R (Director of Assets Recovery Agency) v Commissioners of Customs and Excise
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,LORD JUSTICE WALL,LORD JUSTICE HUGHES,LORD JUSTICE WILSON,LORD JUSTICE TUCKEY |
| Judgment Date | 18 May 2006 |
| Neutral Citation | [2006] EWCA Civ 741,[2005] EWCA Civ 334 |
| Docket Number | C1/2005/2179 & C1/2005/2179/A & C1/2005/2179/B,C3/2004/1585 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 May 2006 |
[2005] EWCA Civ 334
Lord Justice Laws
Lord Justice Wall
C3/2004/1585
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE COLLINS)
Royal Courts of Justice
Strand
London, WC2
MR RODNEY DIXON (instructed by Salhan & Co of Birmingham) appeared on behalf of the Appellant
MR DAVID BARNARD (instructed by Treasury Solicitor) appeared on behalf of the Respondent (Director of the Assets Recovery Agency)
This is a renewed application for permission to appeal against the decision of Mr Justice Collins given in the Administrative Court on 12 July 2004 when he made an order for summary judgment, under Part 24 of the Civil Procedure Rules, against the applicant and in favour of the Director of the Assets Recovery Agency. Permission to appeal was refused by myself on consideration of the papers on 12 November 2004.
The applicant Mr Charrington was the second respondent in the proceedings before Mr Justice Collins. The relief sought by the director was a recovery order pursuant to Sections 243 and 266 of the Proceeds of Crime Act 2002 in the sum of about £3.5m which, when the proceedings were issued, was being held by HM Commissioners of Customs and Excise.
The genesis of the claim was the seizure by the Customs in June 1992 of some £2.25m in cash at the applicant's home after the applicant had been arrested in connection with the importation of very substantial quantities of cocaine into the United Kingdom.
The background is fully explained in the judgment of Mr Justice Collins as follows:
"3 ….. On 19 October 1991, four containers containing lead ingots were landed at Felixstowe. Those ingots concealed approximately 500 kilograms of cocaine, which would have had a street value of approximately £80 million. That importation was not detected and the containers were taken by rail to Liverpool and stored at a warehouse in Aintree. The drugs were removed, the ingots disposed of as scrap and the drugs no doubt placed upon the market.
4 Charrington at this time had entered into an arrangement with an officer of the Cleveland Force to act as an informant, and this involved, in addition to informing against burglars, robbers and relatively small time drug dealers, informing about the arrival of substantial consignments of cocaine. The person who was largely behind those importations was the fourth respondent, Curtis Warren. I can say that because there is, as I understand it, from the
submissions that have been made, no issue that Warren was indeed the mastermind behind the importation I have been describing.
5 In addition, a man called Mario Halley, who was a Dutch citizen but who was part South American by origin, was also deeply involved. There was no direct evidence before me as to the precise nature of his involvement, but it clearly was at a relatively high level. Charrington appears to have been used, among other things, as a launderer of the proceeds of the sales of the drugs. In addition, he may have arranged for some transport. Further, he assisted Halley in November and December 1991 in purchasing a number of BMW motor cars. Those were paid for in cash. They have been seized by the Customs and have been sold, and the claim includes a sum of money representing the proceeds of those sales. There is no dispute, certainly no issue has been raised before me, that those BMWs did belong to Halley. They were no doubt part of his benefit from the enterprise, and therefore, it is appropriate that their proceeds be the subject of summary judgment. I will deal with the precise amounts in due course.
6 I should say that Halley has disappeared …..
7 Following the first consignment, in December 1991 a second consignment left Venezuela en route to Felixstowe where it arrived on 12 January 1992. In the meantime, a number of containers, which should have been part of the first shipment and which were apparently destined for Greece, arrived in Holland. They were seized by the Dutch authorities and were found to contain 800 kilograms of cocaine. That led to a number of arrests in Holland, including that of Halley, who was sentenced to a term of six years' imprisonment because of his involvement in that importation, which itself was part of the first importation that got through Felixstowe successfully.
8 The second importation was not immediately collected from Felixstowe, perhaps because it was appreciated that the Customs might be aware of it as a result of what had happened in Holland. But eventually arrangements were made for its collection and the containers were moved between a number of warehouses until, on 30 March 1993, Customs officers arrested several of the principals and seized the ingots, which were found to contain 900 kilograms of cocaine with a street value of about £150 million.
9 Charrington was not immediately arrested. He was, as I have said, acting as an informant, and indeed there is some evidence that he was permitted to launder a very substantial sum of money in order to further the conspiracy and, no doubt, to be able, as the police and Customs believed, to tell them what was going on so as to enable them in due course to arrest those who were principals in the enterprise. Unfortunately, it seems that Charrington was playing one side off against the other and was taking advantage of the position he was placed in in order to advantage himself. Far from carrying out the laundering process for the benefit of the law enforcement agencies, he was doing it for his own benefit, which is perhaps not entirely surprising.
10 In due course, he was arrested. It is suggested that he knew that he was going to be arrested, he having been given some weeks warning that that would take place. Be that as it may, after his arrest, he having arrived at Teesside Airport from Tangiers, in the attic in his home were found 12 holdalls containing a total of £1,759,210 in cash (Sterling). In addition, in his bedroom were found 1,184,490 Swiss Francs, with a value of approximately £500,000. When tested, the cash was found to be contaminated with cocaine to a greater extent than would be expected for cash which had been in general circulation. There was also found at his business premises a note on an envelope on which had been written 'Mario debt'. It appeared to be a record of sums received and paid out between December 1991 and March 1992, and the total recorded for the end of February was £4,845,396. The suggestion was that this was a record of the money laundering that Charrington had dealt with on behalf, it was said, of Halley.
11 He was interviewed the next day by Customs officers. He admitted that he had travelled to Venezuela with Warren in September 1991, that he knew Halley and he had been involved in the purchase of motor cars for Halley. After the conclusion of the formal interview, he spoke to the officers in private. He told them that he had been acting as informant and that he had been asked to launder money from the sale of drugs, and that the monies which had been seized were bagged up ready to be laundered. He said that, after the money was changed, it went to Mario's people in Holland. Indeed, as later appeared, it seems that what was being said was that this money was to go to Halley and he was to pay the suppliers of the cocaine.
12 He was charged with conspiracy to import cocaine. His solicitors obtained statements from two police officers and one Customs officer, who had been using him as an informant. I have seen those statements and I emphasise those were statements obtained on his behalf in order, it was believed, to assist him, as indeed in due course they did. The statement of the police officer who was his main contact, a police officer called Weedon, who I think was a Detective Sergeant at the time, consisted of what
effectively was a record of information that Charrington had given him mainly during the latter part of 1991 when he indicated that there was, he was pretty sure, 500 kilograms of cocaine en route to the United Kingdom and that a further shipment of 2,500 kilograms was being prepared to come in within a few weeks.
13 Halley and Warren, he said, had asked him to get more involved and to provide transport, and had also asked him to become involved in the laundering of the money. On 11 November it is recorded that Charrington had told the officer that he had been with Halley to London and had changed £1.4 million into US dollars and that that was part of the money laundering. Charrington, on 19 November, is recorded as having told the officer that he was heavily involved with Halley in importing cocaine and he organised the transport and subsequent laundering of cash on behalf of Halley.
14 Finally, in February 1992, there is a record of Charrington having told the officer and a Customs officer that he had purchased a ship financed by Halley and that he had a large amount of Halley's unlaundered cash. That was on 29 April 1992, some two months before the money that I have referred to was discovered in his premises.
15 Since his arrest, largely as a result of the information that he was being run as an informant, and in circumstances in which there had been, I need not go into details, a less than satisfactorily liaison between the police and the Customs about what was really going on, it was decided after seeking advice from leading counsel, who was then instructed on behalf of the...
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