R Haq v Uxbridge Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hilliard |
| Judgment Date | 21 July 2020 |
| Neutral Citation | [2020] EWHC 2238 (Admin) |
| Date | 21 July 2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/4919/2019 |
[2020] EWHC 2238 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
THE HONOURABLE Mr Justice Hilliard
No. CO/4919/2019
and
Mr A. Lakha QC (instructed by CLK Legal) appeared on behalf of the Claimant.
THE DEFENDANT was not present and was not represented
Mr D McNeill (instructed by the National Crime Agency) appeared on behalf of the Interested Party.
( )
On 30 July 2017, two men were travelling through London Heathrow Airport to Dubai in possession of £475,000 in cash. A UK Border Force officer spoke to them and then spoke on the telephone to the claimant, who, it is said, claimed ownership of the cash. The cash was seized under s.294 of the Proceeds of Crime Act 2002 and the National Crime Agency began an investigation into its origins.
The telephones of the two cash couriers were seized and the contents later downloaded. There were, as I understand it, messages between the claimant and the two men.
On 20 December 2018, the NCA applied under s.298 of the Proceeds of Crime Act to the Uxbridge Magistrates' Court for the cash to be forfeited.
There was a brief hearing on 28 February 2019 when directions were made. There was a further directions hearing on 7 August 2019 and the final hearing was fixed for 7, 8 and 9 October 2019. The NCA was represented by Mr McNeill and the claimant was represented by Mr Lakha QC. They have continued to represent their respective clients in the proceedings before me. No one else has been represented at any stage.
Mr Lakha now argues that a decision of the District Judge to adjourn the proceedings — in circumstances I shall describe — should be set aside as being a decision that she could not properly have taken. He also says that the decision was indicative of bias on the part of the District Judge and he argues that it was one of a number of such instances.
Before turning to look at some of what happened in the lower Court and how that gives rise to the challenges which are brought, it is necessary to say something about the proceedings in the High Court. The claimant's application for permission to apply for judicial review was considered on the papers and refused by Supperstone J on 10 February 2020. Any application to renew the application at an oral hearing needed to be made within seven days. The application to renew was not in fact lodged until 13 March 2020. The reason is because the claimant's lawyers only discovered on 9 March that permission had been refused on 10 February.
It is not necessary to set it out, but I have seen evidence which indicates that the letter sent by the Court informing them of the Judge's decision must have gone astray. Counsel for the NCA accepts that I should proceed on that basis. In the circumstances which have arisen, Mr Lakha asks for an extension of time of 26 days in which to renew the application for permission to apply for judicial review, pursuant to Civil Procedure Rule 3.1(2)(a).
I have been referred to the decision in Denton and Others v. TH White [2014] 1 WLR 3926, where the Court of Appeal identified a three-stage approach when addressing applications for relief from sanctions. In that situation, a judge must, first of all, identify and assess the seriousness and significance of the failure to comply with the Rules. Here, of course, an important time limit has been missed. Secondly, the judge should consider why the default occurred. As I have said, it was not the fault of the claimant or his lawyers. Thirdly, the judge must look at all the circumstances of the case so as to deal with it justly. Applying those principles to this situation and in the absence of opposition, I am satisfied that the fair thing to do is to extend time so that Mr Lakha can make his application for permission. Matters have been delayed for a time in an already old matter, but through no fault of the claimant.
I turn now to the application itself and the proceedings in the Court below. By s.240(1)(b) of the Proceeds of Crime Act, forfeiture proceedings of this kind are civil proceedings but held in the Magistrates' Court. In addition, the purpose of the proceedings is to determine the status of the property rather than the liability of any particular person. There is no disclosure process prescribed by statute or rules. However in this case, Mr McNeill and Mr Lakha proceeded in the lower Court on the basis that the NCA owed a duty of candour to the claimant and the Court, and on the basis that that had been met by compliance with the test set out in s.3 of the Criminal Procedure and Investigations Act 1996 for disclosure of unused material in criminal cases; namely, whether unused material might reasonably be considered capable of undermining the NCA's case or of assisting the claimant's case.
For present purposes, the parties are content to proceed on the basis that that was the test to be applied, but it is right to record that the matter has not been the subject of detailed examination or analysis before me.
In the course of the proceedings in the Magistrates' Court, there came a point when Mr McNeill was prepared to concede that the NCA's disclosure process had not operated properly. Exactly how extensive the failure was could not be quantified at the time and I cannot quantify it now. I say that because, as I shall explain, the case was adjourned so that matters could be looked into further and the results of those enquiries have not been put before me in any detail, but it is possible that they may either have confirmed or dispelled, to some extent or another, concerns about the disclosure process as a whole.
In particular, there were concerns about the adequacy of a schedule of communications said to represent relevant messages on the downloaded telephones of the two couriers. It was not anticipated that either of them would give evidence in the proceedings, but it was said by the NCA that the messages supported their case and were inconsistent with the claimant's case.
It is not of course unknown for difficulties with disclosure to arise. When this does happen, unless and until further enquiries are made, it is usually not possible to say how much material there is which should have been provided by one party to another, but which has not in fact been passed over.
In this case, the question arose as to what should be done when the concerns emerged. Mr Lakha, from his perspective, felt that he had done enough damage to the NCA's witnesses already and he did not want any adjournment whilst matters were investigated further. He could not of course have known what the result might be. There might be further material which could assist him in one way or another for all he knew, but his professional judgment on behalf of his client was that, even if that was the case, he was content with the progress he had made and for matters to rest there. He argued that the Court should simply reflect the uncertainty as to whether the message schedule was complete and accurate in the claimant's favour by reducing any weight that could attach to it. Another possibility, of course, was that further and better analysis of unused material might turn up little or nothing to assist his client's case that the cash was legitimate, but it could produce something which damaged it. That possibility is one factor in making a professional judgment of the kind that was Mr Lakha's responsibility to make on behalf of his client.
The District Judge, on the other hand, was in a different position. She did not represent any party, but she had an overall responsibility to ensure that proper procedures had been followed in the overall interests of justice and that the proceedings were fair to all concerned. That also involved an exercise of judgment by her. Because of the different interests and perspectives involved, it will readily be seen that her and Mr Lakha's respective exercises of judgment could reasonably come to different conclusions. It is accepted before me that it was open, in principle, to the Judge to take steps to see that the duty of candour, as the parties understood it, had been complied with, but Mr Lakha says that as a matter of fact here, the course that the District Judge took resulted in significant unfairness.
The Judge's conclusion was that the matter should be adjourned, as she put it, “for the NCA to put their house in order”. Mr Lakha has complained about the use of that phrase, but in fairness to the Judge, she spoke of the NCA getting its house in order and providing “Mr Haq and his legal team with the material they need in order to challenge the evidence advanced by the NCA”. Thus, she was explicit about what she meant by the NCA putting its house in order. Accordingly, I do not think that the use of that phrase is indicative...
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