Weekly Digest: 8 October 2018

Factual Background
The NCA believe the property in question was purchased for £11,500,000 in 2009 by a company whose beneficial owner is thought to be Mrs A, a non-EEA national married to Mr A. Mr A is the chairman of a majority state-owned bank in his home country. Mr A resigned from the bank in March 2015 and was subsequently charged in December 2015 in that country with various offences including misappropriation, abuse of office, large-scale fraud and embezzlement. He was convicted on 14 October 2016, sentenced to 15 years’ imprisonment, and ordered to pay the bank approximately $39 million. The NCA also believes that in June 2016 Mrs A was arrested ‘in absentia’ and declared wanted in connection with avoiding the investigation into the bank. A UWO was made out by the judge on 27 February 2018 requiring the respondent to provide a statement explaining how she obtained the property. It is a new investigative tool.

Grounds of application
The respondent advanced eight grounds to discharge the application: (i) Mr A is not a ‘politically exposed person’; (ii) the NCA mischaracterised Mr A’s role in persuading the court that the UWO income requirement was met; (iii) the NCA was wrong to rely on Mr A’s conviction in his home country; (iv) the NCA did not establish the income requirement to the relevant standard; (v) the UWO ought to be discharged because of the penal warning wrongly attached to it; (vi) the UWO offends Mrs A’s Article 1, Protocol 1 ECHR rights; (vii) the UWO offends her privilege against self-incrimination and spousal privilege; and (viii) given all the circumstances of the case the court ought not to have exercised its discretion to make the order.

‘Politically exposed person’ (PEP)
A PEP is defined per Article 3(9) of Directive 2015/849/EU inter alia as a person, or their close family, entrusted with prominent public functions and a member of the management of state-owned enterprises. Mrs A contended both that the bank was not a state-owned enterprise and that her husband was not entrusted with prominent public functions. Supperstone J held that the fact that the bank was majority state-owned was sufficient, though not necessary, to designate it a ‘state-owned enterprise’ and that as Chairman of the state-owned bank Mr A was de facto entrusted with prominent public functions. The inclusion in s.362A(1) of the words ‘entrusted by an international organisation or by a state’, though not present in the 2015 Directive, added little to the domestic provision.

The Income Requirement
Supperstone J considered the next three grounds together. He found that there was good reason to suspect that the property was purchased using unlawfully obtained income as the evidence strongly suggested that Mr and Mrs A’s lawfully obtained income (in the order of $100,000 a year) would not be enough to acquire the property. The respondent also argued that the NCA were wrong to rely on Mr A’s conviction as evidence that the funds used to purchase the property were unlawfully obtained given the lack of judicial impartiality in his home country that infringed Mr A’s Article 6 ECHR rights. The judge saw the force behind this argument but concluded that the threshold for excluding reliance on a foreign conviction on human rights grounds was a high one. Precedent pointed towards only a flagrant deprivation of an individual’s rights, of a level where an conviction had been based on a confession obtained by torture, as sufficing. On the facts, this threshold was not met.

The Penal Warning
The judge held that s.362C did not oust, by implication or otherwise, the court’s power to attach a penal notice to a UWO and to enforce non-compliance with such an order through committal proceedings brought under CPR Part 81. There was a strong public interest in ensuring that court orders are not disobeyed at the option of a party.

Article 1, Protocol 1 ECHR
Supperstone J held that the UWO did not itself give rise to a loss in value, and so Article 1, Protocol 1 was not triggered. Even if this conclusion was wrong, the interference by the UWO would be proportionate.

Privilege
The UWO does not offend the privilege against self-incrimination and spousal privilege as such privilege is not available for prosecution for criminal offences outside the UK. Though it can be a relevant factor in deciding whether to order disclosure, there was no appreciable risk of prosecution of Mrs A or her husband for offences in the UK. Further, the respondent merely asserted in her witness statement both privileges. She did not identify any specific requested information. Finally, Parliament in creating the UWO procedure necessarily intended that the privileges be abrogated.

Discretion
Despite the fact that Mr A is detained in custody abroad and unable to engage meaningfully, and Mrs A afraid to return to her home country, the court was right to exercise its discretion and make the order. Mr A is not the beneficial owner of the property, there is no evidence that Mrs A wishes to leave the UK, and the statutory criteria in s.362A were clearly made out.

Conclusion
The application was dismissed and the UWO maintained.

Factual background
The claimants own the Waterstock Golf Course in Oxfordshire and have been involved in a number of planning disputes with the Council. The litigation history was extensive and stretched back to 1997. Bryan J noted that it was not his role to make findings on the factual disputes stemming from various subsequent public inquiries, injunctions and breached court orders. The primary role of the court was to consider the merits of the public law challenge. He however accepted that that challenge could not be considered in a vacuum – it was important to identify the associated evidence against which the decision and the attacks upon it were to be considered.

The claimants alleged to the defendant in 2005 that the council had fraudulently presented a plan of the golf course as a pre-existing, properly surveyed plan which had been produced before the inquiry started, instead of one drawn up on transparent paper in a slightly careless manner. Further complaints were made in 2007, 2010, and 2013. On 30 May 2016 the defendants’ Professional Standards Department wrote to the claimants accepting that the defendant’s response to the original complaint was flawed. There had been a failure to consider the real issue of whether staff of the Council committed criminal offences or not. The letter suggested a number of lines of investigation the defendants should undertake to explore the possibility of fraud, forgery, perjury, copyright theft, and perverting the course of justice. Such an investigation was carried out and found that there was no realistic prospect of a successful conviction. That decision was now being challenged.

Discussion
The decision was grounded in a detailed police report running to some 16 single-spaced pages. The author of the report stated that in 30 years of police service she had never had as much contact from a witness/complainant as from the claimants. Despite the defendant’s previous failings, the judge found on ground (i) that the investigation was impartial, reasonable and proportionate. The claimant’s allegation that this was not the case was hopeless; in fact the report went above and beyond what should be expected. It was possible that an otherwise reasonable and proportionate investigation may be unlawful if it was flawed in some material respect. The judge however found that the report was correct in its assessment that there was not sufficient evidence to provide a realistic prospect of conviction against any suspect on any charge.

On ground (ii) the judge concluded that no fair-minded and informed observer would conclude that there was a real possibility of bias. The fact that there had been a previous failed investigation did not infect the second investigation. On ground (iii), while under s.23(1) of the Criminal Procedure and Investigations Act 1996 the defendant was under a duty to give reasons, the report clearly satisfied that duty. It was readily apparent that no further investigative steps were required. It was not that there was a lack of evidence, but rather that the extensive evidence that did exist provided no realistic prospect of a successful conviction.

On ground (iv) it was common ground that the report contained an error in inaccurately stating that copyright matters may only be dealt with in the civil jurisdiction, but this did not necessarily mean that the overall decision was flawed. The report’s conclusions would apply equally to any potential criminal copyright offence. Moreover, per s.31(2A) of the Senior Courts Act 1981, the Court must refuse to grant relief on an application for judicial review if it appears to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

Conclusion
Bryan J dismissed the claimants’ application and upheld the decision of the defendant to close the investigation into the council.

The appellant was 20 years old at the time of the incident. He lived with his parents. Three police officers attended the family home following a call by the father that the claimant was being hostile towards him. The appellant was found crying on his bed in his locked room. The officers asked him to pack up and leave his home. He stood up and moved towards the officers aggressively, at which point he was arrested to prevent a breach of the peace. He then shouted at the officers and swung his arms at them, connecting with their heads. He was charged with three counts of assaulting a constable in the execution of his duty,

At first instance, in response to a submission of no case to answer, the justices found that there was case as the appellant had moved aggressively towards the officers. The justices also rejected a submission that the officers were unlawfully evicting the appellant from his own home, and he was found guilty of assaulting the officers in the execution of their duty. On appeal the appellant submitted (i) that the justices were not entitled in law to conclude that there were reasonable grounds for arrest, and (ii) that they should have concluded that there was evidence to support a contention that the officers were unlawfully evicting the claimant.

Reasonable grounds for arrest
The appellant argued that there was no threat observed by the officers until after they threatened to arrest him for breach of the peace. Prior to the appellant coming towards the officers the threat of arrest for breach of the peace was unlawful. He therefore had every right to resist the unlawful arrest threatened. The appellant further argued that the justices had also deferred to the police in considering whether the arrest was reasonable, and that the officers’ conduct was not proportionate.

These points were all dismissed by Supperstone J. The appellant was arrested after moving aggressively towards the police. The time prior to that movement has no relevance to the threatened breach of the peace. The issue of proportionality thus did not arise.

Threat to evict the appellant
The judge cursorily held that there was no attempted eviction for the appellant to resist. The PC ‘suggested’ that he pack a bag and leave the home. That did not amount to an eviction. Even if it did, the aggressive response of the appellant would have been disproportionate.

Conclusion
As both grounds failed the appeal was dismissed.

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