National Crime Agency v Hussain & Ors

Applications for unexplained wealth orders are subject to a strong presumptive starting point of determination in private, particularly where made without notice. The court must nevertheless consider the circumstances of each case and the requirements of open justice.

For a UWO, reasonable grounds to believe or suspect do not require proof of the underlying fact. The respondent’s belief or suspicion is assessed subjectively, while the reasonableness of the grounds is objective. The statutory concept of involvement in serious crime is broad and may include conduct likely to make the commission of a serious offence easier.

An interim freezing order requires necessity to avoid frustration of a possible civil recovery order and must be proportionate to that risk.

The National Crime Agency applied without notice for an unexplained wealth order under Part 8 of the Proceeds of Crime Act 2002 against Mansoor Mahmood Hussain. It also sought an interim freezing order against him and six companies controlling properties connected with the application.

The applications concerned alleged unexplained wealth and suspected involvement in serious crime, including money laundering and facilitating organised criminality. The court considered whether the applications should be heard in private, the statutory requirements for a UWO, and whether an IFO was necessary to prevent the frustration of future civil recovery proceedings.

1. Privacy. Open justice was the constitutional starting point. Under CPR r 39.2(3), however, a hearing had to be held in private where that was necessary to secure the proper administration of justice and one or more specified circumstances applied. The statutory and practice-direction framework for UWOs established a strong presumptive starting point that applications would be made without notice and heard in private. That presumption remained subject to close consideration of the facts of each case.
2. The court accepted that publicity could defeat the object of the applications, expose confidential and personal financial information, create unfairness to a respondent who had not been heard, and prejudice an ongoing investigation. CPR r 39.2(3)(a), (c), (e) and (g) were engaged. A separate balancing exercise between Articles 8 and 10 of the ECHR was unnecessary on the facts, and reporting restrictions would not have provided sufficient protection.
3. UWO requirements. The Holding, Value, Income and Serious Crime Requirements under section 362 B of the Proceeds of Crime Act 2002 were satisfied. “Reasonable grounds to believe” involved a subjective belief that was supported by objectively reasonable grounds. It was unnecessary to prove that the respondent held the property. “Reasonable suspicion” similarly concerned a subjective state of mind supported by objectively reasonable grounds and did not require prima facie proof.
4. The concepts of holding and obtaining property extended to effective control and interests in property. The statutory assumptions concerning market value and available security applied to the Income Requirement. Involvement in serious crime was not confined to committing or actually facilitating an offence. Conduct likely to facilitate the commission of a serious offence was sufficient, and “facilitate” should be given its broad ordinary meaning of making easier.
5. The court was satisfied that the statutory requirements were amply met. The UWO was a legitimate and proportionate information-gathering measure, narrower alternatives were inadequate, and statutory safeguards protected privileged material, criminal use of responses and reasonable excuses for non-compliance.
6. IFO. The statutory conditions for an interim freezing order were met. There was a clear risk that property would be transferred or otherwise dissipated, and freezing all relevant properties was proportionate because the evidence indicated that dissipation of one property could lead to substitution with another.
7. The court therefore ordered the UWO against Mr Hussain and the IFO against him and each of the six corporate respondents.

First-instance decision of the High Court (Administrative Court). The judgment records that the applications were made without notice and that the orders were made at the conclusion of the hearing on 12 July 2019.