Stanford International Bank Limited v Director of The Serious Fraud Office

A procedural rule cannot impose a substantive restriction on an otherwise unrestricted statutory right of appeal. A rule governing how an application for permission must be made applies only where another valid provision creates a requirement to obtain permission.

Subsequent legislation may impose permission and certification requirements prospectively. It cannot retrospectively restrict a right of appeal which already exists. Accordingly, where no operative statutory instrument imposed those requirements, permission to appeal was unnecessary.

The Court of Appeal made a restraint order against Stanford International Bank Ltd under the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005, replacing an identical first-instance order which it had quashed for non-disclosure. Its decision was reported at [2010] EWCA Civ 137. The Court of Appeal refused permission to appeal but considered that certification of a point of law of general public importance was unnecessary.

At an interim hearing, the Supreme Court considered whether the statutory appeal to the House of Lords had become an appeal to the Supreme Court and, if so, whether certification or permission was required. Amending legislation had resolved the first question. The remaining issue was whether the Criminal Procedure Rules 2011 could impose a permission requirement despite the absence of an operative statutory instrument doing so.

1. Permission to appeal was not required. The Court declared that Stanford International Bank Ltd could appeal from the Court of Appeal's restraint order without permission. No provision then in force required certification of a point of law of general public importance or permission to appeal.

2. Article 11 of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 originally provided an appeal to the House of Lords. Article 48(1), corresponding to section 90 of the Proceeds of Crime Act 2002, left that right free from certification and permission requirements unless a further order imposed them. No such effective order governed this appeal.

3. The Constitutional Reform Act 2005 (Consequential Amendments) Order 2011 substituted the Supreme Court for the House of Lords in article 11. It thereby enabled appeals concerning relevant Court of Appeal decisions made before the amendment came into force.

4. The Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (England and Wales) (Appeals under Part 2) Order 2012 would introduce certification and permission requirements from 29 February 2012. Those requirements could not apply retrospectively to restrict the existing appeal right: Colonial Sugar Refining Co Ltd v Irving [1905] AC 369 applied.

5. Rule 71.10 of the Criminal Procedure Rules 2011 prescribed the manner of applying to the Court of Appeal for permission. It did not itself create an obligation to obtain permission. Rule 57.15 required that rule to operate with necessary modifications in proceedings under the 2005 Order.

6. Section 446 of the Proceeds of Crime Act 2002 authorised procedural rules necessary or expedient to give effect to an Order in Council. That rule-making power could not validly be used to impose a substantive restriction on a previously unrestricted appeal right. The later 2012 Order could impose such a restriction prospectively, but rule 71.10 could not do so.

1. United Kingdom Supreme Court: At the interim hearing, the Court declared that permission to appeal from the Court of Appeal's order was not required: [2012] UKSC 3.

2. Court of Appeal (Criminal Division): The court made a restraint order under the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 in substitution for the first-instance order. It quashed the earlier order for non-disclosure, refused permission to appeal and expressed the view that certification was unnecessary: [2010] EWCA Civ 137.

3. First instance: An identical restraint order had been made in response to an external request from the United States Department of Justice. The judgment gives no citation for that decision.