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A1P1 proportionality and civil recovery orders

In Sanam v National Crime Agency [2015] EWCA 1234, in which Brett Wilson LLP acted for the Appellant, the Court of Appeal was faced, for this first time, with the question of the proportionality of the making of a civil recovery order in a claim by by the National Crime Agency (NCA) under Part 5 of the Proceeds of Crime Act 2002 applying Article 1 Protocol 1 of the European Convention on Human Rights. The Appellant, described by the judge at first instance as "a complete innocent" of her husbands wrongdoing (principally drug dealing and money laundering) had been gifted a property by his father after their arranged marriage. The property itself had been purchased by the husband from the proceeds of his criminality but placed in his fathers name as a bare nominee. The appellant also held the joint legal title with her husband to another property which had also been purchased (again unbeknown to her) through the proceeds of his criminality. The Appellant had subsequently divorced her husband under sharia law pursuant to an agreement that she would make no claim on his assets. By virtue of the civil recovery action against him he had no remaining assets against which any claim in ancillary relief could bite. At first instance, Mrs Justice Andrews had made a civil recovery order over the subject properties with some considerable reluctance saying "she has done nothing to deserve the situation in which she has found herself. This is not a case of a wife happy to live "high on the hog" from the proceeds of crime with no questions asked, turning a blind eye to where the money was coming from. She was a dutiful young woman who entered without question into an arranged marriage and moved to a strange country where she had no friends or family in order to be a mother to her husbands three children from an earlier relationship....she genuinely believed Thurza Court was hers to  keep as a wedding gift". It was submitted on behalf of the Appellant that in such circumstances, where the defendant to a claim for a civil recovery order could not avail themselves of a defence under s 266(4), the key question was whether the making of the order would further the legislative aims of Part V of POCA. If the answer to that question was no, then the making of the Order was disproportionate when applying A1P1 and the order should not be made. The Court of Appeal distinguished its decision in Customs and Excise Commissioners v A which had given priority to a wife's claim in ancillary relief over the Drug Trafficking Act 1994 on the basis that, in that case, the wife had a genuine beneficial interest in the property which had not been acquired through the proceeds of crime. Whilst the Court drew parallels between proceedings under Part 2 (where the Supreme Court in Waya had reduced a confiscation order on A1P1 grounds) and Part 5 "where rights under A1P1 would be implicit" it rejected the Appellants assertion that the making of the civil recovery order was disproportionate in this case as the properties were acquired through the proceeds of crime and as such in furtherance of the legislative aim.


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