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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> National Crime Agency v Azam & Ors (No. 2)  EWHC 3573 (QB) (30 October 2014)
Cite as:  EWHC 3573 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| NATIONAL CRIME AGENCY
|- and -
|AMIR AZAM AND OTHERS
Andrew Bodnar (instructed by Brett Wilson LLP) for the Second Respondent
Hearing dates: 27 October 2014
Crown Copyright ©
Mrs Justice Andrews:
i) The NCA confirmed that for the purpose of determining whether any of the claimed property was "recoverable property" it made no allegation against Kalsoom of participation in her husband's unlawful conduct;
ii) Kalsoom confirmed that for the purposes of determining whether any of the claimed property was "recoverable property" she did not advance any positive case in relation to any alleged conduct by Mr Azam and "accepts that she will be bound by any findings made in this respect against Mr Azam".
iii) Kalsoom and Mr Azam both agreed that to the extent that either of them drew on funds that were subject to the PFO, such funds should be discounted from their entitlement to any share of their matrimonial assets on ancillary relief.
i) Part 1... to determine the issue of whether the property for the time being subject to the claim is in fact recoverable property by virtue of its having been obtained by or in return for unlawful conduct.
ii) Part 2, to be heard following the handing down of Judgment in relation to Part 1 ... to determine the defence of [Kalsoom] and her interest if any under the Matrimonial Causes Act in any of the property for the time being subject to the claim. [Kalsoom] confirms that for the purposes of the trial of Part 2, the Claimant is not limited as to the allegations it may make against her.
Paragraph 4 of the order made provision for directions to be given in respect of Part 2 of the trial either on the handing down of judgment following the trial of Part 1, or at a subsequent directions hearing convenient to the parties. In the event I gave those directions at a hearing on 24 September 2014.
Section 266 of POCA
(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 subsection 4... is met and it would not be just and equitable to do so.b. Any provision which is incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998 (c42)).
(4) In relation to a court in England and Wales... the conditions referred to in subsection 3(a) are that:a. The respondent obtained the property in good faith,b. He took steps after obtaining the property that he would not have taken if he had not obtained it or he took steps before obtaining the property which he would not have taken if he had not believed he was going to obtain it,c. When he took the steps, he had no notice that the property was recoverable,d. If a recovery order were made in respect of the property, it would, by reason of the steps, be detrimental to him."
(6) In deciding whether it would be just and equitable to make the provision in the recovery order where the conditions in subsection (4).. are met, the court must have regard toa. The degree of detriment that would be suffered by the respondent if the provision were made,b. The enforcement authority's interest in receiving the realised proceeds of the recoverable property.
(7) A recovery order may sever any property.
The relevant facts
"… no, no, I know it was something to do with my wife and he [Mohammed] gave her the gift or something and he was going to … he doesn't want her to have it now actually from what I know."
As Mr Sutcliffe pointed out to Mr Azam, he was not away at the time because he did not move to Dubai until July 2002 and the transfer was made in May 2002. Indeed there is positive evidence from Kalsoom herself that he was at least around at the time of the transfer, though it is unclear whether he was physically present when the TR1 was signed.
Thurza Court – the statutory defence
The effect of the prospective claim for financial relief under the MFPA.
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary… to control the use of property in accordance with the general interest…."
As I have already said, Mr Bodnar made it clear that he was not submitting that the Civil Recovery regime under Part 5 of POCA in and of itself violated A1P1. Plainly, it does not. Parliament has determined that it was necessary in the public interest to enact a law which enables the enforcement agency to confiscate property whose ownership may have passed out of the hands of criminals but which still represents the fruits of their criminal activities.
"This is not a case of punishing the wife for the husband's crime. Sadly, if one spouse turns out to be a spendthrift the result may be that the other suffers an absence of assets from which to seek ancillary relief. The same may happen if he turns out to be a criminal".
Those observations are equally true where the result of the application of the statutory scheme under Part 5 of POCA is that the wife is effectively deprived of assets from which to seek financial relief under Part III of the MFPA.