Virdee & Anor, R (On the Application Of) v The National Crime Agency, Court of Appeal - Administrative Court, May 11, 2018, [2018] EWHC 1119 (Admin)

Issuing Organization:Administrative Court
Actores:Virdee & Anor, R (On the Application Of) v The National Crime Agency
Resolution Date:May 11, 2018
 
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Neutral Citation Number: [2018] EWHC 1119 (Admin)

Case No: CO/4157/2017 & CO/5692/2017

IN THE ROYAL COURTS OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 11/05/2018

Before:

LORD JUSTICE HOLROYDE

-and-

MR JUSTICE DINGEMANS

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Between:

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Jonathan Lennon (instructed by Kaim Todner ) for the Claimants

Andrew Bird (instructed by GLD) for the First Defendant

Hearing dates: 19th April, 2018

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Approved JudgmentLord Justice Holroyde :

  1. This is the judgment of the court, to which we have both contributed.

  2. There are before the court two applications for judicial review. In the first, the claimants Mr Virdee and Mr Trutschler challenge the decision of the defendant National Crime Agency (``NCA'') not to return items seized following what are said to have been unlawful arrests and searches on 26th July 2017. In the second, the claimants challenge production orders issued by judges at the Central Criminal Court (``the CCC'') on 24th May, 16th June and 9th August 2017, in respect of each of which it is alleged that the NCA failed to give full and frank disclosure when applying for the orders. Both claims are brought by permission of Ouseley J, who directed that they be heard together.

    The facts:

  3. Mr Virdee is a director of many companies. One of them is PV Energy Ltd, (``PVE''), a business engaged in the provision of renewable energy and solar power. The ownership of PVE is divided between an investment company and a Swiss company, the Meeco Group. Until 5th May 2017, Mr Virdee was the majority share holder in the investment company. It is now wholly owned by his father. The Meeco Group is owned by the wife of Mr Trutschler. Mr Trutschler is an employee of PVE. In essence, Mr Virdee is concerned with the contractual side of PVE while Mr Trutschler provides technical expertise. PVE has not conducted any business in the United Kingdom, but has entered into engineering, procurement and construction contracts relating to the supply of renewable energy and solar power in a number of other countries.

  4. From about 2014 onwards, PVE was actively interested in entering into such contracts in the Caribbean states of Antigua and Barbuda (``Antigua''), and St Kitts and Nevis (``St Kitts''). A solar energy project was successfully concluded with Antigua. There is no evidence before the court that any contract was concluded with St Kitts. In discussions and negotiations in relation to the contract with Antigua, and a possible contract with St Kitts, Mr Virdee and Mr Trutschler had dealings with the Prime Minister of Antigua, the then Minister of Tourism, Energy and Development in Antigua, and the Prime Minister of St Kitts.

  5. Between 31st January 2015 and 26th January 2017 Mr Virdee's phone calls were being intercepted by the German authorities, who suspected him of involvement in a VAT carousel fraud. A warrant for Mr Virdee's arrest on suspicion of involvement in that fraudulent activity was issued in Germany. The German authorities then issued a European Arrest Warrant. On 10th January 2017, Mr Virdee was arrested at Heathrow Airport pursuant to the latter warrant. He was granted bail pending extradition proceedings. His legal representatives in Germany successfully challenged the German arrest warrant: it was quashed on 28th June 2017, and as a result the extradition proceedings fell away.

  6. In the course of their investigations into the suspected VAT fraud, the German authorities had intercepted telephone calls which caused them to suspect that Mr Virdee and Mr Trutschler may be involved in bribery and/or corruption in relation to the activities of PVE in the Caribbean. Mr Virdee's German lawyers sent to the German authorities, on 1st March 2017, a letter contending that there was no basis for any prosecution by the German authorities in respect of corruption. In relation to PVE's projects in Antigua, the letter stated that: the Antiguan Minister of Tourism had unexpectedly approached Mr Trutschler and demanded a financial contribution in return for the successful mediation of energy projects; Mr Trutschler had rejected this demand; that no further demand was made of Mr Trutschler; the Minister had then made a similar demand of Mr Virdee; Mr Virdee also had ``rejected this request with regard to both nature and amount of the payment''; no financial contributions had been made to the Minister.

  7. On 23rd March 2017 the German authorities provided to the NCA recordings of intercepted phone calls on 7th February, 12th March, 12th July, 5th August, 11th August and 9th November 2016. The German authorities did not provide the NCA with a copy of the German lawyer's letter, but referred to it in the following terms:

    ``In a communication dated 01 March 2017, the German defence counsels of the alleged perpetrator deny that the result of the above findings are the potential `acts of bribery' by the alleged perpetrator Peter Singh Virdee to the benefit of members of the government (the acting Prime Minster ... in particular) in Antigua and Barbuda. In addition to legal objections brought against these accusations, it is argued, in particular, that it was not the alleged perpetrator and also not Trutschler, but the minister there who made such a `proposal' relevant under criminal law, and that this request was ultimately rejected by the alleged perpetrator and by Trutschler.''

  8. Shortly after receiving this material, the NCA commenced their own bribery/corruption investigation into the claimants.

  9. The court has been provided with transcripts of the recorded phone conversations on the six dates. For the most part, they were conversations between the claimants. On one occasion, they were engaged in a conference call which also involved the Antiguan Minister of Energy. There is no doubt that the transcripts include a number of references to the topic of payments or gifts to government officials. There is however dispute between the parties as to what the transcripts reveal about the claimants' attitude to such payments or gifts. It is submitted on behalf of the claimants that it is clear from the transcripts that although demands were being made of them, they were refusing to involve themselves or PVE in the payment of any bribe or any other corrupt activity. It is submitted on behalf of the NCA that, on the contrary, it is clear from the transcripts that the claimants were ready and willing to pay bribes, and had given at least one gift to a Caribbean politician, but were seeking to negotiate lower corrupt payments than had been demanded of them.

  10. The claimants deny any wrongdoing. It is unnecessary, and would be inappropriate, to go into the detail of the transcripts. It is however necessary, for reasons which will become apparent, to refer to some key passages in them.

  11. A transcript of a conversation between the claimants on 12th March 2016 records Mr Virdee telling Mr Trutschler that he had had ``a serious fight'' when he last spoke to ``our friend''. Later in the conversation Mr Virdee referred to ``our friend'' by the name of the Antiguan Minister of Energy. He complained that ``our friend'' had been saying he needed 2 million, to which Mr Virdee said he had replied -

    ``What do you mean, `I need 2 million'?, I said `you can't just fucking take 2 million. You can't just say `I need 2 million because I did a lot of gravy and this and you know, you guys are buying volume and that's why there should be more ...'. I said `That's why could afford to get fucked by you guys at 1.5 million on the back of the fact that we are buying volume. Had we not been buying volume, we could not have done that deal at 1.5 million. You go and you get 20, 30 people every day come into your office as Minister of Energy, you show me one of them saying to you they can do the same quality, same product everything for the price we have done it'.''

    Mr Virdee also said that ``our friend'' had wrongly claimed that Mr Virdee had promised his mother a car. He said to Mr Trutschler that there had been an occasion when he had been asked for his watch, and had taken it off and given it to the Minister. He continued:

    ``He gave me my watch back and he said to me `Could you buy my mum a car?' I said `I will think about it.' Then on my next visit he said `You promised my mum a car'. I said `I have no problem in buying you a car, no problem, but I can't be giving you chunks of the money that you are not entitled to beforehand and give money to the party and then go and buy you a car'. I said `yes, we will buy you a car, it is not a problem, but just give us some breathing space.' And he's gone ... and he has gone off on one to the point when he is just very obnoxious conversation and to the point you know I said to him `You know what, go fuck yourself, I'm done with this, I can't be doing with this headache'.''

  12. Later in the same conversation Mr Virdee told Mr Trutschler that the Prime Minister of St Kitts was visiting, and said -

    ``I am taking him and his entourage out for dinner this evening and then we have an after party, so be ready for a big bill, but in the interim he said he would like a nice watch. I said `okay.' And then he called me this morning and he said `Have you got my watch?', I said `Oh I have got to pick your watch up'. So that is that. I spoke to him last Saturday, last Sunday at the airport hotel when he was in transit to Dubai and he said `Look, I am in favour of this, I will send my minister down', I said `But you telling me you are in favour of it, it doesn't help me, it really doesn't help me in what you are telling me because, you know, I need action behind the words, and at the moment I am not seeing any of that.' And I had a very stiff conversation with him, to the point I said `Listen, you have got another 3, 3 and a half years. In 2 years' time you are going...

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