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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> A v Director of Public Prosecution  EWCA Crim 1393 (23 September 2016)
Cite as:  1 WLR 713,  EWCA Crim 1393,  Lloyd's Rep FC 567,  CP Rep 2,  WLR 713,  1 Cr App R 6,  WLR(D) 499
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ON APPEAL FROM SOUTHWARK CROWN COURT
HER HONOUR JUDGE DEBORAH TAYLOR
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GILBART
HIS HONOUR JUDGE ZEIDMAN QC (SITTING AS A JUDGE OF THE CACD)
|- and -
|DIRECTOR OF PUBLIC PROSECUTION
Martin Evans and Edward Craven for the Respondent
Hearing date: 14 July 2016
Crown Copyright ©
Lord Justice Davis:
"[A] was summoned to my chambers, questioned by me and charged in October 2015 (06/10/2105).
[A's] solicitor raised the principle of ne bis in idem during police custody. Legally this principle is not applicable because the Swiss investigation did not relate to the sale of [the estate], and the offences of breach of trust, misuse of corporate assets, receiving of goods resulting of these offences and laundering the proceeds of these offences, and the crime of tax evasion – offences committed in France relating to the sale of [the estate] – could not be prosecuted pursuant to the Swiss authorities' legislation.
Furthermore, during cross-examination at the first court appearance [A's] defence made no further reference to this point.
The substance of the case continues to be actively investigated, inter alia with a view to analysing the misuse of legal arrangements by [A and X]. Many people involved with the entities or with the banking institutions contributing to the operations have been questioned or are due to be shortly. Ultimately, [X] will be questioned. Investigations are also under way following a request for international mutual legal assistance."
1) rejected, with full reasons, the argument that the criminal investigation in France infringed the ne bis in idem principle, among other things holding that the actions being prosecuted in France were not the same as those investigated in Switzerland.
2) held that the decision to "discontinue proceedings definitively" by the Swiss authorities "does not have the value of a definitive judgment" within the meaning of the French penal code and Article 54 of the Convention implementing the Schengen Agreement.
3) held that the argument that the overall delay had been such as to infringe the Article 6 rights of A "does not affect the validity of the proceedings"; and that the interim measure of the Restraint Order did not affect the presumption of innocence.
The legislative background
"The competent judicial authorities of the executing State shall recognise a freezing order, transmitted in accordance with Article 4, without any further formality being required and shall forthwith take the necessary measures for its immediate execution in the same way as for a freezing order made by an authority of the executing State, unless that authority decides to invoke one of the grounds for non-recognition or a non-execution provided for in Article 7 or one of the grounds for postponement provided for in Article 8."
"The competent judicial authorities of the executing State may refuse to recognise or execute the freezing order only if:
(a) the certificate provided for in Article 9 is not produced, is incomplete or manifestly does not correspond to the freezing order;
(b) there is an immunity or privilege under the law of the executing State which makes it impossible to execute the freezing order;
(c) it is instantly clear from the information provided in the certificate that rendering judicial assistance pursuant to Article 10 for the offence in respect of which the freezing order has been made, would infringe the ne bis in idem principle;
(d) if, in one of the cases referred to in Article 3(4), the act on which the freezing order is based does not constitute an offence under the law of the executing State; however, in relation to taxes or duties, customs and exchange, execution of the freezing order may not be refused on the ground that the law of the executing State does not impose the same kind of tax or duty or does not contain a tax, duty, customs and exchange regulation of the same kind as the law of the issuing State."
"1. Member States shall put in place the necessary arrangements to ensure that any interested party, including bona fide third parties, have legal remedies without suspensive effect against a freezing order executed pursuant to Article 5, in order to preserve their legitimate interests; the action shall be brought before a court in the issuing State or in the executing State in accordance with the national law of each."
2. The substantive reasons for issuing the freezing order can be challenged only in an action brought before a court in the issuing State.
3. If the action is brought in the executing State, the judicial authority of the issuing State shall be informed thereof and of the grounds of the action, so that it can submit the arguments that it deems necessary. It shall be informed of the outcome of the action.
4. The issuing and executing States shall take the necessary measures to facilitate the exercise of the right to bring an action mentioned in paragraph 1, in particular by providing adequate information to interested parties.
5. The issuing State shall ensure that any time limits for bringing an action mentioned in paragraph 1 are applied in a way that guarantees the possibility of an effective legal remedy for the interested parties."
"(5) The Crown Court may decide not to give effect to the overseas restraint order only if, in its opinion, giving effect to it would be—
(a) impossible as a consequence of an immunity under the law of England and Wales; or
(b) incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998)."
"10(1) Where the Crown Court decides to give effect to an overseas restraint order, it must—
(a) direct its registration as an order in that court, and
(b) give directions for notice of the order to be given to any person affected by it.
(2) For the purpose of enforcing an overseas restraint order registered in the Crown Court, the order is to have effect as if it were an order made by that court.
(3) Subject to paragraph (4), the Crown Court may cancel the registration of the order, or vary the property to which the order applies, on an application by a relevant prosecutor, or any other person affected by it, if or to the extent that—
(a) the Crown Court is of the opinion mentioned in regulation 9(5), or
(b) the Crown Court is of the opinion that the order has ceased to have effect in the member State.
. . . .
(5) Subject to paragraph (6), Part 2 of the 2002 Act (confiscation: England and Wales) applies (with the appropriate modifications and subject to the preceding provisions of this Chapter) in relation to an overseas restraint order registered in the Crown Court as it applies in relation to a domestic restraint order.
(6) No challenge to the substantive reasons in relation to which an overseas restraint order has been made by an appropriate court or authority in a member State may be considered by the court."
Ne bis in idem
"Right not to be tried or punished twice in criminal proceedings for the same criminal offence
No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law."
"A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party."
(We note, in passing, that Article 55 gives contracting states the right to opt out of Article 54 in certain stated respects.)
Arguments of counsel
(1) The Framework Decision was designed to respect, not cut down, the fundamental rights of a citizen of a member state.
(2) The principle of ne bis in idem reflects such a right.
(3) The effect of the Swiss abandonment constitutes a final acquittal on the matters the subject of the Swiss investigation.
(4) The matters the subject of the French investigation are the same as the matters the subject of the Swiss investigation: they are, as Mr Metcalfe submitted, "anchored" on the same facts (viz. the dealings with the purchase and sale of the French estate).
(5) Consequently the commencement of the French criminal proceedings in 2015, and the Restraint Order issued in support thereof, involved a violation of the ne bis in idem principle.
(6) It is the duty of the English court, as executing court, to give effect to the fundamental rights of the citizen affected by the registration of the restraint order.
(7) Consequently, the English court was obliged to cancel the registration in England of the French Restraint Order.
"The substantive reasons for issuing the EI0 may be challenged only in an action brought in the issuing state without prejudice to the guarantees of fundamental rights in the executing state."
That approach, it was submitted, should be deemed to apply to applications to challenge the registration of restraint orders in an executing state.
It is true that there can be special instances in areas of the law (asylum and removal is but one example) where a court of one member state cannot, on appropriately cogent evidence, presume that relevant Convention or other rights will be upheld in another member state: see, for example, R (EM Eritrea) v Secretary of State for the Home Department  UKSC 12,  AC 1321. But in the present context there is no evidential or other basis whatsoever for so concluding with regard to the French courts.
Observations on application of ne bis in idem principle