Michal Wieromiejzyk & Anor v The Director of Public Prosecutions

On an external request from an EU member state for a restraint order, the Crown Court must scrutinise the request and determine whether the conditions in Article 7 of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 are met from the information supplied. It must then exercise its discretion consistently with the objectives of the Trade and Cooperation Agreement.

Subject to that threshold assessment, Article 689(2) of the Agreement prevents the requested state from examining the substantive basis, necessity or proportionality of the foreign freezing measure. Such challenges must be pursued in the requesting state. The Agreement did not disapply Article 7 in this case, and the domestic powers to make, vary or discharge restraint orders can be exercised consistently with it.

Following requests by the Republic of Poland, the Southwark Crown Court made restraint orders over cryptocurrency accounts held in London. The requests related to a Polish criminal investigation and alleged that the accounts contained proceeds of criminal conduct.

The applicants sought discharge of the orders. On 22 September 2023, Judge Baumgartner dismissed their application. They applied for leave to appeal, principally attacking the legality of the Polish investigation and freezing orders and contending that the statutory conditions, necessity and proportionality requirements were not met.

The central issue was the extent to which the Crown Court could examine the substantive basis of a foreign provisional measure under the post-Brexit regime.

1. The application for leave to appeal was dismissed. The applicants’ primary complaints were collateral challenges to the substantive reasons for the Polish freezing orders. Article 689(2) of the Trade and Cooperation Agreement barred such a challenge in the English courts. The Polish measures were independent judicial decisions which the English courts had to respect. A challenge to their validity, including necessity and proportionality, had to be made in Poland.

2. The court accepted that an extreme and exceptional case involving a total denial of justice, access to justice or fundamental rights might potentially engage Article 656(3) or the Crown Court’s abuse of process jurisdiction. No evidential basis existed for such a case here.

3. The Court of Appeal held that the conditions in Article 7 of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 remained applicable. The Crown Court must assess those conditions by reference to the information in the external request. That assessment is not a prohibited challenge to the foreign measure’s substantive reasons.

4. The court rejected the former Court of Appeal view that section 29 of the European Union (Future Relationship) Act 2020 automatically gave the Agreement unqualified supremacy over domestic law. That view had been rejected by the Supreme Court in Lipton v BA City Flyer Limited [2024] UKSC 24. There was no conflict requiring Article 7 to be modified or overridden in this case.

5. Articles 8(1) and 9(4) confer broad discretionary powers, but neither requires the Crown Court to reconsider the foreign authority’s substantive justification. The judge correctly found relevant property, reasonable grounds to suspect criminal benefit, and dual criminality from the material in the requests. His refusal to discharge the restraint orders was unassailable.

6. The court granted permission for the judgment to be cited because this was the first known Court of Appeal case concerning a post-Trade and Cooperation Agreement external request for a provisional measure under the 2005 Order.

• Court of Appeal (Criminal Division) The applicants’ application for leave to appeal was dismissed: [2024] EWCA Crim 1486.
• Southwark Crown Court On 22 September 2023, Judge Baumgartner dismissed the applicants’ application to discharge the restraint orders. No citation was stated.
• Southwark Crown Court On 11 November 2021, restraint orders were made following an external request from the Republic of Poland.