A & A v The Director of Public Prosecutions

An external-request restraint order requires the cumulative conditions in Article 7(2) of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 to be met. Satisfaction of those conditions does not remove the court’s discretion to make or continue the order.

Concise reasons may suffice for a temporary restraint order where the essential issues were fully argued and the reasons are apparent from the material as a whole. Existing foreign restraints do not establish that no relevant property remains unless they are shown sufficient for the likely value-based confiscation order. An error or non-disclosure on an ex parte application does not automatically require discharge. The court must assess its materiality, the evidence as a whole, and the public interest in preserving assets; discharge is reserved for a sufficiently serious failure.

Two Kuwaiti nationals appealed against a Crown Court decision refusing to vary or discharge a restraint order over approximately $23.5 million held in United Kingdom bank accounts. The order had been made at the request of Kuwait during an investigation into alleged theft of public funds, corrupt commission payments and money laundering.

The appellants contended that assets already frozen in Kuwait and Switzerland were sufficient for any future confiscation order, that the evidence had been misstated or inadequately addressed, and that errors and non-disclosure required discharge. The appeal concerned whether the statutory conditions and discretionary basis for the order remained satisfied under the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005.

Appeal dismissed. Lady Justice Sharp gave the judgment of the court.

1. The Crown Court was entitled to find that all three cumulative conditions in Article 7(2) of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 were met. The request identified the United Kingdom accounts and property. Kuwait had begun a criminal investigation. The evidence also provided reasonable cause to believe that each appellant had benefited from criminal conduct.
2. The judge should have addressed the appellants’ sufficiency argument expressly. That omission did not invalidate the decision. His reasons were apparent from the hearing and material as a whole. The case was not confined to historic allegations of a much smaller benefit. On the evidence, the suspected scale of funds moving through the Swiss accounts meant that existing restraints were not shown sufficient to satisfy a likely value-based confiscation order.
3. The concise judgment was adequate in the statutory context. The judge had to decide whether a temporary and reviewable restraint order met the statutory threshold. He was not required to rehearse every evidential submission or make findings appropriate to a criminal trial.
4. The Court accepted that candour is important on an ex parte restraint application, as emphasised in In Re Stanford International Bank Limited [2010] EWCA Civ 137. However, applying the approach in Jennings v Crown Prosecution Service (Practice Note) [2005] EWCA Crim 746, an error or inadvertent non-disclosure does not automatically require discharge. The failure concerning the approved transaction was regrettable but not sufficiently serious or material to undermine the dissipation case or justify that ultimate sanction.
5. The investigation could develop and alter its focus as further material became available. That did not make the original order unlawful or make its continuation erroneous. The public interest in preventing the United Kingdom becoming a safe place for suspected criminal assets supported maintaining the order.

• Court of Appeal (Criminal Division): Dismissed the appeal and upheld the refusal to vary or discharge the restraint order: [2016] EWCA Crim 96.
• Crown Court at Blackfriars: His Honour Judge Peter Clarke QC made the restraint order without notice on 5 March 2015 and, on 7 August 2015, refused to discharge it and continued it for a limited period.