UMBS Online, R (on the application of) v Serious Organised Crime Agency

Where a statutory anti-money-laundering regime permits an authority to restrict dealings with funds, an arguable property-rights issue may arise if affected persons cannot know in advance the criteria governing consent and those criteria are unsettled or changing. The Court of Appeal may grant permission where such an issue is arguable. It may then remit the substantive judicial review to the Administrative Court so that the parties can formulate their grounds, evidence and submissions properly.

UMBS Online challenged two decisions by the Serious Organised Crime Agency refusing consent for transactions involving funds held by Chancery Solutions Limited for UMBS. Lloyd Jones J refused permission to apply for judicial review on the ground that no arguable case had been shown. The Court of Appeal first declared the later refusal unlawful and required reconsideration. On the return hearing, it considered the legality of the earlier refusal, including an argument under Article 1 of the First Protocol concerning the absence of established decision-making criteria. The issue was whether permission should be granted and the matter remitted for substantive determination.

Disposition. Ward LJ delivered the judgment, with which Sedley LJ and Hooper LJ agreed. The appeal was allowed in relation to SOCA’s refusal of consent dated 21 February. Permission to apply for judicial review was granted and the matter was remitted to the Administrative Court. The order was no order as to costs.

1. Under the Proceeds of Crime Act 2002, where a suspicious account is reported, consent to operate the account is deemed if SOCA does not refuse consent within seven days. A refusal within that period triggers a further 31-day moratorium during which transactions cannot be passed through the account.
2. The Court of Appeal had previously used CPR 52.15 to entertain the applications itself where an arguable case was shown. It was satisfied that the challenge to the first refusal was arguable, particularly because the stringent effects of the statutory regime engaged Article 1 of the First Protocol.
3. The appellant’s case included that affected persons needed advance knowledge of the criteria by which SOCA would grant or withhold consent. Those criteria had not been established or published and, on SOCA’s concession, had changed by the time of the reconsidered decision. That supplied an arguable issue requiring substantive consideration; the court did not finally determine the merits.
4. Because the issues were important beyond the immediate parties, and the urgency had substantially fallen away after the restraint order froze the funds, the conventional course was to remit the matter. The parties could amend the grounds, prepare full skeleton arguments and present the evidence required for determination by the Administrative Court.

• Court of Appeal (Civil Division) — On 21 March 2007, the appeal was allowed in relation to the 21 February refusal. Permission to apply for judicial review was granted and the matter was remitted to the Administrative Court.
• High Court, Queen’s Bench Division — Lloyd Jones J refused permission on 5 March 2007, considering that no arguable case had been presented.