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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> The Serious Fraud Office v Saleh [2015] EWHC 2119 (QB) (21 July 2015) URL: https://www.bailii.org/ew/cases/EWHC/QB/2015/2119.html Cite as: [2015] Lloyd's Rep FC 62, [2015] WLR(D) 368, [2015] EWHC 2119 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| THE SERIOUS FRAUD OFFICE |
Claimant |
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| - and - |
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IKRAM MAHAMET SALEH | Respondent |
____________________
Helen Malcolm QC and Nicholas Yeo (instructed by Stephenson Harwood) for the Defendant
Hearing dates: 8 and 9 July 2015
____________________
Crown Copyright ©
Mrs Justice Andrews:
THE APPLICATION
Saleh")
was the owner of the GEI shares. She acquired them in September 2009 for the sum of Can$0.001 per share (Can$800 or £454.40 in total) as part of a private placement, in the circumstances more particularly described later in this judgment.
Saleh
and others connected to senior diplomatic staff at the Chadian Embassy in Washington DC that were entered into by GEI in order to promote its commercial interests in Chad. At that time, GEI was seeking to secure development rights over two oil blocks in Chad.
Saleh
is the wife of Youssouf Hamid Takane (Mr Takane") who was at all material times the Deputy Chief of Mission for Chad in the USA, also based at the Embassy in Washington. Mr Takane left that post at some point between August 2014 and 18 March 2015. There is no evidence as to what has become of him since.
i) The Claimant ("the SFO") cannot establish that the shares (and thus the money representing them) are "property obtained through unlawful conduct", and therefore recoverable property under ss.304 and 305 of POCA, because there has been a binding determination in Canadian forfeiture proceedings (consequential on Canadian criminal proceedings against GEI) that the GEI shares were neither crime related proceeds nor offence related property but were at all times from the date on which they were issued to MrsSaleh
her property lawfully acquired by her. The relevant Order of the Canadian court, made on 16 April 2014, ("the Order") is expressed to operate as a judgment in rem.
ii) The SFO is unable to satisfy the "dual criminality" requirements of s.241 of POCA by establishing that the behaviour complained of is not only an offence under the law of the foreign jurisdiction concerned (Canada and/or the USA) but would have been an offence under the laws of a part of the UK if it had occurred there;
iii) The PFO was obtained by material non-disclosure.
Saleh's
application to discharge the PFO that she was and is subject to diplomatic immunity as the spouse of a serving diplomat, Miss Malcolm QC, who together with Mr Yeo represented Mrs
Saleh
on this application, realistically accepted that Mrs
Saleh
(a Canadian national) has never had diplomatic immunity in this jurisdiction or in Canada, and it appears that by 18 March 2015 at the latest she ceased to enjoy any diplomatic immunity that she may have had in the USA. Consequently, the highest that Miss Malcolm could put her case is that the SFO would not be entitled to rely upon any evidence obtained in the USA in violation of the Vienna Convention on Diplomatic Relations 1961 at the time when Mrs
Saleh
did have immunity. At this stage of the proceedings that argument was not developed before me, and for the purposes of the present application I assumed in Mrs
Saleh's
favour that in due course it might find favour with the Court and result in the exclusion of that evidence.
Saleh
failed in her primary contention that the matter is res judicata, in order to continue the PFO the Court would have to be satisfied that there is sufficient admissible evidence besides that which is alleged to be inadmissible to give rise to a good arguable case that the shares and their proceeds are "recoverable property". For reasons that I shall explain in due course, I am so satisfied.
Saleh
has no defence to its related claim for a Civil Recovery Order ("CRO") in respect of the money; however Mrs
Saleh
wishes to have the opportunity to serve further evidence. Since the two matters are inextricably linked, on 1 July 2015 Deputy Master Knapman made an order transferring the Part 8 Claim for the CRO from the Administrative Court to the Queen's Bench Division. The Part 8 Claim has been listed for directions to be given immediately following my determination of the application to discharge the PFO.
BACKGROUND HISTORY
Saleh,
Mrs Niam and a man named Hassan (a former religious teacher of the children of Mr Bechir and Mrs Niam) simultaneously subscribed for a total of 4 million "founders' shares" in GEI, ostensibly as part of a private placement of 40 million common shares at the nominal price of 1 Canadian cent each. Each of the three signed subscription agreements was accompanied by payment for the shares.
Saleh
and Mr Hassan were nominated by Mrs Niam to acquire a total of 2,400,000 founders' shares in GEI on the same terms as those that she acquired. 1,600,000 shares were allotted to Mr Hassan; the remaining 800,000, the GEI shares whose proceeds are frozen by the PFO, were allotted to Mrs
Saleh.
Mrs
Saleh's
payment for the GEI shares was made by means of a Western Union money transfer of US$745, the equivalent of Can$800 at the time. The share subscription agreement relating to Mr Hassan's shares was signed by Mr Bechir, as was the Western Union money order paying for the shares in Mr Hassan's name.
Saleh's
subscription offer on 24 September 2009 and the share certificate was issued to her on 1 October. It was kept at GEI's registered office until 6 September 2011 when it was couriered to her at her request. On 3 October 2011 the share certificate was deposited with Canaccord Wealth Management ("Canaccord"), a division of Canaccord Genuity Corp, in Vancouver.
Saleh
and Mr Takane, the board of GEI made the decision that GEI should voluntarily report itself to the Canadian law enforcement authorities. Thereafter GEI co-operated fully with investigations by the police in Canada ("the RCMP"), even to the extent of waiving privilege over communications with its former external legal advisers. It was accepted by the Public Prosecuting Service of Canada ("PPSC") that they would not have unearthed the corruption had it not been for GEI's self-reporting, and this made them amenable to entering into a plea bargaining arrangement with GEI.
THE CANADIAN CRIMINAL PROCEEDINGS
Saleh
and Mr Hassan under s.490.1 of the Criminal Code of Canada ("the Code") as being the proceeds of crime under s.462.37 of the Code and "offence related property". "Offence related property" has a wide definition in s.2 of the Code, which includes any property, within or outside Canada, by means or in respect of which an indictable offence under the Corruption of Foreign Public Officials Act is committed, or that is used in any manner in connection with the commission of such an offence.
Saleh
and Mr Hassan were not parties to the Agreed Statement of Facts. The judge was alive to this point. At the sentencing hearing he said to prosecuting counsel and counsel for GEI:
"It may well be, I don't know, that some of these people have a different view of the facts than you folks have agreed to. So there has to be an effective means of providing notice to them before the Court grants a relief against them."
Saleh
and Mr Hassan were part of that [unlawful compensation]. However, Ms Robidoux understood that was the very nature of the application that the prosecutor planned to bring, and GEI would be taking no position on that.
THE CANADIAN FORFEITURE PROCEEDINGS
Saleh
and Mr Hassan on the stated basis that "providing the ability to acquire founder shares in GEI was a direct or indirect reward, advantage or benefit given to a public official to induce the official to use his or her position to influence any acts or decisions of the foreign state
for which the official performs duties or functions."
Saleh
was based on the role played by her husband Mr Takane in endeavouring to ensure that GEI was successful in obtaining the relevant contract(s) in Chad. It was the prosecution case that she was being rewarded as an incentive to him, in the same way as Mrs Niam was receiving a "consultancy fee" via Chad Oil, plus the shares in GEI, as an incentive to her husband to use his influence with the Chad Government to smooth GEI's path.
Saleh
and Mrs Niam. That was the first occasion on which they appeared by counsel in the Canadian proceedings. The only defence that was then put forward by Mrs
Saleh
(by Motion served on the same date) was that the Gowlings investigation had disregarded Mrs
Saleh's
diplomatic status and that her property was protected from seizure under the Vienna Convention 1961. It is apparent from the transcript that the hearing on 7 August was a directions hearing, at which the topic that probably occupied the most time was disclosure.
Saleh
and Mrs Niam sought disclosure of what the judge was later to describe as "all the information the Crown has in respect to the prosecution of [GEI]." Of course some of that information was legally privileged material over which GEI had waived privilege in favour of the Crown, but only for the purposes of the prosecution. The judge stood the matter over to see if it could be resolved without his needing to make a ruling. The PPSC subsequently provided some disclosure voluntarily, including disclosure of the statements Mrs
Saleh
had made to the Gowlings investigators and copies of certain correspondence, but disputed that it had any obligation or requirement to make disclosure to third parties. Mrs
Saleh
and Mrs Niam contended that the voluntary disclosure was inadequate.
Saleh
had filed a notice of motion seeking an order quashing and dismissing the forfeiture application in respect of her GEI shares, inter alia on the basis that the evidence upon which the PPSC sought to rely was inadmissible because it had been obtained in violation of the rules of the Vienna Convention. The complaint was made that the inadmissible evidence had been used to obtain the Management Order. A further point that Mrs
Saleh's
counsel sought to argue was that it was impermissible to seek forfeiture of her interests if she had not been joined in a lawful criminal prosecution.
Saleh
and Mrs Niam by letter that the Crown would be withdrawing the applications for forfeiture against them both. The letter said that Mr Rodych (prosecuting counsel) "will take appropriate steps to formalize that decision through filing notice on the record or addressing the matter before the court on April 16, 2014." The reasons for that decision were not, and still have not been, explained.
Saleh
and Mrs Niam would have representations to make regarding the shares that had been seized. Mr Beresh QC, counsel for Mrs
Saleh,
then put a draft order before the court, which was not a consent order but which Mr Rodych had signed to signify his approval of its form, and asked the court to consider it. Mr Rodych said, in answer to a question by the judge, that he did not oppose the order. He added "there's matters in there that are beyond my capacity but I don't take issue with and I leave it to the court to make an order in that respect."
"Okay. The only thing I was questioning was the
I suppose I can get around it, in the sense that whereas no evidence has been presented by the Queen upon which I could find in favour of the
the 490 has been satisfied; therefore, appearing that
Saleh
is innocent of any complicity.
All right, that's just a recital, in any event."
Saleh's
shares. That recital reads as follows:
"AND WHEREAS no evidence has been presented by the Applicant, Her Majesty the Queen, in the Right of Canada, upon which this Honourable Court could conclude in favour of the Applicant that section 490.5(4) has been satisfied and it therefore appearing that Ikram Mahamet
Saleh
is innocent of any complicity in any indictable offence that resulted in the RCMP seizure of her shares in [GEI] or that the said
Saleh
shares in [GEI] were likely to have been used in connection with the commission of an unlawful act by either Ikram Mahamet
Saleh
or by [GEI]" [emphasis added].
Saleh.
If there was no evidence before the court that s.490.5(4) had been satisfied, the court would not be satisfied that the conditions had been made out for granting an applicant any relief under that subsection. The mistake cannot be cured by changing the phrase to "had not been satisfied". Quite apart from the double negative that this would produce, the evidential burden under s.490(5)(1) plainly lies on the third party applicant to satisfy the court that an order should be made under subsection (4) despite the fact that the property is already subject to a forfeiture order. No factual evidence had been adduced by Mrs
Saleh.
Saleh
have been satisfied. Despite this, I have been unable to find a means of substituting s.490.4(3) for s.490.5(4) without re-writing the entire recital. This Court cannot act as if it were a court of appeal from the foreign court; the most that I can do is try to give the recital a sensible interpretation.
Saleh
was innocent of complicity or collusion in relation to the offence committed by GEI. Interpreted in that way, the recital is recording that the statutory prerequisites for discharging the Management Order and making an order for the return of the shares to Mrs
Saleh
had been made out.
Saleh
in the terms requested, counsel for Mrs Niam, Mr James, told the judge that he did not believe the Order was properly granted under section 490.5 and that it was a different section. The judge responded "I didn't look at the section, so I assume you've had the order correctly". Mr James then said that "the effect was the same". I can understand why he said that, because Sections 490.4(3) and 490.5(4) are two routes to achieving broadly the same objective the recognition of the primacy of the interests of the lawful owner of property that has been seized in proceedings for forfeiture premised on the same circumstances, namely, that the owner appears to be innocent of complicity or collusion in the wrongdoing. That exchange suggests to me that at the hearing everyone was focusing on the objective of getting the shares released to Mrs
Saleh
and Mrs Niam, and nobody was particularly concerned about whether the mechanism used to achieve it was accurately reflected on the face of the Order. In the event, nothing was done to correct the mistake.
Saleh.
Thus far it is uncontroversial. It is paragraph 3 of the Order which is of paramount importance in this application, because that contains the "adjudication" relied upon by Miss Malcolm as giving rise to an estoppel. It provides as follows:
"IT IS FURTHER ORDERED AND ADJUDGED THAT
This Order/Judgment of this Court is to be construed as a judgment in rem, in that the 800,000 common shares issued by [GEI] (now Caracal Energy Inc) to the Respondent, Ikram Mahamet
Saleh,
are neither crime related proceeds nor offence related property but were, at all times from the date those shares were issued to her, continuously to and beyond the date of this Order/Judgment, her property lawfully acquired by her."
Saleh
Order. It merely recites the Management Order, vacates that order and directs the RCMP or whoever holds the share certificates to return them forthwith.
HOW THE SFO BECAME INVOLVED
Saleh's
shares. I understand from Mr Mitchell that their position may well have changed, now that Mr Takane is no longer in the Embassy in Washington DC.
Saleh
under Part 8 of the CPR and taking steps to obtain the PFO in respect of the proceeds of sale of her GEI shares. It was unaware of the existence of the Order of 14 April 2014 when it made the without notice application for the PFO to Mostyn J. However the witness statement made in support of the application by the SFO solicitor, Stacey Barnes, stated at paragraph 5.1 that the Canadian authorities seized these physical share certificates for forfeiture in February and March 2013 but withdrew their action and released the shares. That is a sufficiently accurate description of what happened, albeit that there is no mention of the Order, and strictly speaking it was the Canadian court that released the shares.
Saleh).
The Order was very properly drawn to the Court's attention by Ms Barnes in a further witness statement dated 3 September 2014, to which it was exhibited together with the transcript of the hearing in the Canadian criminal proceedings on 22 January 2013. Given that the Order came to light in the course of the summer vacation, and it was obviously appropriate that the same judge who granted the PFO should see the further evidence and decide what to do about it, I do not consider that the SFO should be criticised about the time it took them to put the information before the Court.
Saleh
to apply to vary or discharge it.
THE MERITS OF THE CLAIM FOR A PFO
Saleh
herself, and she objects to the statement taken from her by Gowlings being used in evidence, on grounds of alleged violation of the protection afforded to her by the Vienna Convention at the time it was taken. Instead, she relies on a witness statement from her solicitor, Mr Ward of Stephenson Harwood, dated 10 December 2014. Mr Ward states that the facts in his witness statement are based on information and documents that he has been provided with by her Canadian lawyers. There is nothing in his witness statement dealing with Mrs
Saleh's
factual defence to the allegation that the opportunity given to her to buy the GEI shares was part of the corrupt incentives offered by GEI to Mr Bechir and/or Mr Takane.
i) GEI initially sought to provide a corrupt incentive to Mr Bechir by offering to pay a $2 million "consultancy fee" to his own company if they closed the deal;ii) When it was advised that this would be unlawful, GEI decided to provide the same corrupt incentive by an indirect route. The $2 million "consultancy fee" was now promised to Chad Oil, swiftly incorporated for that purpose as a vehicle for Mrs Niam.
iii) As an additional incentive to her husband, Mrs Niam was allowed to acquire founder shares in GEI at a nominal price. Those shares stood to be worth a huge amount of money if GEI got the deal that it wanted in respect of the oil blocks. Commercially, therefore, their acquisition was an even greater incentive than the "consultancy fee" would have been.
iv) The three offers by Mrs
Saleh,
Mrs Niam and Mr Hassan to subscribe for a total of 10% of the founder shares in GEI all happened on the same day as the first consultancy agreement with Chad Oil was made, 15 September 2009. This was no coincidence.
v) They were the only three "outsiders" who subscribed for founder shares; moreover, none of them had the level of income ostensibly required of an investor in GEI ($200,000) that they stated they had in the offer to subscribe;
vi) Mr Hassan and Mrs
Saleh
were nominated by Mrs Niam to receive some of the founder shares. It does not necessarily follow from this that they were "nominees" in the sense of holding the shares on her behalf or on behalf of Mr Bechir. However, one legitimate inference that could be drawn from this nomination is that the incentive offered to Mr Bechir came in the form of the opportunity for Mrs Niam to acquire a total of 10% of the shares in GEI not only for herself, but for anyone else that she might wish to benefit and nominate as the recipient;
vii) There are strong indicia that Mr Hassan was a nominee in every sense, not least the fact that Mr Bechir was instrumental in making the application in his name, and that Mrs Niam took so much trouble to get hold of his shares and eventually did so before the sale to Glencore.
viii) Mrs
Saleh
had no apparent reason to be interested in investing in GEI;
ix) Mr Takane, her husband, was plainly involved to some extent in furthering GEI's interests. He was instrumental in directing payment of the "consultancy fee" to Chad Oil, and in the creation and execution of the second Chad Oil Consultancy Agreement in January 2011, although that company was ostensibly a vehicle for Mrs Niam used as the route for paying the "consultancy fee" originally offered to her husband Mr Bechir.
x) Thus it could also be inferred that the acquisition of the shares by Mrs
Saleh
was an incentive to Mr Takane.
Saleh
and Mr Hassan were a part of the corrupt incentives provided by GEI, there is easily sufficient circumstantial evidence to raise a good arguable case that they were, and that the GEI shares are "recoverable property" as defined in POCA. It is unnecessary for the purposes of POCA to show that the person who is the lawful owner of the "recoverable property" was himself or herself guilty of any criminal offence. It seems to me that this would be a paradigm case for making a PFO, unless the SFO is unable to show that s.241 of POCA is satisfied, or the Order of the Canadian court compels this Court to reach a different conclusion.
DUAL CRIMINALITY
Saleh
in that State. On the evidence of Ms Barnes in support of the PFO the acquisition of or the allotment of the shares in GEI as a corrupt incentive would also have been a criminal offence under various provisions of US Federal law including 15 USC 78dd-3 (the Foreign Corrupt Practices Act), 18 USC 1341 (Mail Fraud) and 18 USC 1343 (Wire Fraud).
Saleh
was to be regarded as part and parcel of the same corrupt transaction involving the agreement to pay the consultancy fee to Chad Oil, and the allotment of the shares to Mrs Niam. GEI's conduct taken in the round, had it occurred in this jurisdiction in 2009, would have amounted to an offence of bribery at common law, since Mr Bechir and Mr Takane were both agents of the Chadian Government at the material time. Mr Mitchell contended that it would be as unlawful at common law for the briber to pay or provide the corrupt incentive to the agent's wife instead of the agent, or to a third person such as a company nominated by the agent or his wife to be the recipient, as it would be to provide it directly to the agent himself.
"If any person corruptly gives or agrees to give or offers any gift or consideration to any agent as an inducement or reward for doing or forbearing to do any act in relation to his principal's affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal's affairs or business he shall be guilty of a misdemeanour".
Saleh
might also have committed at least one act of money-laundering under ss 327-329 of POCA, since on SFO's case the shares were property obtained as a result of GEI's criminal conduct (and thus "criminal property" under Part 7 of POCA) and they were transferred by her from Canada to England for the purposes of being sold to Glencore, then converted into cash in England by reason of the sale. The transfer or the conversion of criminal property would both be acts of money-laundering. Of course Mrs
Saleh's
liability for money laundering in Canada and/or England would depend on her state of mind at the time of the transfer and sale respectively; she would have to have known or believed the property to be criminal property. If it was criminal property, however, in my judgment Mr Mitchell would not need to resort to money-laundering in order to establish that the matter was actionable in this jurisdiction.
Saleh
was indeed part and parcel of GEI's corrupt behaviour in 2009, (as there is a good arguable case that it was) it would have amounted to a criminal offence if GEI's behaviour had taken place in England.
RES JUDICATA
Saleh.
"[it] is a decision which establishes certain facts as proved or not in dispute; states what are the relevant principles of law applicable to such facts; and expresses a conclusion with regard to the effect of applying those principles to the factual situation concerned."
In the same case at 494A-C Lord Diplock, who agreed with Lord Brandon's conclusions and reasons, added that the moral overtones which the expression "on the merits" tends to conjure up may make it misleading. What it means in the context of judgments delivered by courts of justice is that the court has held that it has jurisdiction to adjudicate upon an issue raised in the cause of action to which the particular set of facts give rise, and that its judgment on that cause of action is one that cannot be varied, re-opened or set aside by the court that delivered it or any other court of co-ordinate jurisdiction.
Saleh's
legal team were able to find any authority addressing the status, in this context, of a judgment or order made by a court resulting from the decision made by a claimant to abandon or withdraw the claim either before or at the trial or substantive hearing. The nearest they got were what appear to be inconsistent decisions of the Supreme Court of Canada on the question whether the situation where the prosecution offers no evidence at a criminal trial or withdraws the case before any evidence is adduced, and the charge is dismissed, can give rise to an estoppel per rem judicatem. Those cases, R v Riddle (1979) 48 CCC (2d) 365 and R v Selhi [1990] 53 CCC (3d) 576 concerned the specific question whether the plea of "autrefois acquit" is available to a defendant in criminal proceedings in such circumstances, where the prosecution later seeks to prosecute him for substantially the same offence.
Saleh
is the lawful owner of the GEI shares (or was before they were sold to Glencore) is immaterial to the issues that I have to determine. Indeed the fact that she paid the asking price for the GEI shares and acquired the legal title to them in 2009 has never been a matter of controversy. The reason why her ownership of and title to those shares was a matter of any concern in the forfeiture proceedings was that only the owner could sell them. Mrs
Saleh
could not participate in the sale to Glencore whilst there was any danger that they might be forfeited to the Canadian authorities.
Saleh's
shares) at a stage in the proceedings after interim steps had been taken to stop their disposal (the Management Order) but before the Canadian Court heard the claim for forfeiture, or even heard the motion to dismiss it. The forfeiture proceedings had been going on for over a year, but the only matters that had been dealt with during that time were of an essentially interlocutory nature, and the hearing at which the Order was put before the judge was not the hearing of the substantive claim (or of the motion for dismissal). There was no necessity for such a hearing, as the prosecution withdrew its claim.
Saleh
in order that they could be replaced by Caracal shares, which could then be sold on to Glencore as part of the buy-out of GEI/Caracal.
Saleh
was innocent of collusion in or complicity in GEI's criminal conduct and thus the preconditions in the Code for making an order in those terms had been met. As Mr Beresh rightly told the learned judge, that repeated the language of the Code. Although the Order correctly records that the court heard representations from all the parties, it is not a ruling on the evidence or the competing legal arguments. Moreover, although the Order was not made by consent, it was unopposed, and prosecuting counsel went so far as to agree its terms and to sign the draft to signify this. In this specific context, its nature was not materially different from a consent order, which would not be a judgment "on the merits".
Saleh.
Above and beyond making it clear to anyone who might be concerned about it that she had title to the shares, and could confer clean title on a purchaser, the Court was not seeking to achieve a final ruling on their status that would bind the whole world.
Saleh
shall be entitled to provide a certified copy of the Order to Caracal Energy Inc's transfer agent and registrar, or to CIS when she surrenders her share certificates "evidencing her ownership of common shares in [GEI] (now Caracal Energy Inc) in exchange [for] share certificates to be issued by Caracal Energy Inc." The declaration by the Court that Mrs
Saleh
is (and was at all material times) the lawful owner of the shares is therefore part and parcel of the mechanism designed to facilitate the exchange of the GEI shares for Caracal shares, so as to enable the Glencore acquisition to proceed. There was understandable concern that the registrar would not have gone ahead with issuing substitute Caracal shares to Mrs
Saleh
if there remained any possibility that someone other than Mrs
Saleh
would acquire title to them through the mechanism of the forfeiture proceedings.
Saleh
was entitled to the return of the shares. That cannot be right. It was unnecessary for the court to pronounce upon that matter in order to achieve the objective of transferring the shares back to Mrs
Saleh
so that she could sell them, because, even if the shares were offence related property, the fact she appeared innocent of complicity or collusion in GEI's criminal inducements to Mr Bechir and/or to her husband, Mr Takane, would have been sufficient for an order to have been made for their transfer back to her under s.490.4(3) of the Code.
Saleh
because, to the extent that it was an issue in the forfeiture proceedings, it was only an issue that arose between them. It was for the prosecution to prove that the requirements of s.490.1(1) of the Code were satisfied; but the Code is domestic Canadian legislation and these were domestic forfeiture proceedings. Therefore what was said in paragraph 3 of the Order on that subject cannot be interpreted as a declaration of the status of the shares that was intended to be binding on the world at large. That was not the function that the Canadian court was being asked to perform or purporting to perform by making such an Order.
Saleh
herself). I respectfully disagree with that analysis. Those two expressions are terms of art used and defined in Canadian legislation for the purposes of that legislation. An Order that they are not "offence related property" is self-evidently not the same thing as a declaration that they are not "recoverable property" as defined by POCA. To the extent that there has been any adjudication about their "status", above and beyond declaring who their lawful owner is, it goes no further than a final ruling that the shares cannot be forfeited by the authorities in Canada.
Saleh
(or possibly, anyone deriving title through her who might be regarded as "privy" for the purposes of res judicata/issue estoppel arguments).
Saleh
to nominate two other people to receive them. The focus in England, under POCA, is on whether there was a causal connection between Mrs
Saleh
obtaining the shares and GEI's criminal conduct, and not on the use to which the shares themselves were put by GEI or the role they played in GEI's offending. Therefore, there is not necessarily an irreconcilable conflict between the underlying fact-findings inherently encompassed in the relevant parts of paragraph 3 of the Order and the facts that the SFO would need to prove in order to obtain a PFO or CRO in the proceedings in this jurisdiction.
ALLEGED MATERIAL NON-DISCLOSURE
Saleh
had been truly concerned about non-disclosure, it seems likely that her legal team would have acted more swiftly to have the PFO set aside.
Saleh's
likely defence of which it was actually aware, but to make reasonable inquiries of the PPSC to find out why it was that, after over a year, they had decided not to go ahead with the forfeiture claim. Although Miss Malcolm acknowledged that there was a degree of urgency involved in seeking a PFO, the SFO was not operating under such time constraints as to make these inquiries impracticable.
Saleh
or her legal advisors to know what those reasons were.
Saleh's
perspective would be if the reason was that the view was taken by their legal advisors in Canada that the Canadian prosecutors could not prove the claim against her without resorting to inadmissible evidence, (as Miss Malcolm contended was highly likely). However even if I were to assume that to have been the reason, it does not mean that there would have been no justification for granting a PFO in this jurisdiction the position here is that there is ample evidence besides that which is challenged as having been obtained in breach of the Vienna Convention, to raise a good arguable case on the underlying claim for a CRO.
Saleh's
motion to dismiss, but five months thereafter, and some two months after the judge had made a ruling in principle on contested issues of disclosure that was adverse to the prosecution.
Saleh
or Mrs Niam to see certain information that GEI had disclosed in the criminal proceedings and were unwilling to take the risk that the judge would compel them to disclose it at the hearing due to take place on 16 April. Alternatively, it is possible that the decision to abandon the claim for forfeiture, which more or less coincided with Glencore's offer, was somehow related to that offer. The claim against Mrs Niam's and Mr Hassan's shares was also withdrawn, and so far as I am aware they had not issued a similar motion to dismiss it. The case regarding Mrs Niam's own shares was far stronger, and could be proved on the Agreed Statement of Facts without resorting to evidence obtained from her or from other Embassy staff. It seems odd that the PPSC would have decided to give that up, regardless of the position concerning the far smaller parcel of shares belonging to Mrs
Saleh.
Saleh
in Canada, as then seemed quite likely.
CONCLUSION
Saleh's application to discharge the PFO fails on all grounds. That application is therefore dismissed.