Serious Organised Crime Agency v Perry & Ors

A disclosure order under Part 8 of the Proceeds of Crime Act 2002 may support information notices concerning recoverable property in the United Kingdom, even where the recipients are temporarily outside the jurisdiction. The decisive question is whether the statutory scheme brings the recipients within its legislative grasp, not merely whether they were physically present when the notices were sent. A notice is validly given where it is sent to an address within the jurisdiction which the recipients recognise as their address and where it reaches them. The court may imply limits on the extra-territorial scope of a broadly worded disclosure power, but those limits did not invalidate these notices.

SOCA investigated approximately £14 million held in two London bank accounts in the names of Mr Perry and members of his family. The funds were suspected of being recoverable property under Part 5 of the Proceeds of Crime Act 2002. The High Court made a disclosure order under section 357 and later information notices were posted to the family’s acknowledged London address, with copies sent to their solicitors.

Foskett J dismissed the family’s application to set aside the disclosure order and information notices. On appeal, the family accepted that the disclosure order itself was valid, but argued that section 357 authorised notices only to persons physically within the jurisdiction and that posting the notices to a London address did not amount to valid giving. The central issue was whether the notices were within the statutory power and had been validly given.

1. Majority disposition. Carnwath LJ, with whom Ward LJ agreed, dismissed the appeal and held that the information notices were validly made and validly given.
2. Territorial scope. The presumption against extra-territoriality is a rule of construction. It requires attention to the particular statutory provision and the persons whom Parliament intended to bring within its legislative grasp. Part 5 contains extra-territorial features, including its treatment of overseas unlawful conduct, service wherever the respondent is domiciled, resident or present, and property wherever situated. Those features are relevant to Part 8, although the broad and informal nature of section 357, the criminal consequence of non-compliance and enforcement difficulties justify implying some limitation on its general scope.
3. Application. The disclosure order was accepted as valid because it concerned assets in the jurisdiction. The notices sought information undeniably relevant to that investigation and were sent to an address in the jurisdiction which the family acknowledged as their London address. Their solicitors confirmed receipt and the notices reached the family. Physical absence from the United Kingdom when a notice is sent is not, without more, decisive. The notices were therefore within the statutory scheme and validly given.
4. Judicial control and procedure. The ordinary power to vary or discharge an ex parte disclosure order does not give the court a general power to control the categories of persons to whom SOCA may give notices. The notices could be challenged by judicial review, but no ground of unreasonableness or invalid giving was established. It was unnecessary to decide SOCA’s procedural objection.
5. Dissent. Richards LJ would have allowed the appeal. He considered the pointers against extra-territoriality stronger and concluded that section 357 permitted notices only to persons within the jurisdiction. Posting notices to a London address for forwarding abroad did not cure the defect.

• Court of Appeal (Civil Division): appeal dismissed by Carnwath LJ and Ward LJ; Richards LJ dissented. The notices were held validly made and validly given.
• Queen’s Bench Division, Administrative Court: Foskett J dismissed the family’s application to set aside the disclosure order and information notices on 30 July 2009.