Serious Organised Crime Agency v Amir Azam and Others
| Jurisdiction | England & Wales |
| Judge | Sir Raymond Jack |
| Judgment Date | 21 March 2013 |
| Neutral Citation | [2013] EWHC 627 (QB) |
| Docket Number | Case No: 474/2011 |
| Court | Queen's Bench Division |
| Date | 21 March 2013 |
[2013] EWHC 627 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Raymond Jack
(Sitting as a deputy High Court Judge)
Case No: 474/2011
Andrew Sutcliffe QC (instructed by Serious Organised Crime Agency) for the Claimant
Jonathan Lennon (instructed by Saunders Solicitors) for the Respondents
Hearing date: 27 February 2013
APPROVED JUDGMENT
These are proceedings for recovery orders brought under Part 5 of the Proceeds of Crime Act 2002. The claimant, the Serious Organised Crime Agency, asserts that the first respondent, Amir Aziz, acquired property through unlawful conduct, in particular drug dealing and money laundering between 1997 and 2002. He then moved to the United Arab Emirates. The second to sixth defendants are his relations who are alleged to hold property so acquired. On 22 September 2012 it was ordered that the trial of the action should begin on 15 July 2013 with an estimate of 10 days. It was further then ordered that two applications made by Mr Azam should be heard in February or March 2013. It was later agreed that two further matters should be determined at that time. In consequence the applications were listed before me on 27 February. It emerged that the only issues which the court was requested by Mr Jonathan Lennon for Mr Azam to determine at this stage, were the following:
(a) Should money once held in a Luxembourg bank account and remitted to England pursuant to an order of the court and now held in a bank account in the name of Mr Azam's solicitor but subject to the court's control, be returned to Mr Azam outside the court's jurisdiction? I take that from issue 3 in Mr Lennon's skeleton argument. It is submitted that it is the consequence of the decision of the Supreme Court in Perry v Serious Organised Crime Agency [2012] UKSC 35, delivered on 25 July 2012 that this should be done.
(b) Should SOCA be permitted to rely at the trial upon material which it has obtained in relation to criminal proceedings in the UAE for drug dealing? Again the decision in Perry is relied on.
I will call these the Luxembourg money issue, and the UAE evidence issue.
The Luxembourg Money Issue
It was a term of the property freezing order made under section 245A of POCA by Silber J on 22 February 2010 that the balance of funds held in an account with KBL European Private Bank in Luxembourg should be brought within the jurisdiction. It appears that as a result of the freezing order the Luxembourg court itself made an order freezing the monies. It seems that on 4 October 2011 a further order of the English High Court was made relating to the transfer of the monies. In any event they were released from Luxembourg and are now held in a bank account in the name of Mr Azam's solicitor and subject to the order of the High Court.
In Perry the Supreme Court held on an appeal against the making of a worldwide freezing order made under the Proceeds of Crime Act that 'the High Court of England and Wales had no jurisdiction under Part 5 [of POCA] to make a recovery order in relation to property outside England and Wales. It follows that the court had no jurisdiction to make the worldwide property freezing order that was made in this case' — paragraph 78 of the judgment of Lord Phillips. It is therefore accepted by SOCA that the orders which were made here in relation to the Luxembourg monies should not have been made. They were, however, made in accordance with the law as it was then believed to be, at least by the court making the orders and by SOCA. There is thus far no difference between the positions of SOCA and Mr Azam.
It is SOCA's case that the orders were nonetheless valid orders in the sense that they were duly made by the court and no appeal was made against them and no application was made to set them aside. The present issue arose only after the monies had been transferred within the jurisdiction of this court and after the law had been determined by the decision in Perry. It is the primary case of SOCA that the monies were therefore validly transferred to the jurisdiction and that Mr Azam's application must fail. Mr Lennon accepted that the orders here were not automatically discharged by the decision in Perry and that an order of the court was required to set them aside.
Mr Andrew Sutcliffe QC for SOCA relied on the decision of the Sir Nicholas Browne-Wilkinson V-C in Hillgate House Ltd v Expert Clothing Service & Sales Ltd [1986] 1EGLR 65 as a demonstration of the working of the law in this regard. There a landlord obtained an order for forfeiture and took possession of the premises. The order was set aside by the Court of Appeal. The tenant then sued the landlord for damages alleging wrongful entry. The action failed. The Vice-Chancellor stated:
"… when an order is in force, and so long as it is in force, it has to be obeyed and is in law correct. It is true that it may be subsequently altered on appeal; but unless and until it is altered, it is an order of the court and acts done under it are lawful."
I was referred by Mr Lennon to R (Cook) v SOCA [2010] EWHC 2119 (Admin), [2011] 1 WLR 144. In that case search warrants were obtained and property was seized. SOCA later conceded that the execution of the warrants and the seizure had been unlawful. Some of the property was returned and some was not. It was then purportedly re-seized. It was held by the Divisional Court that there was no power to re-seize property before it had been returned. The distinction between that case and the present is that the initial seizure in Cook did not take place pursuant to an order of the court. I do not consider that it assists Mr Azam.
The distinction between what may be called administrative action and action pursuant to an order of a court and therefore protected by that order was recognised by the House of Lords in R v Governor of Brockhill Prison ex parte Evans (No 2) [2001] 2 AC 19. The case concerned the calculation of a release date. A prison governor had calculated the applicant's release date on the basis of the law as it was thought to be. The law was then stated by the Divisional Court in a way more favourable to the applicant. She claimed damages for false imprisonment and her claim was upheld by the Court of Appeal and the House of Lords. The prison governor had sought to rely on the order of the Crown Court committing her to prison as a defence for his action. Lord Slynn stated at page 26:
"It is accepted that false imprisonment is a tort of strict liability. Equally clearly deprivation of liberty may be shown to be lawful or justified. It may be so for example where it is pursuant to an order of a court or pursuant to the exercise of statutory powers. Here the court did not specify the release date and the sentence of two year's imprisonment had to be read subject to the governor's duty to calculate the release date."
Lord Hope stated at page 33:
"I do not think that the situation which arose in this case can be compared with those where the defence of justification is advanced on the ground that the alleged tortfeasor was acting within the four corners of a warrant which had been issued to him by the court."
I should mention AN v Secretary of State for the Home Department [2010] EWCA Civ 689 cited by Mr Lennon. It concerned control orders. It was held by the Court of Appeal that the claimants' control orders should be quashed ab initio rather than treated as being of no effect only from the dates when they were revoked. They had been revoked by the Secretary of State as a result of the decision of the House of Lords in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 2 Although the orders had been made by the court on the application of the Secretary of State, it was held that they were essentially administrative and the Secretary of State could not rely on the principle that an order retains its validity until set aside: I refer to paragraph 24 of the judgment of Maurice Kay LJ. I do not consider that the case assists here.
Mr Lennon cited Cadder v HM Advocate [2010] UKSC 43, [2010] 1 WLR 2601. This was a Scottish appeal. The accused was convicted of criminal offences following trial. On appeal to the House of Lords he successfully argued that evidence of his interview should have been excluded because he had not had access to legal advice. That conclusion was contrary to the law of Scotland as it had been previously thought to be. The question arose as to the retrospective effect of the House's decision on other cases. In paragraph 68 of his judgment Lord Hope stated:
"On the contrary, I think that there are strong grounds for ruling today,….., that the decision in this case does not permit the re-opening of closed cases. Cases which have not yet gone to trial, cases where the trial is still in progress and appeals that have been brought timeously (….) but have not yet been concluded will have to be dealt with on the basis that the person who is detained must have had access to an enrolled solicitor before being questioned by the police, unless in the particular circumstances of the case there were compelling reasons for restricting this right. As for the rest, I would apply Murray CJ's dictum that the retrospective effect of a judicial decision is excluded from cases that have been finally determined: A v Governor of Arbour Hill Prison [2006] 4 IR 88, para 36."
Lord Rodgers agreed in paragraph 102 that the new statement of the law could be applied in the appellant's case and to other cases that were still alive, but not to convictions in completed cases which had been obtained on the basis of the law as...
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