R (the Director of the Assets Recovery Agency) v Ashton
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE NEWMAN |
| Judgment Date | 31 March 2006 |
| Neutral Citation | [2006] EWHC 1064 (Admin) |
| Date | 31 March 2006 |
| Docket Number | CO/630/2004 |
| Court | Queen's Bench Division (Administrative Court) |
[2006] EWHC 1064 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Newman
CO/630/2004
MR M SUTHERLAND WILLIAMS (instructed by the Assets Recovery Agency) appeared on behalf of the CLAIMANT
MR M TURNER QC AND MR R KITCHING (instructed by Messrs Bakers & Co) appeared on behalf of the DEFENDANT
On 18th January 2006 Sullivan J adjourned the Director of the Assets Recovery Agency's application for summary judgment and ordered that a preliminary issue be tried. This is the trial of the preliminary issue.
The issue to be tried was identified by leading counsel, Mr Turner QC, who has appeared today for the first respondent. He submits that the civil recovery procedure offends article 7 of the European Convention on Human Rights governing retrospectivity.
The submission is that, since article 7 of the Convention provides:
"no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed,"
the civil recovery procedure, brought into being under the Proceeds of Crime Act 2002, is incompatible with the second clause of article 7.1. It is submitted that, when the Director of the Assets Recovery Agency seeks to recover property pursuant to the civil recovery of property provisions of the Act, he or she does so as to impose a penalty upon an offender who may have been convicted of a criminal offence which has given rise to the criminal character of the proceeds which the Director seeks to recover.
The argument, in my judgment, faces a whole range of problems and, as I shall state at the outset, in my judgment, some which are simply insuperable. The first difficulty, which is not insuperable, but which arises when seeking to characterise the procedure which the Act brought into being, is, as between the two respondents, distinctions can be made in connection with the criminal offences of which they have been convicted. In other cases some defendants may have been convicted, and others may never have been charged.
That said, the point is not determinative, because Mr Turner is entitled to say, well, if it operates in a way against somebody who has been convicted of a criminal offence in a way which is penal, then it can be characterised as penal and caught within article 7, and then it is incompatible with the Convention.
But the catalogue of difficulties which, in my judgment, this argument faces commence with a number of judgments which have already been given by courts in connection with article 7 and this Act, as well as in connection with article 6, and, by parallel argument, conclusions which have an effect upon the article 7 argument itself.
As to the decisions, the first, which is particularly in point, is a decision of the Administrative Court of Collins J, R (Director of the Assets Recovery Agency) v Jia Jin He and Dan Dan Chen [2004] EWHC 3021 (Admin).
Taking the matter from the headnote, as I have it from the Lawtel printout, Collins J held that:
"(1) There was no doubt that proceedings under the Proceeds of Crime Act 2002 Part 5 were civil proceedings and that conclusion was supported by Strasbourg jurisprudence …"
He held, as a result of a particular argument that had been advanced, that consequentially the standard of proof to be applied to alleged unlawful conduct was proof upon a balance of probabilities and that no gloss was to be put on those words. He was there dealing with a standard of proof argument, frequently canvassed to the effect that there can be a heightened civil standard of proof where criminal conduct is said to be involved. He rejected that.
He also held that the European Convention on Human Rights, article 7, did not apply to such proceedings, as no penalty was involved. The fact that a respondent had not been prosecuted did not mean that he had been exonerated, and therefore proceedings under the Act were not an abuse of process where there was a good arguable case that there had been unlawful conduct.
So the critical part of the matter, as it has emerged for the purposes of today's preliminary issue, is the conclusion that article 7 did not apply to such proceedings, as no penalty was involved.
Mr Turner must, as he has manfully accepted, persuade this court that Collins J reached that conclusion in his judgment either per incuriam or, having regard to the judicial comity established by the Huddersfield Police Authority v Watson [1947] KB 842, at 848, this court being required to follow Collins J unless it concluded that he was plainly wrong in that conclusion, he must persuade the court he was plainly wrong.
Next in the line of authority to which I must refer is the Director of the Assets Recovery Agency v Charrington and others [2005] EWCA Civ 334. As the citation will indicate, this is a decision of the Court of Appeal, which comprised Laws LJ and Wall LJ. It was again the Director of the Assets Recovery Agency who was involved, along with the Commissioners of Customs and Excise, and there were arguments in the case to which I need not go. It was an appeal against another decision of Collins J.
The court dealt with the need of the Director to prove that the cash in question in that case was the proceeds of crime. The defence which had been put forward was that it was not; a legitimate transaction, or transactions, concerning diamonds had generated the money. Collins J had expressed the view that the story as it appeared to him was truly incredible.
Then, moving on, at paragraph 14 Laws LJ said:
"There are two other points canvassed by Mr Dixon who has been admirably tenacious in his pursuit of his client's interests. It is said that the case should be classified as criminal proceedings for the purposes of Article 6 and Article 7 of the European Convention on Human Rights. Were that to be right, the relevant legislation here would fall to be condemned as retrospective and so repugnant to Article 7, and it would also be said that the applicant has not enjoyed the full protections to which he was entitled under Article 6 by way of a proper trial and the opportunity to call evidence."
So the court went on to consider, in paragraph 16, the Convention point, and in particular the article 7 point. It is to be noted that the court actually adjourned for consideration of that issue so that they could receive argument upon it, and they did. Counsel drew the court's attention to a case of Walsh (to which I shall come), which is a decision of Coghlin J in Northern Ireland, and the decision in Jia Jin He, Collins J's decision.
At paragraph 17, the court set out the submission of Mr Barnard in that regard. He had submitted that it was untenable to maintain that the recovery orders could be treated as criminal for Convention purposes. The judgment then went on to refer to the case of Mudie [2003] QB 1238, and in a passage which I need not cite in detail, but to which short reference is necessary:
"It is certainly beyond contest that the concept of 'criminal charge' possesses an autonomous meaning in the European Court of Human Rights jurisprudence."
The court then went on to point out that the domestic classification of the proceedings is treated as no more than a starting point; that is a reference to the well-known case of Engel v The Netherlands [1996] 1 EHRR 147 and to the tripartite, three-criteria test which that case established.
In the Northern Ireland case ( Walsh), which Collins J and to which he paid tribute, was set out by Laws LJ as follows:
"It seems to me that, in substance, proceedings by way of a civil recovery action under the provisions of Part 5 of the POCA differ significantly from the situation of a person 'charged with a criminal offence' within the meaning of Article 6."
He then went on:
"That is certainly true but what seems to me of greater importance is the fact that there is no arrest nor is there any formal charge, conviction, penalty or criminal record, the serious personal consequences of involvement in criminal proceedings in respect of which the convention provides the enhanced protection of article 6 (2) and (3)."
And then, referring to Collins J's judgment, which was to the effect:
"'I have no doubt that Coghlin J was correct in deciding as he did that these were civil proceedings. I do not need, I think, to say more than that I entirely agree with the reasons that he gives to reach that conclusion. His conclusion is entirely consistent with, and supported by, both domestic and Strasbourg jurisprudence.'.
"It does not seem to me necessary to say any more", records Laws LJ. I could pause there in the analysis to emphasise that Mr Turner's argument to date seeks to draw a distinction, and a sharp distinction, between the characterisation of proceedings as criminal for the purposes of article 6, and what he says is the critical aspect of article 7.1, namely that this legislation, even though it is characterised as being civil and in civil proceedings, nevertheless gives rise to a penalty.
I included the case of Walsh in the list of relevant authorities. The case of Walsh, a Northern Ireland case, has two citations: [2004] NI QB 21, and Director of Assets Recovery Agency v Walsh [2005] NICA 6, the...
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