Challenge to Disclosure Orders

R (ex p A, B and C) v SFO - 6th June 2019

In 2016, a Disclosure Order was made under section 357(1) of PoCA 2002 in respect of a confiscation order made under Part VI of the Criminal Justice Act 1988 in 2007. In 2019, notice in writing was given to the 3 Claimants (who were NOT identified in the DO) who the appropriate officer considered may have information relevant to the confiscation investigation, requiring them to attend for interview to answer questions relevant to the investigation [under s.357(4), PoCA].

The Claimants challenged the notices on the grounds that:

  1. There is no jurisdiction to issue a disclosure order under Part 8 of PoCA in respect of a confiscation order that was made under the CJA; and

  2. A disclosure order must bear on its face the name of a person upon whom a notice is issued. 


As to jurisdiction, Dove J. held that Part 8 powers are available in respect of confiscation orders made under the earlier statutory confiscation provisions (CJA/DTA): in the absence of express words in s.341 (as amended) limiting the application of Part 8 powers to PoCA proceedings, it was clear from the Explanatory Notes that Parliament intended the Part 8 powers to replace and consolidate the earlier investigative powers (which were repealed by PoCA, although the power to make confiscation orders under the CJA or DTA was retained). The jurisdiction issue was, in any event, decided by R (Horne) [2012] EWHC 1350 (Admin), [2012] 1 WLR 3152.

As to the second ground, the Court noted that Parliament had expressly provided that a DO authorised the appropriate officer to issue a notice under s.357; this might happen at any time after the issue of the DO for as long as the confiscation investigation is underway. That this was the correct interpretation of the statutory scheme was confirmed in Serious Organised Crime Agency v Perry & Ors [2010] EWCA Civ 907, [2011] 1 WLR 542 at §25, per Carnwath LJ., NCA v Simkus [2016] EWHC 255 (Admin); [2016] 1 W.L.R. 3481, per Edis J.  and NCA v K [2018] EWHC 3531, per Ouseley J and supported by the Explanatory Notes to PoCA, §517.  Had Parliament intended that a fresh application be made each time the officer wanted to question a person not named in the DO, it would have said so.

Martin Evans QC
33 Chancery Lane