- Flynote
- Criminal law
- Case summary
- Application dismissed. The applicant had not demonstrated that there was a diligent pursuit of the investigation in the three months awarded to continue the restraint over the Respondents’ assets. The Court did not find that the DPP’s reason for the application - that investigations had stalled due to the COVID-19 pandemic - was sufficient. The Court found that at the hearing on the discharge/variation of the Restraint Order, the effects of COVID-19 were in existence in that TCI’s borders were closed and the investigators had left because of the pandemic (paras 41-45). The Court found it unacceptable for the ODPP to rely on the evidence that the investigators could not perform their duties within the three months given because they are not physically in the TCI and that the delay in their return unforeseeable. It is well recognized that COVID-19 is ongoing and has no end date. Many organisations have had to adapt to working remotely (paras 46-51, 53-54). The Court rejected the DPP’s invitation to the Court that it supervise the progress of the investigation as the Court had previously accepted a concession from the DPP and did not accept that this further concession should trump the right of the respondents to their property, enshrined in s 17(1)(b) of the Constitution. (paras 55-63). R v S [2019] EWCA 1728 considered. The Court rejected the DPP’s submission that the assets were at risk of dissipation. The Court found that the evidence submitted in support of this submission amounted to withdrawal of funds for living and business expenses, in accordance with the varied restraint order (paras 65-68). The Court also rejected the Respondents’ submission that the DPP’s application was an abuse of process and found instead that it was an ill-advised attempt to move the court’s hand to once again exercise its discretion in the DPP’s favour after wasting the indulgence granted in May 2020 (paras 68-73). Henderson v Henderson (1843) 3 Hare 100 at 115 per Sir James Wigram VC considered; Barrow v Bankside Members Agency Ltd [1996] 1 All ER 981 per Sir Thomas Bingham at 983 considered.
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