National Crime Agency v Abacha
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Lord Justice Hamblen,Sir Colin Rimer |
| Judgment Date | 19 July 2016 |
| Neutral Citation | [2016] EWCA Civ 760 |
| Docket Number | Case No: C1/2015/0419 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 July 2016 |
[2016] EWCA Civ 760
Lord Justice Gross
Lord Justice Hamblen
and
Sir Colin Rimer
Case No: C1/2015/0419
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mrs Justice Laing DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Stanley QC and David Peters (instructed by Byrne and Partners LLP) for the Appellants
Jonathan Hall QC and Alexander Cook (instructed by National Crime Agency) for the Respondent
Hearing dates: 21 June, 2016
Approved Judgment
INTRODUCTION
When considering an application to the Court to prohibit the dealing with or disposal of assets within the jurisdiction made by the National Crime Agency, at the request of the Central Authority of a friendly foreign state by way of Mutual Legal Assistance, what is the just balance to strike between the right of a respondent to such an application to inspect the request forming the jurisdictional basis of the Court's power to grant the order and the general confidentiality of executive state to state communications? That is the central (though not the only) issue before the Court on this appeal.
The appeal is from the judgment of Elisabeth Laing J, dated 21 st January, 2015 ("the judgment"), reported at [2015] EWHC 357 (Admin); [2015] Lloyd's Rep (Financial Crime) 411, refusing the Appellants' application for an order under CPR rr. 31.14 and 31.15, requiring the Respondent ("the NCA") to permit inspection of the request for Mutual Legal Assistance ("MLA") from the US Department of Justice ("the Request" and "the DOJ" respectively). The basis for the application was that the Request had been "mentioned" in the first witness statement of Mr David Templeman, dated 27 th June, 2014 ("Templeman 1"). Underpinning the Judge's refusal of the application was the consideration that the Request was a confidential state to state communication. For convenience, I refer throughout to "the Request", though it may well be that there were a number of "requests"; the difference is immaterial.
So far as here relevant, CPR rr. 31.14 and 31.15 provide as follows:
"31.14 (1) A party may inspect a document mentioned in –
(b) a witness statement;
…..
31.15 Where a party has a right to inspect a document –
(a) that party must give the party who disclosed the document written notice of his wish to inspect it;
(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice;
….."
As appears from Templeman 1, the DOJ has made the Request for assistance in support of non-conviction based ( in rem) asset forfeiture proceedings in the US, in particular in order to preserve assets in the United Kingdom pending the conclusion of those forfeiture proceedings. As there set out:
"2.1 The Central Authority of the United Kingdom ('UKCA') has received a request for assistance from the Central Authority of the United States pursuant to Part 4A of the 2005 Order.
2.2 The DOJ has conduct of civil forfeiture proceedings in the United States ….('the US Claim'). The US claim relates to assets alleged to have been corruptly misappropriated by the former president of Nigeria, General Sani Abacha ('General Abacha'), and his associates in the 1990s.
2.3 The US Claim forms part of the 'Kleptocracy Asset Recovery Initiative ('KARI'), launched by the DOJ in 2010. The aim of KARI is to recover assets acquired through the abuse of public office by corrupt officials and their associates through international co-operation, and return the assets to the affected nations. ….."
To give an idea of scale, the US Claim concerns hundreds of millions of dollars' worth of assets said to have been derived from large-scale corruption and embezzlement carried out during General Abacha's regime, between 1993 and 1998. Having conducted a tracing exercise, the DOJ claims that a proportion of those assets – with a value of over £100 million – has ended up in England and Wales. The Appellants are said to be offshore trust vehicles owned and/or controlled by a Mr. Bagudu, an associate of General Abacha and his son.
The legal framework may be shortly summarised. The starting point is the Proceeds of Crime Act 2002 (" POCA"). S.444 (1)(a) provides that Her Majesty may, by Order in Council, make provision for a prohibition on dealing with property which is the subject of an "external request". S.447 contains a number of definitions:
" (1) An external request is a request by an overseas authority to prohibit dealing with relevant property which is identified in the request.
(2) An external order is an order which –
(a) is 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
(b) is for the recovery of specified property or a specified sum of money.
……
(7) Property is relevant property if there are reasonable grounds to believe that it may be needed to satisfy an external order which has been or which may be made.
(8) Criminal conduct is conduct which –
(a) constitutes an offence in any part of the United Kingdom, or
(b) would constitute an offence in any part of the United Kingdom if it occurred there.
(11) An overseas authority is an authority which has responsibility in a country or territory outside the United Kingdom –
(a) for making a request to an authority in another country or territory (including the United Kingdom) to prohibit dealing with relevant property.
…."
The Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 ("the 2005 Order") was made pursuant to POCA. Part 4A of the 2005 Order gives effect in England and Wales to "External Requests" by means of Civil Proceedings. Art. 141A enables an enforcement authority to obtain from the High Court a prohibition order in relation to "…relevant property in England and Wales…which is the subject of an external request." Art. 141D(1)(a) provides that the High Court may make a prohibition order in relation to property if the High Court is satisfied that –
" it is relevant property identified in an external request…"
Art. 141D(2) is in these terms:
" A prohibition order is an order that –
(a) specifies or describes the property to which it applies, and
(b) subject to any exclusions …., prohibits any person to whose property the order applies from in any way dealing with the property."
The context is furnished by the Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters with Exchange of Notes Washington, 6 January 1994 ("the Treaty"). Art. 2 provides that Central Authorities shall be established by both Parties; for the United Kingdom, the Central Authority shall be the Secretary of State for the Home Department or a person or agency designated by him/her – in the event, the NCA. Requests under the Treaty for MLA are to be made by the Central Authority of the Requesting Party to the Central Authority of the Requested Party. Save in urgent circumstances, Art. 4 provides that "Requests shall be submitted in writing…". Art. 7 provides as follows:
" The Requested Party shall, upon request, keep confidential any information which might indicate that a request has been made or responded to. If the request cannot be executed without breaching confidentiality, the Requested Party shall so inform the Requesting Party, which shall then determine the extent to which it wishes the request to be executed."
On the 2 nd July, 2014, Foskett J made a Prohibition Order ("the Prohibition Order") against the Appellants on the application of the NCA, on short notice to the solicitors acting for the Appellants, prohibiting the disposal of or dealing with the assets there specified, until (in effect) the matter could be listed for a full inter partes hearing. Without prejudice to their right to apply to discharge the Prohibition Order at a later stage, the Appellants did not oppose the making of the Order at that stage.
On the 21 st January, 2015, Elisabeth Laing J continued the Prohibition Order, until further order of the Court. It was on that occasion that the Judge dismissed the Appellants' application to inspect the Request and it is from that ruling that this appeal arises.
Both before the Judge and before this Court, Mr Stanley QC, for the Appellants, submitted that they were entitled to inspect the Request, which triggered the making of the Prohibition Order. As provided by Art. 141D(1)(a), a prohibition order can only be made if the Court is satisfied that the property is relevant property, identified in an external request. The Request thus furnished the jurisdictional basis for the Prohibition Order and, the Request having been mentioned in Templeman 1, the Appellants were entitled to inspect it. Mr. Hall QC, for the NCA, resisted the application before the Judge and this Court, on the grounds ( inter alia) that the Request was a confidential state to state communication and, in any event, the Judge had made a decision within the proper ambit of her discretion. We were most grateful to both Mr Stanley and Mr Hall for their assistance.
THE JUDGMENT UNDER APPEAL
The judgment was given ex tempore by the Judge. In a nutshell, the Judge assumed, without deciding, that Templeman 1 had "referred to" the Request; nonetheless, inspection of the Request was not necessary for the fair disposal of the action; accordingly, there were no considerations of justice to "trump" the expectation of confidentiality in communications between states.
The Judge proceeded as follows. She observed (at [37]) that the argument had focused upon whether the property had been...
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