Wieromiejzyk & Anor v Director of Public Prosecutions

Factual and Procedural Background

On 11 November 2021, two Restraint Orders were made in the Southwark Crown Court pursuant to the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 ("the 2005 Order") following an external request by the Republic of Poland. These orders were subsequently varied in the Crown Court. On 10 April 2023, the Applicants applied for the discharge of the Restraint Orders, but their application was dismissed by Judge Baumgartner on 22 September 2023. The Applicants then sought leave to appeal against that decision, which was referred to the Full Court. The Applicants were unrepresented in the appeal but submitted written arguments, apparently with assistance from a Polish lawyer. The first Applicant was refused permission to attend the hearing due to bail conditions imposed by a Polish Regional Court.

The Applicants are alleged to be members of an organised crime group in Poland involved in producing and supplying psychoactive substances. Significant sums of money were allegedly generated through these activities, including funds in cryptocurrency accounts held in London with Company A (Payward Limited), exceeding US $24 million at the time of the initial application. The freezing orders were initially issued in Poland in October 2021 and February 2022, and the English Restraint Orders were made ex parte by Judge Grieve QC in November 2021, based on detailed allegations and supporting documentation from Polish authorities. The first Applicant challenged the freezing order in Poland, but this was dismissed by the Circuit Court of Katowice in March 2022.

Legal Issues Presented

1. Whether the Payward accounts constituted "relevant property" under Article 7 of the 2005 Order.
2. Whether there had been unreasonable delay in the progression of the Restraint Orders.
3. Whether the Restraint Orders had been wrongly extended by variation based on an incorrect interpretation of the law.
4. Whether the Crown Court was misled or given incomplete information regarding investigations in the Netherlands and Germany.
5. Whether the Applicants could challenge the substantive legitimacy of the Polish criminal investigation and freezing order in the English courts.
6. Whether the making of the Restraint Orders was necessary and proportionate.
7. How the Trade and Cooperation Agreement (TCA) between the UK and the EU affects the interpretation and application of the 2005 Order in this context.

Arguments of the Parties

Applicants' Arguments

• The Payward cryptocurrency accounts were not "relevant property" for the purposes of Article 7 of the 2005 Order.
• There had been unreasonable delay since the Restraint Orders were first made.
• The Restraint Orders had been wrongly extended by variation based on an incorrect legal interpretation.
• The Crown Court was provided with incomplete or misleading information about investigations in other jurisdictions.
• On appeal, the Applicants challenged the legitimacy of the Polish criminal investigation and freezing order, alleging a "rule of law crisis" in Poland, breaches of the principle of nullum crimen sine lege, and that the UK should not enforce orders from an allegedly undemocratic justice system.
• They also argued that the frozen funds derived from legitimate activities and that the Restraint Orders were neither necessary nor proportionate.

Respondent's Arguments

• The Restraint Orders were properly made, with the Payward accounts constituting relevant property subject to reasonable grounds for suspicion.
• The Polish decisions and orders are independent judicial decisions entitled to respect and not subject to substantive challenge in the English courts under the TCA.
• Any challenge to the substantive basis of the external request should be pursued in the Polish courts, where the Applicants had already unsuccessfully challenged the freezing order.
• The Crown Court’s approach was consistent with the provisions and policy of the 2005 Order and the TCA, including respecting necessity and proportionality as matters for the requesting state.
• There was no unreasonable delay or non-disclosure that would justify discharge of the Restraint Orders.
• The Crown Court retained discretion to assess conditions under Article 7 of the 2005 Order, but not to re-examine substantive reasons for the external request.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming the independence and validity of the Polish judicial decisions and freezing orders, noting that the English courts must respect such decisions and that substantive challenges to them must be pursued in Poland. This principle aligns with Article 689(2) of the TCA, which precludes substantive challenges in the requested state’s courts.

The court acknowledged the theoretical possibility of extreme cases involving denial of justice or fundamental rights violations but found no evidential basis for such a scenario here. The court also noted the Crown Court’s discretion under Articles 8 and 9 of the 2005 Order to make or vary Restraint Orders, but emphasised that this discretion does not extend to reassessing the substantive reasons for the external request.

Regarding the interplay between the 2005 Order and the TCA, the court considered the previously authoritative but now rejected approach that s.29 of the 2020 Act automatically modifies domestic law to implement the TCA. Instead, the court adopted a broad, purposive, and practical approach, holding that no conflict exists sufficient to disapply or override the conditions set out in Article 7 of the 2005 Order.

The court held that the Crown Court should assess the satisfaction of Article 7 conditions based on the information provided by the requesting state, which is presumed to have addressed these conditions. This approach avoids substantive challenges while allowing the Crown Court to fulfill its statutory role.

In applying these principles, the court found the Judge’s conclusions that the Payward accounts were relevant property and that reasonable grounds existed to suspect criminal benefit were fully justified and unassailable. The dual criminality requirement was also properly satisfied. The court found no basis to challenge the refusal to discharge the Restraint Orders.

Holding and Implications

The court REFUSED LEAVE TO APPEAL and dismissed the application for discharge of the Restraint Orders.

The decision confirms that English courts must respect independent judicial decisions from requesting states under the TCA and the 2005 Order, including freezing orders made abroad, and that substantive challenges to such decisions must be pursued in the issuing state’s courts. The ruling clarifies the continued applicability of Article 7 conditions of the 2005 Order post-Brexit and under the TCA, rejecting a broad automatic modification of domestic law by s.29 of the 2020 Act. The court emphasised a practical and purposive approach to cooperation and enforcement of external requests, supporting a system that is efficient, respects comity, and avoids duplicative substantive litigation in the requested state.

No new precedent was set beyond confirming the interpretation and application of the relevant statutory and treaty provisions in this context. Permission was granted for this judgment to be cited as it is the first Court of Appeal decision concerning an external request under the 2005 Order following the advent of the TCA.