The Assets Recovery Agency v Virtosu & Anor, Court of Appeal - Queen's Bench Division, February 05, 2008, [2008] Lloyd's Rep FC 225,[2008] 3 All ER 637,[2008] EWHC 149 (QB)
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The Assets Recovery Agency v Virtosu & Anor, Court of Appeal - Queen's Bench Division, February 05, 2008, [2008] Lloyd's Rep FC 225,[2008] 3 All ER 637,[2008] EWHC 149 (QB)
Neutral Citation Number: [2008] EWHC 149 (QB)
Case No: TLQ/07/1089IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 5/02/2008Before :MR JUSTICE TUGENDHAT- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Miss Dobbin for the Assets Recovery AgencyMr Virtosu in person.Mrs Virtosu did not appear and was not representedHearing dates: 14, 15, 17th January 2008- - - - - - - - - - - - - - - - - - - - -JudgmentMr Justice Tugendhat : THE CLAIM1. This is a claim for a Civil Recovery Order, a form of civil forfeiture, brought by the Director of the Assets Recovery Agency (``the Director'') against two Respondents, Mr and Mrs Virtosu under Part V of the Proceeds of Crime Act 2002 (``the 2002 Act''). 2. Mr Virtosu came to this country from Moldova in the early 1990s, and has acquired British Nationality in 2003. In 1999 he married his wife, who is also from Moldova. Mr Virtosu earned a total of about £10,000 during his residence in England between 1992 and his arrest and subsequent imprisonment in France in March 2004. Mrs Virtosu has earned nothing in England. 3. Nevertheless, between February 2002 and January 2004, Mr Virtosu acquired a BMW car for over £35,000, and a number of properties. He bought 61 Briar Avenue and 25 Crescent Way, London SW16, both in 2002 at a cost of £248,000 and £290,00 respectively, a house in South Africa for £106,000 in 2003, a flat in Courbevoie, near Paris, in 2003 for 116,000 and a house in Thornton Heath in January 2004 for £252,000. He paid for extensive improvements to 35 Crescent Way, where his wife has resided. She now resides there with him, since his release in December 2007 from prison in France, together with their son now aged about 8. Mr Virtosu was in France for the purpose of buying another flat there when he was arrested. 4. The first London property was sold on 2nd June 2005, and all three English properties were brought with the aid of mortgages from the Bank of Scotland. Mr Virtosu holds a bank account with Nat West. Mrs Virtosu is the holder of two bank accounts, one with HSBC and one with Halifax. Full details of these properties and assets are set out in the Claim Form and the Order of this Court.5. The Director claims that all these assets are, or represent, property obtained through unlawful conduct within s.240 (all reference to sections are to the 2002 Act unless otherwise stated), that they are accordingly recoverable property (s.304), and so that this court must make a recovery order vesting the property in the trustee for civil recovery (s.266). In the evidence put before this Court for the Director Mr Evans states (para 6 of his witness statement of 26 February 2007):``This case concerns property derived from unlawful conduct, namely; (i) people trafficking; (ii) money-laundering; and (ii) mortgage fraud''. 6. Mr Virtosu denies that the property was obtained through unlawful conduct. He says that he was wrongly convicted in France, and that the source of the funds used to buy the properties, and the funds in the bank accounts, are gifts from his parents and parents-in-law in Moldova, and receipts from business activities he was engaged in with his father-in-law. He appeared in person. Mrs Virtosu did not appear, although she was aware of the proceedings. THE UNLAWFUL CONDUCT AND THE FORM OF EVIDENCE IN SUPPORT7. Unlawful conduct must be criminal conduct. Where it is conduct that has occurred abroad, it must satisfy a test of dual criminality, that is, it must have been criminal in the country where it occurred and it must be such that, if it occurred in England, it would be unlawful under the criminal law of England.8. That is the effect of s.241 which provides:``241 ``Unlawful conduct'' (1) Conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part. (2) Conduct which-- (a) occurs in a country outside the United Kingdom and is unlawful under the criminal law of that country, and (b) if it occurred in a part of the United Kingdom, would be unlawful under the criminal law of that part, is also unlawful conduct.(3) The court ... must decide on a balance of probabilities whether it is proved-- (a) that any matters alleged to constitute unlawful conduct have occurred ...''9. The people trafficking is by far the most important part of the Director's case and, if he succeeds on that, the other two forms of criminal conduct (mortgage fraud and money-laundering) are no more than ancillary or consequential. However, Miss Dobbin made clear that she wished to advance the Director's case on money-laundering and mortgage fraud separately, in the event that the case on people trafficking might have a defect. 10. The people trafficking is alleged to have been conduct occurring in both England and France. The money-launder...See the full content of this document
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