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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Serious Organised Crime Agency v Pelekanos [2009] EWHC 2307 (QB) (02 October 2009) URL: https://www.bailii.org/ew/cases/EWHC/QB/2009/2307.html Cite as: [2010] Lloyd's Rep FC 177, [2009] EWHC 2307 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
SERIOUS ORGANISED CRIME AGENCY |
Claimant |
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- and - |
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ATHOS THANOS PELEKANOS |
Defendant |
____________________
Mr Andrew Bodnar (instructed by Lewis Nedas & Co.) for the Defendant
Hearing dates: 27th July 2009 – 31st July 2009
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Crown Copyright ©
Mr Justice Hamblen:
Introduction
(i) The property situated at 1A Bridgewater Road, Hertfordshire (and registered in the name of the First Respondent, Mr Pelekanos);
(ii) The property situated at 6 Sheppards Yard, Hemel Hempstead (and registered in the name of Mr Pelekanos) ;
(iii) The property situated at 5 Guards View, Windsor (and registered in the name of the Second Respondent, Miss Michelle Feander) ;
(iv) The property situated at 20b Lower Road, Chorleywood (and registered in the name of the Third Respondent, Miss Tracey Lawrence) ;
(v) Property situated at La Quinta Golf Resort, Marbella, jointly owned by Mr Pelekanos and the Fourth Respondent, Mr Paul Robbins.
Procedural matters
Background
The Statutory Scheme
Property obtained through unlawful conduct
"Conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part".
"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."
(1) "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."
Recoverable property.
"304 Property obtained through unlawful conduct
(1) Property obtained through unlawful conduct is recoverable property.
(2) But if property obtained through unlawful conduct has been disposed of (since it was so obtained), it is recoverable property only if it is held by a person into whose hands it may be followed.
(3) Recoverable property obtained through unlawful conduct may be followed into the hands of a person obtaining it on a disposal by—
(a) the person who through the conduct obtained the property, or
(b) a person into whose hands it may (by virtue of this subsection) be followed".
"(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.
(2) 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)."
"(1) Subsection (2) applies if a person's recoverable property is mixed with other property whether his property or another's.
(2) The portion of the mixed property which is attributable to the recoverable property represents the property obtained through unlawful conduct.
(3) Recoverable property is mixed with other property if, for example, it is used,
…
(b) in part payment for the acquisition of an asset."
Relevant case law
The burden and standard of proof
"62 Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities.
Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities".
"28 It is recognised by these statements that a possible source of confusion is the failure to bear in mind with sufficient clarity the fact that in some context or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is, however, finite and unvarying. Situations which make such heightened examination necessary may be the inherent unlikelihood of the occurrence taking place (Lord Hoffmann's example of the animal scene in Regent's Park), the seriousness of the allegation to be proved, in some cases, the consequences which could follow from acceptance of proof of the relevant fact. The seriousness of the allegation requires no elaboration; a tribunal of fact will look closely into the facts grounding an allegation of fraud before accepting that it has been established. The seriousness of consequences is another facet of the same proposition; if it is alleged that a bank manager has committed a minor peculation, that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing. These are all matters of ordinary experience, requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or a specially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied with the matter which has to be established".
Unlawful conduct
"Whether a claim for civil recovery can be determined on the basis of conduct in relation to property without the identification of any particular unlawful conduct.." this first question to include whether the claimant can sustain a case for civil recovery in circumstances where a respondent has no identifiable lawful income to warrant the lifestyle and purchases of that respondent."
"1. 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 or kinds of unlawful conduct by or in return for which the property was obtained." [paragraph 47].
"17 I readily accept Mr Crow's submission that sections 240 and 241 are framed so as to make it clear that the Director need not allege the commission of a specific criminal offence or offences. I further accept that Part 5 proceedings are not limited, as were the earlier forfeiture proceedings, to any particular kind or kinds of criminal offence, for example, drug trafficking, money laundering, et cetera, but it does not follow that the Director is not under any obligation to describe the conduct which is alleged to have occurred in such terms as will enable the court to reach a conclusion as to whether that conduct so described is properly described as unlawful conduct. For the purposes of sections 240 and 241(1) and (2) a description of the conduct in relatively general terms should suffice, "importing and supplying controlled drugs", "trafficking women for the purpose of prostitution", "brothel keeping", "money laundering" are all examples of conduct which, if it occurs in the United Kingdom is unlawful under the criminal law.
….
50 Mr Crow invited me to make it clear that my first answer to the preliminary question meant that the Director need neither allege nor prove the commission of any specific criminal offence, and that she must not merely set out the matters that are alleged to constitute the particular kind or kinds of unlawful conduct, but that she must prove that, on the balance of probabilities, the property was obtained by or in return for a particular kind or one of a number of kinds of unlawful conduct.
51 For avoidance of doubt I confirm that is a correct understanding of my first answer to the preliminary issue."
"107… It is sufficient in my view for the director to prove that a criminal offence was committed, even if it is impossible to identify precisely when or by whom or in what circumstances and that the property was obtained by or in return for it. In my view Sullivan J was right therefore to hold that in order to succeed the Director need not prove the commission of any specific criminal offence in the sense of proving that a particular person committed a particular offence on a particular occasion. Nonetheless, I think it is necessary for her to prove that specific property was obtained by or in return for a criminal offence of an identifiable kind (robbery, theft, fraud or whatever) or, if she relies on Section 242 (2), by or in return for one or other of a number of offences of an identifiable kind. If, as I think, that is what the judge meant in paragraph 50 of his judgment, I respectfully agree with him".
The relevance of the Respondent having no identifiable income to warrant his lifestyle and purchases
"2. A claim for civil recovery cannot be sustained solely on the basis that a respondent has no identifiable lawful income to warrant his lifestyle."
"23….I think there is a danger in seeking to identify absolutes where questions of proof are in issue. The question in this case is whether Mr Olupitan obtained the property in issue through the unlawful conduct alleged. The test is whether it is more probable than not that such is the case. The evidence has, as one would expect, covered a number of matters, some more compelling than others, and including oral and documentary evidence from both Respondents. It is the whole picture which has to be balanced. For example, it is one thing to point to an unexplained lifestyle, it may be another if an explanation is offered but rejected as untruthful; and taken with other evidence either might be more or less persuasive."
"115 I also echo what Langley J. said on the emphasis to be put on the qualifying adverb "solely" in the context of proof of obtaining property through unlawful conduct, by reference to a comparison between lifestyle and identifiable sources of income. Such a comparison will not in itself be sufficient but as in Olupitan so in the present case the Claimant is entitled to ask the court to look at the totality of the evidence and the whole picture which emerges. As Langley J. said at paragraph 23 it is one thing to point to an unexplained lifestyle, it may be another, "if an explanation is offered but rejected as untruthful; and taken with other evidence either might be more or less persuasive".
116 I equally reject the submission made on behalf of the Respondent that I am not entitled to take a global approach to the issue of proof that the property in issue is recoverable within the meaning of the Act. The question is whether the Respondent obtained the property through the unlawful conduct alleged or whether the property in the Respondent's hands is representative of property so obtained. The test is whether it is more probable than not that such is the case. It is as was said in Olupitan the whole picture painted by the totality of the evidence which has to be balanced. I see nothing wrong in the court ultimately concluding that any significant asset of the Respondent has been obtained by or represents the proceeds of his criminal conduct as particularised by the Claimant in the terms set out at paragraph 51 above, if the court is satisfied on the evidence that this is more probable than not. I do not consider it essential that the court considers each property transaction on an item by item basis in the sense that the Claimant has an obligation to show some particular unlawful actions by the Respondent at some particular time which enabled the particular transaction."
"14 With respect to Sullivan J, I consider his second answer is too restrictive. While a claim for civil recovery may not be sustained solely upon the basis that a respondent has no identifiable lawful income to warrant his lifestyle, the absence of any evidence to explain that lifestyle may provide the answer because the inference may be drawn from the failure to provide an explanation or from an explanation which was untruthful (and deliberately so) that the source was unlawful".
Money laundering
"65 A substantive offence of money laundering can be proved by inference from the way in which cash is dealt with and it is not necessary to prove the underlying offence which generated the cash: R v El Kurd [2001] Crim. L.R. 234 ; and R v L,G,Q and M [2004] EWCA Crim 1579 . As Mr Eadie submitted, if money is handled in a manner consistent only with money laundering, "the inference is that it must be criminal property because no one launders clean money". Mr Krolick submitted that it was a condition precedent to any allegation of money laundering that the property should be the proceeds of a criminal offence. He referred to the decision of the House of Lords in R v Montila [2005] 1 Cr App R 26 But what is required in law to establish money laundering and how that may be proved raise different issues. El Kurd was cited in Montila and referred to in the Opinion of the Committee with apparent approval and certainly without adverse comment on the question material to this case.
66 In this case, the evidence is, as the Director alleges, that around £195,000 cash (and £24,000 in unidentified credits) were credited to the accounts of Olupitan and Makinde in a period of some five and a half years. They remain unexplained and without any supporting documentation. Such explanations as have been offered have been rejected as untruthful. I accept Mr Eadie's submission that in the circumstances of this case as I find them to be it is a proper inference that money laundering has occurred".
"118 I also consider that the court is entitled to take a commonsense approach to the inferences to be drawn from the manner in which the Respondent chose to store his accumulated cash and from the failure of the respondent to keep any business records in the context of the evidence as a whole.
119 Equally, as the Receiver said in evidence, one would expect any successful law abiding businessman to keep some sort of record no matter how simple, of what he was buying, what he was selling and the amounts of his overheads – if only to work out the sort of profit he was making and which were his most profitable items. The criminal dealer in, for example, illicit drugs will of course eschew any record by which his activities might be detectable."
"17 I respectfully agree with and adopt the above cited observations of Sullivan J, Langley J and King J and if support is needed it is to be found in the decision of the Court of Appeal, Criminal Division in R–v- Anwoir & Others [2008] 2 Cr App R 36 at para 21 at page 539 that there are two ways in which the Crown can prove in money laundering offences that property was derived from crime - either by proving it derived from unlawful conduct of a specific kind or kinds or by evidence of the circumstances in which the property was handled, such as to give rise to the irresistible inference that it could only have been derived from crime (although in criminal proceedings the higher standard of proof is required)".
Mortgage fraud.
"38…if someone steals £100,000 cash and puts the whole sum to the acquisition of a house, it could be said in a broad sense that the house itself has been obtained by unlawful conduct. However, as I understand the scheme of the Act, the original "recoverable property" is the immediate product of the unlawful conduct, that is the £100,000 cash. The house only becomes recoverable property because it "represents" the £100,000 ( s 305 ). The distinction is immaterial if the whole purchase price is funded from unlawful sources. However, it becomes important, if, say, only £75,000 of the purchase price comes from unlawful sources, and the other £25,000 is untainted. In such a case it could no doubt still be said that the £100,000 house would not have been acquired "but for" the theft, and possibly, in ordinary language, that it was "obtained" by theft. However, the Act seems to me to require a more precise analysis. The original recoverable property is the stolen £75,000, which is then "mixed" with the lawful £25,000. Under section 306 , the recovery order can only bite on the "portion" of the mixed property which is attributable to the unlawful £75,000.
39 If in that example one follows the judge's approach, one is forced to treat the whole house as "recoverable property". On that hypothesis sections 272 and 306 do not assist. The assumption underlying them is that the recoverable property is the product of unlawful conduct, and does not deserve or require protection. They provide protection respectively for "associated property", which by definition excludes property which is "itself the recoverable property" ( s 245(1) ); and "other property", that is, property other than the recoverable property which is mixed with it ( s 306(1) )."
"52 As to the first part, I agree that if a property is acquired in part with untainted money and in part with the proceeds of a mortgage fraud, it was not Parliament's intention that the purchaser should be deprived of the portion of the value of the property derived from untainted money. The object of s 306 (mixing property) is the opposite."
"18 The appellant's argument is that since half the purchase price came from clean money, half the value of the property should be regarded as not representing the fruits of crime.
19 The prosecution's submission was that logically the entire property should be regarded as obtained by her as a result of or in connection with her criminal activities, but by way of concession it was prepared to allow a discount in the amount of the unsecured loan.
20 There is no authority which is directly binding on us on this point, but there is some statutory provision and authority of this court in relation to another part of the Act which provide a helpful pointer.
21 The overall purpose of the Act is to separate criminals from property and other benefits obtained as a result of their crime. This may be done through criminal confiscation proceedings, with which we are presently concerned, or through civil action brought by the director of the Asset Recovery Agency.
22 In relation to the latter, section 306 of the Act deals specifically with the position where property has been obtained through the use of mixed funds; that is to say, tainted funds and untainted funds. Section 306 provides as follows:
"(1) Subsection (2) applies if a person's recoverable property is mixed with other property whether his property or another's.
(2) The portion of the mixed property which is attributable to the recoverable property represents the property obtained through unlawful conduct.
(3) Recoverable property is mixed with other property if, for example, it is used,
…
(b) in part payment for the acquisition of an asset."
23 So if in the present case proceedings had been initiated by the director of the agency there is no doubt how this question would have been resolved. The appellant pooled tainted money (the half of the acquisition price which came from her own criminal proceeds) with untainted money to acquire an asset, namely 43 Lusitania Road, and the portion of that which would have been attributable to her criminality would have been one half.
24 Those provisions were considered by the Court of Appeal Civil Division in the case of Olupitan and another v Director the Assets Recovery Agency [2008] EWCA Civ 104 The court accepted that if property was acquired in part with untainted money and in part with the proceeds of fraud, it was not Parliament's intention that the purchaser should be deprived of the portion of the value of the property derived from untainted money (see paragraphs 38 and 52). "
"I accordingly have no hesitation in concluding that the Respondent did knowingly supply to the mortgage provider false particulars on material matters in support of his mortgage application and thereby obtained the mortgage loan by deception and thus by fraud. I do not in the context of proceedings under the 2002 Act accept that such a conclusion is not open to me because I have not heard evidence directly from the mortgage provider. The notion that this false declaration of employment and income would not have materially influenced the decision to lend £50,000 on a property being purchased for £65,000 is fanciful. I am fortified in taking this approach by a similar approach taken by Langley J. in Olupitan at paras 29-36. I further infer that had the Respondent answered the questions on the form truthfully he would not have obtained a mortgage. By putting forward false particulars the Respondent was patently seeking to avoid disclosing the truth which he was anxious to conceal from the lender. As will be seen below the overwhelming probabilities are that at this time the Respondent was not conducting any legitimate trade of significance – not least because had he been so doing he would have informed Mr Matto of such trading, which on my findings he did not".
The evidence
(i) Intelligence.
"The Receiver has been provided with a police intelligence report dated 15 April 1998 which reads "His [AS] mate was David Gary Cedric Moore … he featured in Customs operation Silver Wings in early to mid 1980s … AS then moved to Spain at about the same time as Moore who was forced to leave UK. He has associated with the likes of Ronnie Knight, a London gangster". This evidence must be approached with considerable caution and care but the admission against interest of DG to the Portugese magistrate and evidence linking DG with Knights (see above) provide support for the information. I have concluded on the balance of probabilities that DG left the UK to avoid arrest for drug trafficking".
"In order to protect police intelligence gathering methodologies and to ensure that there is no exposure of the identity of any covert human intelligence sources which may, or may not have been used, in a manner which would breach their Article 2 ECHR rights, it is vitally important that none of the sources of intelligence are expanded upon or revealed in any way."
(ii) Associations.
(i) Jason McKinley
Mr Pelekanos accepted that he was in possession of personal documentation which belonged to Mr McKinley. Mr McKinley was arrested in Spain in May 2006 in respect of a seizure of cocaine. Some considerable time ago, Mr McKinley was sentenced to two years imprisonment by a Court in Frankfurt for importing drugs [1988], and to a term of 30 months by Luton Crown Court for possession with intent to supply cannabis resin [1995].
(ii) Mark Bavington.
He resided at a property associated with Mr Pelekanos, 6 Sheppard's Yard. He had convictions for, amongst other offences, possession of an offensive weapon; possession of cannabis and possession of cocaine.
(iii) Lee Wright and Lloyd Wright.
Lee Wright had a November 2005 conviction for possession with intent to supply class A drugs (for which he received a six year sentence reduced to four upon appeal), and also convictions for possession of cocaine and possession of an offensive weapon.
Lloyd Wright also has convictions for drugs offences in 1992-96.
(iv) Nigel Thompson.
He resided at 5 Sheppards Yard, a property from which Mr Pelekanos collected rent. Drugs were found on premises when search conducted by SOCA.
(v) Scott Lyons.
Mr Pelekanos accepted he went to Spain with him and that he stayed in Mr Pelekanos' apartment. Scott Lyons was convicted in 2005 for possession of cocaine with intent to supply and received a sentence of 16 months imprisonment.
(vi) Jason Hayward
Mr Pelekanos accepted he went to Spain with him and that he stayed in Mr Pelekanos' apartment. Mr Hayward was the subject of drug trafficking intelligence but had no drugs convictions.
(vii) Peter Judge
He resided at 6 Mulberry Court, a property from which Mr Pelekanos received the proceeds of sale. He had a 2004 conviction for possession of cannabis and an extensive but historic criminal record, which includes convictions for drugs offences, in the years prior to 1990. However, as Mr Pelekanos stated in evidence, Mr Judge's residence at Mulberry Court was after he had received the proceeds from its sale.
(iii)The property transactions
1A Bridgwater Road
(i) £90,000 which came from the proceeds of sale of a property situated at 174 Anchor Lane.
(ii) £22,000 from Mr Pelekanos' bank account [Natwest No. 72149981].
(iii) £23,305.50 from Mr Pelekanos' bank account [Barclays No. 30117307].
(iv) £249,975 mortgage from Abbey National.
(i) £90,000
(ii) £22,000
(i) £15,000 came from Thorne Barton (on 30th October 2003) who were in fact the sellers of the property and an entity with whom Mr Pelekanos has had substantial dealings.
(ii) It has been stated on behalf of Thorne Barton that this payment was the return of the deposit for the property (£35,000). This explanation makes little sense given that the property had yet to be purchased.
(iii) SOCA has been unable to trace any payment of £35,000 from Mr Pelekanos to Thorne Barton which might represent this 'deposit'.
(iv) £10,000 came from an unknown source which Mr Pelekanos was unable to explain or even remember in interview.
(iii) £23,305.50
(i) £20,000 came from Thorne Barton who paid it to 'KAP Properties' (on 30th October 2003) who in turn transferred it to Mr Pelekanos. 'Kap Properties' was a company which was in fact owned by Mr Pelekanos. This was the balance of the £35,000 which Thorne Barton has claimed they returned to Mr Pelekanos even though they were the sellers of the property, the property had yet to be purchased, no deposit had yet been paid and the same money ultimately went towards paying the deposit on the same property.
(ii) Mr Pelekanos was unable to explain the circularity of this transaction in interview. Nor has Thorne Barton offered any sensible explanation for it.
(iii) The balance of £4305 came from a transfer of £5896 (into Mr Pelekanos' Barclays account (30117307)) from his savings account (Barclays account (30144657). The latter sum was comprised of cash deposits.
(iv) £249,975
6 Sheppards Yard
La Quinta.
(i) £40,000 was paid directly to Thorne Barton and emanated from the proceeds of sale from 3 Sheppards Yard.
(ii) £20,000 originated from the sale of 174 Anchor Lane.
(iii) A mortgage was obtained from Capital Loans in respect of the balance (£340,000).
5 Guards View.
(i) £66,970.92 was paid on 2nd July 2002.
(ii) £15,000 was paid on 4th July 2002.
(iii) £20,000 was paid on 30th July 2002
(i) Mr Pelekanos sold Ms Feander a property, which he paid the deposit for.
(ii) On his account, he did not have the funds to pay the whole deposit and the money was borrowed from Mr Douglas.
(iii) Mr Pelekanos repaid this loan using the proceeds of sale from the same property (which he had to borrow in order to assist purchase).
(iv) Notwithstanding that Ms Feander apparently owns the property (and, on her account) intended to live in it, she never has.
(v) The false particulars on her mortgage application form relate to a company owned by Mr Pelekanos.
(vi) She has never repaid any money to Mr Pelekanos. She has never made any arrangements to repay Mr Pelekanos.
(vii) Notwithstanding Mr Pelekanos' claims that he has been struggling to live, since the SOCA investigation, he does not appear to have tried to get any money back from Ms Feander.
20b Lower Road
Other property transactions relied upon.
(i) Found the plot of land (upon which a property was built).
(ii)Contributed some £54,000 towards the purchase.
(iii)Arranged solicitors for the purchase of the land.
(iv)Acted a site manager on the build.
(v)Arranged estate agents for the sale of the land.
(vi)Arranged solicitors for the sale of the property.
(iv) The lack of explanation for Mr Pelekanos' income.
Summary of SOCA's evidential case
(i) There is a wholesale lack of any explanation as to where Mr Pelekanos' income came from during the relevant period.
(ii) Throughout the relevant period there is a substantial discrepancy between the income Mr Pelekanos has declared to HMRC (personally) or the income which any companies (in which Mr Pelekanos has an interest) have declared (at Companies House) and the income which he must have had to fund his property purchases.
(iii) In addition, Mr Pelekanos has systematically overstated his income on almost every mortgage application that he made. Whilst this constitutes distinct unlawful conduct, the fact that the income stated on these mortgage application forms bore no resemblance to his declared income equally demonstrates the extent to which Mr Pelekanos' has concealed his income.
(iv) Mr Pelekanos has extensive associations with individuals who have convictions for drugs offences.
(v) Mr Pelekanos has used a number of other persons as a front for property purchases.
(vi) He has also either accepted (or it is plain from the evidence) that Mr Pelekanos has been involved in the provision of fraudulent information about the financial position of these individuals to mortgage providers.
(vii) Certain individuals with convictions for drugs offences are linked to his properties or to his property purchases.
(viii) Analysis of Mr Pelekanos' finances demonstrates that he must have had an income which is not explicable by reference to any legitimate income.
(i) The instances of Mr Pelekanos using the bank accounts of others in order to receive the proceeds of a sale of a property and to buy a property.
(ii) His use of other persons to purchase properties which he is the beneficial owner of.
(iii) Analysis which demonstrates the circularity of other property transactions he was involved in. This is exemplified by his sale of 5 Guards View to Michelle Feander.
(iv) The fact of Mr Pelekanos' unexplained income and his lack of explanation as to where this derives from.
Conclusions on the evidence
Drug trafficking
Money Laundering
Mortgage fraud
The summary judgment applications
Conclusion