R (Perinpanathan) v City of Westminster Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls |
| Judgment Date | 04 February 2010 |
| Neutral Citation | [2010] EWCA Civ 40 |
| Docket Number | Case No: C1/2009/0717 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 February 2010 |
[2010] EWCA Civ 40
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Goldring And Mr Justice Sweeney
Before: The Master of the Rolls
Lord Justice Maurice Kay
and
Lord Justice Stanley Burnton
Case No: C1/2009/0717
Hugo Keith QC and Nicholas Yeo (instructed by Blackstones Solicitors) for the Appellant
Sir Geoffrey Nice QC and Russell Fortt (instructed by Metropolitan Police Legal Services) for the Second Respondent
The First Respondent did not appear and was not represented.
Hearing date: 9 December 2009
Stanley Burnton LJ:
Introduction
This is an appeal against the decision of a Divisional Court of the Queen's Bench Division (Goldring LJ and Sweeney J) dismissing the Appellant's claim for judicial review of the decision of the City of Westminster Magistrates' Court refusing to make an order against the Metropolitan Police Commissioner for payment of her costs of her successfully defending proceedings brought by the Commissioner under section 298 of the Proceeds of Crime Act 2002 (“ POCA”) for the confiscation of cash of some £150,000 belonging to her. The Appellant challenges both the correctness of the decision of the Divisional Court in City of Bradford Metropolitan District Council v Booth, CO/3219/99 and, if the principle enunciated by Lord Bingham LCJ in that case is good law, its application to proceedings under section 298 and in particular the present case.
The facts in summary
On 15th April 2006 Mrs Perinpanathan's daughter, who was 15, was stopped at Heathrow Airport. She was carrying some £150,000 in cash. The cash was detained by the police on the basis that there were reasonable grounds to suspect it was intended for use in unlawful conduct, namely terrorism.
Other facts of the case can be taken from Goldring LJ's judgment in the Divisional Court:
The daughter had some £153,000 in Sterling and dollars. The claimant went to Heathrow to meet her daughter from the flight. The daughter was interviewed on the day of arrest. She made a number of what are described as “material assertions”. The claimant had given her the money at the airport on 23rd April 2006 which she then took to Singapore on a flight that day. She stated that her mother, the claimant, ran a foreign exchange business. When asked whether she travelled alone to Singapore she confirmed that she had. She did not mention there had been any intention that she would be accompanied. She was asked whether she had touched the cash when it was packed and confirmed that she had not dealt with it. She said that she was going to meet her uncle in Singapore. He was going there from Sri Lanka, where she was going to stay for two days before returning to the United Kingdom. She was to give the money to her uncle for the use of a foreign exchange company called Aramex International. In the event that her uncle did not show up at the airport, she was to meet a friend of her uncle called Mr Habib. She did not know what Mr Habib looked like. When she arrived in Singapore she was refused entry because her passport was not valid for the requisite six months.
The claimant was also interviewed. She said, among other things, that she had been self-employed, dealing in money exchange since 1986. She had packed her daughter's bag with the money which was taken to Singapore and had placed in the bag documents showing that the money had come from three money service bureaus. She appeared to state that her daughter had collected some of the cash on the previous Saturday. She thought that her daughter's airline ticket cost £479. She stated that the money was being transferred on behalf of three different money service bureaus, namely: £27,358 on behalf of the Anglo-Asian Mini Mart UK; £46,000.14 on behalf of Abby Exchange Limited (AEL); and the remainder from a man named Manivan, who ran a bureau called Mummys. All the money had been collected from the money bureaus in Sterling. She had changed some of it into Euros and dollars due to the fact that she did not have enough cash flow.
The claimant said that she had originally expected her daughter to travel to Singapore with a friend named Ruben Krischner, but this arrangement did not proceed because they arrived a bit late at the airport and the ticket was too expensive. The claimant said she was unable to travel to Singapore herself. She had previously transferred funds using a company called Linkafax, but around three weeks before the money was seized that company had stopped transferring money. She had not used a bank transfer because of the charges that would be incurred in doing so. The seized cash was to be passed to a company called Aramex International in Singapore. It was to be exchanged for Indian or Sri Lankan rupees. The cash would be sent to India or Sri Lanka for transmission to the intended recipients. It was to be exchanged in Singapore because the exchange rate was better in that country.
In a subsequent interview, the claimant said that she charged £100 to her customers, on top of the other charges which she incurred of £250. Her profit margin, it seems, would therefore be between £100 and £200.
In June 2006 two of the money transfer businesses mentioned by the claimant provided records, including details of the original senders of the money and the intended recipients of the cash. Subsequently, so did the third.
The police obtained various statements. They included statements from the owner of Mummys, the owner of one of the other bureaus, AAMM, indeed the owners of all three money exchange bureaus. There was also a statement from the First Secretary of the Sri Lankan High Commission in London. It provided a list of authorised currency dealers in Sri Lanka. It confirmed that it is a criminal offence in Sri Lanka to act without authorisation as a foreign exchange dealer or money remitter, and that any person arriving in Sri Lanka with the equivalent of 10,000 US dollars is required to declare this fact to the authorities. Neither the claimant nor Aramex appeared on the list, although there was a company called Armex Money Changers on the list.
There was a statement from somebody called Durrani, the Managing Director of Link FX, who confirmed that his company had regularly transferred funds to Aramex on behalf of the claimant. He said that the claimant was a long standing customer who transferred about £10 million every year. He confirmed that he had received legal advice from his lawyers to cease transactions which were destined for Sri Lanka and had told the claimant of this in April 2006. He said that he would have charged £382.50 to change the £153,000.
The police also relied upon a paper which spoke, among other things, of the funding methods of the LTTE group in Sri Lanka. Those methods included intimidation of Sri Lankans living in the United Kingdom.
There was also a statement by a police officer to the effect that the owner of Mummys had been stopped in November 2003. He was with his brother. His brother told the police officers who had stopped them that he had fought for the Tamil Tigers but now feared them because he had left their organisation.
The claimant's evidence was served in advance. It consisted of a single document, namely a statement. There was also, prior to the hearing, evidence which analysed the documents provided by Mummys, the money transfer business which it was alleged provided the majority of the seized cash.
As this is not a case stated, the court does not have detailed reasons for the Magistrates' decisions. However, both parties agree that there are clear indications of their reasoning as far as costs are concerned. Mr Mullins, who was counsel for the second interested party, made a note to this effect:
“We have had a two day hearing. We have listened very carefully. Mr Durrani was very useful as a witness as he was able to give us the structure of the money changing business. We were asked by the prosecution (sic) to infer that money was destined for LTTE. We find no direct evidence of a link and so draw no such inference. Application dismissed and money to be returned forthwith with interest.
No order for costs on the basis that the application was reasonably made.”
The legal advisor's notes, such as they are, indicate that the court had drawn to its attention the case of City of Bradford Metropolitan District Council v Booth, CO/3219/99. The note of the legal advisor stated that “18 months, police still had money. We say costs should follow the event”, and the justices ruled that “No costs awarded. Case properly brought by the police”.
There are additional facts set out in the skeleton argument of the Respondent, which make it even clearer why the police formed their suspicion that the cash that was seized had been intended for unlawful purposes, namely for transfer to and use by the Liberation Tigers of Tamil Eelam (the LTTE, also known as the Tamil Tigers, a terrorist organisation named as such by the EU and proscribed under the Terrorism Acts 2000 and 2006).
What is sufficient for the purposes of this appeal is that the Appellant does not challenge the finding of the magistrates that the police had reasonable grounds for their suspicion when they seized the cash that it had been intended for use in unlawful conduct, and that they had reasonable grounds...
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