Court of Appeal success against the National Crime Agency

Aug 5, 2016

In a judgment handed down on 19 July, the Court of Appeal ruled that the NCA must disclose a Request for Mutual Legal Assistance from the USA to the UK authorities, albeit in redacted form. This was in the context of proceedings for a Prohibition Order against assets owned by Byrne and Partners’ clients Blue Holding 1 and Blue Holdings 2 Pte. 


According to the NCA, the Request identified assets which the USA asked the UK authorities to freeze on the basis that they were the subject of civil asset forfeiture proceedings in the USA.  The NCA served evidence which mentioned the Request but did not exhibit it.  On the basis of this evidence the UK court made the Prohibiton Order.


Both the US Department of Justice and the NCA resisted disclosure of the Request, asserting that it was a confidential state to state communication.  At first instance the Administrative Court agreed. Blue Holdings appealed.


The Court of Appeal ruled that as the Request was the basis of the UK’s court’s jurisdiction to make the Prohibition Order, and was clearly mentioned in the NCA’s evidence, the NCA did have to provide a copy of the Request. However, the Court held that the Request could be redacted to protect confidentiality, so long as the property identified in the Request was shown. The Court also decided that in view of the low threshold test for a Prohibition Order, the NCA had served sufficient evidence as to the grounds on which the DOJ asserted the assets were the proceeds of crime, so that disclosure of the Request to show these grounds was not required.  


The Court also gave guidance on the correct test to be applied when a party wishes to withhold inspection of document which is mentioned in evidence, pursuant to CPR 31.14. 


The Prohibition order in these proceedings is believed to be the first Prohibition Order made pursuant to the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005.