individual as Mr Ilyas, Mr Chaudhry, Mr Tanveer and Mr Jarshey and together as "the disputed witnesses."
The original application notice sought an order directed to the disputed witnesses themselves requiring them to make themselves available for cross-examination either by video link or in person. The NCA asked that the original application be considered on the papers. The matter was placed before Hamblen J on 14 April 2014. He questioned whether the court had jurisdiction to make the order sought and indicated that if the application was to be pursued it should be made orally.
The reasons for the amended application notice
I have helpfully been provided by Mr Sutcliffe with a document entitled "Submissions on behalf of National Crime Agency." For convenience, I shall refer to it as the "NCA skeleton." At paragraph 5, the NCA skeleton says that the NCA agrees with Hamblen J that the court cannot require overseas witnesses to attend for cross-examination either in person or by video link.
At paragraph 6, the NCA skeleton says:
"Pursuant to CPR 32.1 and 33.4, the court has power to order that if Mr Azam wishes to rely on the evidence of these overseas witnesses, they must be called as witnesses (either by video link or in person) and make themselves available for cross-examination. This means that if the witnesses are not called (either in person or by video link), and therefore not made available for cross-examination, Mr Azam cannot rely on their evidence even though he has served a hearsay notice in respect of the same. …"
The justification for seeking the order
In Jameson 1 Ms Jameson identified matters said to be relevant to the original application. As regards Mr Tanveer, she said at paragraphs 25 to 32:
"25. Shahid Tanveer is the sixth respondent in the civil recovery proceedings brought by the NCA.
26. On 3 August 2010 Mr Tanveer sent a letter to the NCA (then the Serious Organised Crime Agency "SOCA") on 3 August 2010. A copy of that letter is exhibited at page 52 of KJ/1.
27. In that letter, Mr Tanveer stated:
(i) that he had never purchased or had any association with the following properties, that form part of the NCA's claim, namely: 30a Brackley Road, 16 Allenby Close and 149 Collingwood Road;
(ii) that he was not aware of any of the companies referred to (through which the first two of the above properties were purchased);
(iii) that his identity had been hijacked and his signature forged;
(iv) that he had never received any rental income from any of the properties.
28. That letter was consistent with the NCA's case which is that the properties belong exclusively to the First Respondent.
29. However, in paragraph 2 of his witness statement dated 27 March 2014, Mr Tanveer now states that the letter had been prepared for him by his wife (who is the sister of Mr Azam) and that the letter was 'not accurate'. Mr Tanveer states that the letter had been '… written for fear of what may happen to me as a result of this action.'
30. Mr Tanveer's witness statement goes on to assert that he positively invested in the three properties referred to above and explains how Mr Azam assisted him in the purchase and letting of the same. He also refers to the formation of the offshore companies, Fabio Holdings and Empire Worldwide, through which two of the properties (Allenby Close and Brackley Road) were purchased. He further refers to the subsequent dissolution of the offshore companies on the advice of an associate of Mr Azam's by the name of Jonathan Nuttal.
31. This is (a) important evidence in this case if true; given by one of the Respondents to this claim; (b) not accepted by the NCA; and (c) self-evidently inconsistent with his previous letter to the NCA. In these circumstances the NCA wishes to cross-examine Mr Tanveer on the contents of his statement. It is right that the NCA should be able to put its case, including Mr Tanveer's previous letter, and inappropriate that the court should be required to reach a judgment on this evidence on the basis of his witness statement alone. Conversely, there should be no scope for Mr Tanveer to claim...
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