Serious Organised Crime Agency v Azam & Ors

An order made by a court remains valid and must be obeyed unless and until it is set aside or altered. A later judicial restatement of the law does not automatically reopen a matter completed under an earlier order, even where the order ought not to have been made. In civil recovery proceedings under Part 5 of the Proceeds of Crime Act 2002, a disclosure order may be used to obtain information relating to the respondent’s unlawful conduct where that conduct is relevant to establishing that property is recoverable. That position differs from a confiscation investigation, whose statutory definition and purpose are narrower.

The Serious Organised Crime Agency brought civil recovery proceedings under Part 5 of the Proceeds of Crime Act 2002, alleging that Amir Azam had acquired property through drug dealing and money laundering and that other respondents held related property.

At an interlocutory stage, Mr Azam sought the return of money transferred from Luxembourg under orders made by the High Court. He also challenged SOCA’s proposed reliance at trial on material obtained from solicitors under a disclosure order relating to criminal proceedings in the United Arab Emirates. He relied principally on Perry v Serious Organised Crime Agency [2012] UKSC 35.

1. Luxembourg monies. The orders requiring the transfer of the Luxembourg funds had been duly made and had not been appealed or set aside. Although Perry v Serious Organised Crime Agency [2012] UKSC 35 established that the High Court lacked jurisdiction under Part 5 to make a recovery order concerning property outside England and Wales, that decision did not automatically discharge the earlier orders.
2. An order remains legally effective, and acts done under it are lawful, unless and until the order is altered or set aside. The principle applied to the transfer ordered by the court. The authorities concerning administrative action, including R v Governor of Brockhill Prison ex parte Evans (No 2) [2001] 2 AC 19 and AN v Secretary of State for the Home Department [2010] EWCA Civ 689, were distinguishable because the relevant acts there were not protected in the same way by a court order. Cadder v HM Advocate [2010] UKSC 43 did not require the completed transfer to be reopened merely because the case remained pending.
3. The funds had therefore been lawfully brought within the jurisdiction and would not be returned to Luxembourg.
4. UAE evidence. Section 341(2) of the Proceeds of Crime Act 2002 defines a civil recovery investigation by reference to whether property is recoverable or associated property, who holds it, and its extent or whereabouts. Since recoverable property includes property obtained through unlawful conduct under section 304(1), investigating the unlawful conduct may be necessary to establish that property is recoverable.
5. The disclosure order under section 357 could therefore be used to obtain information relating to Mr Azam’s alleged criminal conduct. The restriction identified in Perry v Serious Organised Crime Agency concerned notices to persons outside the jurisdiction and did not govern the domestic notice served here. The position differed from a confiscation investigation, whose statutory definition and purpose were narrower.
6. The applications were refused. The question whether the evidence was otherwise admissible, and the extent to which it could be used, was left to the trial judge.