World Uyghur Congress, R (on the application of) v National Crime Agency

Law-enforcement bodies have broad discretion over whether to investigate, and courts should intervene only exceptionally. That restraint does not permit a decision-maker to misdirect itself in law.

An investigation under Part 7 or Part 5 of the Proceeds of Crime Act 2002 may begin before specific criminal or recoverable property is identified. The exemption in section 329(2)(c) is personal to the purchaser and does not alter the status of property. Adequate consideration does not by itself prevent property from remaining criminal or recoverable property, although the separate conditions in section 308 may do so.

The World Uyghur Congress sought judicial review of decisions by the National Crime Agency and other law-enforcement bodies not to investigate cotton products imported from the Xinjiang Uyghur Autonomous Region, alleged to be connected with forced labour and human-rights abuses.

The appeal was confined to whether the NCA had misdirected itself in law when declining to investigate alleged money-laundering offences under Part 7 of the Proceeds of Crime Act 2002 or to commence a civil-recovery investigation under Part 5. The appeal was brought from the judgment of Dove J, reported at [2023] EWHC 88 (Admin).

1. Appeal allowed. The NCA’s decision was quashed and the question whether to investigate under Parts 7 or 5 of the Proceeds of Crime Act 2002 was remitted to the NCA for reconsideration.
2. The court applied the approach in R (Corner House Research) v Serious Fraud Office [2008] UKHL 60. Courts should be slow to interfere with decisions of independent prosecutors and investigators because the powers are entrusted to them, involve polycentric policy and public-interest judgments, and are expressed in broad terms. The restraint is not unfettered: the decision-maker must direct itself correctly in law.
3. On a natural reading of the decision letter, the NCA had treated the identification of specific criminal property and criminal conduct as a prerequisite to a proper POCA investigation. That was a clear legal error. An investigation may be commenced to discover whether those matters exist. The definition of a civil-recovery investigation in section 341(2) expressly includes investigation into whether property is or has been recoverable property.
4. Under section 340, criminal property is a fluid concept which depends partly on the alleged offender’s knowledge or suspicion. Section 329(2)(c) is a personal exemption from liability. It does not cleanse property or change its status. The court disapproved the erroneous obiter comment in Hogan v DPP [2007] EWHC 978 (Admin); [2007] 1 WLR 2944.
5. Adequate consideration does not prevent criminal or recoverable property from being traced through a supply chain. R v Afolabi [2009] EWCA Crim 2879 was properly explained as concerning a bona fide purchaser for value without notice, where section 308 caused the property to cease to be recoverable. The Judge had therefore erred in treating adequate consideration under section 329(2)(c) as capable of breaking the chain.
6. These errors were material. The decision letter conveyed both propositions, and the NCA accepted that they were legally wrong. The decision was accordingly unlawful.

1. Court of Appeal (Civil Division): appeal allowed. The NCA’s decision was quashed and reconsideration was remitted to the NCA.
2. High Court of Justice, King’s Bench Division, Administrative Court: Dove J considered the judicial-review challenge in [2023] EWHC 88 (Admin) and concluded that there was no relevant legal error in the NCA’s approach. The matter was appealed to the Court of Appeal.