The Serious Organised Crime Agency (Claimant Respondent) v Amir Azam (Defendant Appellant)

JurisdictionEngland & Wales
JudgeLord Justice Lloyd,Lord Justice Moore-Bick,Lord Justice McFarlane
Judgment Date31 July 2013
Neutral Citation[2013] EWCA Civ 970
Docket NumberCase No: A2/2013/1706
CourtCourt of Appeal (Civil Division)
Date31 July 2013
Between:
The Serious Organised Crime Agency
Claimant Respondent
and
Amir Azam
Defendant Appellant

[2013] EWCA Civ 970

Before:

Lord Justice Lloyd

Lord Justice Moore-Bick

and

Lord Justice Mcfarlane

Case No: A2/2013/1706

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE HON MR JUSTICE GLOBE

[2013] EWHC 1480 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Philip Coppel QC and David Bedenham (instructed by Litigaid Law) for the Appellant

Andrew Sutcliffe QC and Jonathan Hall (instructed by CRT Legal) for the Respondent

Lord Justice Lloyd

Introduction and summary

1

This judgment is given on an application for permission to appeal, heard on notice to the respondent with the appeal to follow, against an order of Globe J made on 3 June 2013. The appellant, Mr Azam, is the first defendant in proceedings brought by the Serious Organised Crime Agency (SOCA) under section 243 of the Proceeds of Crime Act 2002 ("the 2002 Act" or just "the Act"). On 22 February 2010 Silber J made a property freezing order (PFO) against him under section 245A of the 2002 Act. Globe J's order was made on an application by Mr Azam under section 245C of the Act to vary the PFO so as to permit him to apply some of his assets which are the subject of the PFO in paying for his future legal representation in the proceedings against him. Globe J refused the application and refused permission to appeal. His judgment has the reference [2013] EWHC 1480 (QB). Patten LJ, considering the matter on the papers, adjourned the permission to appeal application to a full court to be heard on notice and with the appeal to follow because of the urgency of the case.

2

At that time the trial was due to start this month. It has been put off and is now not due to start before January 2014. Despite the adjournment the application remains urgent since the proper preparation of the case requires a great deal of time and effort between now and then.

3

The appeal is put to us for Mr Azam on the basis that, if the PFO is not varied as is sought, he will have to do what he can to represent himself in the proceedings, facing a claim whose avowed purpose is in effect to confiscate all his assets, estimated at some £3.5m in value, on the basis that they are, or they represent, property obtained through unlawful conduct, namely drug trafficking and money laundering.

4

SOCA is represented in the claim by a team of lawyers led by Mr Andrew Sutcliffe QC and Mr Jonathan Hall as Counsel, who argued the appeal. On the appeal, Mr Azam has the benefit of representation by Mr Philip Coppel Q.C. and Mr David Bedenham as Counsel, having been represented by other Counsel before Globe J. However neither they nor their instructing solicitors would be able to act for him once the appeal has been determined unless he is able to have access to funds to pay them, which he says he cannot do without using some of the funds the subject of the PFO. I am grateful to Counsel on both sides for their written and oral submissions in relation to the appeal.

5

The appellant would be at a very great disadvantage without representation of his own in any event. The trial is expected to last for at least seven days. It is suggested that a number of issues arise on the claim under the Act which are by no means straightforward, quite apart from the basic, and controversial, issues of fact which lie at the heart of the case for SOCA as to whether there was unlawful conduct and, if so, whether any of the relevant property was obtained by that unlawful conduct, or can be traced to such property. I need not go into detail as to these factors.

6

Mr Azam says that the disadvantage would be all the more acute because of his damaged psychological condition. That particular problem is attributable to the fact that he spent more than six years in prison in the United Arab Emirates, first of all pending trial on charges there of drug trafficking and money laundering, and then, after conviction, pending various appeals. His appeal was ultimately successful and he was released and able to return to the United Kingdom in March 2013. He faces a re-trial in the UAE on money laundering charges but not on drug trafficking charges. The evidence is that his experiences in prison were altogether traumatic for him and that he suffers as a result from Post Traumatic Stress Disorder. Again, I need not go into detail.

7

The PFO required Mr Azam to disclose all his assets by way of a witness statement verified by a statement of truth within 21 days of the service on him of the order. He was at that time in prison in the UAE. He did not make a witness statement in accordance with the order until 13 April 2012. Having regard to the difficulties that he experienced in having any contact with solicitors or anyone else who might have helped him in making disclosure until that time, he is not criticised for that delay.

8

In his statement of assets he disclosed accounts at a number of banks including one in Luxembourg referred to as KBL. At that time he was represented and advised by Saunders Law. A number of ad hoc specific exclusions from the PFO were made to allow a lawyer to travel to the UAE and to see him in order to take instructions, advise him and help him comply with the order.

9

SOCA later discovered that he had an account at another Luxembourg bank, which I will call BDL, with some £350,000 to its credit, which had been in the account since April 2000. SOCA is critical of the explanations he gave for not having disclosed this account when making his first witness statement as to assets.

10

Globe J considered that Mr Azam had to show that there were no other assets available to him to use to defray his legal expenses, and that he had failed to do so. To the contrary, the judge held that he did have other such assets, and he refused to make the exclusion sought so as to allow Mr Azam to use funds the subject of the PFO to pay for his legal representation.

11

For reasons which I set out below, while I agree with the judge on several points in the case, I think that he was wrong to treat Mr Azam as subject to a burden of proving that he had no other relevant assets, and to hold that he did have other such assets. On the basis, therefore, that it is for this court to consider the exercise of the relevant discretion, my conclusion is that Mr Azam has shown that it would be just to allow him to use assets which are subject to the PFO for the purpose of meeting his legal expenses in relation to these proceedings. Accordingly I would grant permission to appeal (though only on the first of the two grounds asserted) and would allow the appeal.

The facts

12

Mr Azam lived in the UK until 2002, when he moved to Dubai. SOCA's case which is the basis of the recovery proceedings, and on which Silber J was persuaded that it had an arguable case which justified making the PFO, is that, from at least 1996, Mr Azam was engaged in criminal conduct, principally drug trafficking and money laundering, thereby acquiring real property and cash in bank accounts which amount to recoverable property under the 2002 Act. It relies on a lack of sufficient legitimate income to justify his assets. It also relies on surveillance, carried out by the National Crime Squad over a lengthy period prior to Mr Azam leaving the country in 2002, which is said to establish his participation in activity consistent with drug trafficking and his close association with many people who have been convicted of such offences.

13

Mr Azam's dealings with the Luxembourg banks occurred in the course of the period of his alleged illegal activity. In September 1999, he opened the BDL account. In the period up to April 2000, five cash deposits totalling US$500,000 were made to its credit. In April 2000, he opened the second bank account, at KBL, using a pseudonym, into which he deposited €255,645. SOCA's case is that, during this same period, Mr Azam was subject to police surveillance in the United Kingdom and was seen associating with numerous individuals who were involved in and later convicted of a conspiracy to supply controlled drugs.

14

Having moved to Dubai in 2002, Mr Azam was arrested there in February 2006 and remained in custody thereafter through until March 2013. He was convicted in March 2007, but he appealed successfully in 2008, the case being ordered for a re-trial. In 2010 he was convicted again but later in that year his appeal to the Abu Dhabi Federal Supreme Court was allowed and the case was then returned for re-trial in the Abu Dhabi Appeal Court. In 2012 he was found not guilty by the Appeal Court and the prosecution's appeal to the Supreme Court failed later that year. He was not released from prison in the UAE until March of this year pending the prosecution's decision as to what to do about a yet further re-trial. He has bank accounts in Dubai, but these have been, and remain, frozen by the UAE authorities.

15

As I have mentioned, on 13 April 2012, while he was in prison, he made a witness statement disclosing his assets purportedly in compliance with the disclosure obligations in the PFO, but he did not disclose the BDL account. Later SOCA discovered the BDL account, and wrote to his solicitors on 30 November 2012 to ask for an explanation. His solicitors replied after he had returned to this country in March 2013. His explanation, as conveyed by them, was that he had been reliant on his wife to provide him with details, he being in prison and without access to records, and that she seemed not to have known about the BDL account, and also that the appellant was...

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