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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> A v Director of Public Prosecution [2016] EWCA Crim 1393 (23 September 2016)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/1393.html
Cite as: [2017] CP Rep 2, [2017] WLR 713, [2017] 1 Cr App R 6, [2016] WLR(D) 499, [2016] EWCA Crim 1393, [2017] 1 WLR 713, [2016] Lloyd's Rep FC 567

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Neutral Citation Number: [2016] EWCA Crim 1393
Case No: 2016/01619 C1

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
HER HONOUR JUDGE DEBORAH TAYLOR

Royal Courts of Justice
Strand, London, WC2A 2LL
23/09/2016

B e f o r e :

LORD JUSTICE DAVIS
MR JUSTICE GILBART
and
HIS HONOUR JUDGE ZEIDMAN QC (SITTING AS A JUDGE OF THE CACD)

____________________

Between:
A

Appellant
- and -


DIRECTOR OF PUBLIC PROSECUTION
Respondent

____________________

Eric Metcalfe for the Appellant
Martin Evans and Edward Craven for the Respondent
Hearing date: 14 July 2016

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Davis:

    Introduction

  1. This is an application for permission to appeal against a decision of HHJ Deborah Taylor, sitting in the Southwark Crown Court, handed down on 26 February 2016. By her decision the judge refused to cancel the registration under the provisions of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 ("the 2014 Regulations") of an order made by a judge in France restraining the disposition of assets, up to a specified limit, of the applicant.
  2. It is said that the judge misapplied the 2014 Regulations in reaching her conclusion and failed to protect the fundamental rights of the applicant in this regard. The particular, although not sole, focus of the applicant's arguments was directed at what was said to be a failure on the part of the judge to give effect to what, in European law terms, is styled the ne bis in idem principle: that is to say, putting it very broadly, that no person should face trial twice in the same cause.
  3. At the end of the hearing all three members of the court were of the very clear opinion that the application for permission should be refused, as also should the application that a reference to the Court of Justice be directed. We announced our conclusion accordingly, saying that we would give our reasons in writing in due course. These are those reasons.
  4. Preliminary remarks

  5. At the outset of the hearing before us Mr Eric Metcalfe, on behalf of the applicant, made an application that the hearing should be in private. Under Regulation 9 (3)(a) of the 2014 Regulations it is required that the relevant hearing in the Crown Court take place in private unless the court otherwise directs. The hearing before the judge below had been in private. There is no such rule relating to appeals to this court. We could identify no proper basis, applying established principles, for directing that the hearing before us should be in private and, on the contrary, could identify good reason why it should be heard in public.
  6. This court having so ruled Mr Metcalfe then applied for an anonymity direction. The applicant faces a criminal investigation in France and potential allegations of (putting it broadly) criminal fraud. He has concerns about irreparable reputational damage if his identity is revealed with regard to allegations which have not as yet been proved and which may never be proved. Such considerations, generally speaking, by no means of themselves compel a conclusion in favour of an anonymity order: many defendants perforce have to face highly unwelcome pre-trial publicity of allegations made in criminal and civil cases. In the particular circumstances of this case, however, we decided to accede, to an extent, to Mr Metcalfe's request. The applicant is not to be named. We will call him "A". We are not, however, prepared to entertain any further restrictions which Mr Metcalfe sought: which in our view were out of proportion to the case and were not justified.
  7. Background facts

  8. A is a French citizen.
  9. In February 2006 criminal investigations had been commenced in Paris relating to various corporations and individuals. One of the transactions which subsequently came under scrutiny related to the disposal, for a very large sum of money, of an estate in the South of France. In 2009 further investigations, which extended to A, were initiated in this regard by the prosecuting authorities in the South of France.
  10. A criminal investigation had also been commenced in Switzerland in September 2006 with regard to a number of corporations and individuals, latterly including A, in connection with potential aggravated money laundering, aggravated fraud and support for or participation in a criminal organisation. It is sufficient to say, for present purposes, that A has connections with Switzerland. The focus of the investigation so far as A was concerned seems to have been on the sale of the estate in France and the disposition of the money deriving from that sale.
  11. By a detailed written ordonnance de classement issued on 4 August 2011 the office of the Attorney General of Switzerland abandoned the proceedings against A, on the grounds of "lack of conclusive information". This abandonment thus post-dated the commencement of the investigation by the French authorities in the South of France. Evidence of Swiss law has been produced which indicates that such an abandonment is regarded as equivalent, in Switzerland, to a formal acquittal.
  12. The French investigation, however, has continued. In March 2015 a French judge sitting in Marseilles summonsed A for questioning. A freezing, or restraint, order was made by the French court with regard to A's assets on 18 September 2015, as varied on 9 October 2015.
  13. Application was then made for that order to be registered, under the 2014 Regulations, in England. The application was in the form of a certificate, in the prescribed form, containing the necessary particulars. The legal classification of the offences was given (by reference to the French penal code) as: laundering the proceeds of crime as a member of a gang; fraudulent organisation of insolvency; misuse of corporate assets; breach of trust; receiving of stolen goods as part of a gang; and failure to substantiate the origins of property. The transaction to which the allegations relate comprised the ownership and sale of the estate in the South of France. It was asserted, among other things, that A had acted as a nominee to conceal the criminal activities of, and to assist the avoidance of creditors of, another (named) individual ("X"). HHJ Gledhill QC so ordered, on the papers, on 19 October 2015: that Order itself being subsequently varied by consent so as to conform with the French Order as varied.
  14. A was placed by the French court under formal examination (which may or may not correspond with being charged under English law) on 6 October 2015.
  15. Application was promptly made by solicitors on behalf of A in London to cancel the registration of the Order in England. The principal argument raised was that the French proceedings violated the principle of ne bis in idem; in consequence, it was said, the French Restraint Order should not have been, and should not continue to be, registered in England. The impact of such registration, it may be noted, has in fact been to freeze a very large sum of money held by A in an account with a financial institution in London.
  16. In the light of this application the French authorities were informed. The French judge who had made the initial Restraint Order in Marseilles gave this further explanation in a written statement dated 2 November 2015 (as translated):
  17. "[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."
  18. A appealed against the original Restraint Order of the French judge of 18 September 2015 (as varied) to the Court of Appeal in Aix-en-Provence. The appeal came on for hearing, and the decision was issued, after the decision of HHJ Taylor, rejecting the application to cancel the registration, was given in the Southwark Crown Court on 26 February 2016. The decision of the French Court of Appeal is dated 27 April 2016. We were shown a copy of it. It contains a very detailed recital of the facts. It is not necessary (or, indeed, appropriate) to set out the details. Suffice it to say the French Court of Appeal among other things:
  19. 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.

  20. We were told that A is now seeking further to appeal the matter in France to the Cour de Cassation.
  21. It was a feature of the applicant's argument before this court that it required that the English courts should not follow the decision of the first instance French judge or the French Court of Appeal (or, prospectively, the Cour de Cassation if it dismisses the appeal) – the courts of the member state issuing the substantive Restraint Order – but in effect should conclude that those courts were wrong.
  22. The legislative background

  23. The 2014 Regulations were made in part to give effect to Council Framework Decision 2003/577/JHA. Since, reflecting established principles of interpretation, the 2014 Regulations should be read purposively and so as to give effect to such Framework Decision it is necessary to refer to some of the Framework Decision's provisions.
  24. As is often the case, the recitals are revealing. Principles of mutual recognition for pre-trial orders, and the need "quickly to secure" evidence and assets, are stressed (recited (2)). Co-operation presupposed confidence in the legality of the decisions to be recognised (recital (4)). It is also stated that the Framework Decision respects fundamental rights whilst also saying that nothing in it may operate to restrict refusal to make a freezing order if issued for persecuting a person on account of sex, race, religion etc (recital (6)).
  25. By Article 1 it is reiterated that the Framework Decision shall not have the effect of amending the obligation to respect the fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty. Article 4 relates to transmission of freezing orders, accompanied by the required certificate, Article 5 (headed "Recognition and immediate execution") provides in part as follows:
  26. "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."
  27. Article 7.1 (the Article being headed "Grounds for non-recognition or non-execution") provides as follows:
  28. "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."
  29. There are then provisions relating to postponement, the required form and content of a certificate and subsequent treatment of frozen property. Article 11 provides as follows:
  30. "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."
  31. That is (part of) the context for the 2014 Regulations: although such Regulations also relate to confiscation orders and data protection and other matters.
  32. For present purposes, the central Regulations are Regulation 9 (headed "Giving effect to overseas restraint orders") and Regulation 10 (headed "Registration and enforcement of overseas restraint orders"). Regulation 9 requires considerable speed on the part of the Crown Court in considering giving effect to an overseas restraint order. Regulation 9 (5) provides as follows:
  33. "(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)."
  34. In the respects principally relevant to this case, Regulation 10 provides as follows:
  35. "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."
  36. It is here to be noted that Regulation 9 (5) does not have wording precisely corresponding to, let alone replicating, Article 7.1 of the Framework Decision.
  37. Ne bis in idem

  38. A precise formulation of the actual ambit of the principle of ne bis in idem is elusive. Its general import is, however, clear enough. It is a reflection of the well understood rule against double jeopardy; and, in the context of its application to Member States under Article 54 of the Convention implementing the Schengen Agreement, is also a reflection of the prohibition of measures which might prejudice the hallowed principle of freedom of movement.
  39. In Article 50 of the Charter of Fundamental Rights of the European Union the position is stated thus:
  40. "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."
  41. The principle is addressed in Article 4 of Protocol 7 to the European Convention on Human Rights (which does not have effect in the United Kingdom) and Articles 54-58 of the Convention implementing the Schengen Agreement (which do). Article 54 of that Convention provides as follows:
  42. "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.)

  43. This wording, taken on its own, immediately indicates potential uncertainty of application in some cases. When is a person to be deemed to be "finally acquitted or convicted"? When has a trial been "finally disposed of"? What are to be taken to be the "same acts"? There are a considerable number of European authorities in this field which provide guidance: but ultimately each case does have to be considered by reference to its own facts and circumstances.
  44. An analogous point, under domestic law, likewise arises in criminal cases on the application of the doctrine of autrefois acquit and autrefois convict. There are a number of established instances where there will be deemed not to be an "acquit" or a "convict". The criminal law also, for example, draws a clear distinction between leaving a count to lie on the file and a directed verdict of not guilty on no evidence being offered; likewise the civil law draws a clear distinction between a claim which is discontinued and a claim which is dismissed.
  45. The point potentially arises in the present case because of what Mr Metcalfe contends is the consequence of the Swiss abandonment of proceedings: as we discuss hereafter.
  46. Arguments of counsel

  47. The arguments on behalf of the applicant were very detailed and elaborate. Indeed the written argument, somewhat unpromisingly entitled "Skeleton Argument", extended to 95 paragraphs spread over 35 pages, accompanied by various other written Notes. Two fat bundles of legal authorities were also lodged.
  48. For reasons which will become apparent, we do not propose to allow ourselves to be distracted by the vast superstructure of legal argument which has been constructed. In our view this case can, and should, be rejected on relatively straightforward grounds.
  49. Whilst Mr Metcalfe's arguments, both written and oral, were presented at length – and, we should add, very skilfully so – we think we can identify the format of his argument as follows:
  50. (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.

  51. Mr Martin Evans, for the respondent, argued that this entire application was misconceived. The whole basis for mutual recognition of overseas restraint orders was essentially administrative and connoted speedy co-operation by the executing court. The limited circumstances in which a challenge on ne bis in idem grounds may be raised is reflected in Article 7.1 (c) of the Framework Decision: and there is no suggestion in this case that, on the face of the certificate, it was "instantly clear" that the principle would be infringed: indeed there was nothing in the certificate so to indicate. The 2014 Regulations, moreover, themselves give no wider right of challenge for this purpose.
  52. Mr Evans went on to submit that Mr Metcalfe's approach drove a coach and horses through the entire scheme established by the Framework Decision and the 2014 Regulations with regard to registration of overseas restraint orders. The remedy of A was, he submitted, clear: to apply (as he in fact has done) in the courts of the issuing state. That is precisely what Article 11.2 and Regulation 10 (6) stipulate. The French courts have thus far decided, as part of their substantive reasons for making and upholding the Restraint Order, that the ne bis in idem principle has not been infringed. The issuing courts have thus decided the matter; and there is no basis, whether on conventional principles or on the general presumption under the Framework Decision of confidence in the legality of the decision to be recognised, for the English courts to investigate, let alone depart from the decision of the French courts on, the precise point now sought to be repeated in the English courts. Further, even if it were necessary or appropriate to look into the matter (and he said it was not), there was no sustainable ground for thinking that the principle of ne bis in idem had in this case been infringed: the facts the subject of the French criminal investigation clearly were not the same as those the subject of the Swiss criminal investigation.
  53. Disposition

  54. We were and are in no doubt that this application should be refused. We are in no doubt that the very careful and thoughtful reserved judgment of the judge was correct in its conclusion; and there is no arguable basis for this court interfering.
  55. At the core of Mr Metcalfe's arguments was his insistence that the fundamental rights of a citizen of a member state should be respected as much by an executing state as by an issuing state. He was entitled in this regard to place reliance on Article 1 of the Framework Decision. He also referred in argument to Directive 2014/41/EU regarding the European Investigation Order in criminal matters. That has not as yet, we gather, taken effect or been implemented in the United Kingdom. Nevertheless, reliance was placed on Article 14.2, which provides:
  56. "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.

  57. An initial problem for this argument is that the Framework Decision is of itself stated, by recital (6), to respect fundamental rights and to observe the principles recognized by Article 6 of the Treaty and the Charter of Fundamental Rights of the European Union. More specifically, the principle of ne bis in idem has been in terms taken into account in the Framework Decision: the way in which it is treated is specifically set out in Article 7.1 (c). In the present case, it is conceded that the information contained in the certificate does not even suggest (let alone "instantly clearly") that rendering assistance would infringe the ne bis in idem principle.
  58. Mr Metcalfe sought to say that such provision only applied to the original recognition and registration application: not to a subsequent application to challenge the registration. That is an impossible argument. Article 7 is, as its heading shows and as the opening words of Article 7.1 demonstrate, directed both at recognition and at execution. Likewise, Regulation 10 of the 2014 Regulations in terms relates both to registration and to enforcement.
  59. Turning then to the 2014 Regulations, it is true that – for reasons which are not at all clear to us – the 2014 Regulations have not directly transposed the provisions of Article 7.1 as the only circumstances in which an overseas restraint order may be refused to be recognized or enforced. Instead the only circumstance in which that may be done, under the wording of the 2014 Regulations, are as set out in Regulation 9 (5) (read, as appropriate, with Regulation 10 (3)). But that wording, even if potentially wider than is contained in the Framework Decision, does not avail Mr Metcalfe either: for he conceded, when the point was put to him in argument, that the postulated right not to be confronted with legal proceedings in breach of the ne bis in idem principle does not come within the ambit of the actual wording, by reference to Convention rights, of Regulation 9 (5) (b).
  60. The conclusive objection to the entire argument, however, in our judgment, lies in the clear and specific words of Article 11.2 of the Framework Decision as replicated in substance by Regulation 10 (6) of the 2014 Regulations. That has the effect – entirely consistently with the whole rationale of the scheme – that a challenge to the substantive reasons for the making of an overseas restraint order may be made only in the courts of the issuing state; the courts of the executing state will not themselves consider such a challenge.
  61. Mr Metcalfe sought to rewrite the explicit provisions of Article 11.2 and Regulation 10 (6) by, in effect, asserting that "substantive reasons" did not extend to a consideration of the fundamental rights of an affected citizen. There is no basis for so broad a submission. In the present case, indeed, the ne bis in idem principle has been considered by the French first instance judge (as confirmed by his statement of 2 November 2015) and again by the Court of Appeal in France. The rejection of a ne bis in idem argument in any given case will necessarily be a substantive reason for making and continuing an overseas restraint order by the issuing state: for such an order could otherwise not be made at all.
  62. Moreover, the logical implication of Mr Metcalfe's argument, as he accepted, is that an overseas restraint order may be challenged on this basis in any executing state where it is sought to have the order recognized. Thus had (for example) the French authorities in the present case sought to register not only in England but also in, say, Germany, Spain, Italy and Belgium then this self-same challenge could be brought in each such jurisdiction - with at least the potentiality for differing outcomes in each. Mr Metcalfe did not seem at all disconcerted by this as a potential outcome: on the contrary he asserted, seemingly with relish, that that was indeed the case.
  63. This is unacceptable. The argument connotes sanctioning mounting proceedings in the executing courts as a collateral attack on the correctness of the substantive decision of the issuing court, as well as bringing in detailed materials extraneous to the certificate itself. So extraordinary a result, in a scheme designed to be operated speedily and on the basis of mutual recognition and of confidence in the legality of decisions of fellow member states, would indeed, as Mr Evans submitted, drive a coach and horses through the scheme.
  64. What is, at root, wrong with this entire argument is that it presupposes that there will otherwise be a denial of respect for an individual's fundamental rights on the part of the courts of the executing state. But there will not. The circumstances in which registration may be refused or challenged in an executing state is (for good practical reasons of making the scheme efficacious) closely circumscribed: by the wording of Article 7.1 of the Framework Decision and, in England and Wales, by the wording of Regulations 9 (5) and 10 (3). If a wider challenge is to be made as to the substantive reasons for making the restraint order then that challenge is to be made, and made only, in the courts of the issuing state. That, given the purpose of the scheme, makes entire sense and involves no injustice. Such a conclusion involves no denial of an individual's fundamental or Convention rights and no denial of access to a remedy. Rather, it is provided (in express terms) that such a challenge to the substantive basis for making the restraint order is to be made, and the remedy required is to be sought, in what is designated as the appropriate forum: that is to say, the court which made the restraint order in the first place. The judge's conclusion to this effect was entirely correct.
  65. Such a conclusion also avoids another unsatisfactory consequence which flows from the logic of the argument for the applicant. His case in substance involved an assertion that, thus far, the French courts have got it all utterly wrong. Mr Metcalfe was prepared at least to accept that those decisions were not altogether irrelevant: the English court, he said, would "have respect for them" and take them into account. Nevertheless, his argument remained that, in effect, the English Crown Court (the court of the executing state) should differ from the decision of the French courts (the courts of the issuing state) on the self-same issue under consideration. He said that would be the case even if, for example, A's argument had been rejected at the highest level in France in the Cour de Cassation: still a Crown Court judge should decline to follow that decision.
  66. All this is contrary to ordinary principles of comity as well as contrary to the principles of mutual recognition and confidence which are both implicit and explicit in the whole scheme. It would also potentially lead to a yet further unsatisfactory consequence on the same issue, namely that the restraint order would continue to bind A in personam in France but would (on the applicant's argument) cease to bind the assets of A in rem in England; and would in addition potentially give rise to extensive collateral proceedings in the courts of the executing state, as well as the courts of the issuing state.
  67. 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 [2014] UKSC 12, [2014] AC 1321. But in the present context there is no evidential or other basis whatsoever for so concluding with regard to the French courts.

  68. In truth, and as we have indicated, Article 11.2 and Regulation 10 (6) are an acknowledgement of the necessity for co-operation between member states in order to render the entire scheme relating to overseas restraint orders efficacious. This is particularly important in an area of law where very often one is dealing with entirely unscrupulous individuals (we are talking generally and not necessarily by reference to this particular case) who may be only too astute to seek to defeat or delay preservation or enforcement measures cf. the remarks of Gross J in Al Zayat v The Serious Fraud Office [2008] EWHC 315 Crim. at paragraph 69 of his judgment.  There is an undoubted need, in the international context, for effective in rem measures to be available in addition to in personam measures.
  69. For these reasons the proposed appeal is not arguable; and we refuse permission, as we announced at the hearing.
  70. Observations on application of ne bis in idem principle

  71. We would add, in view of the very detailed arguments advanced to us, that we in any event would not have accepted, on the materials before us, the substantive arguments which were advanced as to this being a case, as it was asserted, of a breach of the ne bis in idem principle.
  72. The first potential difficulty is whether the principle is even in play at all  - is this a case of "bis"?   The judge below understandably had reservations on this. Mr Metcalfe asserted, as though it were self-evident, that it was.  He relied on the evidence of Swiss law that the abandonment of the Swiss investigation amounted, under Swiss law, to a formal acquittal.  It is true that there certainly are instances where the principle can apply even where there has been no acquittal (or conviction) after a trial: see, by way of example  Procura della Republica v M Case C-398/12 (Advocate General Sharpston and Judgment of the Court (Fourth Chamber)), where a finding by the judicial authorities in Belgium that there was no case to answer sufficient to send the accused to trial was held to be capable, subject always to the emergence of new facts or evidence, of bringing into play the principle of ne bis in idem in subsequent proceedings.  But whether that is so for the abandonment of the investigation on the part of the office of the Attorney General of Switzerland is by no means self-evident.  Indeed the Court of Appeal in Aix-en-Provence has in terms decided against the applicant on this very point.
  73. The second potential difficulty lies in whether the facts are substantially the same (idem) in the French investigation as they were in the Swiss investigation.
  74. Mr Metcalfe here too seemed to presuppose that the result was self-evident - that is to say, they were the same.  He based his assertion that the investigations were "anchored" to the same factual basis on the proposition that the focus of each was on the sale of the French estate and subsequent dealings with the proceeds of sale.
  75. With respect, this is simplistic.  Investigations can take many forms and follow many different evidential routes.  In the present case, for example, the Swiss authorities would have had no interest or purpose in pursuing matters which had a purely French dimension (and vice versa).  The Swiss authorities have decided that there was as against A, on the materials available to them, insufficient evidence to take the case further on (put broadly) organised crime or money laundering allegations.  That does not mean that was the same scope or ambit of the French proceedings, even if the starting point - the sale of the French estate - is the same.  Indeed, a number of the "offences" which were the subject of the abandonment in Switzerland are demonstrably different from a number of the offences identified in the certificate as the subject of the French proceedings.  We would accept that the fact that the same facts can in a particular case give rise to formulations of different legal offences does not of itself necessarily preclude the operation of the ne bis in idem principle.  But here the substantive differences are, on their face, striking.
  76. The matter can further be tested in this way.  An investigation of the facts perhaps might throw up evidence of a tax fraud, designed to evade payment of French taxes and duties (the officially stated price not representing the true price and the balance being paid covertly, as has been said).  It may be noted that the French judge, in his statement of 2 November 2015, actually makes specific reference to the crime of tax evasion committed in France.  Yet the implications of the applicant's argument - as again was accepted by Mr Metcalfe - are that the abandonment of the Swiss investigation would preclude a subsequent prosecution in France for tax evasion.  That seems improbable to say the least.
  77. Mr Metcalfe was at pains to assert that the Swiss investigation had been lengthy and thorough.  We have no means of knowing how thorough it was.  In any event the same conclusion, on his argument, would potentially flow even if the Swiss investigation had been cursory.  In truth, the whole argument has elements of arbitrariness about it - the French investigation, which started well before the abandonment and continued long after the abandonment of the Swiss investigation, stands to be defeated simply because the Swiss authorities abandoned their own investigation.  That too seems an improbable outcome.  It is particularly improbable when it is seen that Swiss law itself permits the reopening, on fresh evidence and by way of review, of an investigation after a formal abandonment.  The position surely is a fortiori for a French investigation commenced before and then continued long after the Swiss abandonment.
  78. The judge below in the event indicated her view that the facts relating to the two investigations were not the same. There is no reason for this court to interfere with her finding.  We were, nevertheless invited to form our own concluded view of the matter.  But this hearing is not an entire rehearing. In any event, since we did not ourselves have all the underlying materials we were in no position definitively to make our own assessment (if it were otherwise even proper to seek to do so).
  79. Statements  made by French and Swiss lawyers instructed on behalf of A have expressed the opinion that the two investigations were the same ("inextricably linked" is the test commonly used: see the very helpful discussion in Blackstone's Criminal Practice (2016 ed.) at D12.30-12.33).   But those opinions do not conclude the matter: indeed, the French courts, on examining the details, have rejected that viewpoint.  Mr Metcalfe nevertheless maintained that this court could and should form its own view simply by comparing the terms of the Swiss abandonment document and the terms of the French Order, if not also the judgment of the Court of Appeal in Aix-en-Provence.  We very much doubt that that could be a proper approach.  In any event, even if it were, then we would state shortly our view that comparison of those documents would indicate to us - rejecting the assertions to the contrary - that the two investigations are indeed not founded on substantially the same facts and are not inextricably linked.  That said, the fact remains that it is the French courts which are the best equipped (as well as being the proper forum) for deciding such an issue.  And thus far the French courts, both at first instance and on appeal, have adjudged that the two investigations are not the same and that there are new facts and matters the subject of, and identified in, the French investigation.  There is no proper basis for the English courts even to concern themselves with, let alone depart from, such an adjudication by the French courts as courts of the issuing state.
  80. We have only said as much as we have on this issue out of respect for the lengthy and careful arguments addressed to us.  The fundamental point remains that, in this context of overseas restraint orders, it is for the courts of the issuing state to deal with such arguments as these: not the courts of the executing state.  Accordingly for the future Crown Court judges in England and Wales should refuse to entertain evidence or arguments on the part of persons against whom an overseas restraint order has been made which, when analysed, can be seen to be directed at the substantive basis for making the initial restraint order.  Such an application should be directed towards the court of the issuing state if it is desired to pursue such arguments.
  81. In the present case, therefore, the sole court having jurisdiction to deal with these present arguments on behalf of A is the French court, being the court of the issuing state.  That conclusion gives rise to no injustice and no lack of respect for fundamental rights: and, on the contrary, it preserves the efficacy of the entire overseas restraint order scheme.  Thus far the French judge of first instance and the Court of Appeal in Aix-en-Provence have found firmly against the applicant.  Perhaps needless to say, if hereafter the Cour de Cassation were to declare an appeal by A admissible and were to allow the appeal then the English courts would doubtless then give effect to that by discharging the registration under Regulation 10 (3) (b).  If, on the other hand the Cour de Cassation were to reject any appeal the position in England stands unaffected.
  82. Other matters

  83. At no stage was it sought to be argued that the entire scheme was incompatible with the Treaty or Convention rights.  It was, however, suggested that the registration of the overseas restraint order in this case should be cancelled on grounds of being contrary to Article 1 Protocol 1 and on grounds of asserted delay in the French proceedings and on grounds that the presumption of innocence had been violated.  Those arguments - which, among other things, scarcely seem to acknowledge that the current position is one of interim preservation of assets, not one of final trial or final adjudication - are appropriately to be dealt with (as thus far they have been dealt with) as part of the French trial process.  We need not say more, however, as Mr Metcalfe realistically accepted that if he could not succeed on his principal ne bis in idem grounds he could not independently succeed in this court on these further grounds.
  84. Conclusion

  85. We refuse the application for permission to appeal.  The judge's conclusion was correct and the contrary is not realistically arguable.
  86. We also decline to direct a reference to the Court of Justice (we note, incidentally, that such an application was refused by the Court of Appeal of Aix-en-Provence in France).  Such a course is not justified.  The position is clear in the circumstances of this case.
  87. We were told that this is the first occasion on which an appeal against an order made by the Crown Court under the 2014 Regulations has come before this court.  It may be that cases raising the principle of ne bis in idem in the overseas restraint order context will not be that common.  However, this case also does highlight, among other things, the importance of having regard to and giving effect to the provisions of Regulation 10 (6), set in the context of the Framework Decision itself.  For those reasons, we give leave for this decision to refuse this application hereafter to be cited.


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URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/1393.html