National Crime Agency v Yaqub Younis & Anor

For a property freezing order, the court may proceed where there is a good arguable case that the property is recoverable property or associated property. This is a relatively low threshold. It requires more than an argument barely capable of serious consideration, but does not require a better than 50 per cent prospect of success.

A statutory presumption that property is recoverable may independently satisfy the threshold where an unexplained wealth order has not been complied with and no reasonable excuse is established. The court must also consider dissipation risk and whether interference with Convention rights is justified and proportionate.

The National Crime Agency applied for a final property freezing order under section 245A of the Proceeds of Crime Act in respect of 14 properties connected with an unexplained wealth order previously made under section 362A. The order required the first defendant, personally and as a responsible officer of the second defendant, to provide information and documents. Neither defendant complied.

The court first rejected an application for further time. It then considered whether the statutory presumption arising from non-compliance applied, whether the evidence independently established a good arguable case, whether there was a risk of dissipation, and whether the proposed order was a proportionate interference with Convention rights.

The property freezing order was made.

1. The statutory threshold under section 245A of the Proceeds of Crime Act was satisfied. The properties were capable of being recoverable property, and the statutory presumption under section 362C applied because the unexplained wealth order had not been complied with.
2. No reasonable excuse for non-compliance had been established. The first defendant provided no excuse. The company relied substantially on his absence, but the evidence disclosed insufficient and inadequately particularised attempts to obtain the required information from him or from other persons connected with the company. The presumption therefore remained operative, and there was no evidence rebutting it under section 362C(2).
3. Independently, the evidence established a good arguable case. The test required more than an argument barely capable of serious consideration, but not a better than 50 per cent chance of success, applying the approach explained in The Niedersachsen. Taking the evidence globally, the court was satisfied that the properties were or might represent property obtained through unlawful conduct, including possible money laundering and mortgage fraud.
4. The court also found evidence of a real risk of dissipation. Relevant factors included multiple bank accounts, layering of money, bullion transactions, the first defendant’s absence and apparent involvement in the company, the value of the portfolio, and the fact that several properties were unencumbered.
5. The court exercised its discretion to grant the order. The application pursued a legitimate public-interest and statutory purpose. Any interference with rights under Article 8 and Article 1 of Protocol 1 of the European Convention on Human Rights was proportionate, particularly because less intrusive means could not achieve the necessary protective objective.