Serious Organised Crime Agency v Agidi & Anor

Part 5 of the Proceeds of Crime Act 2002 permits civil recovery proceedings even where criminal proceedings, cash-forfeiture proceedings or private civil claims have previously failed or concluded, subject to the statutory exceptions and protections. A prior acquittal, settlement or forfeiture order does not itself make later civil recovery an abuse of process. Abuse is determined by a broad, merits-based assessment of all the circumstances, including public and private interests and unjust harassment. Property obtained through unlawful conduct may be proved by direct evidence or by circumstances supporting the inference that it could only have been derived from crime. On the evidence, the property was recoverable.

SOCA sought recovery under Part 5 of the Proceeds of Crime Act 2002 of a London house and approximately £677,000 held in a Citibank account. It alleged that the assets represented bribes or rewards arising from corrupt relationships involving the respondents, Skoda and Sagem.

The respondents relied on a failed criminal prosecution, earlier cash-forfeiture proceedings, and civil proceedings brought by the Federal Republic of Nigeria. They applied to strike out the claim as an abuse of process, sought release of restrained funds for legal expenses, challenged late expert evidence on Nigerian law, and denied that the property was recoverable.

1. Legal expenses. The court applied the balancing approach in SOCA v John Szepietowski & others. Primary regard was given to the desirability of legal representation, but no exclusion from the Property Freezing Order was appropriate where the respondents owned other substantial property from which they could reasonably meet their costs. The application was refused, although SOCA later consented to release £8,000.
2. Abuse of process. The application to strike out under CPR 3.4(2) and section 19(2)(b) of the Senior Courts Act 1981 was dismissed. Under Part 5, SOCA and the Metropolitan Police exercised distinct statutory functions. The statutory scheme contemplated civil recovery despite previous criminal proceedings, cash forfeiture or private civil litigation, subject to the express exceptions and protections in the Act. There had been no order releasing the balance of the cash under section 297(2). The respondents therefore could not establish a collateral attack on a final decision.
3. The principles in Johnson v Gore Wood and Co applied. Abuse required a broad, merits-based assessment of all the circumstances, with particular attention to finality, public and private interests, and unjust harassment. The respondents bore the burden and had not come close to establishing abuse. SOCA had acted in good faith and within the limitation period.
4. Recoverability. Following Anwoir and others, the fact that property derived from crime could be proved directly or inferred from the circumstances in which it was handled. That approach applied to civil recovery proceedings. The evidence established, on the balance of probabilities, that the relevant credits were bribes or rewards arising from corrupt relationships with Skoda and with Sagem and Mr Adelagun. The house had been funded wholly with property representing Skoda proceeds. The Citibank sums represented Skoda proceeds, Sagem proceeds, or profits accruing from them. They were therefore recoverable under sections 304(1), 305(1) and 307(2) of the Act.
5. The claim succeeded. A recovery order was to vest the house and all monies in the Citibank account, including interest earned after 27 October 2010, in the nominated trustee for civil recovery. Remaining disputes, including costs, were to be dealt with by written submissions unless a further hearing was requested.