National Crime Agency v Doherty

Alternative service may be authorised where conventional attempts have failed and further attempts appear unlikely to succeed. The court may retrospectively validate service already effected by the authorised alternative method and direct that future documents be served in the same way, subject to the respondent’s ability to seek variation or discharge.

For a Property Freezing Order under the Proceeds of Crime Act 2002, the applicant need only establish at the interim stage an arguable case that the property is recoverable property obtained through unlawful conduct. Questions of proportionality and other substantive grounds may be raised when the respondent seeks to vary or discharge the order.

The National Crime Agency applied for alternative service and a Property Freezing Order against Shawn Martin Doherty. The application formed part of a civil recovery investigation concerning property allegedly obtained through unlawful conduct.

Conventional attempts to serve the proceedings had failed. The court therefore considered whether service could be authorised at two properties associated with the defendant, whether service already effected there could be validated retrospectively, and whether the statutory threshold for a Property Freezing Order had been met.

1. Alternative service. The evidence showed that efforts had been made to serve the defendant by conventional means and that further such attempts were unlikely to succeed. The requirements of CPR rule 6.15(1) were therefore satisfied. Service was authorised at the two identified properties.
2. The application had already been served at those addresses without compliance with the ordinary rules. In the interests of justice, that service was deemed retrospectively to constitute good service under CPR rule 6.15(1). Future documents, including any order made on the application, were to be served by the same alternative method. The defendant remained entitled to seek to set aside or vary the service order.
3. Property Freezing Order. Under section 245A of the Proceeds of Crime Act 2002, the order could apply only to recoverable property. Section 242 defined recoverable property as property obtained through unlawful conduct, including property obtained by or in return for another person’s conduct.
4. At this stage the NCA had to establish only a sufficient prima facie case that the defendant had engaged in unlawful conduct and had obtained the property through that conduct. The evidence that the mortgage had been obtained using another person’s identity and materially dubious income information made that case at least arguable. The court did not determine proportionality finally; the defendant could raise that and other substantive matters on an application to vary or discharge.
5. The conditions for the Property Freezing Order were satisfied. The order was made in the terms of the draft, with separate provision dealing with service.