A v Director of Public Prosecution

Court of Appeal (Crim Div), Lord Justice Davis, Mr Justice Gilbart and HHJ Zeidman QC (Sitting as a Judge of the CA (Crim Div)), 14 July; 23 September 2016

Registration of foreign restraint orders - Criminal Justice and Data Protection (Protocol No 36) Regulations 2014 (SI 2014 No 3141) - Ne bis in idem

The appellant, A, was a French national who was under criminal investigation relating to the commission of a number of criminal offences. Proceedings were commenced in Paris. One of the transactions that came under scrutiny was the sale of an estate in the South of France, so further investigations were initiated by the prosecuting authorities there. Criminal investigations also commenced in Switzerland, but were abandoned. The French investigation continued, however. A French judge sitting in Marseille issued a restraint order with regards to A's assets in September 2015. An application was then made for that order to be registered in England and Wales pursuant to the Criminal Justice and Data Protection (Protocol No 36) Regulations 2014 (SI 2014 No 3141), which were enacted to give effect to Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence. The transaction to which the allegations related comprised the ownership and sale of the estate in the South of France. HHJ Gledhill QC granted this application in October 2015. The effect of this order was to freeze a large sum of money held by A in an account with a financial institution in London. An application was made by solicitors acting on behalf of A in London to cancel registration of the order. It was argued on behalf of A that the restraint order issued by the judge in Marseille violated the principle of ne bis in idem and therefore should not have been registered in England and Wales. This argument was rejected by HHJ Taylor, sitting in Southwark Crown Court. The solicitors acting on behalf of A applied for permission to appeal to the Court of Appeal. It was argued on A's behalf that the Framework Decision was designed to respect the fundamental rights of citizens of member states, including the principle of ne bis in idem. The effect of the abandonment of the proceedings in Switzerland was to constitute a final acquittal on the matters that were subject to the Swiss investigation. As the matters that were the subject of the French investigation were the same as those under investigation in Switzerland, it followed that the subsequent commencement of the French criminal proceedings constituted a violation of the ne bis in idem principle. In order to ensure the fundamental rights of A were respected, it was argued that the English court was obliged to cancel the registration in England and Wales of the French restraint order.