Court of Appeal allows National Crime Agency’s appeal against interim declarations of non-criminality

07 Apr 2017

NCA v N and Royal Bank of Scotland plc

The Court of Appeal today allowed the appeal of the National Crime Agency (“NCA”) against several interim orders made by Burton J which “in effect disapply” the Proceeds of Crime Act 2002 (“POCA”).

Part 7 of POCA imposes requirements on banks which are triggered when they suspect money in a customer’s account is criminal property. In such circumstances, banks must seek and receive the consent of the NCA before carrying out transactions relating to the suspect funds. Banks face criminal penalties where the POCA regime is not followed.

N held a number of bank accounts with RBS. RBS suspected that the credit balance on certain of those accounts constituted criminal property. It froze those accounts and, in compliance with POCA, sought and received the consent of the NCA to return the funds in the accounts to N. Meanwhile, N commenced proceedings for an interim mandatory injunction requiring the bank to operate N’s accounts by carrying out specified past payment instructions. Burton J ordered that RBS make the specified payments and also declared that in doing so the bank “will not commit any criminal offence under the Proceeds of Crime Act 2002 or otherwise” and that it is “not obliged to make any disclosure as would or may be required by the Criminal Law or any other law”. Further similar orders followed.

Whilst not going so far as to say that POCA ousts the jurisdiction of the court to grant interim relief, the Court of Appeal accepted the NCA’s submission that the statutory procedure is highly relevant to the exercise of the court’s discretion to grant such relief. Parliament’s statutory scheme, which represents a “workable” and “reasonable” balance of conflicting interests in the fights against money laundering, cannot be displaced merely on consideration of the balance of convenience as between the interests of the private parties. Cases justifying such intervention are likely to be exceptional, including such extreme scenarios as demonstrable bad faith by the bank. The instant case was not sufficiently exceptional to justify the grant of an interim declaration.

Philip Moser QC and Imogen Proud (who did not act below) represented the National Crime Agency in the Court of Appeal. A copy of the judgment is here.