World Uyghur Congress, R (on the application of) v Secretary of State for the Home Department & Ors

Judicial review of law-enforcement decisions to investigate alleged forced-labour imports and money laundering is highly restrained. The court may intervene for an error of law, but the relevant authority must direct itself correctly and exercise its judgment lawfully.

Under section 1 of the Foreign Prison-Made Goods Act 1897, the enforcement officer must decide, on the balance of probabilities, whether the particular goods examined were made wholly or partly in a foreign prison. Circumstantial evidence is admissible, but evidence of general risk does not prove that particular goods were prison-made.

Under the Proceeds of Crime Act 2002, criminal or recoverable property must be specifically connected with the relevant criminal or unlawful conduct. A general evidential picture cannot alone justify the statutory offences or civil recovery powers.

The claimant, a non-governmental organisation concerned with abuses against Uyghurs and forced labour in cotton production in the Xinjiang Uyghur Autonomous Region, sought judicial review of decisions by the Secretary of State, HMRC and the National Crime Agency.

The claim concerned four grounds. The first two alleged an unlawful interpretation and fettering of discretion under section 1 of the Foreign Prison-Made Goods Act 1897, supported by customs seizure powers. The remaining grounds alleged misdirections concerning criminal investigations under Part 7 and civil recovery under Part 5 of the Proceeds of Crime Act 2002.

The central issues were whether the defendants wrongly required evidence linking particular consignments to particular criminal conduct, and whether they had unlawfully treated investigation as requiring prior identification of specific criminal property.

1. Outcome. All four grounds failed. Relief was refused.
2. Judicial review. Decisions whether to investigate are subject to review for legal error, but intervention is justified only in a wholly exceptional case on its legal merits. The defendants nevertheless had to direct themselves correctly in law and act lawfully, in accordance with Bermingham and Corner House.
3. Foreign prison-made goods. Section 1 of the Foreign Prison-Made Goods Act 1897 places the burden on the enforcement officer and requires proof on the balance of probabilities that the particular goods being examined were made or produced wholly or partly in a foreign prison. It is unnecessary to identify the particular prison. Circumstantial evidence may be considered, but evidence of general prevalence or risk does not establish that the particular goods were prison-made. The defendants’ approach was legally sound.
4. Policy and fettering. The Border Force subject-area note was an information note and aide-memoire, not a policy in the public-law sense. In any event, even if treated as a policy, its reactive wording did not unlawfully fetter discretion. It did not exclude exceptions or prevent the use of customs powers where appropriate.
5. Part 7 of POCA. Sections 327, 328 and 329 require specific proof that identified property was criminal property within section 340, including that it constituted or represented a person’s benefit from criminal conduct and that the alleged offender knew or suspected that fact. The undisputed evidence of forced labour and wider supply-chain risk did not provide the necessary specific proof. Section 328 also required the relevant additional mens rea. Section 329 was further affected by the objective adequate-consideration defence in section 329(2)(c), as explained in Hogan.
6. Part 5 of POCA. The lower civil standard of proof did not remove the need to show that the particular property was obtained through unlawful conduct. Section 241A did not justify treating general evidence of human-rights abuses as sufficient without a specific connection to the property.
7. The defendants had considered the claimant’s material and had not closed their minds to future intelligence. Their conclusions disclosed no misdirection of law.