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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Director of the Assets Recovery Agency v Taher & Ors [2006] EWHC 3406 (Admin) (4 December 2006)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/3406.html
Cite as: [2006] EWHC 3406 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
||
B e f o r e :
____________________
| THE DIRECTOR OF THE ASSETS RECOVERY AGENCY | (CLAIMANT) | |
| -v- | ||
| TAHER AND OTHERS | (DEFENDANT) |
____________________
WordWave International Limited
A Merrill Communications Company
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Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The Defendants did not attend and were not represented
____________________
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- MR JUSTICE COLLINS: This is a claim by the Director of the Assets Recovery Agency seeking the payment out to a trustee in accordance with the terms of the Act of the balances outstanding in six separate accounts, which amounted at the time the claim was instituted to £255,960.52. The figure today, with interest having accrued, is in the order of £275,000.
- The accounts were opened in the names of the three respondents. The first two, Mr Tahir and Mrs Balal, were acting on behalf of the third respondent who was the real author of the frauds which had resulted in the deposits of the monies. The frauds were what are known as "advance fee frauds", whereby gullible, one is bound to say greedy, individuals are persuaded to provide money in order to enable vast sums of money to be freed, and the claim is, "If you pay these sums now, you will receive up to millions of pounds' profit in due course". Many of these frauds have been operated on the basis that the frozen funds are in Nigeria; but they are not limited to Nigeria: the frauds have related also to other overseas countries. Suffice it to say that these frauds are still going on, are still attracting investment from those who are gullible and greedy, and very large sums of money are involved.
- The first two respondents in this case have been served, but, as I have indicated, they are not proposing to challenge the orders and are not proposing to appear. Perhaps that is not altogether surprising since it is their case, and there is no evidence to contradict it, that they had been acting on behalf of the third respondent; so they do not have a direct interest in the proceeds that remain in the accounts.
- The third respondent has disappeared in the sense that he has not put in any appearance. I made an order that there should be service on him of a freezing order that I granted in respect of all the accounts and of the claim by substituted service. That form of service has been effected and there has been no response. However, I am satisfied that all that could be done has been done to draw these proceedings to his attention, and the fact is that the first two respondents are highly likely to have informed him since there is no reason to believe that they have lost touch with him entirely. He has an obvious interest in what is now well over £250,000, an asset which he would be entitled to obtain were he able to dispute the claim made by the Director that it represents proceeds of crime. In reality, there is no possible way in which, having regard to monies that have gone in and out of the accounts, he could possibly establish that the Director's claim was ill-founded.
- I should say that there was a prosecution against the first two respondents. They asserted in their defence that they were not aware that the monies were the proceedings of any fraud and they persuaded a sufficient number of the jury who tried them that that might be true, because the jury was unable to reach a verdict. A retrial was directed, but the Crown Prosecution Service was aware of a document by the time the second trial was due which, in its view, was a disclosable document that could not be disclosed. In those circumstances, the decision was taken to offer no evidence against the first two respondents. Mr Bird has seen the document and has assured me that there is nothing in it that could conceivably mean that the claim that is now made by the Director is one which should not be pursued. In those circumstances I am happy to accept that that is the position and there is no reason why this claim should not proceed. The legislation provides that if the Director is able to establish on the balance of probabilities that assets are the proceeds of crime, they are recoverable even if there has been a prosecution which has not succeeded and even if there has been no prosecution, because for example the view has been taken that the evidence would not be sufficient to establish criminality beyond reasonable doubt. Some of the victims of the advance fee fraud have been identified, and it is apparent from the accounts that monies had been received from them and equivalent sums had been paid out, but not to any persons who would be likely to produce the advantages which lured the victims into advancing the monies.
- Some of the funds have been transferred between the six accounts and in respect of some the sources have not been identified. This has led the Director to assert that in addition to the monies coming from the victims of the advance fee frauds, others are likely to have resulted from money laundering. It seems to me that that is indeed, on the balance of probabilities, the case, so that the assets in question are all the proceeds of crime, whether or not one can identify precisely the nature of the proceeds, by which I mean whether they are part of the advanced fee fraud or whether they are from money laundering.
- So far as the sums that have come from victims are concerned, while they are, of course, by their very nature the proceeds of crime, nonetheless it might be thought that it should be possible for victims to recover something of what they have lost from the proceeds. The answer to that is they may be able to, provided they can establish that some of the sums are properly to be allocated to monies that they had provided; that is to say, that they can trace the monies they provided through to the assets which the Director has been able to seize. It may well be very difficult in many cases, and I am told that the estate of one at least of the victims, a deceased judge in the United States, was informed, and it was suggested that if the estate wished they might join in to these proceedings. However in the end they decided that it was not sensible for them to do so because of the difficulty of tracing the judge's contributions to the fraud to the assets that are now available. Going back to the circumstances of the victims, one does not feel quite the sympathy that one might feel, for example, if the victim had been an unfortunate person who was taken in by a fraudster and was not motivated by any form of greed.
- The circumstances being as I have indicated, it seems to me clear, on the balance of probability, that these are recoverable assets. In those circumstances, I shall make the order that the Director asks me to make, which is that the trustee for the civil recovery is appointed and a recovery order is made in respect of the amount standing in credit in the six bank accounts which are set out in the schedule to the order. At the same time the freezing order which I granted on 10th April 2006 will be discharged.
- MISS BIRD: I am not instructed to seek costs.
- MR JUSTICE COLLINS: It would probably be a waste of time.
- MISS BIRD: It would be a waste of time of R3, and R1 and R2 have conceded the claim.
- MR JUSTICE COLLINS: I rather assumed so. The Director can no doubt recover her costs out of the assets.
- MISS BIRD: That is what one thinks she will do. That is one of the things she will try to do if she can.
- MR JUSTICE COLLINS: Can she not?
- MISS BIRD: I think she get a statutory order or retentive proportion. But I do not think she can actually tax the costs out of the (inaudible).
- MR JUSTICE COLLINS: I mean, if I believe what I read, she has so far been out of pocket by quite a considerable amount, but now she is getting some monies in; that is going to be balanced.
- MISS BIRD: It goes on the credit side of her balance sheet one way or the other.
- MR JUSTICE COLLINS: That is rather what I thought. Thank you very much.
Miss Bird, what about costs?