Serious Organised Crime Agency v Hymans & Ors

The Claimant, the Serious Organised Crime Agency (“SOCA”) alleges that the Third Respondent, James Thomas O’Docherty (“O’Docherty”), has, for over two decades, been engaged in drug dealing and money laundering using a variety of individuals and corporate entities to assist him in attempting to disguise the criminal nature of his assets.

SOCA alleges that in the latter part of the 1990s O’Docherty started moving his criminal property from the UK to Spain (where the majority of his known property now is), France, Switzerland and Dubai.

SOCA alleges that the principal, and only reliably identifiable, source of O’Docherty’s income is drug dealing. He was charged in 1999 but his case never came to trial, being stayed as an abuse of process in 2001 following disclosure failures before the magistrates’ court. Further criminal charges were brought but finally stayed in 2003.

In 2004 SOCA commenced a civil recovery investigation against O’Docherty. As a result of that investigation SOCA contends that O’Docherty had invested his drugs income in property and possibly some trading. SOCA alleges that O’Docherty’s income from property was supplemented by mortgage frauds committed by him and his associates. SOCA’s primary case is that the entirety of O’Docherty’s property has always been the proceeds of drug dealing, supplemented by the proceeds of mortgage fraud and/or property that represents such proceeds and/or profits on such proceeds.

SOCA’s secondary case is that even if predicate offences cannot be identified the entirety of O’Docherty’s property has always been the proceeds of money laundering and all property that represents such proceeds and/or profits on such proceeds.

The First Respondent, Trevor Hymans, is the registered proprietor of the property at 52 Roche House in respect of which SOCA seeks a civil recovery order. The Second Respondent, Stephen Keeble, is the registered proprietor of the property at 22 Arrowsmith Path, Chigwell, in respect of which SOCA seeks a civil recovery order. The Fourth Respondent, Manncherty SL is a company owned and controlled by O’Docherty, which is the registered owner of property at Central Commercial El Elzambra Porto Buenos, Marbella 29660, Spain, in respect of which SOCA also seeks a civil recovery order.

By a letter dated 6 April 2010, Manncherty, by its solicitors, formally admitted such beneficial ownership.

By section 243(1) of the Proceeds of Crime Act 2002, proceedings for a recovery order may be taken by the enforcement authority in the High Court against any person who the authority (here, the Serious Organised Crime Agency) thinks holds recoverable property. Each of the Respondents holds recoverable property subject to this claim.

Section 266(1) (“Recovery Orders”) provides that:

“266.

(1) If in proceedings under this Chapter the court is satisfied that any property is recoverable, the court must make a recovery order.

(2)

The recovery order must vest the recoverable property in the trustee for civil recovery.

(3)

But the court may not make in a recovery order –

a)

any provision in respect of any recoverable property if each of the conditions in subsection (4) or (as the case may be) (5) is met and it would not be just and equitable to do so, or

b)

any provision which is incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)).

(4)

In relation to a court in England and Wales or Northern Ireland, the conditions referred to in subsection (3)(a) are that –

a)

the respondent obtained the recoverable property in good faith,

b)

he took steps after obtaining the property which he would not have taken if he had not obtained it or he took steps before obtaining the property which he would not have taken if he had not believed he was going to obtain it,

c)

when he took the steps, he had no notice that the property was recoverable,

d)

if a recovery order were made in respect of the property, it would, by reason of the steps, be detrimental to him.

(5)

In relation to a court in Scotland … [not relevant].

(6)

In deciding whether it would be just and equitable to make the provision in the recovery order where the conditions in subsection (4) or (as the case may be) (5) are met, the court must have regard to –

a)

the degree of detriment that would be suffered by the respondent if the provision were made,

b)

the enforcement authority’s interest in receiving the realised proceeds of the recoverable property.

(7)

A recovery order may sever any property.

(8)

A recovery order may impose conditions as to the manner in which the trustee for civil recovery may deal with any property vested by the order for the purpose of realising it.

(9)

This section is subject to sections 270 to 278.”

Recoverable property is defined by section 304(1) as “property obtained through unlawful conduct” (whether domestically, or overseas, in which case there is a double criminality requirement). It includes property which “represents” such property (section 305), and profits accruing on such property (section 307).

A Court may make a civil recovery order, and vest property in the trustee, in respect of overseas property: Perry and others v SOCA [2011] EWCA Civ 578.

It is not necessary to specify the unlawful conduct precisely; it is enough for the enforcement authority to set out the matters which constitute the particular kind or kinds of unlawful conduct by which the property was obtained: R (Director of the Assets Recovery Agency and others) v Green [2005] EWHC 3168 (Admin). In so doing, the mere fact of a lack of lawful income to support lifestyle is insufficient; but a failure to account for how a lifestyle is maintained or a false explanation for lifestyle may well lead to an inference that property is recoverable: Director of Assets Recovery Agency v Olupitan [2008] EWCA Civ 104. The authorities have been helpfully analysed by Griffith Williams J in SOCA v Gale [2009] EWHC 1015 (QB) at [12] to [17] (a decision upheld by the Court of Appeal at [2010] EWCA Div 759).

Section 241(3)(a) of Proceeds of Crime Act 2002 expressly provides that the standard of proof in civil recovery proceedings for proving that unlawful conduct has occurred is the “balance of probabilities”. This section, its compatibility with Article 6 ECHR, and the relationship generally of criminal and civil proceedings were recently considered by the Supreme Court in Gale [2011] UKSC 49.

The Supreme Court was unanimous in rejecting the proposition that the criminal standard of proof applied to civil recovery proceedings: see in particular Lord Phillips at paras 35, 54; Lord Clarke at para 56; Lord Brown at paragraph 111; Lord Dyson at para119.

There is also no procedural link between criminal proceedings and civil recovery proceedings. The clearest statement of this is in the speech of Lord Dyson at para 133: civil recovery proceedings are

“free-standing proceedings instituted whether or not there have been criminal proceedings against the respondent or indeed anyone at all.”

Lord Clarke (with whom Lords Phillips, Mance, Judge, Reed and Brown agreed) expressly agreed with this at para 56.

A majority of the Supreme Court held that an acquittal in criminal proceedings did not conclusively establish that the respondent did not commit the criminal act. The acquittal showed only that the evidence against him in the criminal proceedings was insufficient to discharge the enhanced burden of proof: see Lord Phillips (with whom Lords Mance, Judge, and Reed agreed) at para 19; Lord Brown at paragraph115.

An acquittal in criminal proceedings does not preclude the Court from considering the (or part of the) evidence that formed the basis of those charges: see Lord Phillips (with whom Lords Mance, Judge, Reed and Brown agreed) at para 35; Lord Clarke (with whom Lords Phillips, Mance, Judge, Reed and Brown agreed) at para 56. A Court may find in different proceedings that, applying the balance of probabilities, a respondent committed the same act as that of which he was acquitted to the criminal standard: see Lord Phillips (with whom Lords Mance, Judge, Reed and Brown agreed) at para 19; Lord Dyson at para 138.

The only qualification is that it is not open to a State to undermine the effect of an acquittal: see Lord Clarke at paragraph 60. This proposition was articulated as follows by Lord Brown at para 115:

“in all proceedings following an acquittal the court should be astute to ensure that nothing that it says or decides is calculated to cast the least doubt upon the correctness of the acquittal.”

See also Lord Dyson at para 138: a court should not decide a civil case using language which casts doubt on the correctness of an acquittal. This will not happen if the court’s language and reasoning go no further than is necessary for the purpose of determining the issue before that court and without making imputations of criminal liability. The fact that the findings may implicitly cast doubt on the acquittal is not sufficient to bring Article 6(2) into play. It is clear that a finding to the civil standard that unlawful conduct has been committed by a respondent who was acquitted of the very same conduct in criminal proceedings, will not undermine the effect of that acquittal.

Recoverable property may be traced (section 305), but where recoverable and unrecoverable property is mixed to obtain a further asset (section 306), “the recovery order can only bite on the “portion” of the mixed property which is attributable to the unlawful [property]”, per Carnwath LJ in Olupitan at para 38. This consideration would be relevant to the present claim, if the Court found that some of the alleged recoverable property had been obtained using unrecoverable property (or, more precisely, if the Claimant had failed to show that it was obtained using entirely recoverable property). In that case, the civil recovery order would provide for the trustee to repay a portion of the value of the affected property to the relevant Respondent.

Drug trafficking constitutes a criminal offence under the Drug Trafficking Offences Act 1986 and, following its commencement, the Drug Trafficking Act 1994.

Mortgage fraud constitutes an offence of obtaining property by deception under the Theft Act 1978 or, where committed with others, the common law offence of conspiracy to defraud.

Money-laundering is either an offence under the Drug Trafficking Offences Act 1986/the Drug Trafficking Act 1944 (if relating to drugs proceeds before 4 March 2003), the Criminal Justice Act 1988 (if relating to non-drugs proceeds before 4 March 2003), or the Proceeds of Crime Act 2002 (from 4 March 2003).

In order to show money-laundering, the Claimant is required to show that the Respondent was dealing with the proceeds of anterior criminal conduct.

In April 1999 O’Docherty, with others including Daniel Tovey, was charged with conspiracy to supply cannabis worth £3.7 million in respect of the period on or before 24 April 1999. During the police investigation four seizures of cannabis had been made leading to four convictions and sentencing totalling over seven and a half years imprisonment. In February 2001 the conspiracy case was stayed at the Magistrates’ Court because of failures to disclose by the Crown Prosecution Service. In November 2001 the Divisional Court (Lord Justice Rose and Mr Justice Sullivan) upheld the Magistrates’ ruling. Lord Justice Rose held as follows at para 53:

“In my judgment this is an exceptional case. It is common ground that the prosecution case in relation to conspiracy depended entirely on the surveillance tapes. Prosecuting counsel had a duty to review disclose prior to committal. He performed that duty. He advised in May 2000 that disclosure should be made of the unused material as well as the material on which the prosecution relied. It is of the highest importance that when counsel give such advise it should be followed. The prosecution on the lamentable chronology of events which appears at the beginning of this judgment were, as it seems to me and is indeed largely conceded by Mr Peters, guilty of a variety of breaches of undertakings and failure to comply with court orders. The District Judge heard evidence from the prosecution solicitor and he concluded that she was manipulative. The non disclosure which here occurred was deliberate not accidental. It was massive not minimal. The unused material did in some respects help the defence in matters bearing upon their ability to cross-examine in the course of the old style committal proceedings. Mr Peters’ distinction between used and unused material seems to me therefore to be one with very little force indeed in the circumstances of this case.”

In January/February 2002 O’Docherty, again, with others, was charged with conspiracy to launder the proceeds of drug trafficking. Douglas William Caya and Claire Louise Trevillion, also linked to the money laundering offence, left the jurisdiction shortly after O’Docherty’s arrest in April 1999 and were resident in Canada. There were eight counts in total, covering various dates between 1 January 1996 and 1 December 2000. In July 2003 an abuse of process argument was mounted by the defence which the prosecution did not oppose and this case was also stayed.

There was a further charge in respect of the use of a false passport in the name of Mark Gibbons by O’Docherty. A further abuse of process argument was put forward by the defence which, on this occasion, was resisted by the prosecution. However, the case was also stayed. It should also be noted in this connection that O’Docherty was subject to an Inland Revenue Special Compliance Office investigation into his tax affairs which commenced on 23 February 1999. The investigation was finally settled on 25 March 2002 with a financial settlement of £440,775. The revenue figures were based on earnings from 1981/1982 to 2000/2001. A total of £975,300 profit was calculated based primarily on agreement between both parties with little or no trading records produced. O’Docherty’s alleged business activities included jewellery trading, the parallel trading of designer clothes by JOD Enterprises Limited, UK property development under the trading name of JD Developments, Spanish property development and rental income.

As noted above, the evidence for the intended drug conspiracy prosecution rested exclusively on surveillance evidence. The background to the surveillance is explained in the witness statement of DC Anthony Esmond, dated 13 September 1999, made in connection with the intended criminal prosecution.

DC Esmond stated that he was jointly responsible for the continuing monitoring of the audio listening device inside the home address of Daniel Tovey at 20 Chigwell Rise, Chigwell, Essex. When the monitoring of the material from the audio device was carried out, he and the other responsible officers were able to view the pictures from the video camera on the front of the same premises which enabled them to monitor persons arriving and leaving the premises.

Monitoring the audio device began on 8 January 1999. It was established that Tovey was alone inside the premises making telephone calls and talking to himself as described in the various transcripts. From that day onwards DC Esmond could readily recognise the voice of Tovey. DC Esmond went on to state that O’Docherty would usually visit the premises earlier in the morning when the Tovey children were at school or late at night. He was only ever seen to drive the same motor vehicle, registration mark R1 JOD. O’Docherty was referred to by Tovey as “James” or “J” and was almost always alone when speaking about business with Tovey. In those circumstances DC Esmond was easily able to recognise the voice of O’Docherty. The officer also stated that he was able to recognise other voices.

The officer, in the same statement, gave evidence about the use of slang terms in the transcripts. For example “the work”, “bit of work” and “bits and pieces” were general terms meaning drugs. It was used to avoid mentioning the specific term, for example cannabis or cocaine. A “bubble wrap” was the every day wrapping used to wrap and protect parcels that were carried over a distance or sent through the post. “Gear” was a common catch-all term used to refer to any kind of controlled drug. “Gear on bail” was a phrase often used to mean that the purchaser had been given the drugs without having paid for them. The officer referred to a number of other terms concerning the illicit dealing in drugs.

At the hearing in this court Mr Andrew Sutcliffe QC on behalf of SOCA took me, in some detail, through the transcripts obtained as a result of the surveillance carried out in 1999. Reliance was placed on the transcripts because the original tapes and videos were no longer available. Mr Neil Lapish, a principal officer and member of staff of SOCA, had requested the police to retain all the audio and video tapes. However on 28 October 2008 Mr Lapish was informed that the tapes had been destroyed by the police property store. A copy of the bundle of tape transcripts served in the trial, on which the prosecution relied in evidence, together with the witness statements from police officers who carried out the transcriptions, viewed the video recordings and outlined how they identified the individual voices on the audio tapes, had been retained in the possession of SOCA.

Furthermore the solicitors, Stokoe Partnership, who were acting on behalf of O’Docherty from time to time in these proceedings, sent a letter to SOCA on 5 June 2009 confirming that they still held 74 tapes served on them as part of the original criminal prosecution. I turn now to this evidence.

O’Docherty attended briefly at Tovey’s premises on 18 January 1999. O’Docherty attended again on 28 January 1999. There is reference to:

“… has got the work, wrapping it now, he’s got the work … Friday what it is Peter gave me.”

O’Docherty went on to say:

“… but we need to give my man Saturday tomorrow … rest of the money … which is right.”

On 29 January 1999 there was a conversation about money, in particular money owed by Tovey to O’Docherty:

“You owe me 27/8, yeah 57/8, 27/8 plus … I ain’t been asking the last times you know.”

O’Docherty also mentions “Peter” again and:

“… he’s after a certain kind of like bubble … to be the best you’ve gotta have it like that.”

On 22 February there was a conversation between Tovey and O’Docherty. The following are significant:

It should be explained that [Peter] Baker was arrested at 3:50pm on 22 March 1999 for possession with intent to supply after his car was stopped by police. The car and his home address were searched. Inside the car boot were found two black holdalls. Subsequent analysis revealed that this contained 200 plastic packages each holding a single block of cannabis resin weighing 50.7kg. In Baker’s rear dining room were 11 black holdalls. Subsequent analysis revealed this to be 1111 plastic packages each holding a single block of cannabis resin weighing 281kg in total. In the basement under the stairs a further four holdalls were found. Subsequent analysis revealed this to be 400 plastic packages each holding a single block weighing 101kg in total. Also in the basement were 139 packages which were found to contain a single block of cannabis resin weighing 35.1kg. In short, a total of 1850 blocks weighing 467.8kg were found. All the packaging included bubble wrap.

On 26 February 1999 O’Docherty and Tovey had a conversation following the arrest of a man called Norman “Bunny” Harris.

On 25 February 1999 at 9:11am Harris was seen at the Tovey home address. He was given a heavy carrier bag by an unknown male. At 9:57am Harris left the house carrying a heavy green canvas holdall which he put in his car. He then drove off and made his way to 35 Chaddersley Glen, Pool.

Harris was arrested at this address at 8:37pm. He was found in possession of £1,380 and a further £2,100 in a briefcase. Inside the address was found a green holdall which contained a quantity of small blocks and packages wrapped in parcel tape. This bag was later identified by Harris as the one he had been carrying at 9:57am.

The packages were later found to contain, inter alia, 70 packages wrapped in brown plastic parcel tape with bubble wrap attached to each. There was a total of 70 nine-ounce bars of cannabis. Some of the bars had an identifying mark; 23 bore a stamp with the word “GOLD” on it. The total weight of these packages was 17.83kg.

The 70 packages had very distinctive packaging which would clearly have required much work. It included the use of bubble wrap.

Tovey refers in his conversation with O’Docherty to “got nicked, twenty bits” and tells O’Docherty about Harris. The following passages, of the transcripts inter alia, were of significance in respect of O’Docherty:

“i.

DT: “See him Bunny you know who I mean”

JOD: “Yeah well I do ten bits there”.

ii.

JOD spoke about “that gear came”

DT: “What sign is it, ‘cos I ain’t seen it, is it”

JOD: “Gold”.

iii.

JOD went on to say: “he said it weren’t all Golds what you had he said definitely was not one parcel, he said because I remember him saying it’s three different ones in one. I don’t know if it was that one you had or two different ones.

iv.

He stated shortly after: “they’re in a batch, you look at one and they look more or less the same in the wrapping, you cut them open they’re not”

He added: “they’re like … don’t forget individually can’t see them … and to sit down and unwrap all them first you’d get your gear two days later … take forever to cut all them open and deal with them out … four hundred bars to peel or … more than that about eight hundred bars.”

v.

JOD spoke about the number of bars and: “I said to him I said look mate I said I ain’t had a tanner in off that little bit of work.

vi.

O’Docherty and Tovey referred again to the arrest of Harris:

DT: “we lost someone down there”

JOD: “Yea I’ll say to him, I’ll say complain but I mean it does happen.”

vii.

JOD repeated that he had no money, adding: “I got about four hundred, five hundred of them sitting about now. You got hundred odd … got two hundred, they’ve just got two hundred … there’s other bits there, there’s about five hundred bits sitting about.”

viii.O’Docherty told Tovey that he had two hundred bits: “They’ve got their two hundred an odd bits plus Peter bits we’re swapping it, he had his forty bits … So all of a sudden with one cops now we over six hundred bits sitting there and we ain’t got no money.”

ix.

O’Docherty received a phone call and at its conclusion stated: “Peter’s just rung me, they’ve got fifty of them Golds in theirs … they ain’t saw one bit of gear yet.”

He added: “Peter said he can fill it, sell the Golds.”

xi.

O’Docherty and Tovey discussed the possibility of forensic evidence in respect of the arrest of Harris.

JOD: “me and my mate Robert we take our socks off we never touch a bit of gear … when I do money I wear a pair of rubber gloves.””

There were two further conversations between O’Docherty and Tovey on 5 March 1999. O’Docherty stated:

“do you know anyone that can go … he got a tug last Sunday week he said to me.”

Tovey referred to a similar situation which in the context could sensibly only relate to the smuggling of drugs. O’Docherty added:

“the best way to do it is to drive through get someone else to drive … You ain’t going to get a tug then.”

There was further discussion about journeys which could relate only to the transportation of drugs. O’Docherty said:

“I get my gear through whoever I just don’t have it with them myself. It’s fucking naughty.”

O’Docherty stated that he did not like Amsterdam:

“they are all grasses … I used to meet them in Spain.”

He added:

“what happened was he said in Holland you get nicked he said you stick a few names up and you’re out of it.”

There was a further discussion about the arrest of Harris, and O’Docherty made further reference to journeys and concern about interceptions by the authorities.

“I was speaking to my mate, you know the one I normally go to … If I want to get a thing out to you. He’s going to France … he had a turnout not a bad turnover, they just pulled him over and had a chat to him … he’s had a couple of tugs now.”

O’Docherty added a little later:

“start bring it over Tuesday week”

And

“I said to Peter today … come on son what’s happening or I said if that little one comes in or he gets it with a bit he might”

DT: “He’s earning good money”

O’Docherty made further reference to:

“I had to give 200 quid even though I got paid that bit of coke, other sums of money and bits and pieces.”

“One bits given to one person and I’ll just leave it … there’s a little gap there I can squeeze a few more on”

On 22 March 1999 O’Docherty and Tovey talked in some detail about the arrest of Peter Baker. The whole conversation is illuminating, but the following is illustrative:

“JOD: “Don’t know how much exactly, ‘cos I don’t know what he had done and what he ain’t done.”

DT: “There’s gear in there from the time before.”

JOD: “Yeah but it’s in the gaff, normally it wouldn’t be there but because we had the boxes done nobody’s (inaudible) that way where as before.”

Tovey asked “where is he” and O’Docherty gave clear information about where he lives and how he believes he must have been seen. He added:

“I’ll try and get him out … I was thinking of going to court tomorrow and try and get him out of the van or whatever to get him away.”

O’Docherty stated that Baker had:

“never ever met anyone else that don’t know but someone called slim Jim has been round to see what is happening.”

O’Docherty spoke about:

“take half of it home into two lots in one go, go back and get the other half and then come back.”

O’Docherty and Tovey discussed the dangers of working from home but O’Docherty stated:

“you know what Peter it’s a little cul-de-sac, he went so the neighbours are sweet I’m alright and all that you know what I mean so I went alright then if you feel good … he was happy there .. he’s been working there fuck me working there for two years on and off.”

O’Docherty mentioned the consequences of the arrest of Baker:

“50 grand yesterday and they’re fucking gone and done that…I’ve lost it you know what I mean … it’s one of those things.”

He added:

“I still pay his ex’s I’ll pay their wages even though they don’t care or nothing it cost me 40 grand.”

O’Docherty stated that he was going to shut up shop “throw all bits and pieces of paper” and get rid of his phone because he had phoned people on it.

He later stated:

“that’s all been sitting there, his bits of work … I’ll give him a fucking tonne of gear and say there’s your work or … you know the one I gave back.”

The last recorded conversation is on 12 April 1999. It included references to gear by O’Docherty:

“I get the gear, I get the gear now for four forty … so I can give about four six five for it there but they want the money there.”

O’Docherty went on to discuss prices.

He later stated:

“With the Bunny I lost, going out there biggest thing I’ve done I’ve done about half a mill … even with the bits and pieces I’ve, I’m going to give him a few quid Peter, I’ve done this when I was new but I’m about … I’m probably about half a mill down.”

He added:

“I still paid everyone’s wages.”

Referring to what can only be dealing in drugs, O’Docherty said:

“what normally happens is the earner pays for the next one … but I haven’t had the earner … I’ve had to chop up, shuts bits down I’ve got another gaff I’ve done I’ve done a few quid mate.”

There is further evidence linking O’Docherty to Baker and Braithwaite. On 5 March 1999 there was a conversation between O’Docherty and Tovey about spending £2,000 at Quaglino’s Restaurant on New Year’s Eve 1998 and staying at the Chelsea Hotel. In a witness statement dated 16 June 2000 Tamika Sinclair, accounts assistant at Quaglino’s Restaurant, stated that a booking for 32 people with a deposit of £5,580 cash was made by O’Docherty on 31 December 1998.

In a witness statement dated 25 May 2000 Gillian Thomson, Operations Manager of the Chelsea Hotel stated that there was a booking for James O’Docherty, Daniel Braithwaite and R Baker on 31 December 1998. O’Docherty gave his address as 27 Avon Street, Motherwell, Lanarkshire, Braithwaite as 759 Chigwell Road, Woodford Green and Baker as 2 Munday Road, London E16. From checkout numbers and times the witness stated that it appeared Braithwaite and Baker checked out close together on 1 January 1999 and O’Docherty checked out shortly afterwards. In a further witness statement Gillian Thomson stated that O’Docherty used an American Express credit card to pay for use of his mini bar. The card number was 3742 8716 340 2002.

In a witness statement dated 30 July 2001 David Richards, Fraud Investigator for American Express Services Europe Ltd, stated that O’Docherty held an Amex Card number 3742 8716340 2002. In a further statement David Richards stated that on 1 January 1999 the card was used for services at the Chelsea Hotel. This evidence shows the close association between O’Docherty and Braithwaite and Baker, and also supports the reliability of the surveillance transcripts.

David Richards also stated that O’Docherty used his Amex Card 3742 5859 0314 003 on 2 February 1996 to purchase two return British Airways flights between Malaga, Spain and London. These flights were in the passenger names Mr J O’Docherty and Mr D Braithwaite. In a witness statement Gary Lockey, Customs Officer, stated that on 7 March 1996 whilst on duty in the North Terminal, Gatwick Airport he intercepted a Daniel Peter Braithwaite who had just arrived from Malaga, Spain. Braithwaite stated he was travelling alone but a search of Braithwaite’s holdall revealed three airline tickets for travel between Malaga and Gatwick and return. The other two tickets were in the names of Mr J O’Docherty and a Mr S Sulzman. This evidence again shows the close association between O’Docherty and Braithwaite.

In assessing the above evidence it is important to bear in mind that O’Docherty has not in the course of these proceedings taken any steps to seek to rebut the inferences of unlawful conduct that can fairly be drawn from it. He has had ample opportunity to participate substantially in the proceedings. He has deliberately chosen not to do so. He has strategically limited his appearances to procedural matters. For example, he instructed leading and junior counsel to appear at the outset of the hearing to mount an argument that, for reasons of alleged procedural impropriety by SOCA and/or the police, the proceedings should be stayed as an abuse of process. When that application was refused, leading counsel said that he had no further instructions and, although invited to remain to assist the Court, he withdrew, leaving the Court with no assistance from O’Docherty in relation to the evidence presented by SOCA. I do not have the impression that O’Docherty lacks resources when he chooses to take issue with a case put against him (as on the application in respect of contempt of court that was brought by SOCA after the substantive hearing). Rather I feel that, with the help of his legal team, he is seeking to play a long strategic game, keeping his cards as close to his chest as is legally permissible, and waiting for an opportune moment at which he and they believe that he might be able to challenge any adverse outcome on the merits of the claim. However, as I have stated, in response to the evidence of unlawful conduct there has been, beyond mere denial, a deafening silence from O’Docherty and his lawyers.

I also bear in mind that the original criminal proceedings were stayed as an abuse of process. However, no argument was put to me that the civil recovery proceedings constitute an abuse of process, other than on the narrow ground that I rejected. It was, for example, open to O’Docherty to contend that, in the absence of further material that could no longer be made available, no adverse inferences could properly be drawn from the evidence relied upon by SOCA. No such submission was advanced, despite the opportunity given. I must, therefore, consider the evidence as it stands and, in accordance with Gale, decide whether SOCA has, on a balance of probabilities, shown that O’Docherty was a professional, large scale and sophisticated drug dealer. On the evidence put before this Court I have no hesitation in accepting SOCA’s claim.

Douglas Caya was a close associate of O’Docherty. He opened bank accounts, purchased properties and formed companies in the names of his two brothers, Anthony and James Caya, who were both resident in Canada, and others. Cash, often in round sum amounts, was deposited into the banking system through these accounts and others controlled by Daniel Kearney and then used to purchase properties. Shortly after the arrest of O’Docherty in April 1999 Caya left the United Kingdom and returned to Canada. Caya was also involved in the exchange of sterling notes for high denomination Swiss francs through a bureau de change. Caya’s partner was Claire Trevillion. It is relevant that Caya had previous convictions beginning in 1973, including four for theft and kindred offences between 1973 and 1982 and one for fraud and kindred offence in 1986. The 1986 offence was for obtaining property by deception for which he received a fine.

Daniel Joseph Kearney is the half brother of Caya. Kearney opened up a number of deposit accounts in his own name and the sole trading names of Wingate Fashions and Bedz n Bitz. He also acted as company secretary of Beacon Construction Ltd. Kearney’s main role was to introduce cash into the banking system normally in amounts of between £3,000 and £5,000, amounting, in total, to about £650,000. There was no Inland Revenue record of Kearney trading as Bedz n Bitz or Wingate Fashions Ltd. It is relevant that Kearney had three convictions in June 1995 for obtaining property by deception for which he received concurrent sentences of three months each.

Kevin Camfield, an associate of O’Docherty, ran a travel agency business based in East London in the name of Utopia Ltd. As a travel agency business the company generated large amounts of cash. Camfield opened two bank accounts in the company name with the Halifax and one off-shore with the Bank of Scotland, Jersey. One of the Halifax accounts and the Jersey account were not declared in the company records or accounts. A further account at the Bank of Scotland, Jersey, in the name of Camfield’s wife Tina, was also used. Tina Camfield stated that she was unaware of this account. During 1996 and 1997 Camfield moved more than £750,000 through these accounts and others belonging to his company. The money was then used to purchase properties in various names on the instructions of Caya, the associate of O’Docherty.

Trevor Thomas qualified as an accountant in 1988 but in 1993 he was expelled from the membership of the Institute of Chartered Accountants. It is relevant that Thomas had one conviction for “Failing to Keep Proper Accounting Records” contrary to the Companies Act 1985, for which he received a fine of £2,000. Thomas ran a business called Glentech Consulting Ltd which appeared to specialise in advising on overseas investments. The company was used to transfer cash totalling £130,000 in the name of Mark Gibbons (an alias used by O’Docherty) in order to purchase two properties on the instructions of Caya. In addition Thomas transferred £200,000 cash through the NatWest account of Glentech on behalf of Caya and O’Docherty to the Cayman Islands.

JOD Enterprises Ltd, Co. No. 03394004, was incorporated on 27 June 1997. O’Docherty was shown as the sole director and his wife, Carmel, as company secretary. The company dealt in parallel trading of designer clothing, imported from the United States of America and Italy. The issued share capital for the company was 50,000 ordinary shares made up of 37,500 held by O’Docherty and 12,500 held by Carmel McKeon. The profits of the company were estimated and accepted by the Inland Revenue following their investigation as being £125,000. It appears that JOD Enterprises Ltd ceased trading towards the end of 1998 or early 1999. The company was registered for Value Added Tax on 18 July 1997 and was de-registered on 1 February 1999. JOD Enterprises Ltd’s main business account was with Barclays Bank, account number 101041321. This account showed a large number of payments apparently for O’Docherty’s personal use which exceeded the alleged profit of £125,000.

Accounts were prepared for JOD Enterprises Ltd by Ramon Lee & Partners for the period ending 30 June 1998. These showed a turnover of £541,991 and a net profit of £54,138. The current account for JOD Enterprises (number 10141321) showed total credits into the account for the same period of over £1.2 million. Allowing for transfers from the company’s business premium account, there are credits of more than £1 million. The credits include:

JD Developments was set up in February 1995 as a trading name used by O’Docherty for his property investments/developments. A bank account, number 70502731 (later 90502731) with Barclays Bank, was set up in February 1995 in the name of “Mr Doug Caya and Mr James O’Docherty trading as JD Developments”. A further two accounts were opened with Barclays. On 1 May 1995 account number 40293288 (later 10293288) was set up under the name of Mr James Thomas O’Docherty with an address of “Messrs Caya and O’Docherty, JD Developments, 1 Warren Road, Chingford, London, E4 6QR”. The final account number 80212 7670 was opened on 1 March 1996 in the name of James Thomas O’Docherty. As part of O’Docherty’s settlement with the Revenue, profits totalling £219,000 were agreed for JD Developments for the tax years 1994/95 to 1998/99. Accounts were prepared for JD Developments for the financial years ending 31 March 1996 and 31 March 1997. Funds passing through JD Development’s accounts were often used to purchase properties such as 53 Malford Grove in O’Docherty’s own name.

Contract Investments Ltd (“CIL”), Co. No. 03243180, was incorporated on 2 August 1996 and later dissolved on 29 June 1999. The director of the company was shown as Bickenhall Ltd since 11 October 1996 with Glamour Estates Ltd shown as company secretary from 20 August 1998. CIL was used as a vehicle in the purchase of Haylands. Caya purchased the company from Marriots Company Services Ltd along with Glamour Estates Ltd and Bickenhall Ltd. CIL made no Corporation Tax returns and failed to submit any accounts.

Wingate Fashions Limited, Co. No. 02078523, was incorporated on 28 November 1986 and then dissolved on 14 March 2000. O’Docherty was listed as director between 25 January 1997 and 24 June 1997, with Carmel McKeon listed as company secretary between the same dates. From 24 June 1997 Kearney was listed as director with a Robert Woolf listed as company secretary. Between 7 September 1991 and 23 January 1997 there were two other directors, Kiran Bhudarji Rach and Nalin Bhudarji Rach, with Kiran Rach also listed as company secretary. Companies House shows accounts were submitted for the years ending 31 January 1995 to 31 January 1997, all prior to the appointment of O’Docherty. Kearney opened a bank account, number 10372870, for the company at Barclays Bank. This account was opened on 20 January 1998 and closed on 22 September 1998. During that period the account had credits totalling £94,624 and debits totalling £93,504, including large sums in and out from Sopel & Co Solicitors, solicitors frequently used by O’Docherty and Caya for property transactions. There were no accounts prepared or tax declarations during this period.

Beacon Construction Ltd, Co. No. 03237415, was incorporated on 13 August 1996 and dissolved on 13 July 1999. Anthony Caya has been shown as the sole director and Kearney as the company secretary since the date of incorporation. The trading style of the business was that of general construction. The company’s principal activity was to be the construction of a waste disposal project in association with a company called Bow Midland Waste Recycling Ltd. Ray Trevillion (father of Claire Trevillion) was to be the project manager. The sole shareholder of the company is Anthony Caya holding 100 shares. Douglas Caya (brother of Anthony) purchased the company from Marriots Company Services Ltd and used his brother’s name to conceal his own involvement. Anthony Caya has been resident in Canada since the early 1990s. Caya opened a bank account, number 0861063, with Lloyds on 30 December 1996 which was closed on 23 September 1998. During that period it had credits of £934,358 and debits of £929,725, including regular payments to Sopel & Co Solicitors, solicitors frequently used by O’Docherty and Caya for property transactions. The company has submitted no tax returns and no Pay As You Earn (PAYE) scheme was ever set up.

Utopia Ltd, Co. No. 01681609, was incorporated on 25 November 1982. The company trades as a travel agency and has submitted accounts to Companies House. The accounts for year ending 31 Decebmer 1998 show turnover of £391,813. Kevin Camfield has been the director of the company since 28 September 1992 and Carole Camfield has been the company secretary since 26 June 2001. Tina Camfield was the previous company secretary between 31 October 1996 and 26 June 2001. Camfield is shown as the sole shareholder of the company. The company has submitted tax returns and accounts and established a PAYE scheme. The company declared trading profits of £34,247 in 1999. Examination of the accounts of Utopia Ltd trading as Utopia Travel shows that two bank accounts in the name of Utopia Travel were never included in the audited accounts of the company. Camfield has failed to declare either of these bank accounts in his personal tax return.

Glentech Consulting Ltd, Co. No. 03600020, was incorporated on 17 July 1998 and dissolved on 4 November 2003. Thomas was shown as the director since 30 July 1998. The trading style of the company was shown as Accounting/Tax Consultancy. Ms Jadwiga Halina Kopiel and Thomas were shown as equal shareholders of the company. The company submitted no tax returns or accounts, although it did set up a PAYE scheme with national insurance contributions totalling £1,304.62.

Brickland Developments Ltd, Co. No. 03718534, was incorporated on 23 February 1999 and was dissolved on 17 December 2002. O’Docherty was shown as the company director from 3 March 1999. O’Docherty was shown as having 99 ordinary shares and Ray Trevillion as having 1 ordinary share. The company submitted no tax returns.

First Mortgage was a business operated under the name of Anthony Caya. Bank accounts were opened at Lloyds TSB in the name A.C. Caya trading as First Mortgage. The business manager of the accounts at Lloyds was a Simon Wright. A 1996 diary found at Douglas Caya’s address showed contact phone numbers for Wright. Analysis of the bank accounts for Anthony Caya trading as First Mortgage Co shows a number of payments to O’Docherty, his companies and family. In August 1996 Simon Wright was told by “Anthony Caya” that he intended to purchase a fashion company called Wingate Fashions for around £50,000.

Beds n Bitz is a business connected to Caya and Kearney. Kearney has a bank account with Barclays Bank, account number 00816795, in the name DJ Kearney trading as Beds n Bitz. The company’s business is second hand furniture with premises at 288 Becontree Avenue, Dagenham.

O’Docherty’s money laundering is well illustrated by the following example, involving his accountant, Thomas.

Thomas made two cash deposits, into the NatWest account of Glentech, in March 1999 totalling £202,500, which he told the bank related to the Lennox Lewis fight with Evander Holyfield. This money was subsequently used to open a bank account with the Bank of Bermuda (Cayman) Ltd in the name of Adams Properties Ltd.

It is clear that this company (Adams Properties Ltd) and the bank account were controlled by O’Docherty. Notes of a meeting between Thomas and O’Docherty evidenced discussions about the company, the journey to the Cayman Islands and the way the account was to be opened. Documentation for Adams Properties Ltd includes a Power of Attorney naming O’Docherty as the sole beneficiary. Thomas also wrote to Barclays Bank asking for a reference for O’Docherty addressed to Billy King, the Bank of Bermuda. When O’Docherty was arrested in April 1999 he was found in possession of a business card for Billy King. O’Docherty’s passport showed his travel to the Cayman Islands at the relevant time. Following his arrest, Thomas was interviewed in January 2002 when he stated that he could not recall if the £200,000 was given to him by Caya or O’Docherty. He said Adams Properties was used to capture the profits from O’Docherty’s Spanish property.

Information obtained under a Letter of Request sent by the prosecution showed that the Bank of Bermuda account in the name of Adams Properties Ltd built up a balance of £206,162, the initial transfer plus interest. Following this and during the period of the restraint order these monies were dissipated before the account was closed on 9 January 2002:

A further example showing the mechanics of O’Docherty’s money laundering relates to Camfield. Camfield invested £100,000 in an offshore investment bond with Allied Dunbar in the name of Utopia Ltd, the travel agency of which Camfield was a director. Camfield provided two cheques drawn on the Halifax account of Utopia. There was a further investment of £100,000 in early August 1996 in Clerical Medical in the name Camfield. The money came from the Utopia Barclays Bank account number 80919195 (£64,000) and Halifax account 2/35501009-4 in the name of Kevin Camfield, Utopia Travel (£35,000). The Halifax account (2/35501009-4) was not declared for tax purposes or to the company auditors. The Barclays account was declared for audit purposes but the cheque stub states “31/7/96 Mr L O’Callaghan Refund Kuoni 07 Sept 96 £64,000”. The audited company accounts do not show this transaction either under investments or the director’s loan accounts. Some of the money for this transaction appears to have come from two cash deposits made to the Barclays account, the first on 30 July 1996 for £53,970 and the second on 2 August 1996 for £8,000.

A further £100,000 investment was provided on 11 September 1996 drawn on Tina Camfield’s (wife of Camfield) Bank of Scotland account in Jersey. This was invested in the Scottish and Equitable based in Luxembourg. The financial adviser was not told by Camfield that these latter investments were on behalf of either O’Docherty or Caya.

Shortly afterwards Camfield said both these latter investments should be encashed, despite substantial penalties and charges for doing this. The Scottish Equitable £100,000 investment was returned to Tina Camfield’s account in Jersey on 8 November 1996 less charges of £4,733.43. Camfield then instructed the money to be paid to Sopel & Co Solicitors who were acting in the purchase of the Haylands by CIL. The cost of cashing in the Clerical Medical investment was over £7,000.

After Camfield was arrested he was interviewed on 16 December 1999. In his interview he said that O’Docherty had asked him to invest funds offshore. Camfield thought it was “a hundred thousand something like that” which was invested and he thought it was in cash and it was put through Utopia. He also said that “it was just investing money” not a business investment. At that time Camfield was asked if he knew the name Caya, to which he replied “the name rings a bell”. At a subsequent interview in June 2000 Camfield gave a different account and said that O’Docherty’s offshore investment was company money, not personal. He said “I haven’t invested any money on behalf of O’Docherty”. He said the money (£210,000 cash) was given to him in “roughly ‘96” to put in bonds and that it had come from Caya. Camfield could give no explanation as to why two bank accounts were not included in the company accounts.

As explained earlier, Caya was a close associate of O’Docherty. His activities as a money launderer are well evidenced. Caya was observed on two occasions meeting with Kamlesh Kumar Soneji, a convicted money launderer. On 18 March 1999 Caya gave Soneji a pilot case before driving off in his car. Soneji was observed taking the case to the Links FX bureau de change, Victoria. A currency transaction followed which involved obtaining Swiss francs, Deutschmarks and dollars in exchange for £112,338.06. On 9 April 1999 Caya was seen entering the same bureau de change carrying a pilot case and exchanging cash. Enquiries with the bureau show that £110,169.49 was exchanged for 260,000 Swiss francs.

On both occasions Caya was exchanging low value sterling notes for higher value Swiss francs to reduce the bulk for transportation. On 24 March 2000 Soneji pleaded guilty to one charge of conspiring to convert property and to remove it from the jurisdiction knowing or having reasonable grounds to suspect it represented the proceeds of criminal conduct. The charge covered the period 12 September 1997 to 3 July 1999 and related to an offence to which Part VI of the Criminal Justice Act 1988 applies. This conspiracy included the laundering through the bureau de change in Victoria called Link FX. Soneji was sentenced to four and a half years imprisonment.

There is also evidence that O’Docherty used an alias of a person, Mark Gibbons, had property transferred to “Gibbons” and then, through a mortgage fraud, received the cash proceeds of sale of the property.

Facial mapping reports comparing the passport photographs of Mark Gibbons and O’Docherty concluded that:

“the two passport photographs are most likely of one and the same person.”

A supplementary report compared the passport photograph of Gibbons with an arrest photograph of the actual Mr Gibbons and concluded:

“as such we can conclusively rule out any possibility that the two people in these images are the same person.”

Two properties were identified as having been purchased in the name of Mark Gibbons, 8 Scoter Close, South Woodford and 22 Arrowsmith Path, Hainault. The conveyance solicitor used for these properties sent correspondence for Gibbons to addresses used by Caya in his own name and his brother James Caya. The bulk of the funds used to purchase these properties were £130,000 in cash transferred from the account of Glentech Consulting Ltd. The principal of Glentech was Trevor Thomas. During a search of Thomas’s property he was asked by the Police as to who instructed him to make the transfers to the conveyance solicitors in respect of these properties and he replied “Douglas Caya”. The purchase price of 8 Scoter Close was £76,500 with £70,000 of this coming from the account of Glentech Consulting Limited. This was in turn funded by a deposit of £70,000 cash. During his interview in January 2002 Thomas said that the transfer was carried out on the instructions of Caya. The remaining purchase funds came from Beds n Bitz Barclays account number 00816795 which was in turn funded by cash deposits.

An attempt was made to sell 8 Scoter Close and 22 Arrowsmith Path in December 2005 and July 2006 respectively, neither of which was concluded. However, in mid 2006 the property of 8 Scoter Close was sold for £215,000. The properties were dealt with through an estate agent called Warren Mitchell (“Mitchell”) and the conveyancing solicitors Crust Lane & Davis (“CLD”). Warren Mitchell gave a statement to the police at the time of their investigation detailing his dealings with Kearney and James Caya. The CLD files for the 2006 transaction held a photocopy of a passport in the name of Gibbons but the photograph is clearly different to the one shown in the facial mapping report and different to the arrest photograph of Gibbons. Checks with the passport office show only one passport issued in the name of Mark Gibbons and the passport shown to CLD had been altered to show a different photograph.

Nearly £140,000 of the sale proceeds from 8 Scoter Close was paid to Mitchell and the conveyance files indicate a payment of £73,862.63 direct to Gibbons. Of the £140,000, £63,000 was paid into Mitchell & Co’s Lloyds account 01156333 on 8 May 2006 and a further £76,490.24 into the same account on 18 May 2006. Two payments were made to O’Docherty from Mitchell for £22,140 on 6 December 2006 and £17,695.89 on 29 June 2007.

The property was sold to an employee of Mitchell called Andrew Perry (“Perry”). Perry funded the property purchase by means of a £180,000 mortgage from the London Mortgage company and a deposit which he claimed came from a bonus he was owed by Mitchell & Co. On the mortgage application form Perry stated his income as a basic wage of £40,000 per annum and a bonus of £15,000. In addition it was stated on the mortgage application form that Perry had been employed by Mitchell & Co for five years. There was also a reference from Mitchell & Co stating that Perry had worked for them since February 2001, approximately five years. Checks with HMRC show that Perry was only employed by Mitchell & Co from February 2005 and his income in 2004/05 was £1,537 and in 2005/06 was £11,999. There had been no declaration of any bonus by Perry to HMRC for tax purposes.

Perry was interviewed on 24 June 2009. In interview Perry claimed he had been earning a basic wage of £15,000 and was due a bonus of around £40,000 from Mitchell & Co. He claimed this was a bonus that had accrued but had been held by Mitchell and that Mitchell paid this over for the deposit on the property. He admitted not having received the bonus himself and that he was unaware it had not been declared for tax purposes. Perry could not offer any explanation as to why the form stated that he had worked for Mitchell & Co for five years. Perry said that the mortgage application form was completed by the broker but that the information must have come from him. Perry admitted the signature on the form was his. Perry could offer no explanation as to why the conveyance file from CLD showed a deposit of nearly £74,000, rather than £40,000 being paid direct to Gibbons. It is clear that this property was purchased by way of a fraudulently obtained mortgage and it is a reasonable inference that the whole transaction was a means to move the property out of the alias name of Gibbons on behalf of O’Docherty and to launder the proceeds of mortgage fraud. Perry never lived in the property and at the time of the purchase by him he was living in a rented council flat. Since the purchase the property has been rented out with the rental income being paid to Mitchell & Co and then passed to Perry to fund the mortgage payments.

Mitchell was instrumental in other property transactions involving O’Docherty. During the purchase of Cannister Hall by a Julie Coughlan, false details were provided, through Mitchell, to obtain a mortgage. From the funds £422,000 was sent to Singletons Solicitors, a solicitor also used by O’Docherty in other property transactions, and £60,000 was transferred to O’Docherty’s Spanish bank account at La Caixa number 21002583130710009229 on 27 June 2003. This transfer was not shown in the conveyance file documents. In August 2003 O’Docherty stated his home address as Cannisters Hall, Glovers Lane, Hastingwood on a Land Registry document for another property. In June 2003 the vendor of the property was a Kelly Mitchell (believed to be the wife of Warren Mitchell) and the purchaser was Julie Coughlan. There appears to be no legitimate reason for O’Docherty to receive £60,000 from this property sale, from funds obtained by mortgage fraud.

In May 2003 4 St Dunstans Road was transferred from a Michael Spencer Docker (“Docker”) to a Frank Thomas Gibson (“Gibson”) for £73,000. An entry in the Land Registry files dated 18 February 2000 shows Gibson lending Docker £73,000 with a charge against the property 4 St Dunstans. In December 2004 the property was transferred from Gibson to a James Clarke (“Clarke”) for £240,000, with a mortgage from the Halifax Plc. The transfer document shows the sub-vendor was Warren Mitchell. It appears from the conveyance files that at the same time as the sale of the property to Clarke for £240,000, Mitchell purchased the property from Gibson for £78,000. In 19 months the property had allegedly risen in value by 229 per cent and an instant transfer between Gibson, Mitchell and Clarke in 2004 saw a rise in the value of the property of 207 per cent. Following the transfer of the property in 2004 the sale proceeds were distributed to a number of entities, including over £60,000 to Mitchell and £50,000 to O’Docherty on 6 December 2004 into his Halifax account. There appears to be no legitimate reason for O’Docherty to receive £50,000 from this property sale other than as part of a transaction to commit mortgage fraud and to launder the proceeds of crime.

The proceeds of O’Docherty’s drug trafficking and other criminal conduct were used to fund the acquisition of property both in the United Kingdom and elsewhere. The principal UK property was Haylands, a very large residence in Essex (valued at £4 million in 2004). A close examination of the transactions concerning Haylands is useful for it illustrates how O’Docherty used a number of vehicles for routing purchases and disposals, often seeking to conceal that he was closely associated with the movement of funds and properties, and to mask the extent of his association.

On 14 November 1996 Haylands was purchased in the name of Anthony Caya for a price of £600,000. On the same day the property was transferred by deed to CIL. There is no evidence of any funds exchanging hands between CIL and Anthony Caya. Over £400,000 of the purchase funds came from sources linked to Camfield.

Camfield was an associate of O’Docherty who, as explained earlier, ran a travel agency business based in East London in the name of Utopia Ltd. As a travel agency business the company generated large amounts of cash. The first payment of £9,565 from the Utopia Ltd bank account with the Halifax Roll Number 2/39972640-0 was funded by mainly cash deposits totalling £24,715 between 18 to 23 October 1996 and a cheque for £2,718 from an unknown source.

Three payments totalling £162,415 came from a Utopia Ltd bank account with the Bank of Scotland, Jersey, number 01610164. The auditor (Julian Lewis) for Utopia Ltd confirmed in a witness statement that this was one of two bank accounts in the name of Utopia not declared to the auditors, so not included in the year end accounts and not declared for tax purposes. This account was opened in August 1996 and the payments of £63,400 and £3,800 to Sopel & Co in October and November 1996 were funded by a number of cash and cheque deposits made by Camfield. The amount of £95,215 was funded by a deposit from the account of Tina Camfield, Bank of Scotland, Jersey for £95,200. This deposit was funded by the encashment of an investment bond for £95,266.57. It can be inferred that this account was set up to conceal the true ownership of Haylands and to launder the proceeds of O’Docherty’s drug trafficking.

Two payments, totalling £64,155, came from a Bank of Scotland Jersey account, number 01394171, in the name of Tina Camfield. Tina Camfield gave a statement to the police stating that she was unaware of this bank account in her name, the cheques bore false signatures and that the writing on the cheques was that of her husband, Kevin Camfield. In his police interview Kevin Camfield said that an offshore investment bond with Scottish Equitable in the name of his wife, Tina Camfield, was on behalf of Caya. The account was opened in January 1995 with minimal activity until the period 31 July 1996 to 11 September 1996 when nearly £146,000 was credited to the account in mostly round sum figures. These credits largely funded the investment bond of £100,000 paid out on 11 September 1996 and £64,155 paid directly towards the purchase of Haylands.

A further payment of £63,480 on 29 October 1996 came from a Halifax UK bank account, roll number 2/35501009-4, in the name of Utopia Ltd. This account was funded by cash deposits, including £175,000 over the period 7 August 1996 to 23 October 1996. In addition this was the second bank account in the name of Utopia not declared to the auditors, so not included in the year end accounts and not declared for tax purposes.

A payment of £95,610.95 on 8 November 1996 came from a cashed-in bond with Clerical and Medical in the name of Kevin Camfield. At interview in December 1999 Camfield stated that he had invested funds in a previous offshore bond with Allied Dunbar on behalf of O’Docherty and that the money went through Utopia. The bond with Clerical and Medical was funded by way of a £64,000 cheque from Utopia Ltd bank account number 80919195 with Barclays and £35,000 from a Utopia Ltd bank account number 2/35501009-4 with Halifax.

A payment of £4,740 came from a Utopia Ltd bank account with Barclays, number 80919195. Notations next to the bank statement show this as a Director’s loan. Camfield could give no explanation as to why this money was going to Sopel & Co, the conveyance solicitors dealing with the purchase of Haylands.

A payment of £5,000 from Caya on 31 October 1996 was funded via a cash deposit of £5,000 into his Nationwide Bank Account number 56081570 on 26 October 1996. This account saw little activity, just over £84,000 deposits over nearly two years, including one for £63,000 in August 1997 from an unknown source. Other deposits were mainly cash, including £8,000 on 22 September 1997, followed on 24 September 1997 by a £6,000 payment to James O’Docherty, Barclays account in Marbella.

Two payments came from Lloyds Bank account number 0627540 in the name of AC Caya trading as First Mortgage Company. These were for £25,000 on 31 October 1996 and £7,000 on 14 November 1996. This account was funded from unknown sources but the operation of this and another Lloyds account in the name of AC Caya trading as First Mortgage Company show that the accounts were run by Douglas Caya on behalf of O’Docherty.

£111,000 came from the solicitors Cornillie & Company. It is relevant that the main partner of Cornillie (John Cornillie) was convicted of four fraud and kindred offences including bribing a tax official, false accounting and making a false statement, for which he received sentences of between six and eighteen months, some of which were consecutive. The £111,000 originated from the sale of two properties, 37 Langley Drive and 24 Rye Court, both previously held in the name of Anthony Caya. Douglas Caya used his brother’s name (Anthony Caya) in the purchase of properties. The property 37 Langley Drive had been originally purchased on 14 March 1996 for £46,000 in the name of Doug Caya and then transferred on 30 May 1996 again for £46,000 into the name of Anthony Caya. The property 24 Rye Court had been purchased in the name of David Kearney (believed to be Daniel Kearney but the wrong Christian name shown on form) in May 1996 for £38,000 and then by Anthony Caya in July 1996 for £59,000. Cornillie & Company solicitors dealt with the transfer of the property from Kearney to Anthony Caya. It appears Anthony Caya funded the purchase by means of a mortgage from Abbey Plc, at a time when he (Anthony Caya) had no declared income and it is believed he was no longer resident in the UK. On the balance of probabilities false details must have been shown on the mortgage application form. There is no trace of any tax declarations by Anthony Caya for the years 1996/97 to 2002/03.

It is notable that in October 1996 a building surveyor visited O’Docherty in connection with plans for Haylands, and that when O’Docherty “purchased” Haylands in 1998 the purchase monies were paid into his own bank account (see below).

On 3 September 1998 Haylands was sold by CIL to O’Docherty for £650,000. These funds came in part from the following sources: Sunbank - £111,814.28 from a re-mortgage of £112,000 from Sunbank on two other properties previously held by O’Docherty; 53 Malford Grove - £409,489.75 from Cornish & Co solicitors from the sale of another O’Docherty property (53 Malford Grove, South Woodford, London E18 2DY); Barclays Transfers - £116,000 from Barclays account 10141321 in the name of JOD Enterprises Ltd.

The £650,000 received for the sale of “The Haylands” was paid to Sopel & Co Solicitors, who acted for CIL. After legal costs the remaining sale proceeds of £648,872.30 were then sent by Sopel & Co on 8 September 1998 to an account with the Union Bank of Switzerland. In response to a Restraint Order dated 7 May 1999 O’Docherty admitted having an account with UBS, number 803.735-283, in Switzerland with a balance of approximately £700,000.

In a letter dated 6 April 2010 from O’Docherty’s then solicitors, it was admitted the UBS account was held in the name of O’Docherty. In the defence of O’Dochery dated 13 September 2010, at paragraph 5.5 it is stated that the £650,000 funds should have been sent to a UBS account held in the name of Douglas Caya but it was deposited into the wrong account. It is also stated that neither O’Docherty or Caya “discovered the error” before O’Docherty was arrested in April 1999 and the Swiss account was subject to a restraint order.

From material obtained pursuant to a Letter of Request from the Swiss authorities it is plain that this defence is a blatant lie. The amount of £648,782 was credited to O’Docherty’s account on 8 October 1998. It is inconceivable that between then and April 1999 when he was arrested that neither O’Docherty or Caya became aware of the alleged “error”. Both O’Docherty and Caya carried out transactions on their respective UBS accounts during the six month period between October 1998 and April 1999. Caya closed his UBS account on 22 January 1999. He could hardly have failed to notice that £648,782 had not been credited to his account. Caya opened his UBS account in August 1997 and between then and January 1999 the account was credited with deposits of just over £357,000. From these deposits at least £290,000 was transferred to Caya’s account and was simply being used for the benefit of O’Docherty. Of the £357,000 deposits nearly £36,000 came from Beacon Construction and nearly £31,000 from JOD Enterprises. In addition over £202,000 was deposited from Sopel & Co solicitors. Some of the funds from Sopel related to the following property sales:

The £202,000 deposited in Caya’s UBS account was subsequently transferred to O’Docherty. Caya was, therefore, using his brother’s name to conceal the true ownership of the properties and to launder funds for the benefit of O’Docherty.

The main part of the Haylands property and land under Title Number EX744244 was sold in December 2004 for £3.96 million to a Lalji Vekaria, with registration on Land Registry being shown as March 2005.

The proceeds of the sale, less costs, were distributed as follows:

The sale in 2004 and O’Docherty’s/Mitchell’s subsequent dealings with the purchaser and the property casts serious doubt over the sale being a genuine transaction. During the sale to Vekaria in 2004 advice was sought from a solicitor on a joint purchase of the property by Vekaria and O’Docherty, with O’Docherty providing some of the funds to buy the property from himself. In response to a Disclosure Order & Notice served on Mr Vekaria he has stated that £780,000 of the funding to buy Haylands in 2004 came from individuals who to date he has failed to identify. Vekaria has also stated that by June 2007 he could no longer afford the mortgage payments to the Bank of India and he came to an agreement with Warren Mitchell that he (Mitchell) would refurbish the property at his own expense with a view to finding a buyer. There was no written agreement and no obvious legitimate reason why Mitchell would agree to refurbish someone else’s property at his own expense. In October 2007 the Haylands property was rented out to a Steven Burney by Mitchell with the rental income (£38,802.74) being paid to O’Docherty. At this time the property was still registered to Vekaria. Vekaria has stated that he was unaware of the property being rented out or rental income being paid to O’Docherty. After buying the property in 2004 Vekaria did not take possession and the property was eventually repossessed by the Bank of India and then sold on to Steven Burney. Consideration of the transaction shows that in large part the Bank of India funded the purchase of Haylands in 2004, as a means of facilitating O’Docherty’s liquidation of this asset and transfer of the proceeds to Spain.

There is further recoverable UK property, namely, Flat 19, Wentworth House, Hampstead Avenue, Woodford Green, IG8 8QB, 11 Roding Lane, North Woodford, Essex, IG8 8NR, 22 Arrowsmith Path, Chigwell, IG7 4PL and 52 Roche House, Beccles Street, London E14 8HE. At paragraphs 4.26-4.32 of his first witness statement, Mr Lapish sets out the detailed grounds for believing that these properties are recoverable properties. I accept that evidence.

The recoverable overseas properties are extensive and are listed in the Appendix to this judgment. Recoverable property was moved from the UK in the following transactions:

At paragraph 4.2 of his first witness statement Mr Lapish has provided valuations of the recoverable property referred to above, and has included a table explaining the basis of the valuations. There does not appear any issue on the value of the UK properties. O’Docherty has provided valuations of the Spanish and French properties which are based on his own estimates. The valuations given for the Spanish properties are about 40 per cent less than the original purchase price. However, Mr Lapish has used a Spanish property price index for the relevant period, and I find this a more reliable method than O’Docherty’s unsupported estimates. For the French property O’Docherty has assumed a reduction in value of 30 per cent. It is unclear why a property purchased in 2005 would have decreased by such a substantial amount, and Mr Lapish has taken the purchase price (£370,000) as representing current value, an approach that is not unreasonable in the circumstances.

There are also a number of bank accounts held at Banca March Spain (also listed in the Appendix). It can reasonably be inferred that all the accounts were initially funded by the proceeds of unlawful conduct and that the current balances represent directly or indirectly recoverable and/or associated property. For example, the account ending 0179 received over £2.3 million following the sale of the Haylands property in December 2004. These funds may well have been moved around O’Docherty’s accounts directly or through other investments. The failure of O’Docherty to provide full details of the movement of his assets supports a strong inference that O’Docherty wished to conceal the true extent and nature of his assets.

There are also bank accounts held at Bank of Scotland plc (Halifax/HBOS) (also listed in the Appendix). These are:

One vehicle acquired by O’Docherty is also recoverable property, VW R32, valued at €14,000.

On the basis of the valuations set out in the evidence of Mr Lapish, which I accept, the estimated value of UK recoverable property is £1,480,399, and the estimated value of overseas recoverable property is £4,438,084, a total of £5,918,483. The estimated value of property, vehicle and bank balances is £5,963,638.

O’Docherty had been known to the Revenue up to 1988 but no further details were known until October 1997 when he retrospectively registered as a self-employed property developer, from February 1995. Accounts were prepared for the two tax years to 31 March 1996 and 1997. No further returns were made for the years 1997/98 to 2000/01. The SCO investigation was settled on 25 March 2002 with a financial settlement of £440,775.

The settlement covered the years 1981/82 to 2000/01 and was based on estimated profits over that period totalling £975,000. It covered profits from various enterprises including casual earnings, general jewellery trading, UK property development under the name of JD Developments, Spanish property developments, rental income and income from the company JOD Enterprises Limited. This settlement was on the whole based on estimates with little supporting evidence of trading. During the meeting of 5 March 2002 with the Revenue, O’Docherty’s adviser, Thomas, said his client was prepared to make a one off offer of £350,000. O’Docherty said the estimate was based on what his house was worth, what he could raise on it and what he needed to live on. From the record of meeting on 20 March 2002, paragraph 2.3, it is clear that O’Docherty did not complete a statement of assets and liabilities for SCO.

During O’Docherty’s meetings with Revenue officers from SCO between November 1999 and March 2002, he and his advisers summarised his income and trading pattern as follows:

No further tax returns were submitted by O’Docherty after the settlement until 31 August 2006 when he sent returns for the periods 2001/02, 2002/03, 2003/04 and 2004/05. The return for 2005/06 was submitted later. These returns show O’Docherty as a self-employed property developer with additional income from land and property. The returns show no net liability to income tax or capital gains tax.

It is understandable that the Revenue were eager to impose some tax liability upon O’Docherty, whose lifestyle suggested that he had made substantial income and capital gains over a lengthy period. A settlement with the Revenue would also suggest to those that did not have a larger picture that he had legitimate sources of income, an advantage of such a settlement which O’Docherty well appreciated. However, in my view, the settlement is a very uncertain guide as to the actual amount of any legitimate income. Practically no contemporary business records were produced; figures were essentially plucked from the air and vouchsafed by Thomas, whose honesty and integrity were highly questionable. There was no disclosure of assets and liabilities. The Revenue made no serious attempt to verify gambling winnings or the alleged (but fictitious) loan of £400,000 from Caya.

Most importantly, the Revenue had a wholly incomplete view of O’Docherty’s many bank accounts and the true nature of relationships with individuals such as Caya and Camfield. O’Docherty’s initial offer was based on what he said he could afford, and later disclosures, inadequately supported by business records, were tailored to support that offer. The Revenue were not concerned to disentangle legitimate trading from unlawful activities. Furthermore, such disentanglement is practically impossible in circumstances where ostensibly legitimate trading has in all probability been funded and sustained by illegal operations, and vehicles for such trading have been used also as conduits for the laundering of funds derived from illegal activities. There may have been some purely lawful trading, but this is likely to have been on a very small scale, sufficient to support a modest lifestyle and small acquisitions that do not fall in any event within the scope of SOCA’s claim.

In short, the settlement with the Revenue does not affect the amount of recoverable property claimed by SOCA in these proceedings.

For the above reasons I find that SOCA has proved its claim to the requisite standard of proof. I would invite the parties to agree a form of order in the light of this judgment. In default of such agreement, written submissions should be made on points in dispute, which I would seek to resolve without the need for a further hearing.