![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Olden v Serious Organised Crime Agency [2010] EWCA Civ 143 (26 February 2010) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2010/143.html Cite as: [2010] CP Rep 29, [2010] Lloyd's Rep FC 432, [2010] EWCA Civ 143 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE HOLROYDE
HQ07X04240
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE WILSON
and
SIR SCOTT BAKER
____________________
RONALD OLDEN |
Appellant |
|
- and - |
||
SERIOUS ORGANISED CRIME AGENCY |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Kennedy Talbot (instructed by Legal Department, Serious Organised Crime Agency) for the Respondent
Hearing date: 30TH NOVEMBER 2009
____________________
Crown Copyright ©
Sir Scott Baker:
(1) The legal and beneficial interest in Flat 4, Plas Dyffryn, Parc-y-Bryn, Aberystwyth, SY23 2DI;
(2) The legal and beneficial interest in 1, Side Street, Penparcau, Aberystwyth, SY23 1BS;
(3) The credit balance in accounts numbered 60068124 and 60068116 at the National Westminster Bank in the name Messrs Bishop and Light, solicitors;
(4) A B K Carnival residential caravan at Aberystwyth Holiday Village;
(5) A Mitsubishi Shogun, registration number Y104 ENN;
(6) The proceeds of sale of a Mazda, registration number CU52 XPA held in a Nationwide Building Society account number 65221326 in the name of Mr Olden.
Background to the Legislation
"Thus, the approach of the Director must be to let criminal proceedings take precedence, as it were, and only act if such proceedings are either not being taken or for any reason may have failed, if notwithstanding their failure or the inability for whatever reason to take them, she takes the view that she can establish within the requirements of the Act that the property in question was unlawfully obtained."
The relevant legislation
"(1) This Part has effect for the purposes of:
(a) enabling the enforcement authority to recover, in civil proceedings before the High Court or Court of Session, property which is, or represents property obtained through unlawful conduct,
(b) enabling cash which is, or represents, property obtained through unlawful conduct, or which is intended to be used in unlawful conduct, to be forfeited in civil proceedings before a magistrates court or (in Scotland) the sheriff.
(2) The powers conferred by this Part are exercisable in relation to any property (including cash) whether or not any proceedings have been brought for an offence in connection with the property."
SOCA is an enforcement authority (see section 316 (1) as amended by the Serious Crime Act 2007).
"(1) If in proceedings under this Chapter the court is satisfied that any property is recoverable, the court must make a recovery order.
(2) The recovery order must vest the recoverable property in the trustee for civil recovery.
(3) But the court may not make in a recovery order –
(a) any provision in respect of any recoverable property if each of the conditions in sub-section (4) or (as the case may be) (5) is met and it would not be just and equitable to do so, or
(b) any provision which is incompatible with any of the Convention rights (within the meaning of theHuman Rights Act 1998.)"
It is unnecessary for the purposes of this appeal to recite the detail of sub-sections 4 – 7 and 9.
"(8) A recovery order may impose conditions as to the manner in which the trustee for civil recovery may deal with any property vested by the order for the purpose or realising it."
"Recoverable property" is defined by section 304 as property obtained through unlawful conduct.
"(1) A person obtains property through unlawful conduct (whether his own conduct or another's) if he obtains property by or in return for the conduct.
(2) In deciding whether any property was obtained through unlawful conduct –
(a) it is immaterial whether or not any money, goods or services were provided in order to put the person in question in a position to carry out the conduct,
(b) it is not necessary to show that the conduct was of a particular kind if it is shown that the property was obtained through conduct of one of a number of kinds, each of which would have been unlawful conduct."
"(1) Where property obtained through unlawful conduct ("the original property") is or has been recoverable, property which represents the original property is also recoverable property.
(2) If a person enters into a transaction by which –
(a) he disposes of recoverable property, whether the original property or property which (by virtue of this Chapter) represents the original property, and
(b) he obtains other property in place of it,
the other property represents the original property.
(3) If a person disposes of recoverable property which represents the original property, the property may be followed into the hands of the person who obtains it (and it continues to represent the original property)."
Grounds of Appeal
(1) The judge erred in law and/or the exercising of his discretion in admitting evidence that was obtained following Mr Olden's unlawful arrest.
(2) The initial stake of £12,000 in the acquisition of the first properties was not recoverable property.
(3) The judge was wrong in law to find that any of the properties represented recoverable property because the loan secured against the property had been repaid.
(4) The judge was wrong to hold that Mr Olden had obtained the houses (which he already owned) through fraudulent mortgage advances, notwithstanding that such transactions were effectively re-mortgages.
(5) The judge was wrong to find winnings from spread betting funded by recoverable property were themselves recoverable.
(6) The High Court has no jurisdiction to make an order for possession. Alternatively if it does it should not have exercised it.
Evidence following unlawful arrest
"Arrested on behalf of the Rumney Police for multiple mortgage fraud. DC Chris Phillips given info re offences."
"The House of Lords in O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] 1Cr App R 447 decided that the arresting officer must himself or herself have the necessary suspicion and reasonable grounds for such suspicion. The mere fact that the arresting officer has been instructed by his superior officer to effect the arrest is not of itself capable of amounting to such reasonable grounds (per Lord Steyn at pages 452G - 453D and Lord Hope at page 458C – E and 463B)"
"We conclude that the judge did not address his mind to the question of PC Lodwig's state of mind and that had he done so he should have concluded that he did not have material on which to find that PC Lodwig had the necessary suspicion. It follows in our view that the arrest was unlawful and that the interview and searches that resulted from the arrest were also unlawful."
He went on to say that since the material that was discovered by the police in the interview and by the searches was of considerable important in the case the appeal had to succeed.
"…. The Director may proceed even where criminal proceedings have failed, and may rely upon evidence which is admissible in the civil proceedings even if it was unlawfully obtained by the police and for that reason was ruled inadmissible in the criminal proceedings."
"(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admissibility of the evidence would have such an adverse impact on the fairness of the proceedings that the court ought not to admit it.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence."
"The Director is not to be equated with the Crown as prosecutor. The Director is independent with a different role and powers. That role and those powers exist regardless of criminal proceedings; section 240 (2) (the 2002 Act)."
The initial £12,000 stake
"In civil proceedings for recovery under Part 5 of the Act the Director need not allege the commission of any specific criminal offence but must set out the matters that are alleged to constitute the particular kind of unlawful conduct by or in return for which the property was obtained."
Spread Betting
"88. The only other source of income which needs to be considered is the winnings from Mr Olden's gambling. I accept that Mr Olden did take part in a form of spread betting with two organisations, IG Index and City Index. I heard evidence from Mr Mukhida of IG Index. In essence, Mr Olden made forecasts or "took positions" in respect of the future movements of various financial indexes. If events turned out in his favour, he received a payment; if events turned out against him, he had to pay his loss. The IG Index account was opened and operated in the name Batters: Mr Mukhida gave evidence that IG Index do not allow customers to use false names. He also gave evidence that an initial payment had to be made when the account was opened, and that a deposit had to be paid before bets could be placed.
89. Overall, I did find that Mr Olden made a loss of several thousand pounds on each account: that is not disputed in relation to City Index, and I accept Mr Mukhida's evidence to that effect in relation to IG Index. It follows that this gambling cannot be the source of any of monies now remaining in the restrained bank accounts. It is nonetheless the case that from time to time there was money in one of the bank accounts which came from a successful gamble, and Mr Krolick submitted that such money could not be recoverable property. I do not accept that submission. In a more straightforward case if a man takes a cash sum out of his proceeds of crime, uses it to place a conventional bet on a horse, and successfully doubles his money, it seems to me that the increased sum is caught by POCA 2002 s307 and all of it is recoverable property. The mechanics of this form of spread betting is more complex, but the essence of it is the same; Mr Olden needed to start with some money in order to open his accounts and place his bets, and it is SOCA's case – which I accept has been proved as the matter of probability – that the money used was the proceeds of his unlawful conduct. In that basis, it seems to me that if he won, his winnings were "profits accruing in respect of recoverable property". If he lost, he diminished his recoverable property.
The Possession Order
"1. All persons in possession of 1, Side Street, Penparcau and B K Carnival residential caravan forthwith give vacant possession to the Trustee.
2. The Trustee may not (1) complete any sale in respect of Flat 4, Plas Dyffryn ("the occupied property") or require Mr Olden to give vacant possession of the occupied property to him until 10 a.m. on Friday 1 May 2009.
3. Mr Olden shall:
i) by 10 a.m. on Friday 1 May 2009 give vacant possession of the occupied property to the Trustee and may occupy the said property as a licensee until that time; and
ii) forthwith hereafter comply with any reasonable request made by the Trustee for the purpose of marketing for sale, selling or preparing for sale of, the occupied property."
Lord Justice Wilson : I agree.
Lord Justice Rix : I agree.