National Crime Agency v Doherty

MR JUSTICE PARKER: In this application the National Crime Agency is conducting a civil recovery investigation to ascertain whether property held by the respondent to the application, Shawn Martin Doherty, has been obtained by or for in return for unlawful conduct. As part of that investigation, the National Crime Agency, NCA, is applying for a Property Freezing Order under section 245A of the Proceeds of Crime Act 2002 POCAR.

The first issue that arises relates to the service of this application itself. There is before the court a statement of Lyn Fleming dated 18 June 2015, which sets out in some detail the efforts of the NCA to serve these proceedings on Mr Doherty. Service was attempted in accordance with CPR rule 6.9 to the defendant's usual or last known residence. Initially the NCA sought to serve Mr Doherty in the Republic of Ireland. It does not seem that the rules were followed in regard to that purported attempt to serve outside the jurisdiction.

However, in the light of subsequent steps taken by the NCA, no issue arises in respect of that first attempt. It should, however, be said that the NCA made some contact with those associated with Mr Doherty but such contact as was achieved led nowhere. In these circumstances, the NCA has really been left with no alternative but to send copies of the application to known addresses with which Mr Doherty is associated. The first is a property that had been obtained by Mr Doherty, that in fact features in respect of the substantive application, namely flat 41B Princess Road, Kilburn, London NW6 5QT and secondly, property 163 Ellesmere Road, London NW10 1LG. That is the address provided to the estate agent for what appears to be Mr Doherty instructed to sell flat 41B and it is also an address of an associate who was arrested with Mr Doherty in June 2014.

Having regard to the facts set out in the statement of Lyn Fleming dated 18 June 2015, I am satisfied that the criteria in CPR 6.15(1) are satisfied that provides that:

"Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method for at an alternative place."

I am so satisfied because it appears to me that efforts have been made to serve Mr Doherty in a more conventional standard way and on the evidence that has failed and any continuation of such efforts appear on the evidence doomed to fail also. Therefore, I shall provide that the alternative method is service at those two properties that I have identified.

Furthermore, the application itself was not served in accordance with the rules at the time. It appears to me, however, in the interest of justice, that the service that was effected to those two addresses should be deemed retrospectively to have been good service under 6.15(1). Furthermore, there is nothing in the evidence that suggest, as I have already indicated, that seeking to serve Mr Doherty in any other way than by alternative method that I identified is likely to achieve the desired result and therefore, I shall also provide that for future service of any documents, including any order that I make on this application should be served in accordance with that alternative method. Mr Doherty, of course, has hot been heard today. I am not aware of whether he knows of these proceedings or what his position is. However, if the proceedings and the outcome come to his attention, he, of course, is at liberty to seek for the order that I have made in respect of service to be set aside or varied.

I turn now to the substance of the application itself. The Property Freezing Order in broad terms, may only apply in respect of recoverable property as defined by the Act. Recoverable property under section 242 is property obtained through unlawful conduct. Section 242(1) provides that a person obtains property through unlawful conduct whether his own conduct or another's if he obtains property by or in return for the conduct.

I have before me a further statement dealing with the alleged unlawful conduct. It is unnecessary to descend into the detail of that statement. It is sufficient for present purposes to note that on the evidence that is exhibited to the witness statement, that it appears that Mr Doherty obtained the property at 41B Princess Road, Kilburn through deposit and then a substantial mortgage from the Halifax. It appears from the evidence that the mortgage was obtained as to 95 per cent of the monies required by Mr Doherty posing to be another individual altogether and also putting forward claims as to sources and amount of income that at the lowest will appear on the evidence somewhat dubious.

Halifax have confirmed that if they had known of these facts and matters they would not have advanced the mortgage to Mr Doherty. It is, therefore, at least arguable on that material that (a) Mr Doherty has engaged in unlawful conduct and (b) that he has obtained the property through that unlawful conduct. That is all that the NCA need to show at this stage. I did raise in argument with Mr James Fletcher of counsel, who appeared on behalf of the NCA, the possibility that Mr Doherty may seek to raise some argument in respect of recoverability arising from the proportionality of the putative order that would be made. However, as I have indicated at this stage, I am concerned with whether a sufficient prima facie case is being made to support the application. I believe that if it has, the form of the order that I would be making again provides for Mr Doherty to seek to verify or discharge the order and he would be at liberty to seek to do that on any substantive ground that he deems appropriate.

Therefore and I am satisfied that the conditions for granting the order have been made out and Mr Fletcher has provided me with a draft and I consider the terms of that order, and I am satisfied that it is in proper form for this application and therefore I make the order in those terms. Now, Mr Fletcher, you will need obviously to include my name et cetera and any dates on this and you will also need to have an order somewhere dealing with the service aspect so that everyone is clear what I have done today and also what is proper for any future service.

MR FLETCHER: If it meets with your Lordship' approval, I might have as a separate order --

MR JUSTICE PARKER: Yes, that would be the best way. So if you do that and get to me, I will deal with it immediately.

MR FLETCHER: Thank you my Lord.