Serious Organised Crime Agency v Hakan Yaman Namli and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Sir Robin Jacob,Lord Justice Carnwath |
| Judgment Date | 29 November 2011 |
| Neutral Citation | [2011] EWCA Civ 1411 |
| Docket Number | Case No: A2/2011/1539 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 November 2011 |
[2011] EWCA Civ 1411
[2011] EWHC 1829 (QB)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
MR JUSTICE OPENSHAW
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Carnwath
Lord Justice Stanley Burnton
and
Sir Robin Jacob
Case No: A2/2011/1539
Andrew Trollope QC and Mr Kennedy Talbot (instructed by Mackrell Turner Garret) for the Appellants
Michael Beloff QC and Miss Leona Powell (instructed by SOCA Legal Department) for the Respondent
Hearing date : Wednesday 9 November 2011
Introduction
This is an appeal by the defendant appellants from the order dated 17 May 2011 made by Openshaw J varying the order for disclosure of documents that had been made by Master Leslie on 27 May 2011. It raises issues as to the scope of CPR Part 33.6 and the relationship between that provision, Part 31.5(2) and Part 31.19, and the exercise of the powers conferred on the Court by Part 31.5(2) and Part 31.19.
The facts
The facts material to this appeal may be shortly stated. The Serious Organised Crime Agency ("SOCA") has brought proceedings against the appellant defendants under sections 243 and 266 of the Proceeds of Crime Act 2002 (" POCA") seeking a recovery order in relation to some $6 million in a bank account in the name of the second defendant, Topinvest Holdings International Ltd ("Topinvest"). SOCA's case is that the moneys standing to the credit of that bank account are the proceeds of crime. Its claim is disputed by the defendants. The first defendant, Hakan Yaman Namli (Mr Namli), is the sole beneficial owner of Topinvest. For the purposes of this appeal, it is common ground that there are no possible issues in these proceedings between Mr Namli and Topinvest.
At a case management conference on 12 January 2011 Master Leslie made a directions order. Paragraph 2 required the parties to give standard disclosure of documents by list and by category by 4 March 2011, and made provision for inspection, for the service of witness statements, and for expert evidence. Paragraph 6 of his order provided for a further case management conference to be held on 27 April 2011. Paragraph 7 required the parties to apply to the Clerk of the Lists for fixing a trial date, with a time estimate of 3 to 4 days. Paragraph 8 gave permission to restore in the meantime.
Following the making of the disclosure order, SOCA conducted its disclosure exercise. In the first witness statement relied upon by it, that of Ambrose King (Mr King) dated 12 April 2011, reference was made to the fact that it receives communications from other UK intelligence and crime prevention agencies and from foreign intelligence and crime prevention agencies, and from the private sector, that are highly confidential. Mr King said that in the course of conducting its disclosure exercise it had established that it had such documents on which it did not wish to rely in these proceedings. He said that this material was caught by CPR Part 31.6(b)(ii) and "therefore prima facie falls within the ambit of standard disclosure". However, this material was only relevant as adversely affecting the defendants' case; it did not adversely affect SOCA's case. He said that withholding such material from disclosure would not prejudice the defendants. However, if disclosure was not limited under CPR Part 31.5, SOCA would have to make an application under Part 31.19. Mr King said:
"(2) To be weighed further in the balance against disclosure is the concern about the potential risks associated with dissemination of material which might have been provided to the Claimant on an intelligence-only basis by third parties. As an intelligence-led organisation, disclosure of intelligence based material potentially against the wishes of the providers of that intelligence runs the risk of inhibiting and impeding the effective carrying out of the Claimant's statutory functions in the future by the drying up of important sources. Further, given the Claimant's powers to disseminate such material where appropriate to other organisations, it could also potentially impact adversely upon such other organisations' efforts in crime prevention, detection, investigation, and prosecution for similar reasons.
(3) The alternative to such a course would be for the Claimant to consider whether to make a claim for Public Interest Immunity in respect of this material without notice to the defendants. The making of such a claim, however, is no small matter nor lightly to be undertaken, and would put the Claimant to considerable expense, both in management time (since any PII claim must be carefully considered and authorised at the highest level of responsibility) and in legal costs. It would also, most likely, require a Judge to consider detailed evidence including the relevant material itself. A PII claim is of course a very important exercise, involving delicate assessment of competing public interests, where a Government agency or department is in possession of documents which would be helpful to a defendant or unhelpful to the agency or department, but it is, in my respectful view, pointless, or at the very least disproportionate, where the material is unhelpful to the defendants and is not relied upon by the Claimant in any event."
In his second witness statement, Mr King elaborated on the classes of documents in question. The first class to which he referred are Suspicious Activity Reports (known as SARs), made pursuant to section 330 of POCA by persons who know or suspect that another person is involved in money laundering, where the information leading to the suspicion came to the person making the report in the course of business in the regulated sector (banks and credit institutions). He exhibited Home Office Circular 53/2005, entitled "Money Laundering: the Confidentiality and Sensitivity of Suspicious Activity Reports (SARs) and the Identity of those who make them". Paragraphs 19 and 20 of the Circular are as follows:
"(19) Police and other law enforcement agencies should be aware that SARs may be used in civil proceedings. With the exception of cash forfeiture proceedings in the Magistrates' court the use of SARs in civil proceedings is that each party has to disclose the past or present existence of (a) the documents on which he relies and (b) the documents which adversely affect his or another party's case. These documents may then be inspected by the other side. However, in some circumstances a party can apply for an order allowing him to withhold disclosure on the ground 'that disclosure would damage the public interest' (rule 31.9). The court has to weigh the public interest in the administration of justice and the Article 6 right to a fair trial against the public interest in the proper functioning of the public service, including that of law enforcement agencies (which may also raise ECHR rights, e.g. the Articles 2 and 8 rights to life and respect for private life, in the case of informers).
(2) In cases of civil recovery proceedings under the Proceeds of Crime Act 2002, the Assets Recovery Agency recognises the difficulties that might arise if the identity of the person making the disclosure were to be revealed. The Agency will take all possible steps to protect the identity of the person in such circumstances and will follow the guidance as closely as possible in relation to notifying and discussion with the disclosing agency."
The second class consists of reports from the Egmont Group of Financial Intelligence Units ("FIUs"), an international group that includes SOCA. The statement of the principles of the Group includes the following:
"All members foster the widest possible cooperation and exchange of information with the other Egmont Group FIUs on the basis of reciprocity or mutual agreement and following the basic rules established in the Principles for Information Exchange:
free exchange of information for purposes of analysis at FIU level;
no dissemination or use of the information for any other purpose without prior consent of the providing FIU; and
protection of the confidentiality of the information."
SOCA applied to the judge, under CPR Part 31.5, for an order limiting its disclosure. The appellants opposed the application. The contentions of the parties before the judge were essentially the same as those before us, and I shall refer to them later in this judgment.
The relevant provisions of the CPR
Part 31.5 provides:
"(1) An order to give disclosure is an order to give standard disclosure unless the court directs otherwise.
(2) The court may dispense with or limit standard disclosure.
(3) The parties may agree in writing to dispense with or to limit standard disclosure.
(The court may make an order requiring standard disclosure under rule 28.3 which deals with directions in relation to cases on the fast track and under rule 29.2 which deals with case management in relation to cases on the multi-track)"
CPR Part 31 .6 is as follows:
"Standard disclosure requires a party to disclose only –
(a) the documents on which he relies; and
(b) the documents which –
(i) adversely affect his own case;
(ii) adversely affect another party's case; or
(iii) support another party's case; and
(c) the documents which he is required to disclose by a relevant practice direction."
Disclosure is to be contrasted with inspection. CPR Part 31.3 confers on a party a qualified right to inspect a document disclosed by another...
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