The National Crime Agency v Philip Atkinson and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Coulson |
| Judgment Date | 08 May 2015 |
| Neutral Citation | [2015] EWHC 1299 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ13X03858 |
| Date | 08 May 2015 |
[2015] EWHC 1299 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Coulson
Case No: HQ13X03858
Ms Clair Dobbin (instructed by The National Crime Agency) appeared for the Claimant
Mr Vollenweider appeared for the Defendants
Hearing date: 21 April 2015
INTRODUCTION
In these proceedings, the National Crime Agency ("NCA") pursues claims against the defendants under s.243(1) of the Proceeds of Crime Act 2002 (" POCA") for a Civil Recovery Order ("CRO") in respect of seven properties, four bank accounts, and a Rolex watch. These claims have thus far been vigorously disputed.
At the hearing on 21 April 2015, Mr Vollenweider, who appeared pro bono on behalf of both defendants, indicated that, although the first defendant ("Mr Atkinson") did not admit the unlawful conduct relied on by the NCA, he did not oppose the CRO sought. The second defendant ("Mrs Atkinson") was in a different position. She was a defendant in these proceedings because she is registered as the co-owner of one of the properties, the matrimonial home at 9, Owens Farm Drive ("the Property"). She objected to the inclusion of that house in the CRO.
Thus the only issue concerned the Property, and Mrs Atkinson's interest in it. After some discussion with counsel, it was agreed that, notwithstanding the difficulties, it was sensible, fair, and in accordance with the over-riding objective, for the dispute relating to the Property to be determined at the hearing. The underlying problems with any other course were many and various. Three matters in particular should be noted.
First, Mrs Atkinson, who has had a heart/lung transplant, had been hospitalised and was not present in court. It is not the first time that her ill-health has caused procedural difficulties. There was no guarantee that she would ever be well enough to attend court. Secondly, Mr Atkinson did not attend court either, without proper excuse. Thirdly, despite the order of Leggatt J on 17 April 2015, Mr Vollenweider had not been paid any sums at all either in relation to the prior work that he had done on this case, or for his preparation for the trial. Thus whilst he was prepared to attend court on the first day on a pro bono basis (subject to a question as to his fees, to which I will return at the end of this Judgment) there was no guarantee at all that he would be present thereafter.
In the circumstances, I concluded that the dispute in respect of the Property could be properly determined on the first day of the trial. There was a witness statement from Mrs Atkinson which would have stood as her examination in chief. Thus she was not prejudiced by her absence from court. Moreover the presence of Mr Vollenweider, who was aware of all the issues in the case, outweighed the advantages (if there were any) of an adjournment.
At the hearing, having considered the evidence and the careful submissions made by both sides, I concluded that the statutory exception relied on by Mrs Atkinson did not apply to the Property, and that it should form part of the CRO. I gave brief reasons for my decision at the end of the hearing. However, because it is a matter of importance to both Mr and Mrs Atkinson, and because it was necessary for me to make findings as to unlawful conduct in order to determine the dispute concerning the Property, I indicated that I would provide my detailed reasons in writing. That is the purpose of this Judgment.
Accordingly, in Section 2 below, I address the allegedly unlawful conduct of Mr Atkinson, and whether or not the properties which are the subject of the CRO, were obtained through unlawful conduct. In Section 3 below I specifically address the evidence in respect of the Property. In Section 4 below I identify the exception relied on by Mrs Atkinson and refer to the recent authority on that exception. Then at Section 5 I test whether or not that exception can apply to the present case. There is a short summary of my conclusions at Section 6 below.
Often, but not invariably, at this point in my written judgments I pause to thank counsel for their assistance. Rarely is such an expression of thanks more heartfelt than in the present case. The successful resolution of what would otherwise have been a ten day trial was entirely the result of the meticulous written opening prepared by Ms Dobbin on behalf of the NCA, and the clear submissions made by Mr Vollenweider. The public purse has been saved a considerable sum of money as a result of their commitment and hard work.
MR ATKINSON'S CONDUCT
Pursuant to s.241(3)(a) of the POCA, the court has to decide on the balance of probabilities whether unlawful conduct has occurred. The court then has to decide, pursuant s.242, whether property has been obtained through that unlawful conduct. If it has, then that property is recoverable property, subject to the exception in s.266 (which I deal with in Section 4).
Although Mr Atkinson does not admit unlawful conduct, I find that there is an overwhelming case against him. The misconduct consists of drug-dealing; money-laundering; and mortgage fraud. I deal with each briefly below.
As to the drug dealing, I note in particular:
(a) Character and Previous Convictions
Mr Atkinson has 12 convictions between 2002 and 2010. In particular, on 20 February 2009 he was convicted and jailed for making a false application for a UK passport. I accept the inference that a false passport is a valuable commodity to a drug trafficker. In addition, Mr Atkinson has a conviction for affray which involved considerable violence to both a woman and a man (who was knocked out).
(b) His Involvement in Drug Importation
Mr Atkinson was arrested as part of the Operation Confection, an investigation by Great Manchester Police and NCA into the importation of cocaine from Spain into the North West of England. 14 individuals pleaded guilty to the supply of cocaine as part of that conspiracy. I find that a transcript of a probe placed in the car of a co-defendant demonstrated Mr Atkinson's general involvement in drug dealing, in particular the conversation between the co-defendant and Mr Atkinson in which the co-defendant was complaining that Mr Atkinson had taken his best drug dealer from him.
Although Mr Atkinson did not eventually stand trial in respect of this conspiracy, that was because it was ruled that the transcript did not support the evidence of the conspiracy particularised in the indictment. That does not, of course, stop the transcript from being relevant and admissible evidence of unlawful conduct for the purposes of the CRO.
Furthermore, although Mr Atkinson has challenged the accuracy of the transcript, in his interview following his arrest he did not deny the conversation, but suggested that it was about hairdressing. That was a fanciful explanation which I reject. Subsequently, in the interview for the purposes of the CRO, he accepted what was said by the co-defendant, but said that during the conversation, he was denying what the co-defendant was saying to him. That explanation too is implausible. Further, these subsequent (and different) versions offered by Mr Atkinson also suggest, at least on the balance of probabilities, that the conversation was indeed about a drug dealer and drugs generally.
(c) The Dispute with Steven Akinyemi
There was a dispute between Mr Atkinson and Mr Akinyemi, a well-known drug dealer in the North West, over the use of the nickname ' Aki'. It appears that Mr Akinyemi wanted to stop Mr Atkinson from using that name and was particularly agitated by the fact that he was driving a Porsche which used ' Aki' in its number plate. The dispute escalated and, although Mr Atkinson was not present, Mr Akinyemi was shot and killed by an associate of Mr Atkinson.
The obvious inference is that both Mr Akinyemi and Mr Atkinson were involved in the same business, namely drug dealing, which is why the nickname mattered to Mr Akineymi. Revealingly, Mr Atkinson indicated in his interview that Mr Akineymi was a serious criminal, "not my kind of scale at all". That strongly suggests Mr Atkinson's involvement, albeit at a lower level, in the same criminal trade as Mr Akineymi.
(d) Mr Atkinson's Associates
Mr Atkinson had numerous associates who were involved in drug dealing and had drug-related convictions. A number of them rented the properties from Mr Atkinson which are now, by consent, the subject of the CRO.
(e) Features of the Property
When Mr Atkinson was arrested, the police found that the Property had a high-value infra-red security system including a biometric data entry system which used finger print technology, six video cameras monitoring the exterior, a thick steel door and bullet proof glass windows. A replica hand gun had been found at the Property on a previous search. I consider that all of these matters point strongly to the conclusion that Mr Atkinson was involved in the dangerous world of drug dealing and thus required these various security measures to protect himself. No plausible explanation for these measures, or indeed any of the points to which I have already referred, can be found in Mr Atkinson's statement.
(f) Summary in respect of Drug-Dealing
For the reasons noted above, I consider that the NCA has made out their case that Mr Atkinson was, on the balance of the probabilities, involved in drug dealing and drug smuggling.
The second area of an unlawful conduct relied on by the NCA concerns money laundering. It is perhaps unnecessary to go through this in any detail. However I note the following:
(g) Moonshine
Moonshine Mobile Valeting was set...
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