Williams v The Supervisory Authority
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sales |
| Judgment Date | 08 June 2020 |
| Neutral Citation | [2020] UKPC 15 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0041 of 2018 |
| Date | 08 June 2020 |
[2020] UKPC 15
Lord Kerr
Lord Hodge
Lord Lloyd-Jones
Lord Briggs
Lord Sales
Privy Council Appeal No 0041 of 2018
Trinity Term
From the Court of Appeal of the Eastern Caribbean Supreme Court
Appellant
Paul Taylor QC
David Dorsett PhD
(Instructed by AxiomStone Solicitors)
Respondent
Justin L Simon QC
Desiree A A Artesi
(Instructed by Royds Withy King (London))
Heard on 6 February 2020
This case is concerned with the operation of the regime in Part IV of the Money Laundering (Prevention) Act 1996 (as amended) (“the MLPA”), headed “Freezing and Forfeiture of Assets in Relation to Money Laundering”, and in Part IVB of that Act, headed “Civil Forfeiture”, and the effect upon that regime of the Constitution of Antigua and Barbuda (“the Constitution”). The respondent, the Supervisory Authority (“the Authority”), is an agency established under the MLPA charged with taking enforcement action under it. The regime in Part IV will be referred to as “the freeze order regime”; that in Part IVB as “the civil forfeiture regime”; and together they will be referred to as “the combined regime”.
The MLPA enacts a range of measures to counter money laundering and to deprive persons of the proceeds of crime. For present purposes, its relevant provisions are as follows. In this judgment, unless otherwise indicated, references to section numbers are to sections of the MLPA.
In the preliminary part of the MLPA, section 2H explains the meaning of money laundering activity for the purposes of the Act:
“2H. In this Act a reference to money laundering activity by a person is a reference to anything done by the person that at the time was a money laundering offence whether or not the person has been charged with the offence and, if charged:
(a) has been tried; or
(b) has been tried and acquitted; or
(c) has been convicted (even if the conviction has been quashed or set aside).”
Section 2(1) states, in relevant part, that “money laundering offence” means:
“an offence against:
(a) sections 3 and 5 of this Act;
(b) sections 11A and 18 of this Act
(c) section 61 of the Proceeds of Crime Act, 1993; or
(d) sections 4, 5, 6(3), 7 and 8 of the Misuse of Drugs Act, Cap 283; …”
Section 6(3) of the Misuse of Drugs Act provides, in relevant part:
“(3) … it shall be an offence for any person to have a controlled drug in his possession whether lawfully or not, with intent to supply it to another in contravention of section 5(1).”
An offence against section 12(1) of the Misuse of Drugs Act (possession of controlled drugs with intent to sell or transfer such controlled drug to any other person) was only added to the list of money laundering offences in section 2(1) of the MLPA by an amendment made by the Money Laundering (Prevention) (Amendment) Act 2009 (“the 2009 Act”), with effect from 21 December 2009. There does not appear to have been any good reason for the original omission of offences against section 12 of the Misuse of Drugs Act from the list of money laundering offences: it seems that this was a drafting oversight eventually corrected by the 2009 Act.
Part IV of the MLPA commences with section 19. Section 19(1) provides:
“19(1) Where a person (referred to in this Part as ‘the defendant’) —
(a) has been convicted of a money laundering offence; or
(b) has been, or is about to be charged with a money laundering offence; or
(c) is suspected of having engaged in money laundering activity.
the Supervisory Authority may apply to the High Court for an order freezing property in which there is a reasonable suspicion that the defendant has an interest.”
Section 19A provides in relevant part as follows:
“19A(1) Where an application is made pursuant to paragraph 19(1)(a), the High Court shall make a freeze order.
…
(1B) Where an application is made pursuant to paragraph 19(1)(c) the High Court shall not make a freeze order unless —
(a) the application for the order is supported by an affidavit of an authorised officer stating that he suspects that the defendant has engaged in money laundering activity; and
(b) the court is satisfied, having regard to the matters contained in the affidavit, that there are reasonable grounds for holding that suspicion.
(2) Where a freeze order is made upon the basis that —
(a) the defendant has been charged or is about to be charged with a money laundering offence; or
(b) the defendant is suspected of having engaged in money laundering activity;
the freeze order will cease to have effect thirty (30) days after it is made unless by that time the defendant has been charged with a money laundering offence, or an application for a civil forfeiture order or civil proceeds assessment order has been filed.”
Section 19B provides:
“19B(1) Where the High Court makes a freeze order, the Court may, at any time when it makes the freeze order or at any later time, make any ancillary orders that the Court considers appropriate and, without limiting the generality of the Court's power, the Court may make any one or more of the following orders:
(a) an order varying the property to which the freeze order relates;
(b) an order varying a condition to which the freeze order is subject;
(c) an order for the examination on oath before the Court of any person, including:
(i) a person whose property is the subject of the freeze order (in this section called the ‘owner’); or
(ii) a person who is the defendant within the meaning of section 19 in relation to the offence to which the freeze order relates (in this subsection called the ‘defendant’);
about the affairs (including the nature and location of any property) of;
(iii) anyone who is either the owner or the defendant or both; and
(iv) if the person to be examined is either the owner or the defendant or both — that person;
(d) an order directing
(i) the owner; or
(ii) if the owner is not the defendant — the defendant; or
(iii) if the owner or the defendant is a body corporate — a director of the body corporate specified by the court:
to give to:
(iv) where the freeze order is, or includes, an order made under section 19(4)(b) — the trustee; and
(v) in any other case — the applicant for the ancillary order or such other person as the court directs;
within a period specified in the ancillary order, a statement sworn on oath setting out such particulars of the property, or dealings with the property, of the owner or the defendant, as the case may be, and as the court thinks proper;
(e) where the freeze order directed a trustee to take custody and control of property:
(i) an order regulating the manner in which the trustee may exercise his or her powers or perform duties under the freeze order;
(ii) an order determining any question relating to the property to which the freeze order relates, including any question relating to:
(a) the liabilities of the owner; or
(b) the exercise of the powers, or the performance of the duties, of the trustee with respect to the property to which the restraining order relates;
(2) An order under subsection (1) may be made on application by:
(a) the Supervisory Authority;
(b) the owner;
(c) where the freeze order directed a trustee to take custody and control of property — the trustee; or
(d) with the leave of the court — any other person.
(3) An ancillary order made in relation to a freeze order does not cease to have effect merely because the freeze order, or part of it, ceases to be in force.
(4) Where:
(a) a person (in this subsection called the defendant has been) —
(i) convicted of a money laundering offence or money laundering activity; or
(ii) charged with a money laundering offence or money laundering activity or is about to be charged with a money laundering offence or money laundering activity; or
(iii) joined as a defendant in an application pursuant to sections 20A or 20B or is about to be joined as a defendant in such an application;
(b) the High Court has made a freeze order against any property under section 19; and
(c) a person having an interest in the property applies to the court for a variation of the order to exclude the person's interest from the order;
the High Court shall grant the application if:
(d) where the applicant is not the defendant and the freeze order was not made by virtue of section 19A(3) — the High Court is satisfied that:
(i) the applicant was not, in any way, involved directly or indirectly in the commission of the offence or money laundering activity; and
(ii) the applicant had no knowledge of the commission of the offence or money laundering activity or any illegal use to which instrumentalities the subject of the application may have been put (providing that this lack of knowledge was not the result of wilful blindness); and
(iii) the applicant's interest in the property was not acquired by means of a gift from the defendant or any person or entity under the effective control of the defendant; and
(iv) where the applicant acquired the interest at the time or after the commission, or alleged commission, of the offence or money laundering activity — the applicant acquired the interest without knowledge, or in circumstances such as not to arouse a reasonable suspicion, that the property was an instrumentality;
(e) where the applicant is not the defendant and the freeze order was made by virtue of section 19A(3) — the High Court is satisfied that:
(i) the applicant was not, in any way, involved in the commission of the offence or money laundering activity; and
(ii) the applicant's interest in the property is not subject to the effective control of the defendant; and
(iii) the applicant had no knowledge of the commission of the offence or money laundering activity...
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