A v Director of Public Prosecution

Factual and Procedural Background

This opinion concerns an application for permission to appeal against a decision of Judge Taylor at the Southwark Crown Court dated 26 February 2016. The judge had refused to cancel the registration under the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 ("the 2014 Regulations") of a French court order restraining the disposition of assets of the applicant ("A").

A, a French citizen, was subject to criminal investigations in France relating to the disposal of an estate in the South of France, and also in Switzerland concerning allegations including money laundering and fraud. The Swiss proceedings were abandoned in August 2011 due to "lack of conclusive information," which under Swiss law is equivalent to a formal acquittal. The French investigation continued, leading to a restraint order over A's assets in September 2015, which was subsequently registered in England under the 2014 Regulations, effectively freezing substantial funds held in London.

A applied in England to cancel the registration of the French restraint order, arguing that the French proceedings violated the ne bis in idem principle (protection against double jeopardy). The French courts, including the Court of Appeal in Aix-en-Provence, rejected this argument, holding that the French investigation did not infringe the ne bis in idem principle and that the Swiss discontinuance did not amount to a definitive judgment precluding French proceedings.

The English Crown Court judge refused to cancel the registration, and A sought permission to appeal that refusal, which is the subject of this opinion.

Legal Issues Presented

1. Whether the English court should cancel the registration of a French overseas restraint order on the basis that the French proceedings infringe the ne bis in idem principle, given prior Swiss proceedings against the applicant were abandoned.
2. Whether the English courts have jurisdiction to consider substantive challenges to the validity of overseas restraint orders registered under the 2014 Regulations, or whether such challenges must be made exclusively in the courts of the issuing state.
3. Whether the 2014 Regulations and the underlying Framework Decision permit an executing court in England to refuse recognition or enforcement of a freezing order on fundamental rights grounds, including alleged breach of ne bis in idem.
4. Whether the applicant’s rights under the European Convention on Human Rights and related instruments were infringed by the registration and enforcement of the French restraint order in England.

Arguments of the Parties

Appellant's Arguments

• The Framework Decision and the 2014 Regulations are designed to respect fundamental rights, including the ne bis in idem principle.
• The Swiss abandonment of proceedings constituted a final acquittal on the matters investigated in Switzerland.
• The French investigation concerns the same facts as the Swiss investigation (centered on the sale of the French estate), thus engaging the ne bis in idem principle.
• The initiation of French proceedings and the associated restraint order violated the ne bis in idem principle.
• The English courts, as executing courts, have a duty to protect the fundamental rights of the applicant and therefore must cancel the registration of the French restraint order.

Respondent's Arguments

• The scheme of mutual recognition for overseas restraint orders is administrative and designed for speedy cooperation, limiting challenges to specific grounds set out in the Framework Decision and the 2014 Regulations.
• There was no indication in the certificate accompanying the French order that recognition would infringe the ne bis in idem principle.
• The proper forum for substantive challenges to the restraint order, including on ne bis in idem grounds, is the issuing state’s courts, which have already rejected the applicant’s arguments.
• Allowing English courts to reconsider substantive issues would undermine mutual confidence and the efficacy of the mutual recognition scheme, potentially leading to conflicting decisions across member states.
• The facts underlying the Swiss and French investigations are not the same; the French proceedings include offences not investigated in Switzerland.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Procura della Republica v M, Case C-398/12	Application of ne bis in idem where no trial occurred but proceedings discontinued	Referenced to illustrate that abandonment of proceedings can engage ne bis in idem, but the Swiss abandonment here was not clearly equivalent; French courts rejected this point.
R (EM Eritrea) v Secretary of State for the Home Department [2014] UKSC 12	Instances where courts of one member state cannot presume fundamental rights will be respected in another member state	Distinguished as inapplicable here; no reason to doubt French courts’ respect for fundamental rights.
Al Zayat v The Serious Fraud Office [2008] EWHC 315 (Crim)	Need for effective in rem measures in international criminal enforcement	Used to underline the importance of the overseas restraint order scheme’s efficacy against unscrupulous individuals.

Court's Reasoning and Analysis

The court began by emphasizing that the 2014 Regulations must be interpreted purposively in light of the Framework Decision, which establishes a scheme of mutual recognition for overseas restraint orders designed for speedy and effective cooperation between member states.

The court observed that the Framework Decision respects fundamental rights, including the ne bis in idem principle, but limits the grounds upon which recognition or enforcement of a freezing order may be refused. Specifically, Article 7.1(c) permits refusal only if it is "instantly clear" from the certificate that recognition would infringe ne bis in idem. Here, the certificate did not indicate such a clear infringement.

Regulation 10(6) of the 2014 Regulations and Article 11.2 of the Framework Decision provide that substantive challenges to the reasons for an overseas restraint order must be brought only in the courts of the issuing state, not the executing state. This preserves mutual confidence and avoids conflicting decisions across jurisdictions.

The court rejected the appellant’s argument that the English courts should independently assess and overturn the French courts’ decisions on the ne bis in idem issue. Such an approach would undermine comity, mutual recognition, and the efficiency of the scheme, and could lead to inconsistent rulings.

Regarding the ne bis in idem principle itself, the court noted uncertainties in its application, including what constitutes “same acts” and “final disposal.” The court accepted the French courts’ factual findings that the Swiss and French investigations were not based on the same facts or offences, and that the Swiss abandonment did not constitute a definitive judgment barring French proceedings.

The court further noted that the French courts are the proper forum to assess such substantive issues and that there was no evidential basis to conclude the French courts failed to respect fundamental rights.

The court also dismissed secondary arguments regarding alleged breaches of Article 1 Protocol 1 and presumption of innocence, considering these matters appropriately addressed in the French proceedings.

Holding and Implications

DISMISSED: The court refused the application for permission to appeal against the refusal to cancel the registration of the French restraint order in England.

The court held that the English courts do not have jurisdiction to entertain substantive challenges to overseas restraint orders registered under the 2014 Regulations, including claims based on the ne bis in idem principle, which must be brought in the courts of the issuing member state. This preserves the mutual recognition scheme’s efficacy and respects comity between member states.

There are no broader implications beyond reaffirming that executing courts must give effect to overseas restraint orders unless limited grounds for refusal apply. No new precedent altering the scope of the ne bis in idem principle or mutual recognition framework was established.