Mr Justice Globe:
- The first Claimant, Petula Fitzpatrick ("Mrs Fitzpatrick") and the second Claimant, Bruce Wilkey ("Mr Wilkey") are solicitors employed by the Third Claimant firm, Thomas Boyd Whyte ("TBW").
- Mrs Fitzpatrick and Mr Wilkey claim damages, including aggravated and exemplary damages, for assault, battery and false imprisonment, and in respect of a breach of Article 8 of the European Convention on Human Rights, as a result of the actions of the police between the 12th September 2007 and 21st June 2009. They also seek a declaration that their rights under Article 8 have been breached.
- TBW claim damages, including aggravated and exemplary damages, for trespass and malicious procurement by the police of a search warrant upon its premises at 302 Broadway, Bexleyheath on the 12th September 2007.
- The claims arise out of
1) The arrest without warrant of Mrs Fitzpatrick and Mr Wilkey in connection with money laundering offences on the 12th September 2007;
2) A warrant to search TBW's business premises and the execution of that warrant on the 12th September 2007; and
3) The continued interference with the private lives of Mrs Fitzpatrick and Mr Wilkey caused by them remaining on bail and subject to investigation until it was confirmed that no action would be taken against them in June 2009.
- In addition to five days of evidence and a full day of closing submissions, I have been substantially assisted by comprehensive pleadings, numerous volumes of exhibits and authorities and detailed skeleton arguments and written closing submissions. It would be impossible to recite all of the evidence and submissions and I do not seek to do so. Suffice it to say that I have taken into account all of the material in the case.
Facts
- The background to the case relates to an investigation called Operation Tarsal into the corrupt relationship between a Police Officer, Mark Bohannan, and a drug dealer, Syed Imtiaz Ahmed (Ahmed), both of whom were later convicted of conspiracy to commit misconduct in a public office. Ahmed was additionally convicted of conspiracy to supply Class A and Class C drugs. Both were sentenced to terms of imprisonment. DC Miller assisted the operational team but was principally assigned responsibility for the investigation into Ahmed's finances.
- Prior to 10th May 2007, authorisation was given for there to be a probe in Ahmed's car. Evidence from the probe included conversations about Ahmed owing Anthony Filugelli (Filugelli) £200,000 as part of a drug dealing debt, and about Ahmed having to transfer a four bedroom penthouse apartment in Cyprus to Filugelli via the creation of a Power of Attorney.
- On the 10th May 2007, Ahmed was arrested. One of the items in his possession was a contract for sale for a property in Northern Cyprus which had been purchased for £50,000. During the course of his subsequent no comment interview, he was represented by a member of TBW's criminal department. During the interview, it was put to him that he owed money to Filugelli for drugs.
- Both Filugelli and Ahmed were clients of TBW. In relation to Filugelli, Mrs Fitzpatrick had dealt with his family law matters and Mr Wilkey had dealt with property matters. In relation to Ahmed, Mr Wilkey had dealt with contractual and property matters.
- Mrs Fitzpatrick and Mr Wilkey found out about Ahmed's arrest and received information about what was being alleged against him and what had been put to him in interview. Mrs Fitzpatrick's recollection is that the firm's managing clerk, Derek Parker, who was then representing Ahmed in relation to his criminal case, told her that he had been informed by the member of the firm who had been present at the interview that it had been put to Ahmed in interview that the Police had a recording from a probe in Ahmed's car of Ahmed saying he owed Filugelli £500,000. Mrs Fitzpatrick said she thought that could have originated either from a drug debt or from something to do with investments she knew Filugelli had been making into a property development in Cyprus called Blue Bay. Whichever, she knew Ahmed had been arrested for drug dealing. She also knew that there had been a prior allegation by Filugelli's ex-partner that Filugelli had been a drug dealer. She had discounted that allegation at the time. However, the new allegations caused her to suspect that both men were involved in money laundering. She discussed the situation with Mr Wilkey. Mr Wilkey was the nominated money laundering reporting officer ("MLRO") for the firm. He decided to make a number of Suspicious Activity Reports ("SAR's") concerning Ahmed and Filugelli to the Serious and Organised Crime Agency ("SOCA") under the Proceeds of Crime Act ("POCA") procedure.
- In relation to Filugelli, SAR's were made on the 16th May, 18th May and 11th July in respect of three past and seven current property transactions, all of which related to UK properties. SOCA consent was sought to proceed with the current transactions. Consent was given by SOCA on the 5th June and 18th July on various conditions, one of which was that SOCA should be informed about the destination of any proceeds of sale, and another was that further disclosure should be considered if the circumstances detailed in the existing SARs changed in such a way as to give rise to further knowledge or suspicion of money laundering.
- In relation to Ahmed, SAR's were made on the 18th May and the 19th June in relation to two past and one current property transactions, all of which related to UK properties. One of the past transactions referred to in the SAR of the 18th May related to the granting of a nine year lease to Ahmed of his estate agency premises at 244a Broadway in Bexleyheath. The SAR dated 19th June related to the prospective assignment of that lease. Consent to proceed with that transaction was sought.
- On the 24th May 2007, DC Miller wrote to Mr Wilkey informing him that he was employed by the Metropolitan Police on the Anti-Corruption Command as the financial investigator in charge of the investigation into Ahmed's financial affairs. He stated that on the 16th May 2007 Derek Parker had contacted him saying that he had a duty under the Money Laundering Regulations to inform him that Ahmed was attempting to sell the lease at 244a Broadway, that Mr Wilkey was acting for Ahmed in relation to his conveyancing matters, and Mr Wilkey would be contacting him to seek consent to proceed with the transaction. DC Miller pointed out that as yet he had received no telephone call and no application for consent had been made. DC Miller pointed out that, following Ahmed's arrest, he was in the process of obtaining a Restraint Order in relation to Ahmed's assets and any attempt to sell, gift or dispose of any of his assets would be construed as a breach of the Money Laundering Regulations. Further, he reminded Mr Wilkey of his responsibilities under the Money Laundering Regulations and POCA.
- Derek Parker did not give evidence. It is therefore unclear as to what provisions of the Money Laundering Regulations and POCA were operating on his mind at the time he spoke to DC Miller. It was suggested to Mr Wilkey in evidence that the disclosure may have been pursuant to section 337 of the Act which covers a disclosure made by an employee who has come into possession of the information in the course of his employment by representing Ahmed in relation to his criminal case. The importance of that section is that it is relevant to an offence of Tipping Off pursuant to section 333 of the Act. Mr Wilkey gave evidence that he did not know why, or in what circumstances Derek Parker had made the disclosure.
- Upon receipt of the letter of the 24th May, Mr Wilkey telephoned DC Miller to discuss the matter, and during the course of the call he informed DC Miller of his approach. Mr Wilkey summarised the discussion in a letter to DC Miller dated 29th May 2007. Mr Wilkey explained that he did not yet have instructions to proceed with the assignment of the lease. He was going to discuss the matter with Ahmed. If Ahmed wanted to proceed, he intended telling Ahmed that a report would have to be made to SOCA seeking consent to continue with the transaction. If Ahmed did not want a report to be made, then Mr Wilkey would cease to act and would then make a report under section 330 of POCA.
- On the 31st May, DC Miller wrote to Mr Wilkey objecting to his approach, stating that the disclosure process was intended to be covert, and requesting him not to inform Ahmed of any disclosures or related communications. He suggested that Mr Wilkey's proposed actions could prejudice his financial investigation and thereby be an offence under section 342 of POCA as it could alert Ahmed to a Restraint Order that DC Miller was at the time seeking against him. In evidence, DC Miller confirmed his view that Ahmed was a drug dealer and the suggestion that Ahmed would ever agree to report any part of his financial affairs to SOCA was unrealistic. He would just go elsewhere to conduct his business and thereby potentially frustrate or avoid the financial investigation.
- Mr Wilkey had a different view. By a letter dated the same day, the 31st May, Mr Wilkey replied to DC Miller that he disagreed that his approach would amount to an offence contrary to section 342 of POCA. However, because of DC Miller's concern, he would not alert Ahmed to any disclosures that had been or would be made. He pointed out, though, that Ahmed had not yet given instructions to proceed with the assignment of the lease.
- By a letter addressed to Mr Wilkey and received in TBW's offices on the 7th June, Ahmed gave instructions to Mr Wilkey to assign the lease and, via a Power of Attorney which he wanted his father to sign, part of the proceeds of the assignment should be used to discharge his outstanding fees to TBW with the balance of the proceeds to be paid to his father. He also indicated that he wanted Mr Wilkey to act for him via the Power of Attorney in relation to selling his house.
- On the 19th June, Mr Wilkey wrote to DC Miller informing him that he had now received instructions to act for Ahmed in relation to the assignment of the lease and a SAR had been made to SOCA seeking consent to proceed with the transaction. He confirmed that Ahmed had not been alerted to the disclosure. On the 26th June 2007, SOCA gave their consent on their usual conditional terms.
- On the 25th June, DC Miller made application for a Restraint Order in relation to Ahmed's assets. The application alleged that Ahmed was the central figure in a sophisticated drugs supply network and that he had been charged with conspiracy to supply class A drugs. Amongst other financial information, it included information that Ahmed owned at least one property in Northern Cyprus and had transferred about £263,000 abroad to a legal body in Northern Cyprus.
- On the 26th June, DC Miller made a search on the ELMER Police database to establish what SARs had been made by Mr Wilkey. He did this because the attitude of Mr Wilkey to the issue of the assignment of the lease had raised his suspicion about Mr Wilkey's actions. In DC Miller's mind, Ahmed was someone who had been charged with Drug Trafficking and was a Money Laundering suspect in respect of whom any legal adviser should have been very cautious. Mr Wilkey's intention of asking Ahmed whether a report should be made to SOCA was of concern to him. It caused him to lose a degree of trust in Mr Wilkey's practices. In particular, he thought that Ahmed might have become aware of the Restraint Order that was being sought against him. Even though Mr Wilkey had changed his mind and had agreed not to alert Ahmed, some suspicion about Mr Wilkey remained in DC Miller's mind.
- On the 29th June, DC Miller obtained the Restraint Order in relation to Ahmed's assets. A copy was served on the Claimants on the 5th July 2007. Paragraph 10 of the Order permitted an application to vary the Order provided that two working days notice was first given to the prosecution.
- On the 10th July, Mr Wilkey had a 30 minute telephone conversation with DC Miller discussing the possibility of varying the Restraint Order to allow the assignment of Ahmed's lease to enable him to discharge his arrears of rent and to allow the balance to be held for any prospective confiscation order. DC Miller agreed in evidence that Mr Wilkey had been helpful in discussing with him the legal issues of registration, assignment and forfeiture of the lease.
- On the 11th July Mr Wilkey wrote to Ahmed at Wormwood Scrubs Prison explaining that he had been served with a copy of the Restraint Order, which prohibited him from acting on his instructions to assign the lease but, if he provided instructions, he could write to the prosecution seeking a variation of the Restraint Order to enable him to proceed with the assignment. When Ahmed failed to respond to that letter, Mr Wilkey sent a reminder letter to him on the 23rd July.
- Meanwhile, on the 12th July, Ahmed was further interviewed by DC Miller about his financial affairs, during the course of which he gave a lengthy explanation about his involvement in overseas properties acting as an agent between developers and purchasers of new build developments.
- On the 26th July, Mr Wilkey wrote to DC Miller enquiring whether he had given any further consideration to the possibility of varying the Restraint Order to enable the proposed assignment of the Bexleyheath lease. DC Miller replied on the 30th July 2007 that the solicitors for the landlord were going to apply for a variation whereby they intended to seek forfeiture of the lease. That concluded the discussions in relation to the lease.
- On the 30th July, Filugelli instructed Mrs Fitzpatrick to act for him in connection with the recovery of an investment he claimed he had made in the Blue Bay development in Northern Cyprus through Ahmed's Estate Agency. He told her that he had invested £330,000 in the development and that, shortly before Ahmed's arrest, he had been informed that he was to receive the final payment of £120,000 in September. He was worried about not receiving the money because of Ahmed's arrest. He said that Ahmed had all the paperwork. He therefore needed to get in touch with the solicitors in Cyprus. Mrs Fitzpatrick agreed to write to Ahmed at Wormwood Scrubs Prison asking him to confirm the details of who should be contacted so that the completion monies could be received by Filugelli.
- Mrs Fitzpatrick dictated the letter to Ahmed in Filugelli's presence. It requested Ahmed to inform her who should be contacted to enable Filugelli to receive the £120,000. The letter was sent on the 1st August 2007. In Mrs Fitzpatrick's witness statement, she states that this was the first occasion in the course of her practice that she had written to an individual in prison who was not her personal client. As at the 1st August, Ahmed was at least still represented by TBW in relation to his criminal case. However, he was not Mrs Fitzpatrick's personal client. Mrs Fitzpatrick's statement is illustrative of how rare it is to be corresponding with someone who is not a solicitor's own client. Mrs Fitzpatrick's justification is that she was not writing to him in the capacity of his legal adviser.
- Mrs Fitzpatrick also wrote to Filugelli on the 1st August confirming that she had written to Ahmed. It explained that because Ahmed was in custody, he would probably need to give a Power of Attorney to someone so as to ensure the return of Filugelli's money. Mrs Fitzpatrick said in evidence that although she knew that a Restraint Order had been obtained in relation Ahmed's assets, she had not looked at it and she did not know that it may have been possible to seek to vary its terms to enable legitimate funds of a third party to be paid out to the third party. She agreed that if Filugelli's funds were legitimate, then this might have been a way to secure the release of them if Ahmed had control of the funds, rather than by way of a Power of Attorney. However, from what Filugelli had told her on the 30th July, she was not aware of the fact that Ahmed had control of the funds allegedly due to Filugelli.
- Mrs Fitzpatrick said that when Filugelli had told her that he had invested £330,000 in the Blue Bay development and had no documents, alarm bells had rung. She had asked him if he had a receipt and he had said he did not have one. She had not asked where the £330,000 had come from or for any proof of payment. She said she did not know why she had not asked such questions. However, she said that because she was suspicious she went to Mr Wilkey as the MLRO to inform him of her suspicions with a view to SARs being made to SOCA in relation to both Filugelli and Ahmed's investments dealings. She showed him her attendance note which included the figure of £330,000 and stated that Ahmed had all of the documents. The note did not specifically state that Filugelli had no documents, nor did it state that he had no receipt for his investment. Mrs Fitzpatrick says that when she went to Mr Wilkey, it was agreed between them that a SAR should be sent to SOCA and the documents were drawn up together. She added that Mr Wilkey's agreement to send the SAR was typical of "his better safe than sorry" approach to making disclosures.
- On the 7th August, Mr Wilkey made two such reports to SOCA. Neither the actual reports that were sent by him, nor any faxed or photo copies, have been recovered from the Claimants' files or SOCA. However, I am satisfied that SARs were sent by Mr Wilkey. From the material that has been recovered, I am also satisfied that what was sent was as follows. In relation to Filugelli, the SAR referred to investments he had made in properties in Cyprus from which he might derive a significant profit. It stated that TBW had not been involved in the original investment dealings and had no information beyond what appeared in the letter to Ahmed. In relation to Ahmed, the SAR stated that, through dealings with Filugelli, it had come to TBW's attention that Ahmed had acted as an agent in relation to investments made in Cyprus and that there was the possibility that he might have received or could receive commission upon completion of the transaction referred to in a letter that was enclosed with the report. The letter referred to was the one that had been sent to Ahmed on the 1st August. Neither SAR included any application for consent from SOCA to proceed with any transaction. Mrs Fitzpatrick and Mr Wilkey explained that no consent to proceed was sought because Filugelli had not given instructions to proceed with the transaction at this stage.
- Both Mrs Fitzpatrick and Mr Wilkey gave evidence that the information contained in the SARs was all that was needed to comply with their Money Laundering responsibilities on the basis that the effect of what had been disclosed was that any funds in relation to Filugelli's investments were tainted money. However, the reports omitted reference to the fact that Filugelli had invested the specific sum of £330,000, to the fact that he had no receipt for such a large sum, and to the fact that he had no documents in relation to the investment. Mrs Fitzpatrick stated that she had told Mr Wilkey everything that she had been told and had showed him her attendance note. In her interview, she told the police that she had drafted "the guts page of the disclosures". Mr Wilkey said that he had seen Mrs Fitzpatrick's attendance note prior to submitting the reports. He said he had not been told that Filugelli had no receipt and no documents. There is therefore a difference between the accounts of the First and Second Claimants as to what information was imparted to Mr Wilkey. What is common ground though is that Filugelli had told Mrs Fitzpatrick that the investment was £330,000 and that figure appears in the attendance note. It is a figure which is absent from the report. It is a sizeable sum of money and that alone is a surprising absence. Given that Mrs Fitzpatrick drafted "the guts page of the disclosures", the omission of the lack of documents and a receipt is also surprising.
- On the 14th August, DC Miller received information from an "A1" intelligence source. The intelligence was that Ahmed had been visited at Wormwood Scrubs by Vincent Forde and Tommy McRaye, both of whom had previous convictions for violent offending. At the end of the visit, Ahmed told prison staff that the men were debt collectors who had threatened him and he was scared of them. On leaving the prison, the men booked a follow-up visit for the 25th August and asked whether they could bring conveyancing documents for Ahmed to sign. It was believed that the men were acting on behalf of Filugelli and DC Miller was concerned that Filugelli was trying to get around the Restraint Order. There was concern about Ahmed's future safety and about Ahmed signing any conveyancing documents which could amount to a breach of the Order and the commission of money laundering offences. It was not known if Forde and McRaye knew anything about the origin of the debt and there was no reason for them to have known anything about the Restraint Order. The decision that was therefore taken by the police was not to arrest them if they turned up for the next visit, but merely to request the prison to prevent them from visiting Ahmed.
- DC Miller's concern was reinforced by further intelligence that he became aware of, and logged on an Intelligence Report, on the morning of the 15th August. The gist of the intelligence, again from an "A1" source, was that Ahmed had received a letter from TBW, written on behalf of Filugelli, in relation to an alleged debt of £200,000 which was demanded from Ahmed in the form of property being signed over to Filugelli; that Ahmed had been visited by two males sent by Filugelli to pressure him into signing over the property; and that the two males had said that they would return with documents for him to sign. Notwithstanding the integrity and reliability of the "A1" source, I am satisfied that the only letter that had been sent by TBW to Ahmed by the morning of the 15th August was the one of the 1st August which had been drafted in different terms to the content of the intelligence. However, I am also satisfied that DC Miller had not seen the letter of the 1st August.
- On the same day, at some time during the 15th August, Mrs Fitzpatrick had another meeting with Filugelli, during the course of which she informed Filugelli that Ahmed had not responded to the letter of the 1st August 2007. She also informed him that Ahmed had changed solicitors, such that TBW was now no longer representing him in relation to his criminal case. She agreed to write a reminder letter to Ahmed. In the course of the meeting, Filugelli informed Mrs Fitzpatrick that he believed TBW was already in possession of a Power of Attorney for Ahmed. Mrs Fitzpatrick informed Filugelli that that was incorrect.
- Later that day, Mrs Fitzpatrick again wrote to Ahmed at Wormwood Scrubs further asking him if he would identify the legal representatives in Cyprus to whom Filugelli's investment had been made so that she could liaise with them to recover his £120,000. The letter also stated that she had been informed that the firm supposedly held a Power of Attorney for him but, having checked the records, such information was wrong. Mrs Fitzpatrick sent a copy of that letter to Filugelli.
- On the 20th August, Mrs Fitzpatrick again met Filugelli. In the course of the meeting, Filugelli gave her more information about his investments. He told her that the £330,000 investment had been made in cash instalments over three years with the last instalment being made a year ago for about £50,000. It was agreed with Filugelli that, in order to obtain his £120,000, it would be necessary for Ahmed to sign a Power of Attorney so that instructions could be given on his behalf to the Cyprus solicitors to gain the release of the money to Filugelli. Filugelli was told that a Power of Attorney would cost £2000 but that Ahmed's outstanding bill of costs owed to TBW would also have to be discharged. Filugelli agreed to pay both sums. During the course of the meeting, Filugelli wanted to know if there would be any comeback on him because he had paid the £330,000 in cash. Mrs Fitzpatrick told him that for there to be any come back on him there would first of all have to be a conviction against him. In cross-examination, Mrs Fitzpatrick expressed ignorance of Civil Recovery Orders and agreed that her advice to Filugelli on that matter was wrong.
- The revelation to Mrs Fitzpatrick that Filugelli had paid the £330,000 in cash was a new and highly significant piece of information. In what I regard as a series of surprising answers for a solicitor as experienced as Mrs Fitzpatrick, she said she did not ask where the money had come from, or how it had been taken out of the country. Her explanation was that she did not think it was for her to quiz her client. That omission was an error of judgment on her part which was then compounded by later events.
- Mrs Fitzpatrick says she did tell Mr Wilkey that Filugelli's £330,000 had been paid in cash. She says she did so because she now had further suspicions and was very worried about the situation. Mr Wilkey says he cannot recall her telling him about it but she may have done. If he was told, it is surprising that he cannot recall something as significant as that, particularly if Mrs Fitzpatrick was as suspicious and worried about it as she said she was. I am satisfied from the evidence of Mrs Fitzpatrick that she did tell him. This means that either he cannot recall it because he did not take sufficient notice of it, which is indicative of a lack of care in dealing with such information, or he is simply not prepared to own up to the fact that he was given the information and did nothing about it. Either way, it is inconsistent with "his better safe than sorry approach" to making disclosures.
- Although SOCA consent to proceed with the transaction had not been sought on the 7th August, the usual condition that was attached to consent being given illustrates what type of information should be disclosed to SOCA. It is "any circumstances that give rise to any further knowledge or suspicion of money laundering". The SARs of the 7th August stated that "this firm was not involved in the original investment dealings and have no information in respect thereof beyond the information contained in the enclosed letter (to Ahmed)". The SARs and the letter of the 1st August made no reference to the amount of the investment. To this extent, they were inaccurate. However, once the additional information about Filugelli's Cyprus investment being £330,000 in cash had been received, even more information was known, and the SARs of the 7th August were even more inaccurate. It was information that SOCA was bound to be interested in. I am satisfied that it was of such importance that it should have been subject to a further disclosure to SOCA.
- Mrs Fitzpatrick said that in hindsight she wishes she had caused the additional information to have been disclosed.
- Mr Wilkey was not as forthcoming. At one point in his evidence, he said that even if he had known about the cash payments, there was no need for any further report because he had already reported his suspicions about Filugelli's Cyprus investments and any money in relation to them should have been regarded as tainted money. That ignores the inaccurate statement in the disclosure report of the 7th August about having "no information" about the details of the investment. At a later stage of his evidence, he confirmed that, if he had known about the cash payments, then "it would have been desirable" to have made a further disclosure about them. I am satisfied that he did know about it and that it should have been disclosed to SOCA. That was the view of Gordon Luckhurst, TBW's senior partner. He stated that the policy of the firm was to report anything suspicious. He agreed in evidence that the sum of £330,000 in cash was suspicious. I am equally satisfied that, if Mr Wilkey had spoken to Mr Luckhurst, either in his capacity as senior partner or as the Deputy MLRO, he would have been told to report it. The failure to report these facts was an error on the part of Mr Wilkey as MLRO. His reluctance to accept the point in cross-examination until a relatively late stage, and even then only with some reservation, is illustrative of what I find to have been an over-technical approach to his responsibilities as MLRO. It was an approach which I find is reflected in his dealings with DC Miller generally.
- Following the meeting with Filugelli on the 20th August, and notwithstanding the now obviously dubious nature of the money that Filugelli was seeking to recover from his Cyprus "investment", Mrs Fitzpatrick decided to visit Ahmed at Wormwood Scrubs on the 30th August. The email from the firm sought a "legal visit". Ahmed's criminal solicitors were not informed as they should have been in accordance with the Solicitors' Regulation Authority Code of Conduct. Paragraph 10.04 of the Code forbids communication with anyone who is known to have retained a lawyer except in specified situations, none of which applied here.
- On the 21st August, DC Miller made a second search of the ELMER database to check what SARs had been made to SOCA. DC Miller says that the search revealed details of the SARs sent on the 7th August but not the contents of the letter of the 1st August sent to Ahmed by TBW which was referred to in the reports and had been sent as an attachment to the reports. He decided to try and obtain the letter from Ahmed's new solicitor, Mr Rahman of Rahman Ravelli. From his diary entry dated 23rd August, DC Miller confirmed that Mr Rahman told him that he had the letter. "On pushing", Mr Rahman told him that it said that Filugelli was requesting £120,000 from Ahmed as money owed over a property sale. Mr Rahman promised to send a copy of the letter to DC Miller the next day, but it was never sent. DC Miller was asked why he had not tried to obtain a copy of the letter from TBW. His reply was that he wanted to try and obtain it from elsewhere because he was suspicious about what was going on at TBW.
- On about the 24th August, DC Miller became aware of the fact that Forde and McRaye had attempted to visit Ahmed again on the 23rd August instead of the 25th August. However, they had been refused entry by the prison authorities.
- On the 30th August, Mrs Fitzpatrick went to Wormwood Scrubs to see Ahmed. Notwithstanding her discussions with Filugelli about needing Ahmed to sign a Power of Attorney for the purpose of instructions being given to the Cyprus solicitors, Mrs Fitzpatrick said that she did not take one with her to the prison because at this stage she was only seeking information, particularly the name of the Cyprus solicitors. In the event, it was irrelevant because she was informed by the prison that Ahmed declined to see her. When she told Filugelli what had happened, he told her that Ahmed had told him it had been a misunderstanding and he was happy to see her. Notwithstanding what Filugelli told her, Mrs Fitzpatrick agreed in evidence that Ahmed's refusal to see her was a clear signal for her to have contacted Rahman Ravelli before trying to see him again. With hindsight, she wished she had done so. However, with Rahman Ravelli still in ignorance of her attempt to see their client, another "legal visit" was requested on the 5th September for her to see Ahmed on the 10th September.
- On the 6th September, Mrs Fitzpatrick again spoke to Filugelli. Her file note records what she agreed with Filugelli, namely, that if she managed to see Ahmed, she would attempt to ascertain the identity of the agents who were holding the £120,000 and "Ahmed (should) execute the Power of Attorney in favour of his father, which Tony Filugelli ha(d) agreed to deal with for him".
- On the 10th September, Mrs Fitzpatrick went to Wormwood Scrubs to see Ahmed for her 10.30 visit. The file note from her meeting with Filugelli on the 6th September suggests she should have had the Power of Attorney with her. In her witness statement, she stated that she did not have it with her. In cross examination, she confirmed that she went to the prison to get it signed. In re-examination, she said she was not sure whether she had it with her or not. Whether she did or she did not have it with her, it was a second wasted journey. She was informed that Ahmed had been moved to Wandsworth Prison following an attendance at Southwark Crown Court on the 6th September.
- Following this second wasted journey to see Ahmed, Mrs Fitzpatrick had a number of telephone conversations with Filugelli, as a result of which she agreed to go and see Ahmed at Wandsworth Prison. With Rahman Ravelli still in ignorance of her continuing attempt to see their client, another request was made to the prison authorities to see him. An administrative assistant in the firm requested a visit on 12th September at 8:45am. The request was wrongly stated to be for a legal visit "for our client". I accept Mrs Fitzpatrick's evidence that she did not instruct the assistant to use that phrase, and did not know that it was the phrase that was used. However, it is indicative of the thought processes of the administrative assistant who naturally assumed that Mrs Fitzpatrick would not have requested a visit to see someone at the prison who was not her client. It shows how unusual it was to visit someone else's client and it is illustrative of how suspicious such a visit is likely to have been to the police.
- At 11.31 on the 10th September, DC Prosser, the Deputy Case Officer for Operation Tarsal, completed an Intelligence Report numbered DP42-T-089124 stating that Ahmed's solicitor, Mr Rahman, had rung to say that Ford and McRaye were now on remand at Wandsworth Prison with Ahmed, and that Ahmed had been threatened by them.
- By the 11th September, DC Miller said that, by keeping in touch with other officers involved in Operation Tarsal, he was not only aware of the attempts of Forde and McRaye to see Ahmed, but he was also aware of the two abortive attempts by Mrs Fitzpatrick to visit Ahmed on the 30th August and 10th September. Additionally, he had become aware of intelligence that Mrs Fitzpatrick had a third appointment to visit Ahmed at Wandsworth Prison on the morning of the 12th September, and it was for the purpose of obtaining Ahmed's signature on conveyancing documents.
- DC Miller decided to make a third search of the ELMER database to update himself as to what reports had been reported to SOCA about Filugelli and Ahmed. At 13.10 on the 11th September, he received a fax from SOCA comprising at least 22 pages. Twenty pages of the fax have been recovered. Pages 8 and 9 are missing. It is possible that other pages are missing after page 22. The twenty pages that have been recovered included all of the SARs sent by Mr Wilkey except for those sent on the 7th August. DC Miller accepts that pages 8 and 9 are likely to have been the SAR of the 7th August in relation to Ahmed and there may have been the Filugelli SAR of the 7th August attached at the end of the fax after page 22. I am satisfied that there is nothing sinister in the absence of these documents from what has been disclosed. It would have been reasonable to have detached the 7th August documents to be used in the course of what later occurred. It is disappointing that there isn't an audit trail to where they now are, but all that means is that I do not have the advantage of seeing what was contained within them. I accept DC Miller's evidence that he hasn't destroyed any documents and that the documents that he saw included details of what was reported, but did not include the contents of the appended letter of the 1st August. I also accept that he discovered that no further SARs had been sent to SOCA since his last search on the 21st August. In particular, and in the context of his knowledge about the abortive attempts by Mrs Fitzpatrick to see Ahmed on the 30th August and 10th September, and her arranged visit for the following day, there had been no report about any of these visits to see Ahmed to carry out any transaction on behalf of Filugelli.
- DC Miller was cross examined extensively about the existence of the intelligence that Mrs Fitzpatrick was going to the prison to obtain Ahmed's signature on conveyancing documents. He denied the specific suggestion that the intelligence had never existed and was mere conjecture on his part. DC Miller said he could not remember who provided the intelligence, but it would have come from one of the detectives involved in the operation. He said that intelligence was coming into the operational team from various sources. This piece of intelligence should have been put onto an Intelligence Report, but it was not. However, he was certain that the intelligence existed and his evidence was that it was in the terms as appeared on various documents which he made during the11th and 12th September. It was in the application for a warrant to search TBW's offices which was drafted by DC Miller on the 11th September. It was in his briefing sheet prepared on the 11th September for the deployment of officers on the 12th September. It was in a note in his day diary which he updated on the 12th September after the arrests of Mrs Fitzpatrick and Mr Wilkey.
- The application for the warrant included reference to there being intelligence from independent and reliable sources that "Mr Ahmed is being put under pressure by Mr Filugelli to sign over to him a property Ahmed owns in Cyprus. Thomas Boyd Whyte Solicitors are acting on behalf of Filugelli in this conveyancing activity", and that TBW had made an appointment to see Ahmed at which "conveyancing documents will be signed, handing over property believed to be assets of the proceeds of crime to Filugelli, during the meeting in contravention of the Restraint Order."
- The briefing sheet included details of the intelligence that Filugelli was pursuing Ahmed for his outstanding drug debt, that Ahmed was strongly believed to have assets abroad and had every intention of dissolving them before they could be identified, that Filugelli had instructed TBW to go to the prison at 08.45 on the (12th) September to see Ahmed and that it was believed that the purpose of her visit was "to attain the signature of Ahmed on a conveyancing document(s) that will effectively sign assets over from his possession to Filugelli to satisfy the debt".
- The day diary again refers to there being intelligence which suggested that "Fitzpatrick was attending HMP to get conveyancing paperwork signed by Ahmed".
- DI Day also gave evidence. He was a Detective Sergeant in September 2007 and was one of the two DSs working under the leadership of DI Joyce who was the officer in charge of Operation Tarsal. He said that intelligence had been received which indicated that a representative of TBW was going to see Ahmed at Wandsworth Prison to ask him to sign over a property in Cyprus. He remembered DC Miller consulting with DI Joyce, DI Pollock and himself about what to do. He could not remember who had received the intelligence. He said it was either himself or DC Miller. It was crucial information and it should have been written down. He agreed that there should have been a formal record kept of it. In that there isn't a formal record, that is an error. However, action had been needed quickly. There were many things that were going on in relation to the investigation as a whole and unfortunately this piece of intelligence did not find its way onto an Intelligence Report. Nonetheless, he was sure that the intelligence existed and the best record of it so far as he was concerned was in DC Miller's briefing sheet. DI Day was cross examined extensively about the details of his work, his reports and statements for the purpose of this case. It was alleged that there were some inconsistencies about what he had said in those documents in that they did not reflect the full extent of his evidence. He agreed that such inconsistencies did exist. Throughout, though, he remained insistent that the intelligence existed. He said it was a big decision to consider obtaining a search warrant to search the offices of a firm of solicitors and arresting a solicitor. It was very clear in his mind what had happened and he remembered discussing the intelligence that they had received.
- Following the discussions that DC Miller had with DI Joyce, DI Pollock and (DI) Day about what should be done, DC Miller said it was decided that he should go to Wandsworth Prison on the 12th September with colleagues, arrest any legal representatives who visited Ahmed, seize any papers in their possession, and also obtain a search warrant to enter and search TBW's offices.
- In accordance with that course of action, on the 11th September, DC Moddrel made an application for the search warrant referred to above in relation to TBW's offices. He has applied for hundreds of warrants over many years as a police officer and has little recollection of this application. However, he had never previously made application for one associated with POCA and believes that he would have been assisted or directed by an officer working on the financial aspect of the Operation Tarsal investigation. DC Miller accepted that he was the officer who drew up the details for the application and DC Moddrel typed it out at his dictation. The application included reference to the above mentioned intelligence. The application was made pursuant to S.8 of the Police and Criminal Evidence Act 1984 ("PACE"). It stated that the material that was being sought was likely to be relevant evidence and would be of substantial value to the investigation of an offence of money laundering contrary to S.328 of POCA and it did not consist of or include items subject to legal privilege, excluded material or special procedure material. When read with the draft warrant which was presented in court, the material sought was limited to correspondence and computer records relating to conveyancing transactions concerning Ahmed, and Ahmed and Filugelli. The application was considered and granted by District Judge Purdy sitting at the City of Westminster Magistrates Court some time on the 11th September.
- On the same day, DC Miller prepared a briefing sheet for those police officers who were to go to the prison and to TBW's offices. In it, the intention was specified to be the arrest upon leaving the prison of Mrs Fitzpatrick and any other legal representative who visited Ahmed on the 12th September, the retrieval of any conveyancing papers that were in their possession, the retrieval of any documentation issued to Ahmed during the visit, and the execution of the search warrant at TBW's offices. The briefing also stated that there were clearly defined items stipulated on the warrant. If there was any doubt concerning an issue of legal privileged material, then the item should be sealed in a non-transparent bag, and that seize and sift powers could be exercised should the material identified not be able to be viewed at the scene due to its quantity.
- Unaware of the police action, during the 11th September Mrs Fitzpatrick dictated two documents to be sent to Filugelli. The first was a letter summarising her efforts in trying to recover his Cyprus funds and setting out Filugelli's agreement to pay her costs. The second was an interim account in relation to those costs. The work included Mrs Fitzpatrick going to see Ahmed in prison to enable an Enduring Power of Attorney to be executed by Ahmed's father. The account included payment by Filugelli of Ahmed's outstanding bill of costs due to TBW of £1,000 plus VAT. The total came to £4,112. Mrs Fitzpatrick expected the dictated documents to be ready for her to sign upon returning from the prison the following day.
- On the morning of 12th September, Mrs Fitzpatrick went to Wandsworth Prison. She travelled to the prison in a car driven by Filugelli's driver. The driver waited outside to pick her up after the visit. Whether or not she had taken a draft Power of Attorney with her on previous occasions, she took with her a draft Enduring Power of Attorney on this occasion. It had been drawn up by Mr Wilkey who had experience of doing so. It was made out in Ahmed's name and was to give a "general authority" to act on his behalf in relation to "all of my property and affairs". It could have been made out with a limited power, expressed to relate only to the money owing to Filugelli, but it was not. The evidence of both Mrs Fitzpatrick and Mr Wilkey is that that is what it was to be used for, but the document as drafted would have given a much greater power to whoever was going to be the appointee. Mrs Fitzpatrick said that she had not discussed with Mr Wilkey how they would proceed after the Power of Attorney had been executed. However, it was her intention to keep him informed and she had assumed that he would make additional disclosure as necessary with a view to obtaining consent from SOCA when sufficient information was available. Mr Wilkey said that it was more than an assumption. It had been agreed between them that a disclosure should be made to SOCA after the Power of Attorney had been completed by Ahmed, but before approaching his father to finalise his appointment as Attorney. He told her to make sure that she brought the Power of Attorney back to the office and not to leave it in the prison because of the existence of the Restraint Order.
- Mrs Fitzpatrick agreed in evidence that it might well have seemed suspicious to the police for her to be visiting Ahmed when he was not her client in circumstances where Filugelli was her client and SARs had been sent to SOCA in relation to both men. She said that she did not think about that at the time. She also did not think about whether Ahmed should have had independent legal advice in relation to signing the Power of Attorney. She did not suggest it to him.
- This time, Mrs Fitzpatrick did gain access to Ahmed. With the assistance of her attendance note, Mrs Fitzpatrick explained what happened when she saw him. In summary, she said that Ahmed was talking a lot and on occasions took her pad and wrote things on it. At one point, he completed the details of his father as the appointee in relation to the Enduring Power of Attorney and he also signed the document in her presence. However, in relation to Filugelli's £120,000, he said that the money was not being held by any Cyprus solicitors. It had been paid out to himself. He had spent £80,000 of it and the balance was mixed up with his business assets and was now restrained. He said he was very nervous of Filugelli finding out that he had spent the money. He said that Filugelli had previously threatened him and he was terrified of him. Mrs Fitzpatrick said that she realised during the meeting that Filugelli was dangerous and that made her scared of him as well. She agreed that the information about what had happened to the money had not caused her to void the Power of Attorney, to rip it up or to leave it with Ahmed, but it had caused her not to witness the fact that it had been signed in her presence. She decided to retain it. She confirmed that that is what Mr Wilkey had told her to do.
- At 9.55am, upon leaving the prison, and before reaching the car being driven by Filugelli's driver, Mrs Fitzpatrick was arrested on suspicion of money laundering offences under S.328 and S.330 of POCA and was taken to Bexleyheath Police Station. Mrs Fitzpatrick's file and mobile phone were seized, although DC Miller did not look inside the file in case it contained legally privileged material. He placed it into a sealed bag and did not examine it until some months later after independent counsel had determined that it did not contain any legal privileged material. It was only then that DC Miller saw that it contained a "general authority" Power of Attorney form, partially completed with Ahmed's details typed on the form, his father's name and address written on the form and the form signed by Ahmed.
- In cross examination, Mrs Fitzpatrick denied that, if she had not been arrested, she would have gone from the prison to see Ahmed's father to obtain his signature to the Power of Attorney. She said she was en-route back to the office for an 11:30 appointment with a client. That appointment appears in her diary. In any event, because of what Ahmed had told her, she wanted to speak to Mr Wilkey and Mr Luckhurst about what to do when she returned to the office. She was concerned about what Ahmed had told her and she realised there was now a conflict of interest between Filugelli and Ahmed. However, she agreed in cross examination that, having put herself in the position of having been driven to the prison by Filugelli's driver, who was waiting to drive her away from the prison, the driver might have caused her to have handed over the Power of Attorney in her possession for Filugelli to have used it as he pleased.
- The circumstances of Mr Wilkey's arrest are derived from notes compiled that day by DI Joyce, the contents of the contemporaneous premises search record, the statements of DC Miller and Mr Wilkey, and the evidence of both of them. At 11.35am, DI Joyce, DC Miller and other offices attended at TBW's offices. DI Joyce spoke to the receptionist who asked to see Mr Wilkey. The receptionist rang Mr Wilkey who was in his office on the first floor of the building. She told him that DI Joyce was there to see him and he told her to send him up to see him. DI Joyce, together with other officers including DC Miller, was taken upstairs. DI Joyce was introduced to Mr Wilkey. DI Joyce showed him his warrant card and explained that the police officers with him were there to assist in the execution of a search warrant which DI Joyce showed to Mr Wilkey. DI Joyce explained that Mrs Fitzpatrick had been arrested on suspicion of being involved in money laundering offences and asked if he was still the MLRO for the firm. Mr Wilkey confirmed that he was and that he knew that Mrs Fitzpatrick had gone to the prison to see Ahmed. He also confirmed that he knew Ahmed was in custody for drug trafficking offences and that there was a Restraint Order in force in respect of Ahmed's assets. Mr Wilkey then said that Mrs Fitzpatrick had gone to the prison with a Power of Attorney. At that point, DC Miller stated that, from what Mr Wilkey had just said, he formed the strong suspicion that Mr Wilkey was also involved in the arrangement to get Ahmed to sign something that would involve money laundering offences and get around the Restraint order. As a result, at 11.45, he arrested Mr Wilkey on suspicion of money laundering offences under S.328 and S.330 of POCA. Mr Wilkey was also eventually taken to Bexleyheath Police Station for interview.
- It was immediately after Mr Wilkey was arrested and cautioned that a search was undertaken of the premises. At the commencement of the search Mr Wilkey was asked if everything in this office was non-legal privilege because it was conveyancing. Mr Wilkey replied that he thought that would be the case but he could not be sure. He was told that the files the police were interested in were those to do with Ahmed and his transactions with Filugelli. He replied that there weren't any transactions between Ahmed and Filugelli apart from the one relating to the Cyprus investment by Filugelli. The search continued into the afternoon and included both Mr Wilkey's room and Mrs Fitzpatrick's room. A large amount of documentation was seized during the search. Because it was deemed impracticable to examine it at the scene, and because some of the material may have included legal privilege, S.50 of the Criminal Justice and Police Act 2001 was invoked. The material was bagged and sealed with a view to it being looked at away from the scene. In the event, what was taken included files and paperwork relating to Ahmed and Filugelli. The Filugelli documentation included family law and litigation files and conveyancing files. Mr Wilkey's money-laundering files were seized. Copies were taken of certain files that had been microfiched. A large number of electronic files were downloaded onto a portable memory device. In total, about five box loads of paper files were seized.
- Mrs Fitzpatrick and Mr Wilkey were interviewed later that day. Both denied in interview that they had done anything wrong. Mrs Fitzpatrick agreed in evidence that she did not tell the police the full truth in that she did not tell them that Ahmed had told her that he had received the £120,000, had spent £80,000 of it with the remaining money being mixed up with his business assets, or that he had been threatened by Filugelli and was terrified of him. Mr Wilkey maintained throughout that he had carried out his responsibilities as MLRO in accordance with his understanding of the law and that everything that had needed to be reported about Filugelli and Ahmed had been reported.
- Mrs Fitzpatrick and Mr Wilkey were respectively released on bail shortly after their interviews were completed at about 20.45 and 23.00 that evening. The circumstances of their detention have been described in detail in paragraph 7 of Mrs Fitzpatrick's statement and paragraph 8 of Mr Wilkey's statement. Their embarrassment, discomfiture and shock should not be underestimated.
- Both were subject to a series of bail dates that were extended. Eventually, the Claimants' solicitors were notified on the 22nd June 2009 that no further action would be taken against them. The statements and evidence of Mrs Fitzpatrick and Mr Wilkey reflect the further embarrassment and difficulties that each faced during that 21 month period of time.
- The delay was mainly caused by the large quantity of material which had been recovered from TBW's offices in sealed bags which the police thought might have been subject to legal professional privilege. It was passed on to independent counsel for a decision to be made as to what could be examined by the police. The factual chronology of events set out in paragraphs 46-63 of the Particulars of Claim is not in issue. In summary, independent counsel produced schedules of documents for comment by the Claimants in November 2007 and January 2008. Comments were provided. In May 2008, independent counsel advised that schedules should be given to Ahmed and Filugelli for comment and that only a small portion of the items reviewed were likely to be of interest to the police. Between then and September 2008, there was correspondence between the Claimants' solicitors and the police about progressing the case but it was not until September 2008 that DC Miller contacted Filugelli for the purposes of seeking his consent to view privileged material. On behalf of the Claimants it is contended that DC Miller should have done that in May. On behalf of the Defendant it is contended that there was a misunderstanding, in that DC Miller believed that it was for the Claimants' solicitors to have made the request. In October, two boxes of irrelevant material were returned to TBW. By the time a second review had to be conducted in November 2008 by independent counsel, pressure of time meant that new independent counsel had to be appointed. She provided an advice on the 20th January 2009. On the 16th February 2009, DC Miller sent an email to the Claimants' solicitors saying he had received authority from counsel to view certain documents and invited them to collect non-privileged material. The police file was sent to the CPS on the 30th March 2009. The CPS decision was communicated to the Claimants' solicitors on the 22nd June.
Arrest
- It is in these circumstances, that Mrs Fitzpatrick and Mr Wilkey claim that they were wrongly arrested and falsely imprisoned between about 9:55 and 20:45 in the case of Mrs Fitzpatrick, and between about 11:35 and 23:00 in the case of Mr Wilkey.
- The issue of the arrest of each Claimant involves consideration of the relevant parts of S.24 of PACE and S.328 and S.330 of POCA as applicable in September 2007.
- S.24 of PACE provides that
1) A constable may arrest without warrant
a) ........................
b) ........................
c) .........................
d) Anyone whom he has reasonable grounds for suspecting to be committing an offence,
2) If a constable has reasonable grounds for suspecting that offence has been committed, he may arrest without warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
3) ...........................................
4) But the power of summary arrest conferred by subsections 1, 2 and 3 is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection 5 it is necessary to arrest the person in question.
5) The reasons are
a) …
b) …
c) …
d) …
e) To allow the prompt and effective investigation of the offence or of the conduct of the person in question.
f) ….
- S.328 of POCA provides that
1) A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person.
2) But a person does not commit such an offence if
a) he makes an authorised disclosure under S.338 and (if the disclosure is made before he does the act mentioned in subsection 1)) he has the appropriate consent;
b) he intended to make such a disclosure but had a reasonable excuse for not doing so;
c) ........................
3) ...................
4) ...................
5) ...................
- S.330 of POCA provides that
1) A person commits an offence if the conditions in subsections 2) to 4) are satisfied.
2) The first condition is that he
a) knows or suspects, or
b) has reasonable grounds for knowing or suspecting,
that another person is engaged in money laundering.
3) The second condition is that the information or other matter
a) on which his knowledge or suspicion is based, or
b) which gives reasonable grounds for such knowledge or suspicion,
came to him in the course of a business in the regulated sector.
3A) The third condition is
a) that he can identify the other person mentioned in subsection 2) or the whereabouts of any of the laundered property, or
b) that he believes, or it is reasonable to expect him to believe, that the information or other matter mentioned in subsection 3) will or may assist in identifying that other person or the whereabouts of any of the laundered property.
4) The fourth condition is that he does not make the required disclosure to
a) a nominated officer, or
b) a person authorised for the purposes of this Part by the Director General of SOCA,
as soon as is practicable after the information or other matter mentioned in subsection 3) comes to him.
5) The required disclosure is a disclosure of
a) the identity of the other person mentioned in subsection 2), if he knows it,
b) the whereabouts of the laundered property, so far as he knows it, and
c) the information or other matter mentioned in subsection 3).
5A) The laundered property is the property forming the subject matter of the money laundering that he knows or suspects, or has reasonable grounds for knowing or suspecting, that other person to be engaged.
6) But he does not commit an offence under this section if
a) he has a reasonable excuse for not making the required disclosure,
b) he is a professional legal adviser..................and
i. if he knows either of the things mentioned in subsection 5a) and b), he knows the thing because of information or other matter that came to him in privileged circumstances, or
ii. the information or other matter mentioned in subsection 3) came to him in privileged circumstances,
c) ......................
7) ............................
7A) ...........................
7B) ...........................
8) In deciding whether a person committed an offence under this section the court must consider whether he followed any relevant guidance which was at the time concerned
a) issued by a supervisory authority or any other appropriate body,
b) approved by the Treasury, and
c) published in a manner it approved as appropriate in its opinion to bring the guidance to the attention of persons likely to be affected by it.
9) A disclosure to a nominated officer is a disclosure which
a) is made to a person nominated by the alleged offender's employer to receive disclosures under this section, and
b) is made in the course of the alleged offender's employment.
9A) But a disclosure which satisfies a) and b) of subsection 9) is not to be taken as a disclosure to a nominated officer if the person making the disclosure
a) is a professional legal adviser.............
b) makes it for the purpose of obtaining advice about making a disclosure under this section, and
c) does not intend it to be a disclosure under this section.
10) Information or other matter comes to a professional legal adviser ..........in privileged circumstances if it is communicated or given to him
a) by (or by a representative of) a client of his in connection with the giving by the adviser of legal advice to the client,
b) by (or by a representative of) a person seeking legal advice from the adviser, or
c) by a person in connection with legal proceedings or contemplated legal proceedings.
11) But subsection 10) does not apply to information or other matter which is communicated or given with the intention of furthering a criminal purpose.
12) Schedule 9 has effect for the purpose of determining what is
a) A business in the regulated sector;
b) ...................
13) An appropriate body is any body which regulates or is a representative of any trade, profession, business or employment carried on by the alleged offender.
14) ..................
- I have considered the draft questions to be answered which have been submitted by both sides. There is substantial agreement as to what the questions should be, save that there is disagreement as to an additional requirement suggested on behalf of the Claimants. In the first instance, I shall ignore the proposed additional requirement and concentrate on the questions about which there is substantial agreement. The precise wording of the draft questions is not identical, but the effect is the same. They have been formulated with the assistance of the guidance within the recent case of Hayes v Chief Constable of Merseyside [2011] EWCA Civ 911 as supplemented by a formulation drawn from the case of O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 at 298C-G. I am satisfied that, when applied to the facts of this case, the questions to be answered are as follows.
Has the Defendant proved, in relation to the arrest of each Claimant separately, that, at the time of the arrest,
1) DC Miller actually suspected that the Claimant had committed or was committing an offence contrary to S.328 and/or 330 of POCA?
2) A reasonable man, with an accurate understanding of the law and possessed of the information known by DC Miller, would have suspected that the Claimant had committed or was committing an offence contrary to S.328 and/or 330 of POCA?
3) DC Miller actually believed that an arrest was necessary to allow the prompt and effective investigation of the offence or of the conduct of the Claimant?
4) A reasonable man, with an accurate understanding of the law and possessed of the information known by DC Miller, would have believed that an arrest was necessary to allow the prompt and effective investigation of the offence or of the conduct of the Claimant?
- It is apparent from an overview of the facts of the case that the information in possession of each side was different. In considering each of the four questions, it is of particular importance to separate out from the full facts what facts were known by DC Miller and would have been known by the reasonable man. It is equally important to bear in mind the fact that the questions refer to suspicion or belief. They are different concepts to the evidential and public interest tests to be applied by the Crown Prosecution Service as to whether there should be a prosecution. The issues of whether there was a realistic prospect of conviction and whether it was in the public interest to prosecute would have been considered on the full facts as then known by the Crown Prosecution Service and not on the facts as known by DC Miller at the time of the arrests.
- The concept of "suspicion" was dealt with by Lord Devlin in Hussein v Chong Fook Kam [1970] AC 942 at 948B
"Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking. 'I suspect but I cannot prove.' Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end"
- An officer is not obliged to rely only on matters known to them personally but may rely on informants. In O'Hara Lord Hope stated:
"The information acted on by the arresting officer need not be bases on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances."
Question One (DC Miller's suspicion of an offence)
- At one point in his evidence, DC Miller provided ten specific reasons for his suspicion. As he went through the reasons, he actually mentioned more than ten points. However, upon analysis, they amounted to the following matters.
1) There was material from the probe which suggested that Ahmed and Filugelli were involved together in criminality.
2) There was also material from the probe which suggested that Ahmed owed Filugelli a considerable amount of money in relation to a drugs debt.
3) Ahmed had been acting as an estate agent and there was evidence at the time of his arrest that he had some control over property in Cyprus.
4) Ahmed had been arrested for and/or had been charged with corruption and drug offences.
5) There was evidence that Ahmed had been approached in prison by McRaye and Forde, people acting on behalf of Filugelli, who were chasing him for payment of the debt.
6) There was intelligence that Mrs Fitzpatrick had been visiting Ahmed in prison when she was not his solicitor.
7) There was intelligence that Mrs Fitzpatrick was going to the prison on the 12th September to obtain Ahmed's signature on conveyancing documents on behalf of Filugelli.
8) No SARs had been made about the visits or of obtaining the signature on any conveyancing documents.
9) Both Ahmed and TBW were aware of the existence of the Restraint Order.
10) In the SARs that had been completed in relation to Filugelli and Ahmed, TBW had not properly linked Ahmed and Filugelli's names. They could and should have completed associated subject forms in order to inform law enforcement of the link in their activities, or at the very least have named each "client" in the narrative.
- In addition to these specific points, which DC Miller said applied to both Mrs Fitzpatrick and Mr Wilkey, it is necessary to add what DC Miller said in relation to Mr Wilkey alone at the time when he effected his arrest. DC Miller said that, from Mr Wilkey's admissions in the office, Mr Wilkey knew Mrs Fitzpatrick had gone to the prison with a Power of Attorney. As a result, DC Miller thereby formed the strong suspicion that Mr Wilkey was also involved in the arrangement to get Ahmed to sign something that would involve money laundering offences and get around the Restraint Order.
- Various criticisms are made about all of the above points by the Claimants. However, it is not realistically submitted that, if DC Miller was in possession all of the above information, he did not have actual suspicion that Mrs Fitzpatrick and Mr Wilkey had committed or were in the process of committing an offence or offences contrary to S.328 and/or 330 of POCA. What is submitted, though, is that DC Miller was not in possession of any intelligence that Mrs Fitzpatrick's attendance at the prison on the 12th September was to obtain Ahmed's signature on any conveyancing documents. Reliance is placed on the fact that there was no Intelligence Report confirming such intelligence and on inconsistencies in the evidence of DI Day and DC Miller about the receipt of such evidence. It was suggested to both men in cross examination that such intelligence never existed and it was mere conjecture by DC Miller that that is why Mrs Fitzpatrick was going to the prison on the 12th September.
- The evidence as to the existence of the intelligence is summarised above in paragraphs 51 to 57.
- The fact that no Intelligence Report was filled out in relation to the intelligence about Mrs Fitzpatrick going to the prison for the purpose of attaining Ahmed's signature on conveyancing documents is unimpressive. However, I accept the evidence of both DC Miller and DI Day about there being many matters that were ongoing at the time which may have caused this error to have occurred. I am entirely satisfied from their evidence that the intelligence did exist and that they were aware of it on the 11th September.
- I am reinforced in my conclusion that the intelligence did exist by a note which was typed by DC (Andy) Prosser in addition to the Intelligence Report which he filed on the 10th September. It is an undated note, but from its contents I am satisfied that this was not a note created after the event but was a note which was effectively contemporaneous and was typed on the 11th September. The note traced the history of the attempts made by Forde and McRaye to see Ahmed at Wormwood Scrubs. It stated that Ahmed had said that he felt safe at Wormwood Scrubs because they were North-West villains and Filugelli could not get to him there. However, by going to Wandsworth, he was mixing with South London villains and Filugelli would be able to get to him through inmates and he felt that he would be stabbed. It recorded the fact that intelligence suggested that Filugelli was higher up the drugs chain than Ahmed. The bottom section of the note made reference to the Intelligence report DP42-T-089124 (referred to above in paragraph 50) and then said the following
"Andy just for information......re the first information that I emailed you last week re Vincent Forde and Tommy McRaye, Tommy McRaye is now in Wandsworth. Ahmed has apparently been threatened McRaye to sign over this property and that a legal rep/solicitor from Thomas Boyd Solicitors would be attending to visit Ahmed tomorrow to get him to sign the property over. These solicitors are aware of the Restraint Order on Ahmed. Ahmed has sacked this firm of solicitors."
- DC Prosser's note was handed to DC Miller during his cross examination. He said he had never seen it before. He was obviously bemused when it was handed to him. I accept DC Miller's evidence that he was unaware of its contents. It is understandable that he would not have seen it. The note had only surfaced a few days before the trial commenced as part of the continuing disclosure process in relation to the case. I have considered the possibility that the reference to the representative going to the prison tomorrow to get Ahmed to sign the property over is merely a note by DC Prosser of what DC Miller was falsely saying to other officers was going to happen. Having studied the full contents of the note and its timing, I reject that possibility. I am satisfied that the note is either a note by DC Prosser about intelligence that was by then within his own knowledge, alternatively, it was a note by him of intelligence that had come from the same intelligence source as that within the Intelligence Report DP42-T-89124. If that is correct, it was from an "A1" source. Either way, it is capable of supporting, and in my view does support, the evidence of DC Miller and DI Day that the intelligence existed.
- My conclusion in relation to the arrest of Mrs Fitzpatrick is that I am in no doubt about the fact that DC Miller was in possession of what was regarded as reliable intelligence that Mrs Fitzpatrick had been to visit Ahmed to obtain his signature on conveyancing documents, that the matters referred to in paragraphs 82 were operating on his mind, and that he did actually suspect that she either had committed or was in the process of committing an offence under S.328 and/or 330 of POCA.
- My conclusion in relation to the arrest of Mr Wilkey is that the additional matters referred to in paragraph 83 did cause DC Miller actually to suspect that he too had committed or was in the process of committing the same offence or offences.
Question Two (A reasonable man's suspicion of an offence)
- The Claimants submit that, even if DC Miller did actually have suspicion, it cannot be proved that a reasonable man, with an accurate understanding of the law and possessed of the information known by DC Miller, would have had suspected that the Claimant had committed or was committing an offence under S.328 and/or 330 of POCA.
- The Claimants contend that DC Miller's experience as a financial investigator was limited. DC Miller stated that by the time of the arrests he had been a detective for 17 years. Between 2002 and 2008 he had been posted to the Financial Investigation Unit of the Metropolitan Police's Directorate of Professional Standards which supported operational teams with the Anti Corruption Command. He worked on the operational team and then the financial investigation unit. However, the Claimants rely on the fact that, although DC Miller's statement said that he became an accredited financial investigator for POCA in 2004, he was not sure in evidence whether that happened in 2004 or 2006. Whichever date is correct, the Claimants argue that his experience of financial investigations was limited although it is common ground that in June 2007 he attended a course on enhanced investigation skills. In cross examination, he accepted that he was provided with no specific training as to how the POCA regime applied in the context of solicitors or other legal professionals. The Claimants specifically rely upon the fact that, at the time of the arrests, his knowledge of the case of Bowman v Fels [2005] 1 WLR 3083 was limited, he was unaware of the professional guidance that had been given by the Law Society following that case, and he was also unaware of any other relevant solicitors' guidance.
- As a result of the above, the Claimants contend that DC Miller interpretation's of the law was wrong and misinformed him in relation to the whole case. A number of issues are relied upon.
1) He did not appear to understand that S.330 only related to regulated business and did not create an offence of not seeking consent.
2) He did not appear to understand the difference between a disclosure under S.330 (in the course of regulated business knowing or suspecting a person is engaged in money laundering) and one under S.338 (seeking consent in respect of a matter that would otherwise be an offence of entering into or becoming concerned in an arrangement to facilitate the acquisition, retention, use or control of criminal property under S.328). He therefore wrongly repeatedly dwelt on the fact that the disclosures of the 7th August made by the Claimants had not sought consent whereas other ones had done so.
3) He took an incorrect absolutist approach to when a solicitor could discuss any proposal to seek consent for a transaction without tipping off. As such, he was applying wrong legal principles when objecting to Mr Wilkey speaking to Ahmed about the assignment of his lease. Having taken that wrong legal approach, his resultant suspicion of Mr Wilkey's actions from then on was unjustified and unreasonable.
4) He had a lack of understanding of the principles within Bowman v Fels in relation to the restrictive interpretation of an "arrangement" under S.328, and the fact that there is no duty to make a S.338 disclosure in respect of preparatory steps in a transaction and consent is not required for preparatory steps.
5) He had an exaggerated view of the reporting duties of solicitors, even to the extent of believing that Ahmed's criminal solicitors had a duty to provide information to him.
- Additionally, the Claimants contend that DC Miller was an unsatisfactory witness. It is alleged he had a careless and cavalier attitude to the facts and to the truth of his witness statement which contained an error about Derek Palmer. He did not read the search warrant carefully. Other issues of credibility in relation to inconsistencies in his evidence are contained in paragraph 16 of the Claimants' outline closing submission.
- It is contended that all of the above wrongly fed into DC Miller's suspicion which in the end analysis was not reasonably held.
- The case of Bowman v Fels dealt with the issues of disclosure under S.328 by solicitors acting in the course of litigation. It did not directly consider the conduct of transactional work. The Law Society Guidance, a copy of which is annexed to Mr Wilkey's statement, indicates that the approach in Bowman as to what constitutes an "arrangement" in S.328 provides some assistance interpreting how the section applies to transactional work. The Guidance then states as follows at paragraphs 3.3 – 3.9:
"3.3 Although the Court did not seek to lay down definitive guidance on issues of interpretation outside the context of litigation, the judgment provides support for a restricted understanding of the concept of becoming concerned in an arrangement. The judgment at paragraphs 67 and 68 provides support for the view that
- entering into or becoming concerned in an arrangement involves an act done at a particular point in time, and
- a person does not enter into or become concerned in an arrangement under S.328 and no offence under this section is committed until such an arrangement is made, and
- no preparatory or intermediate step taken in the course of transactional work which does not itself involve the acquisition, retention, use or control of property will constitute the making of an arrangement under S.328.
3.4 Where a solicitor engaged on transactional work forms a relevant suspicion, he will have to consider
3.4.1 whether an arrangement within the terms of S.328 exists and, if so, whether he has entered into or become concerned in that arrangement or may do so at some point in the future;
3.4.2 if there is no existing arrangement under S.328, whether an arrangement within the terms of S.328 will or may come into existence at some date in the future.
3.5 The word "arrangement" is not defined in Part 7 of POCA, but under S.328 it is an arrangement which [the alleged offender] "knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property....". A solicitor may be involved in bringing such an arrangement into existence, but for the arrangement to come within the terms of S.328, it must be a concluded arrangement which does in fact facilitate in the way described in the section. The arrangement itself, which a person can be said to "enter into" or "become concerned in" must exist and have practical effects relating to the acquisition, retention, use or control of property.
3.6 The operative phrase in S.328 – "enters into or becomes concerned in an arrangement" – needs to be considered as a whole. To enter into such an arrangement is to become a party to it; to become concerned in an arrangement suggest some wider degree of practical involvement in an existing arrangement such as taking steps to execute or put into effect an arrangement. Both "enters into" and "become concerned in" describe doing an act that is the starting point of an involvement in an existing arrangement.
3.7 Solicitors conducting transactional work may anticipate that at some future date an arrangement under S.328 will come into existence and that they may become concerned in it. At that time the solicitor would commit a criminal offence if he does not make an authorised disclosure (unless he is prevented from reporting by common law LPP).
3.8 A solicitor making an authorised disclosure would need to seek consent to doing the "prohibited act" of entering into or, more likely, becoming concerned in the arrangement. Until an arrangement under S.328 does exist, the solicitor can continue in the normal way with any preparatory steps relating to the transaction.
3.9 An agreement by the solicitor's client and another party to bring about an arrangement that would fall within the terms of S.328 is not, in itself, an arrangement under S.328. The test is whether it does in fact, in the present and not the future, have the effect of facilitating the acquisition, retention, use or control of criminal property by or on behalf of another person.
- The Guidance also provides assistance as to a solicitor's duty under S.330
"4.1 Where a solicitor, when undertaking work covered by the Money Laundering Regulations, has knowledge or suspicion of money laundering or reasonable grounds for suspicion the solicitor should consider the obligation under S.330 to make a money laundering disclosure. Transactional work undertaken by solicitors is almost always covered by the Regulations whereas litigation and pure legal advice work in not covered by the Regulations and, therefore, also falls outside S.330. As part of the "regulated sector" transactional lawyers need to be aware of the S.330 offence which applies even if the solicitor withdraws from the matter. A key consideration is whether the information which causes them to know or suspect or have reasonable grounds to suspect, that another person is engaged in money laundering falls within the professional legal adviser exemption under S.330(6). It is also important to note that this exemption does not apply where the intention behind the communication is to further a criminal purpose."
- In addition to the case of Bowman, my attention has been drawn by the Defendant to the case of British Basic Slag Limited v Registrar of Restrictive Trading Agreements [1963] 1 WLR 727. The Court of Appeal was dealing with S.6 of The Restrictive Trade Practices Act 1956 which provided that "an 'agreement' includes any agreement or arrangement, whether or not it is or is not intended to be enforceable by legal proceedings". Although the court was dealing different legislation, the Defendant contends that it is nonetheless indicative of what is meant by the word "arrangement" in the context of that Act.
Per Wilmer LJ "..........it is highly significant that Parliament did not see fit to include any definition of 'arrangement'. I infer from this that it was intended that the word should be construed in its ordinary or popular sense. Though it may not be easy to put into words, everybody knows what is meant by an arrangement between two or more parties. If the arrangement is intended to be enforceable by legal proceedings, as in the case where it is made for good consideration, it may no doubt properly be described as an agreement. But the Act of 1956 clearly contemplates that there may be arrangements that may not be enforceable by legal proceedings, but which create only moral obligations or obligations binding in honour......................when each of two or more parties intentionally arouses in the others an expectation that he will act in a certain way, it seems to me that he incurs at least a moral obligation to do so. An arrangement as so defined is therefore something 'whereby the parties to it accept mutual rights and obligations'".
Per Diplock LJ "'Arrangement' is not a term of art and in S.6 of the Act I agree with my Lords that it bears the meaning that an ordinary educated man would ascribe to it...............there are many ways in which arrangements may be made. It is sufficient to constitute an arrangement between A and B if (1) A makes a representation as to his future conduct with the expectation and intention that such conduct on his part will operate as an inducement to B to act in a particular way, (2) such representation is communicated to B, who has knowledge that A so expected and intended, and (3) such representation or A's conduct in fulfilment of it operates as an inducement, whether among other inducements or not, to B to act in that particular way".
- A large section of the closing submissions on both sides has been concentrated on what Mrs Fitzpatrick and Mr Wilkey were actually doing and whether what they were doing provided reasonable grounds to suspect each was committing an offence under S.328 and/or S.330. Because that is not what has to be proved in relation to the current question, I do not intend to rehearse the arguments save for the following.
- The approach of the Claimants is that they were doing nothing wrong. They were abiding by the Law Society Guidance. There was no arrangement in existence. There would not have been any arrangement in force until the Power of Attorney was sought to be used. At its highest, the draft Power of Attorney was a preparatory step. No consent was therefore yet required to proceed under S.328. Sufficient disclosure had already been made under S.330 by virtue of the 7th August SARs.
- The approach of the Defendant is that the Claimants place over-technical reliance on Bowman, which does not deal with transactional work. By virtue of British Basic Slag Limited the signature of the Power of Attorney by Ahmed, the details of his father being entered on it and it being taken away by Mrs Fitzpatrick were all sufficient to amount to an arrangement under S.328. Additionally, on the facts as known to Mrs Fitzpatrick and Mr Wilkey, insufficient disclosure had been made under S.330. In each regard, the Defendant's case has been that, even on their own case, the Claimants had "let themselves down" in actions that were ill-advised or naive. However, in closing submissions, the Defendant submitted that, after having heard the evidence, one could be forgiven for being left with the overriding impression that what the Claimants admitted doing was truly exceptional and deeply suspicious.
- Given the question that needs to be answered, I do not need to resolve these contrasting submissions. However, three issues in relation to the Claimants' own cases are worthy of note. First, Mrs Fitzpatrick conceded that she was in error in going to see Ahmed three times without notifying his solicitor that she was doing so and that that alone could have appeared suspicious to the police. This fact remains a relevant factor to the question that has to be answered because the oddity of going to see someone who was not her client was information in the possession of DC Miller. Secondly, Mrs Fitzpatrick conceded in evidence that when she was first told by Filugelli about his investment of £330,000, she had not asked him about its origin or for any proof of payment. She had thereafter drafted the "guts" of the SAR dated the 7th August omitting to include the fact that the investment had been for £330,000 and that Filugelli had no documents and no receipt. Mr Wilkey also admitted that he allowed the SAR of the 7th August to be submitted without the full details being included. The omission does not remain a relevant factor to the question that has to be answered because it was not known by DC Miller. Thirdly, Mrs Fitzpatrick also conceded in evidence that when she was later told that the £330,000 had been paid in cash, she had not asked Filugelli where it had come from or how it had been taken out of the country. She regretted not disclosing those further facts to SOCA. Mr Wilkey conceded that, if he did know the £330,000 had been paid in cash, then it would have been desirable to have told SOCA that fact. I have already made a finding that Mrs Fitzpatrick did tell him that the investment was made in cash. That omission also does not remain a relevant factor to the factor that has to be answered because that too was not known by DC Miller.
- I repeat that the question that needs to be answered is whether the Defendant has proved that a reasonable man, with an accurate understanding of the law and possessed of the information known by DC Miller, would have suspected that the Claimant had committed or was committing an offence contrary to S.328 and/or 330 of POCA. One must apply the facts as known by DC Miller to the law to decide the question.
- Having listened to DC Miller give evidence periodically over a period of three days, I do not accept that he was an unsatisfactory witness. I am satisfied he was honest and on all material aspects of his evidence he was a credible and reliable witness.
- I accept, as DC Miller accepted, that his experience as an accredited financial investigator for POCA was not extensive, but that does not mean that he did not have a sufficient grasp of the correct legal principles to be applied to the facts of the case as he knew them. I am satisfied that he did have a sufficient grasp of them. In that the Claimants, particularly Mr Wilkey in his discussions, correspondence and interview with DC Miller and in his evidence, has alleged that DC Miller failed to understand the law, I am satisfied that that has arisen because there was a lack of understanding or appreciation by the Claimants of the facts in DC Miller's possession. It is those facts, and those facts alone upon which the reasonableness of DC Miller's suspicion is to be decided.
- I am satisfied that the facts that were in DC Miller's possession are correctly summarised in paragraphs 82 and 83, although the surrounding circumstances in relation to those facts are contained in the more detailed summary of facts earlier in this judgment.
- All of the surrounding circumstances were of importance. However, in my view, the critical piece of information was the intelligence about Mrs Fitzpatrick going to visit Ahmed for him to sign conveyancing documents to sign over property to Filugelli, and that has to be seen against the background of the police having evidence from the probe that it would be done via the use of a Power of Attorney. I have already decided that the intelligence existed and DC Miller knew about it and it actually formed the basis of his suspicion that an offence under S.328 and/or 330 had been or was in the process of being committed. Would a reasonable man, with an accurate understanding of law, have held that suspicion?
- The Claimants submit that, notwithstanding Lord Hope's observations in O'Hara about being able to rely on intelligence, it may not always be reasonable to rely on it. In appropriate cases, an officer has a duty to test the source and veracity of the intelligence. Here, it is argued that DC Miller did not do enough to test the intelligence. In particular, his evidence about not seeing the letter sent with the SARs of the 7th August is challenged. Even if he never saw it, he is criticised for not doing more to obtain a copy of it. It would have shown that some of the intelligence in his possession was inaccurate. As to these submissions, I am satisfied from his evidence, and his attempt to obtain a copy of the letter from Rahman Ravelli, that he did not see the letter. I am satisfied that when it was not sent to him by Rahman Ravelli it was reasonable to assume that the solicitors did not want to send it to him. He had had to "push" them to obtain any information when he rang up Mr Rahman. It was not unreasonable for him to have continued to have acted without it. In any event, they had told him what was in it, and he was therefore possessed of the information within it. Notwithstanding that information, the quality of the intelligence in his possession was of the highest order. It was categorised as "A1", which means "always reliable" and "known to be true without reservation". He checked whether there were any SARs about Mrs Fitzpatrick's visits to see Ahmed and there were none. There had also been nothing disclosed, and no consent had been sought, to sign any conveyancing documents.
- On either interpretation of what amounted to an arrangement, I am satisfied that the prospect of signing of conveyancing documents was sufficient in law to give rise to a reasonable suspicion that Mrs Fitzpatrick was becoming concerned in an arrangement within S.328 to facilitate the acquisition, retention, use or control of criminal property by or on behalf of another person.
- I am equally satisfied that, after the arrest of Mrs Fitzpatrick in possession of a file of papers having just visited Ahmed, and Mr Wilkey's admission that he knew she was visiting Ahmed and had with her a Power of Attorney, that that too was sufficient in law to give rise to a like suspicion in relation to Mr Wilkey. He was the conveyancing expert in the firm. It was reasonable to assume that in the circumstances he would have been concerned in some way with the conveyancing documents which were suspected to have been in Mrs Fitzpatrick's possession. Also, the police were in possession of the evidence from the probe that the method of transferring the Cyprus property from Ahmed to Filugelli was going to be via a Power of Attorney, which is what Mr Wilkey told the police was in the possession of Mrs Fitzpatrick at the prison.
- I add the following. The issue about whether or not the search warrant to enter TBW's offices was lawfully obtained was irrelevant to the arrest of Mr Wilkey in his office. The circumstances of the entry of the police described in paragraph 67 above make it clear that when the police spoke to the receptionist, Mr Wilkey invited them up to his office. This is not a case of the police forcing an entry onto premises unlawfully and then carrying out an arrest.
- In each case, therefore, I am satisfied that the Defendant has proved that a reasonable man, with an accurate understanding of the law and possessed of the information known by DC Miller, would have suspected that the Claimant had committed or was committing an offence contrary to S.328 and/or 330.
Question Three (DC Miller's belief in the necessity of an arrest)
- In relation to Mrs Fitzpatrick, DC Miller explained that it was necessary to arrest her to secure the file in her possession, which was relevant evidence, to prevent her from communicating by mobile telephone with any third party who might be involved with her in the commission of an offence, to prevent her from passing on any documentation which Ahmed might have signed to Filugelli who could have used it to dissipate assets, to take her to a police station to interview her promptly under caution, and to conduct a thorough and effective investigation.
- The Claimants submit that it was not necessary for DC Miller to arrest Mrs Fitzpatrick. He could have given her a chance to explain herself. There was no reason to think that she would have communicated with third parties if asked not to do so. There could have been a voluntary interview with her. In each regard, there was no reason to think she would not have co-operated. As it was, the interview took place without access to the documents in her possession. The process undertaken by the police was thereby hindered by an arrest. Further, if there was a real concern about the dissipation of assets, then Mrs Fitzpatrick could have been stopped from seeing Ahmed in the same way that McRaye and Forde had been stopped from seeing him.
- In relation to Mr Wilkey, DC Miller explained that it was necessary to arrest him to allow the prompt and effective investigation of the offences and of Mr Wilkey's conduct. Mr Wilkey had known that Mrs Fitzpatrick had gone to the prison to visit Ahmed to make what DC Miller suspected were arrangements for money laundering. Mr Wilkey had not sought consent from SOCA for any such transaction. The allegations were serious and did not warrant voluntary interview which Mr Wilkey could have brought to a halt whenever he chose.
- The Claimants submit that it was not necessary for DC Miller to arrest Mrs Wilkey. Further questions could have been asked of him in the office and he too could have been questioned voluntarily. There had been discussion with him previously about the assignment of the lease and Mr Wilkey had been co-operative throughout that process. There was no necessity to arrest him.
- The Claimants further contend that DC Miller never had any actual belief that it was necessary to arrest either Claimant. The reasons that have been stated merely amount to ex post facto justification.
- The Defendant submits that the situation was different to the situation with McRaye and Forde. There was no evidence that McRaye and Forde knew about the Restraint Order. In each case, Mrs Fitzpatrick and Mr Wilkey did know about it. The police knew that there had been no disclosure of any of Mrs Fitzpatrick's visits to the prison and no disclosure about conveyancing documents. As both DC Miller and DI Day put it in evidence, they had very strong suspicion of serious offences being committed by solicitors. If they were not arrested, there was a real risk that they could have tipped off others and/or could have arranged to progress or cover up their activities. Evidence needed to be preserved. If they had not been arrested, they would have been free to bring to an end informal police questioning by refusing to attend, by leaving the police station and by interrupting any interviewing process at any time. There is authority that it is permissible to arrest a suspect for the purposes of conducting a formal interview (Holgate-Mohammed v Duke [1984] 1 AC 437 and Cumming v Chief Constable of Northumbria [2003] EWCA Civ 1844).
- I do not accept the proposition that the reasons stated by DC Miller merely amount to ex post facto justification. Having reviewed his contemporaneous handwritten notes prior to making application for a search warrant on the 11th September, there is reference to his concern about a Production Order not being complied with, and fear that assets might be dissipated thereby inhibiting any future confiscation order. His briefing notes for the action to be taken on the 12th September include the fact that anyone who is arrested should be held "incommunicado as there are other individuals associated with the solicitors firm that could be informed of the arrests and could destroy/alter potential evidence". Both DC Miller and DI Day gave evidence that it was a very big decision to make to arrest a solicitor. It was not something that the operational team wanted to do because it was deflecting them from the main purpose of their investigation which at that time was centred around the arrest of Mark Bohannan. It was a decision which was made with some considerable care. The decision they made related to arresting any representatives who attended at the prison and visited Ahmed. The decision to arrest Mr Wilkey came later and only after his admissions about his knowledge of what Mrs Fitzpatrick had been doing and that she had a Power of Attorney with her at the prison. I am in no doubt from DC Miller's documents and from the evidence of DC Miller and DI Day that consideration was given to possibilities other than arrest, but they were discounted. I am satisfied it has been proved that DC Miller did actually believe that an arrest was necessary to allow the prompt and effective investigation of the offence or of the conduct of the Claimants.
Question Four (a reasonable man's belief in the necessity of an arrest)
- The Claimants submit that when all of the evidence is looked at there was never any properly founded basis for a belief by DC Miller that either of the Claimants would destroy documents, dissipate assets or that an arrest was necessary to secure the effective investigation of the offence by interview.
- I do not accept that proposition. The fact that the Claimants may have co-operated given the circumstances that actually existed is different to deciding the issue as to the necessity of an arrest in the circumstances that existed for the police with the knowledge that they had. The police were dealing with a large operation about corruption and drug-dealing. The circumstances of Mrs Fitzpatrick's third attendance at prison to see someone who was not her own client was highly suspicious. In my view, DC Miller's actual belief about the necessity of making the arrests was one that was reasonably held.
- By way of illustration only, the reasonableness of the necessity for the arrest can be demonstrated by the concession made by Mrs Fitzpatrick in cross examination about what could have happened if she had been allowed to return to Filugelli's driver after leaving the prison. As already stated above, she agreed that, having put herself in the position of having been driven to the prison by Filugelli's driver, who was waiting to drive her away from the prison, the driver might have caused her to have handed over the Power of Attorney in her possession for Filugelli to have used it as he pleased.
Additional requirement
- The Claimants submit that, even if the Defendant has proved that there was a reasonable suspicion and necessity for arrest, there is an additional matter that must be considered, namely, have the Claimants proved that the decision to arrest either or both of them was vitiated by a public law error on the part of DC Miller in accordance with the principles laid down by Lord Greene MR in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. In particular, did DC Miller err in law, or take into account an irrelevant consideration, when deciding whether or not to arrest either Claimant, namely, in his belief that Mr Wilkey had breached the requirements of POCA and acted unprofessionally when proposing in May 2007 that he would discuss with Ahmed the need to obtain consent before proceeding with the assignment of his business lease?
- It is argued that DC Miller's decision to arrest was irrational and based on irrelevant considerations given the extremely tenuous nature of the material on which the suspicion was based and the fact that it was materially influenced by DC Miller's misunderstanding of the requirements of POCA. It had a material bearing on the exercise of his decision to arrest.
- The Defendant does not agree that there is any additional requirement to be considered. Reliance is placed on the judgment in Hayes v Chief Constable of Merseyside Police [2011] EWCA Civ 911 where it is suggested that the Court of Appeal stated that no there was no such additional requirement.
- In Hayes Hughes LJ said the following:
"12. Prior to 2005 the constable's power of arrest depended upon either the offence being an arrest able offence within S.24 PACE or the general arrest conditions provided by S.25 being applicable........
13. .......for an arrest able offence, the only formal condition for summary arrest was that the constable had reasonable grounds for suspecting that it had been committed and that the suspect had committed it. There was no statutory condition of belief that arrest was necessary. It was well recognised, however, that even if this double condition was met, not every case justified an arrest. The constable had a discretion which he had to exercise. If he exercised it in a manner which was Wednesbury unreasonable, the arrest would be unlawful. Thus, there were three stages to the justification of an arrest. Woolf LJ set them out in Castorina v Chief Constable of Surrey [1966] LGR 241 as follows:
'(1) Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.
(2) Assuming that the officer had the necessary suspicion, was there reasonable cause for that suspicion? This is a purely objective requirement to be determined by the judge, if necessary on facts found by the jury.
(3) If the answer to the two previous questions is in the affirmative then the officer has a discretion which entitles him to make an arrest and in relation to that discretion has been exercised (sic) in accordance with the principles laid down by Lord Greene MR in Associated Provincial Picture House v Wednesbury Corporation.'
14. The Serious Organised Crime and Police Act 2005 amended the 1984 Act by substituting a new S.24 and repealing S.25. The broad effect is to create a single code of arrest powers which is applicable to all offences; the legal concept of an arrest able offence disappears............
15. The effect of this is, in one sense, to tighten up the accountability of police officers, at least in the case of arrest for serious offences, because those arrests now become subject to the criterion of necessity, whereas previously only non-arrest able offences were. As Toulson LJ pointed out in this court in Shields v Chief Constable of Merseyside Police [2010] EWCA Civ 1281, the new formulation also (a) creates a single code for all offences, (b) ensures conformity with Article 5 ECHR and (c) incorporates the Wednesbury principle of review via the concept of reasonable grounds, brought forward from the previous law and extended to the new general requirement of necessity.
18. It is the contention of Mr Blaxland QC, for Mr Hayes, that the effect of S.24 (4) is that in order to justify the arrest, it must be shown that the arresting officer passed through three stages of a thought process:
(a) He must apply his mind to S.24(4) and (5), that is to say he must understand that he must believe arrest to be necessary for one of the specified reasons and he must in fact believe this; and
(b) He must actively consider all possible courses of action alternative to arrest; he must have taken into account all relevant considerations and have excluded all irrelevant ones; and
(c) He must make a decision which a constable acting reasonably could have reached.
21. Mr Beer submits that what must be shown is:
(i) that the constable actually believed that arrest was necessary, and for a subsection (5) reason; and
(ii) that objectively that belief was reasonable.
He accepts that even if a constable believes arrest to be necessary, there remains a discretion not to carry it out, but he contends that except for this residual situation the concept of discretion which was previously a distinct stage in the legality of arrest is for all material purposes subsumed within the new statutory test.
42. ......I have no doubt that the correct test is Mr Beer's two stage test, rather than Mr Blaxland's three stage test..............Whilst of course it may be that it is quite unnecessary to arrest a suspect who will voluntarily attend an interview............it is not the case that a voluntary attendance is always as effective a form of investigation as interview after arrest. S.29 of the Act reminds officers of their duty, if inviting voluntary attendance, to tell the suspect that he may leave at any time he chooses. It would not be honest for an officer to invite a person to attend a voluntary interview if he intended to arrest him the moment he elected to leave. Nor would it be effective. It would mean that the suspect could interrupt the questioning the moment it reached a topic he found difficult. ......."
- From a full reading of Hayes I do not accept the additional requirement as formulated above by the Claimants.
- I accept that, in addition to DC Miller actually believing that the arrest was necessary for a subsection (5) reason, and it being objectively reasonable, DC Miller still had a discretion in relation to each Claimant as to whether to affect an arrest. However, as stated by Hughes LJ in the course of his judgment, that concept of discretion is for all material purposes subsumed within the new statutory test. In that I am satisfied that DC Miller did actually believe arrests were necessary for a subsection reason, and it was objectively reasonable to make the arrests, I am satisfied that DC Miller exercised his discretion as to whether to arrest reasonably.
- Even if the Claimant's additional requirement were to be considered, I do not accept that DC Miller's decision to arrest either Claimant was motivated by any irrelevant considerations. I am satisfied that the events of May 2007 were not a material consideration in his decision in September to make the arrests. I am satisfied that the material considerations were those stated by him on the facts as then known, particularly the intelligence about the conveyancing documents. Further, even if part of DC Miller's reasoning did include some residual suspicion arising out of his dealings with Mr Wilkey in May 2007 that in itself was not unreasonable. I repeat the observation made above in paragraph 105.
The warrant
- The search warrant was obtained pursuant to S.8 of PACE.
- S.8 of PACE states
1) If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing
a) that an indictable offence has been committed, and
b) that there is material on premises..................which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and
c) that the material is likely to be relevant evidence; and
d) that it does not consist of or include items subject to legal privilege ......... or special procedure material; and
e) that any of the conditions specified in subsection (3) below applies,
He may issue a warrant authorising a constable to enter and search the premises.
2) ..............
3) The conditions mentioned in subsection 1)(e) above are
a) .........
b) .........
c) .........
d) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.
4) .....'relevant evidence' in relation to an offence means anything that would be admissible in evidence at a trial for the offence.
- S.10 of PACE defines "items subject to legal privilege". The definition follows the common law classification of legal advice privilege and litigation privilege. Section 10(2) states that "items held with the intention of furthering a criminal purpose are not items subject to legal privilege".
- S.14 defines "special procedure material". S.14(2) states that
".................this subsection applies to material, other than items subject to legal privilege and excluded material, in the possession of a person who
a) acquired or created it in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office; and
b) holds it subject
i. to an express or implied undertaking to hold it in confidence.............".
- By S.6 of the Constables Protection Act 1750, where a warrant has been granted, then a constable who acts in "obedience" to it has a defence if it turns out to have been wrongly granted.
- The Claimants contend that the defence does not apply for three reasons.
- First of all, it is contended that the defence does not apply if there is a formal defect on the face of the warrant sufficiently grave to invalidate it. The Claimants rely for support on the cases of Bell v Chief Constable of Greater Manchester Police [2005] EWCA Civ 902 and R v Chief Constable of Warwickshire ex.p. F [1999] WLR 564.
- The contention is that it is clear from the terms of the warrant that either it related to material which was covered by legal privilege, as to which there was an absolute bar subject to the crime fraud exception, or it related to special procedure material which necessitated an application being made to a circuit judge under S.9 and Schedule 1 of PACE. The warrant covered conveyancing files relating to Ahmed and Filugelli. Some matters within a conveyancing file, such as correspondence with the land registry, would not be privileged, but there could have been communications with the solicitors for the purpose of giving advice which would have been privileged. The warrant did not differentiate between such items. Alternatively, even if legal privilege was excluded because of the crime fraud exception, it remained special procedure material because of its confidentiality. As to the duty of confidentiality, reliance is placed on the contents of a client care letter sent to Filugelli (the copy of which I assume it is suggested has been incorrectly dated the 1st December 2008 rather than a material date applicable to this case) which stated that "it is our duty to keep your business confidential". If it was special procedure material it was outside the jurisdiction of a district judge to grant it. Applying the cases of R v Chesterfield Justices ex.p. Bramley [2000] 2 WLR 409 and Bates v Chief Constable of Avon and Somerset Police [2009] EWHC 942, unless the justice was satisfied that there were reasonable grounds for believing that the warrant did not cover material that was subject to legal privilege or special procedure material, he had no power to issue the warrant. For both of the reasons stated, it is thereby contended that there was no power to have granted the warrant in the terms that it was granted and it was void on its face.
- In response, the Defendant contends that the warrant was not defective on its face. On the facts, DC Miller and DC Moddrel had ample basis for seeking a search warrant. In that they were seeking conveyancing files, they weren't seeking any legally privileged material. In support of the fact that it was unlikely that there would be any legally privileged material within the files, the Defendant relies on the conversation with Mr Wilkey at the beginning of the search when he was asked if everything in his office would be non legal privilege because it was conveyancing and he answered that he thought that would be the case albeit that he could not be sure. The Defendant also contends that, in any event, the additional information within the application referred to the criminal purpose inherent in conveyancing transactions about which there was evidence and intelligence. Thus, even if any legally privileged material existed in the conveyancing files, there would have been an exemption if it was held for a crime fraud purpose. Further, it cannot be assumed that documents within conveyancing files would have been held in confidence and would have amounted to special procedure material. Even if it was, and an application to a circuit judge should have been made, the warrant was not void on its face because it was apparent that the application to the district judge had related to the office of a firm of solicitors and he would have been well aware of the nature of material that was being sought. Finally, even if an application should have been made to a circuit judge, in the circumstances of the case the application would have been granted anyway as being in the interests of justice that the material should have been obtained.
- In the case of Bell, Sir Mark Potter said that
"29. The .....limitation upon the protection of an officer under S.6 is that an officer may be liable if there is a formal defect on the face of the warrant sufficiently grave to invalidate it. In this respect, the law is by no means clear as to the level of grossness or obviousness which is necessary for the officer to lose his protection by reason of such defect.
33. The test......is directed to the question whether the defect relied on is such as to raise a clear doubt as to whether an application has been lawfully made to, and granted by, the justices in the exercise of their jurisdiction".
- I am satisfied that, in the circumstances of the case, there was no defect on the face of the warrant that raised a clear doubt as to whether an application had been lawfully made to, and was granted by, the district judge in the exercise of his jurisdiction. I am also satisfied that, in the context of my findings about the facts of the case and the lawfulness of the arrests, any special procedure application would nonetheless have been granted by a circuit judge as being in the interests of justice. It would not have necessitated notice or delay. It could have been heard in usual manner, ex parte and as quickly as the S.8 application was heard in the Magistrates Court.
- Secondly, it is contended that the defence does not apply if it has been maliciously procured. Following R (Energy Financing Team Ltd) v Bow Street Magistrates Court [2006] 1 WLR 1316, in order for the district judge to have been satisfied that there were "reasonable grounds for believing" that the material was not subject to legal privilege, he would have to rely heavily on the evidence of the officer applying for the warrant who had a duty to give "full assistance to the district judge and that includes drawing to his attention anything that militates against the issuing of a warrant". It is submitted that there was no reasonable basis upon which the Defendant could have believed that the material was not subject to legal privilege or, if the crime fraud exception applied, was not special procedure material. Reliance is placed on DC Miller's briefing sheet to support the fact that there was an awareness that legally privileged material would be included. The application stated categorically that there would be no legally privileged or special procedure material. As such, that circumvented important procedural protections and DC Moddrel failed in his duty to provide full assistance to the judge. Albeit in the context of a S.9 application to a circuit judge, Bingham LJ stated in R v Crown Court at Lewes (1991) 93 Cr.App.R. 60 that "it is plain that (the judge is) required to exercise those powers with great care and caution". It is contended that the police failed in their duty to assist the judge carry out that exercise.
- In response, the Defendant relies on the ingredients required for the tort of malicious procurement of a search warrant. Following Keegan v Chief Constable of Merseyside [2003] 1 WLR 2187 and Gibbs v Rea [1998] AC 786 PC, the tort has four ingredients:
1) a successful application for a search warrant;
2) lack of reasonable and probable cause to make the application;
3) malice; and
4) resultant damage arising from the issue or execution of the warrant.
- It is accepted that in Keegan v UK (application no.28867) (The Times 9th August 2006) the European Court held that there had been a violation of Article 8 (which includes a right for respect to "one's home") in that there was no effective remedy for the innocent family and that the police action, which lacked basic steps, whilst not being malicious, was a disproportionate interference with their Article 8 rights. However, no claim has been made by the Claimants of a breach of Article 8 in respect of the procurement or execution of the warrant.
- In relation to the four ingredients, the Defendant contends that it was never suggested to DC Miller or DC Moddrel in cross examination that either had acted maliciously in procuring the warrant. Indeed, DC Miller gave evidence that he had taken legal advice about applying for the warrant. There is no evidence to suggest that either was acting maliciously and that necessary ingredient is thereby lacking.
- I am satisfied that there was no malice on the part of DC Miller or DC Moddrel in procuring the warrant. I accept the evidence of both officers that DC Miller drafted the application. I accept DC Miller's evidence that he took care to take legal advice about it before he drafted it. There is a reference in his briefing sheet to legally privileged material, but that reference needs to be seen in context. It was advice to the searching officers as to what they should do if they were in doubt about anything that might concern legal privilege. In other words, it was an acknowledgement that in a solicitors' office there would obviously be material that could legally privileged, but that was not what was being sought. The advice was to make sure that it was not looked at. I am additionally satisfied that, given the fact that a Section 9 application would have succeeded, there was no resultant damage caused by the execution of the warrant.
- Thirdly, it is contended that the defence also does not apply if the constable acts in excess of the warrant by searching for or seizing material not authorised to be taken under it, because in that case he is not acting in obedience to it. Items were taken that were not covered by the warrant. They included files not covered by the description within the warrant, and also the SOCA reporting materials which had been included in the application but not in the warrant itself. Indeed, DC Miller appeared to be unaware in evidence that the warrant did not reflect what had been drawn up in the application. DC Moddrel could not say why he had typed the draft warrant out omitting the SOCA documents which were included in the application. It is contended that this showed a cavalier conduct of a high degree which demonstrated that the police were not acting in obedience to the warrant.
- The Defendant relies upon S.50, S.52 and S.59 of the Criminal Justice and Police Act 2001.
- S.50 relates to additional powers of seizure from premises. It states that
1) Where
a) a person who is lawfully on any premises finds anything on those premises that he has reasonable grounds for believing may be or may contain something for which he is authorised to search on those premises,
b) a power of seizure to which this section applies or the power conferred by subsection (2) would entitle him, if he found it, to seize whatever it is that he has grounds for believing that thing to be or contain, and
c) in all the circumstances, it is not reasonably practicable for it to be determined, on those premises
i. whether what he has found is something that he is entitled to seize, or
ii. the extent to which what he has found contains something that he is entitled to seize,
that person's powers of seizure shall include power under this section to seize so much of what he has found as it is necessary to remove from the premises to enable that to be determined.
2) .....
3) The factors to be taken into account in considering, for the purposes of this section, whether or not it is reasonably practicable on particular premises for something to be determined, or for something to be separated from something else, shall be confined to the following
a) how long it would take to carry out the determination or separation on those premises;
b) the number of persons that would be required to carry out that determination or separation on those premises within a reasonable period....
- The officers who attended at TBW's premises served a notice under S.52 stating that "a large amount of documentation seized not practicable to examine thoroughly at scene. There also may be issues over some of the material falling under the banner of legal privilege". The documents seized were stated to be "conveyancing files, MLRO paperwork, and assorted documentation relating to legal matters". It was taken away in sealed bags with a view to it being looked at by independent counsel so as to ensure that nothing that should not have been seized was seen by the police. The S.52 notice also stated that S.59 gave any person with a relevant interest in the property seized the right to apply to a judge of the Crown Court for its return. No application has been made for the return of anything.
- The Defendant concedes that the evidence establishes that some files were seized that did not relate to the conveyancing transactions of Ahmed and Filugelli. However, in relation to such items, such as Filugelli's family dispute file, there was no damage caused or it was minimal. An application could have been made at any time for its return. In so far as the Claimants' SOCA files were seized, there was again no or minimal hardship or damage by doing so.
- I am satisfied that the police took steps to ensure that they did not seize material that was not covered by the warrant and the use of the application of the S.50/52 procedure was an appropriate way to deal with the large quantity of material that was found on the premises. In that some property was seized that was outside the scope of the warrant, it should not have been seized. However, I do not agree that it demonstrates a cavalier attitude to the execution of the warrant. I also agree with the Defendant's proposition that, in the circumstances, no hardship or damage flows from the same. An application could have been, but never was, made to the Crown Court for the return of such property.
- By reason of all such matters, I am satisfied that the warrant was not wrongly granted or in the alternative S.6 of the Constables Protection Act applies.
- The Defendant further contends that, in any event, and in addition to the above, S.32 of PACE applies. S.32 relates to a search upon arrest and states that
1) A constable may search an arrested person, in any case where the person to be searched has been arrested at a place other than a police station, if the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others.
2) Subject to subsections (3) to (5) below, a constable shall also have the power in any such case
a) to search the arrested person for anything
i. which he might use to assist him to escape from lawful custody; or
ii. which might be evidence relating to an offence; and
b) if the offence for which he has been arrested is an indictable offence, to enter and search any premises in which he was when arrested or immediately before he was arrested for evidence relating to the offence.
- The Claimants contend that the search powers under S.32 only relate to someone who is a danger to himself or others, whereas the Defendant contends it relates to anyone who has been arrested at a place other than a police station. I am satisfied that the construction of the section is such that the Defendant's interpretation is correct. In such circumstances, even if there were defects in the warrant process, and S.6 does not apply, a warrant was not necessary following the arrest of Mr Wilkey in his office.
Article 8 of the ECHR – the period following arrest
- Article 8 provides that
1) Everyone has the right to respect for his private and family life, his home and his correspondence
2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
- The Claimants' case is in two parts.
- First of all, it is contended that there was no lawful justification for the arrests and consequently the interference with their Article 8 rights for the entire period was unlawful. Following my finding that the arrests were lawfully justified, this first contention fails.
- Secondly, it is contended that the Claimants' Article 8 rights were unlawfully interfered with after interview, in that it should have been obvious that there was no basis to have taken the matter any further, and any attempt to maintain the Claimants on bail was unjustified. It should have been clear that the Claimants had not become involved in an arrangement because the Power of Attorney had not been completed and there was no evidence of any other transfer or arrangement document. In any event, even if there was something left to investigate, it was an inordinately prolonged investigation caused by taking too many documents. It should have been clear that the starting point was the Blue Bay file rather than examining each and every document seized from the office. It also took far too long to conduct that examination with a view to coming to a conclusion.
- The Defendant's case is that any interference with the Claimants' Article 8 rights was in accordance with the law, was necessary in a democratic society for the prevention of crime and was proportionate, having regard to the need to ensure that independent counsel were properly satisfied that the officers were entitled to examine the material in question. It is regrettable that there was a misunderstanding after independent counsel's advice of May 2008 which lengthened the time on bail. However, it was a complex enquiry which required careful consideration and overall there was no unlawful interference with the Claimants' rights.
- I am satisfied that the interview process did not establish that no offence had been committed. At that time, the police had not even seen the contents of the Blue Bay file. The Blue Bay file was one of the items sealed in a bag to be considered by independent counsel. That aspect of the Claimants' case is unjustified.
- The aspect of delay has been summarised above at paragraph 72. It did take a long time to come to a conclusion as to whether or not to prosecute the Claimants. However, in the context of my above findings, and the complexities of the investigation, I am satisfied that the delay was not inordinate and this aspect of the Claimants' case is also unjustified.
Conclusion
- For the above reasons, all of the Claimants' claims fail and there must be judgment entered for the Defendant with costs.
