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In re Stanford International Bank Ltd
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1 User Commentary

Melanie Davidson (In-house lawyer) 28 September 2015

Case Digest: Stanford International Bank Ltd (acting by its joint liquidators) v Director of the Serious Fraud Office [2012] UKSC 3

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Whether or not parties have an absolute statutory right to appeal to the Supreme Court in cases where restraint orders are imposed

Judgment was handed down in the case of Stanford International Bank Ltd (acting by its joint liquidators) v Director of the Serious Fraud Office [2012] UKSC 3 on 15 February 2012. The appeal was brought to determine whether the parties had an absolute statutory right to appeal to the Supreme Court, from a decision of the Court of Appeal ([2010] EWCA Civ 137).

The present case arose from criminal investigations brought by the United States Department of Justice (DoJ) and other authorities against Robert L. Stanford, the former Board of Directors' Chairman of Stanford International Bank (SIB), who was convicted of orchestrating a 20 year long investment fraud 'Ponzi scheme'. Funds appropriated through this scheme were located in bank accounts in countries including the UK.

An application for a restraint order was lodged in the United Kingdom by the Director of the Serious Fraud Office under the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (SI 2005/2181). This followed an external request from the DoJ to restrain these funds, compliance being required under section 11 of the Proceeds of Crime Act 2002 ('POCA'). 

The 2005 Order was passed in line with section 444 of POCA which provides for the making of Orders-in-Council that correspond with provisions under Part 2 of the Act, so as to cater for external requests for prohibitions on dealing with property within the jurisdiction in question i.e. England and Wales. On 25 February 2010 the restraint order was made by the Criminal Division of the Court of Appeal, as provided for in the 2005 Order and mirrored in sections 40 and 41 of POCA where a criminal investigation or proceeding is underway in England and Wales. In response to this, SIB sought a certificate from that Court that a point of law of general public importance was involved in the decision and that accordingly they should be granted leave to appeal to the House of Lords; the so-called 'leave and certification requirements'.

Expressing that no such requirements had to be fulfilled, the Court refused permission to appeal. On 24 March 2010 SIB applied to this Court for permission to appeal, the Director applying for permission to cross-appeal in respect of the Court of Appeal's decision to quash the original order. The Supreme Court, as it had become, was therefore required to address the question as to whether the right to appeal to the House of Lords contained in Article 11 of the 2005 Order survived as a right of appeal to the Supreme Court, as well as whether leave and certificate requirements were applicable.

The Supreme Court heard arguments from counsel on both sides. They held that with the coming into force of the Constitutional Reform Act 2005 (Consequential Amendments) Order 2011 (SI 2011/1242) it was common ground that decisions of the Court of Appeal predating 6 June 2011 could be heard by this Court. As for the question of leave and certification requirements the Lords saw merit in the arguments of Miss Montgomery QC, for the appellant, that rule 71.10 of the Criminal Procedure Rules 2011 on leave to appeal from the Court of Appeal to the Supreme Court did not impose an obligation to obtain leave from the inferior court. Further, the rule could not restrict a right of appeal previously unrestricted. In any event, the rule could not impose such a requirement regarding leave because the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (England and Wales) (Appeals under Part 2) Order 2012 (SI 2012/138) which made leave and certificate requirements compulsory would not come into effect until after judgment was handed down. The law could not be applied retroactively.

Accordingly, permission to appeal from the restriction order of the Court of Appeal was not required.

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