A v Director of Public Prosecution

Under the mutual-recognition scheme for overseas restraint orders, a challenge to the substantive reasons for the order, including an alleged breach of ne bis in idem, may be made only in the issuing state. The executing court must not conduct a collateral review of the issuing court’s decision.

The narrowly defined grounds on which an English court may refuse, cancel or vary registration remain available under the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014. They do not permit an executing court to reconsider the substantive criminal case. This allocation of remedies preserves mutual recognition, comity and the effective preservation of assets while providing a remedy in the proper forum.

French judicial authorities made an overseas restraint order against A in connection with a continuing French criminal investigation. The order was registered in England, freezing a substantial sum held in a London account.

A applied to cancel the registration. He relied principally on the Swiss authorities’ earlier abandonment of a criminal investigation and contended that the French proceedings infringed ne bis in idem. HHJ Deborah Taylor, sitting at Southwark Crown Court, refused the application on 26 February 2016.

A sought permission to appeal. The central issue was whether an English court, as the executing court, could entertain that challenge to the substantive basis of the French restraint order.

1. Permission to appeal was refused. The judge below was correct to refuse cancellation of the registration. The application was not arguable.
2. Article 11.2 of the Framework Decision, replicated in substance by Regulation 10(6) of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014, reserves a challenge to the substantive reasons for an overseas restraint order to the court of the issuing state. An allegation that the order breaches ne bis in idem is such a substantive challenge. It cannot be recast as a challenge to be determined by the executing court.
3. The limited grounds on which the executing court may refuse recognition, execution or cancellation do not assist A. The certificate did not make it instantly clear that assistance would infringe ne bis in idem, and the asserted right did not fall within Regulation 9(5)(b), which refers to Convention rights. Mutual recognition requires speedy co-operation and confidence in the issuing state’s judicial decisions.
4. Permitting the challenge in every executing state would create collateral proceedings, risk inconsistent outcomes and undermine the efficacy of the scheme. Fundamental rights are not denied: the affected person has a remedy in the issuing state, which is both the appropriate forum and the court best placed to determine the substantive challenge.
5. In any event, the court would not have accepted A’s substantive argument. It was not self-evident that the Swiss abandonment amounted to a final disposal capable of engaging ne bis in idem, or that the French and Swiss investigations concerned substantially the same facts. The French courts had rejected both contentions. These observations were additional to the jurisdictional conclusion.
6. The court also declined to direct a reference to the Court of Justice.

1. Court of Appeal (Criminal Division) Refused A’s application for permission to appeal and declined a reference to the Court of Justice.
2. Southwark Crown Court HHJ Deborah Taylor refused, on 26 February 2016, A’s application to cancel registration of the French restraint order. No lower-court citation is stated.