DPP v Patrick Tristram Bijou [2022] EWHC 3433 (Admin)

Director of Public Prosecutions v Patrick Tristram Bijou (also known as His Excellency Sir Dr Patrick Tristram Bijou and formerly known as Eric Fitzpatrick Danison) [2022] EWHC 3433 (Admin) was an application by the Director of Public Prosecutions before Mr Justice Chamberlain in the High Court (Administrative Court) for a property freezing order under section 245A of the Proceeds of Crime Act 2002, which was granted in relation to assets valued between £3.47 and £3.87 million.

The applicant sought an order over nine items of property: a freehold property at Ffinnant, Llanarthney, Carmarthen registered under five title numbers; an Alfa Romeo Giulia saloon; and the balances standing to the credit of seven accounts held with TTT Moneycorp Limited, Lloyds Bank, and Wise Payments Limited. The total estimated value of the property was between £3.47 and £3.87 million.

Mr Hone, appearing for Mr Bijou, made a preliminary application that the hearing proceed in private or, alternatively, that an order be made anonymising his client. He relied on two distinguishing features: first, that he had only recently been instructed and the respondent’s ability to instruct counsel had been limited by previous account freezing orders; second, that Mr Bijou was said to be a high-profile individual with an international presence, a well-known businessman, and several other high-profile positions.

The court rejected both applications. Mr Justice Chamberlain applied the approach set out by Fordham J in Director of Public Prosecutions v Briedis [2021] EWHC 3155 (Admin), in which it was held that the presumptive starting point was that proceedings should take place in public. The judge noted that CPR Practice Direction 11.1 does not include applications for property freezing orders among those hearings to be held in private unless the judge directs otherwise. Although a property freezing order is an interim order sought at an early investigative stage with a relatively low threshold, and although the respondent’s Article 8 rights were engaged, the judge was satisfied that the public was entitled to know what applications were being made in the courts of this country. The court accepted that Mr Hone’s recent instruction was a difference in principle but found that he would nonetheless be able to make some submissions during the hearing. As to Mr Bijou’s high profile, the judge considered that this cut both ways: whilst the reputational impact might be greater, the public interest in knowing about the application might also be said to be greater. The judge also noted that there was already some reporting about the respondent in the form of newspaper articles referring to his previous criminal history and various ancillary confiscation applications. The court also considered the judgment of the Divisional Court in R (Javadov) v Westminster Magistrates’ Court [2021] EWHC 2751 (Admin), which was to similar effect.

Mr Rainsbury, appearing for the Director of Public Prosecutions, relied on a comprehensive skeleton argument detailing the legal framework. Section 245A of the Proceeds of Crime Act 2002 entitles the court to make a property freezing order where there is a good arguable case that the property to which the application relates is, or includes, recoverable property and, if any of it is not recoverable property, associated property. “Recoverable property” and “property” are both broadly defined by the Act. The test for whether a good arguable case has been made out was set out in The Niedersachsen [1984] 1 All ER 398, in which Mustill J equiparated “a good arguable case” to “a case which is more than barely capable of serious argument and yet not necessarily one which the judge believes to have a better than fifty per cent chance of success.” In Derby & Co Limited & Ors v Weldon [1990] Ch 48, Parker LJ emphasised at pages fifty-seven to fifty-eight that it was not part of the court’s function to try to resolve conflicts of evidence as to fact at this stage.

The court noted that the authorities on property freezing orders under the Proceeds of Crime Act emphasised the importance of taking a global approach to deciding whether property is recoverable (Assets Recovery Agency v Jackson [2007] EWHC 2553 (QB)) and that it may be proper to draw inferences (Serious Organised Crime Agency v Namli & Ors [2013] EWHC 1200 at paragraph forty-seven). Even if the statutory test is satisfied, the making of an order is in the court’s discretion, and it is at this stage that the court must consider whether the order would interfere with rights under the European Convention on Human Rights, including those protected by Article 8 and Article 1 of Protocol 1, and if so whether such interference is justified. It is also necessary to consider the risk of dissipation (Nuttall v National Crime Agency [2016] EWHC 1911 (Admin) at paragraph nineteen).

Mr Rainsbury relied on a number of matters in support of his submission that there was a good arguable case that the property was, or included, recoverable property. First, all of the assets were held by Mr Bijou. Second, he had been convicted of numerous criminal offences, including offences of a serious and acquisitive nature spanning the years 1997 to 2019. These included a conviction in 2010 for offences arising out of an advanced fee fraud which deceived individuals out of millions of pounds, for which he was sentenced to five years’ imprisonment with a Serious Crime Prevention Order for a further five years. Third, there was a good arguable case that Mr Bijou had been involved in further unproven instances of advanced fee fraud between 2015 and 2019, reference being made to witness evidence obtained from victims which was said to be corroborated by banking evidence. Fourth, the accumulation of over £3 million in assets was inconsistent with Mr Bijou’s declared income at the time, namely nil, and the fact that he had claimed state benefits from the Department of Work and Pensions during the period 2015 to 2022. Fifth, Mr Bijou had concealed some of the assets from law enforcement and had been convicted in 2019 for eight breaches of the Serious Crime Prevention Order imposed in 2010, including failures to notify the police that he was the proprietor of the house or the registered keeper of the Alfa Romeo car. Sixth, certain additional matters were relied on in respect of the individual items of property.

Mr Justice Chamberlain held that these matters, taken together, were amply sufficient to satisfy the test of a good arguable case that the property was, or included, recoverable property. The court emphasised that it was not sufficient on its own that Mr Bijou had apparently valuable property and had not declared any income for the purposes of tax, but that this was a factor which went into the melting pot to be considered alongside other matters. The matters relied upon by the Director of Public Prosecutions and further outlined in a detailed statement from Mr Watkins amply satisfied the statutory test at this early stage.

The court then considered whether it was appropriate to exercise its discretion to make the order. The judge considered the judgment of Fordham J in Briedis and concluded that any interference with Mr Bijou’s Article 8 or Article 1 of Protocol 1 rights was proportionate, providing that the order allowed proper resources for Mr Bijou’s living expenses and his legal expenses insofar as they arose at this stage. As to the risk of dissipation, the court held that there was a sufficient risk to justify the making of the order. The respondent had been convicted of serious offences of dishonesty and both the liquid assets and the house and car could in principle be liquidated relatively easily. It was appropriate at this early stage for all the property identified in the application to be made the subject of a property freezing order.

The court then considered the question of exceptions. Mr Rainsbury initially submitted that the proper procedure was to require Mr Bijou to submit a statement of assets and that any further exceptions ought to be considered only once that statement had been produced. He noted that account freezing orders had already been made by magistrates in Carmarthenshire at an earlier stage and no statement of assets had been provided in relation to those proceedings.

The judge held that although there might be force in Mr Rainsbury’s submission, and although it might be the case that Mr Bijou had other assets from which he could discharge any necessary legal expenses, it was not clear at the moment, in circumstances where Mr Hone had no clear instructions on this point, that there were other assets available to discharge the legal expenses involved in drawing up the statement of assets. The statement of assets would not necessarily be a simple document. It was very important that that document be full and accurate, given the penalties which attach to the making of false statements in connection with such a document. The court therefore allowed for the possibility that Mr Bijou had no other assets from which he could discharge his legal expenses. The court made an exclusion from the property freezing order in the sum of £6,088 including VAT, stressing that this exclusion would allow Mr Bijou to pay up to that amount for legal expenses incurred in producing the statement of assets and that this was a maximum figure.

As to living expenses, Mr Rainsbury pointed to the statement of Mr Watkins, in which it was said that Mr Bijou had available to him other sources from which his living expenses could be defrayed. However, it was unclear from the statement from what date the information came and therefore unclear whether at present he had sufficient funds outside the assets covered by the property freezing order to cover his daily living expenses. The court was handed during the hearing a schedule of Mr Bijou’s outgoings which included a number of heads of expenses going considerably beyond what the judge would regard as reasonable living expenses. The court held that the proper amount to allow for the time being, until such time as the statement of assets was produced and further consideration could be given to the matter by the court, was £2,000 per month for living expenses.

In short, the court granted a property freezing order over assets valued between £3.47 and £3.87 million, having rejected applications for a private hearing or anonymity, finding a good arguable case that the property was recoverable and that the risk of dissipation justified the order, subject to exceptions for legal expenses of up to £6,088 and living expenses of £2,000 per month.

Director of Public Prosecutions v Briedis and Reskajs [2021] EWHC 3155 (Admin)
Ors v Weldon [1990] Ch 48
ARA v Jackson [2007] EWHC 2553
SOCA v Namli & Ors [2013] EWHC 1200
SFO v Jamal [2021] EWHC 1422
Nuttall and Another v National Crime Agency [2016] EWHC 1911 (Admin)
R (Javadov & Javadov) v Westminster Magistrates’ Court & National Crime Agency & Bentham [2021] EWHC 2751 (Admin)