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NCA v Baker & Others [2020] EWHC 822 (Admin)

On 8 April 2020, the Queen’s Bench Division of the High Court of Justice handed down judgment in the matter of NCA v Baker & Ors [2020] EWHC 822 (Admin). The eagerly anticipated judgment of Lang J concerned an application to discharge three Unexplained Wealth Orders (‘UWOs’), and related Interim Freezing Orders (‘IFOs’), previously made by Supperstone J pursuant to sections 362A to 362R of the Proceeds of Crime Act 2002.

The UWOs had been obtained by the National Crime Agency (‘NCA’) in relation to three London properties worth approximately £80 million. It was the NCA’s case that there was extensive evidence in support of the applications for UWOs to demonstrate that the properties were acquired as a means of laundering the proceeds of unlawful conduct by Mr Rakhat Aliyev (‘RA’), a national of Kazakhstan, who died in prison in Austria on 24 February 2015.

By way of letter dated 9 August 2019, the respondents, together with the ultimate beneficial owners (‘UBOs’) of the three properties, voluntarily provided extensive information about the purchase and transfer of the properties, their registered owners, and the UBOs. The letter disclosed that the UBO of Property 1 and Property 3 is Mrs Dariga Nazarbayeva (‘DN’), the ex-wife of RA. The UBO of Property 2 is their son, Nurali Aliyev (‘NA’). However, the 9 August letter explained that the basis of the NCA’s application was factually incorrect, as the purchases of the properties were unconnected to RA and his supposed criminal activities, and he was never the UBO of the properties.

On 10 and 11 March 2020, Lang J heard an application by the respondents to discharge the three UWOs, and related IFOs, made by Supperstone J. Whilst there were three grounds for discharge, the judgment majors on the fact that there is information now available which demonstrates that the UWOs were sought and made on a flawed basis. In addition, Lang J was invited to consider discharge on the basis of material non-disclosure by the NCA at the ex parte hearing, and inadequate investigation by the NCA.

Lang J discharged all three UWOs, and related IFOs.

Michael Bowes QC and Oliver Powell reflect on the significance of the judgment and what the future holds for UWOs here.

Background

Michael Bowes QC and Oliver Powell were consulted on the Criminal Finances Bill, and in particular on UWOs, by Transparency International during the Bill’s passage through the two Houses. Their analysis and commentary on the Bill was used by MPs in preparing for debates in the House of Commons.

Michael and Oliver’s experience in this area means that they can speak authoritatively about the Criminal Finance Act 2017 and UWOs. In particular, they are ideally placed to advise those affected by UWOs and IFOs.

Michael Bowes QC is Joint Head of Outer Temple Chambers. Michael is highly regarded as an expert in civil and criminal ‘cross-over’ work. He is described as “…one of the go-to barristers in England for a corporate crisis. He has a very practical approach to solving some of the more complicated problems.” “A great crossover practitioner from the Criminal Bar.

Michael specialises in business crime, civil fraud, financial services and international sanctions.

Oliver Powell is ranked in both Chambers & Partners (UK) and The Legal 500. One solicitor observed: “He is superb to work with. He works night and day for his clients and always gets great results”. Oliver is praised as “an extremely confident and charming advocate”. He undertakes instructions that involve the regulation of business activity and commerce. His practice encompasses: asset forfeiture & civil recovery; business crime; commercial fraud; financial services; indirect tax and sanctions. He is a contributor to ‘Lissack & Horlick on Bribery’ (Third edition), LexisNexis (to be published in 2020) and ‘Millington & Sutherland Williams on the Proceeds of Crime’ (Sixth Edition), OUP (to be published in 2021).

Should you require further information about Michael  and/or Oliver, or if you would like to instruct either of them, please contact David Smith, Business Development director.

News 8 Apr, 2020