Registration of French asset freezing order in England was not contrary to fundamental rights


Re: A v Director of Public Prosecution [2016] EWCA Crim 1393

The French citizen applicant applied for permission to appeal against the refusal of a judge to cancel registration of an order made by a judge in France, which restrained the disposition of the applicant’s assets up to a specified limit. The applicant asserted that the judge had misapplied the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014, failing to protect his fundamental rights.

The applicant had been the subject of money laundering and fraud criminal investigation in Switzerland and France. While the Swiss proceedings were abandoned due to a lack of conclusive evidence in 2011, the French proceedings continued, and in 2015 an asset freezing order was issued by a French judge. A successful application to have this order registered in England under the 2014 Regulations was subsequently made, resulting in the freezing of funds held with a financial institution in London. The registration of the order was contested by the applicant on the grounds that it was contrary to the ne bis in idem principle (no person should face trial twice in the same cause).
The court noted that the French courts determination that ne bis in idem did not arise as a result of the Swiss decision to abandon prosecution. It acknowledged that the 2014 Regulations were made in part to give effect to a Council Framework Decision which promoted, among other things, mutual recognition for pre-trial orders. It also considered the various legislative provisions and Conventions which prohibited double jeopardy, including the Convention implementing the Schengen Agreement, which stated that a person whose trial had been finally disposed of in one Contracting Party could not be prosecuted for the same act in another.
The court concluded that the wording of the 2014 did not permit the applicant to challenge the order in the manner in which he sought to do so. Regulation 10(6) stated that a challenge to the substantive reasons for making an overseas restraint order could only be made in the issuing state. It would be contrary to the ordinary principle of comity and mutual recognition and confidence if the English courts were to disagree with the French courts. There was no evidence to suggest that human rights were not being upheld as part of French proceedings.
The court expressed the view that the ne bis in idem principle did not apply. It was not clear that the abandonment of the Swiss investigation amounted to a formal acquittal, and it was also not clear that the facts investigated by the French authorities were substantially the same as those investigated in Switzerland.
Edward Craven was involved in this case.