The Serious Organised Crime Agency (Claimant/Appellant) Gary John Robb (Defendant/Respondent) (i) Patricia Anne Clarke and Others (Third Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mackay |
| Judgment Date | 30 March 2012 |
| Neutral Citation | [2012] EWHC 803 (QB) |
| Court | Queen's Bench Division |
| Date | 30 March 2012 |
| Docket Number | Case No: HQ11X01705 |
[2012] EWHC 803 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
IN THE MATTER OF A CLAIM FOR A CIVIL RECOVERY ORDER UNDER
SECTIONS 266 AND 243 OF THE PROCEEDS OF CRIME ACT 2002
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Mackay
Case No: HQ11X01705
Mr Nicholas Cox and Mr Luke Ponte (instructed by SOCA Legal) for the Claimant
The Defendant did not attend and was not represented
Hearing dates: 7,8, 9 March 2012
This is a Part 8 claim by the Serious Organised Crime Agency (SOCA) which seeks to recover funds of approximately £1.6m currently frozen in an account designated " NWB Re SOCA v Gary Robb" at the National Westminster Bank City of London Branch, 1 Princes Street, London EC2 on which interest currently accrues.
The third parties allege that they have lost sums due to unlawful conduct by the defendant and that they are entitled to recover from the monies in the account. The claim presented to me is for a declaration as to the proprietary rights of the agency in the sums represented by the account. If successful the agency then proposes to address the third parties' respective claims.
On 25 August 2005 Collins J made a Criminal Restraint Order on the application of the Crown Prosecution Service in respect of the money then in this account. The money was in the account was detected and intercepted in the course of its passage from a personal sterling account of the defendant at a branch of HSBC in the Turkish Republic of Northern Cyprus (TRNC) ("Account 1"), to its intended destination, another personal account of the defendant at the Bangkok Bank, Pattaya, Thailand, ("Account 5").
Since the initial restraining order a number of freezing orders have been made on the application of SOCA and Collins J's order is now replaced by a property freezing order as from 11 December 2010.
This is the hearing of SOCA's expedited claim to recover this money which it claims is recoverable property within the meaning of Sections 240 and 241 of the Proceeds of Crime Act 2002 (the Act). These sections and others relevant to this claim are in the following terms.
Applicable law; Part 5 of the Act
1) The general purpose of the Act is to enable SOCA to recover in proceedings property which it thinks is or represents property obtained through unlawful conduct (recoverable property), whether or not any proceedings have been brought for an offence in connection with the property: s 240(1)(a) and s240 ( 2): s 243.
Recoverable property is defined by section 304(1) as "property obtained through unlawful conduct". It includes property which "represents" such property—that is property obtained "in place of" the original property following its disposal (section 305), and profits accruing on such property (section 307). 'Property' includes inter alia money and things in action (section 316(4)). Where property obtained through unlawful conduct (or property which represents such property) is mixed with other property (whether belonging to the defendant or to someone else) such as by increasing the balance on an account, the portion of the mixed property which is attributable to the recoverable property represents the property obtained through unlawful conduct; Section 306.
Burden of standard proof: The court must first decide on a balance of probabilities whether any matters alleged to constitute unlawful conduct have occurred: s241 (3). And secondly whether property was obtained through unlawful conduct. The burden of proof of each element lies upon the Claimant.
Unlawful conduct is defined by s 241. It can be either: (i) Conduct occurring in any part of the United Kingdom if it is unlawful under the criminal law of that part [s241 (1)]; or (ii) conduct which occurs in a country or territory outside the United Kingdom and is unlawful under the criminal law applied in that country or territory and if it occurred in a part of the United Kingdom, it would be unlawful under the criminal law of that part. [s 241 (2)]. In other words if the conduct relied upon occurs outside the United Kingdom, there is a requirement upon SOCA to establish "dual criminality" (see further below).
Obtaining property through unlawful conduct: s242 (1). It is not necessary to show that the conduct was of a particular kind if it is shown that the property was obtained through conduct of one of a number of kinds, each of which would have been unlawful conduct: s 241 (2) (b).
Orders: If the Court is satisfied that property is recoverable property then subject to any declaration that may be made under section 281 (and other limited exceptions not relevant here) the court must make a civil recovery order in respect of that property: s266.
In civil recovery proceedings victims who claim that they have been deprived of their own property by unlawful conduct and that the property sought to be recovered was and remains their property (or represents their property) may obtain a declaration that such property claimed by them is not recoverable property: s 281. The third parties in this case so contend. Previous case management decisions mean that the court will only make a civil recovery order under section 266 only after the claims of the Third Parties to the Property have been determined. But the claimant submits that a form of declaratory relief can and should be made at this stage as regards the respective rights to the Property as between the claimant and Mr Robb: The court has jurisdiction to do so see CPR 40.20.2: FSA v Rourke [2002] CP Rep 14 per Neuberger J: even in a case involving fraud Patten v Burke Publishing [1991] 1 WLR 541 at 543/4 per Millett J.
Applicable Law: relevant authorities
(1) The burden is, as set out above, placed on the claimant to prove the facts necessary as required by part 5 of the Act and in particular the unlawfulness of the conduct of the defendant and to do so to the civil standard, namely a balance of probabilities. As Lord Nicholls of Birkenhead said in Re H [1996] AC 563 at 586:
"When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegations the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court can prove that the allegations established from the balance of probability. Fraud is usually less likely than negligence… Built into the preponderance of probability standard is a generous degree of flexibility in respect of the serious nature of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred."
In SOCA v Gale and another [2011] 1 WLR 2760 the Supreme Court applied this to proceedings under Part 5 of the Act.
(2) The claimant does not have to show that a specific offence or specific offences have been committed. In Director of Assets Recovery Agency v Green [2005] EWHC 3168 (Admin) Sullivan J accepting that submission by the claimant continued:
"For the purposes of Section 240 and 241(1)(2) a description of the conduct in relatively general terms should suffice, "importing and supplying controlled drugs", "trafficking women for the purpose of prostitution", "brothel keeping", "money laundering" are all examples of conduct which if it occurs in the United Kingdom is unlawful under criminal law. It is possible that more detail might be required if conduct outside the United Kingdom was being relied upon…"
(3) The court in considering such an application should take what in Director of Assets Recovery Agency v Jackson [2007] EWHC 2553 (QB) King J described as—
"… a global approach to the issue of proof that the property in issue is recoverable in the meaning of the Act…I do not consider it essential that the court considers each property transaction on an item by item basis in the sense that the claimant has an obligation to show some particular unlawful actions by the defendant at some particular time which enabled the particular transaction".
This approach was followed by Sweeney J in SOCA v Agidi [2011] EWHC 175 QB when he said at 160
"It is obviously important to stand back from the detail and look at the broad picture provided by the factors as I have found them to be"
(4)The court's assessment and judgment of the facts will often be by way of drawing inferences from primary facts found or established. Simon J in SOCA v Coghlan [2012] EWHC 429 QB described this at 14(5) as —
"Taking the common sense approach to inferences which may be drawn from the evidence or lack of evidence"
And he went on to say at 16 —
"…in civil litigation the court proceeds on the basis of evidence placed before it;…Mr Coghlan ought to have been in a position to place any relevant material before the court that he wished. I recognise that the court is disadvantaged by not seeing witnesses and hearing their evidence tested by cross examination; but that has largely been a consequence of the parties' case management decisions at an early stage. In any event in many cases (and in...
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