National Crime Agency, Re

Section 357(2) of the Proceeds of Crime Act 2002 prevents an application for a disclosure order that is in relation to a detained cash, detained property or frozen funds investigation. The words “in relation to” focus on the type and purpose of the applicant’s investigation, assessed in its statutory context. They do not ordinarily extend to an application merely because the same persons, accounts or information feature in a concurrent excluded investigation.

A disclosure order sought for a genuine money laundering investigation may therefore cover accounts subject to account freezing orders in a separate frozen funds investigation. The prohibition applies where the application is intended or calculated to circumvent the absence of disclosure-order powers for the excluded investigation.

The National Crime Agency applied to the Crown Court under section 357 of the Proceeds of Crime Act 2002 for a disclosure order in a money laundering investigation. Some of the bank accounts also formed part of a concurrent frozen funds investigation conducted by the City of London Police and were subject to account freezing orders.

The Crown Court accepted that the statutory requirements for a disclosure order were satisfied, but restricted the order so that it did not apply to any account subject to an account freezing order. The NCA appealed by way of case stated. The central issues were whether the appeal was within the High Court’s jurisdiction and whether section 357(2) prohibited the order to the extent that it concerned accounts involved in the separate frozen funds investigation.

1. Jurisdiction. The appeal by way of case stated was competent. Although Loade v Director of Public Prosecutions [1990] 1 QB 1052 concerned an interlocutory ruling in ongoing criminal proceedings, the present application for a disclosure order was itself the proceeding. The Crown Court’s decision was a final determination in the relevant statutory context. A disclosure order made or refused under section 357 was ordinarily appealable on a point of law under section 28(1) of the Senior Courts Act 1981 where an application to vary or discharge was unavailable or no longer available.
2. Construction of section 357(2). The phrase “in relation to” is a phrase of connection whose scope depends on statutory context. Section 357(2) requires attention to the type of investigation to which the application relates, rather than to the target, by-product or possible effects of that investigation. The statutory context included the distinction between money laundering investigations and excluded investigations, but that distinction was not decisive because civil recovery investigations remain within the disclosure-order regime.
3. Concurrent investigations. A money laundering investigation remains distinct from a frozen funds investigation even where they concern the same persons or company, overlap in accounts, involve cooperation or may lead to information sharing. The mere existence of a concurrent detained cash, detained property or frozen funds investigation, or of account freezing orders, does not itself restrict the scope of a disclosure order sought for an investigation permitted by section 357(3).
4. Anti-circumvention limit. An application would fall within section 357(2) if it were intended or calculated to circumvent the lack of power to obtain a disclosure order for an excluded investigation. That was not the position here: the application was directed to advancing the NCA’s own money laundering investigation. The Crown Court judge therefore erred in treating the investigations as unable to coexist and in appending the restriction to the order.
5. The appeal was allowed. The first question in the case stated was answered in the negative. The second question was too general to admit of a useful answer and was not answered.

• Crown Court: Judge Medland QC accepted that a disclosure order should be made but restricted it so that it did not apply to any bank account subject to an account freezing order.
• High Court (Administrative Court): The appeal was allowed. The restriction was held not to be required by section 357(2) of the Proceeds of Crime Act 2002.