The Long Arm Of Judicial Review

Back in 1980, when the UK statutory jungle was a lot less dense, Lord Diplock noted in Duport Steels Ltd and others v Sirs and others [1980] 1 All ER 529 the constitutional doctrine of the separation of powers:

'My Lords, at a time when more and more cases involving the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based on the separation of powers: Parliament makes the laws, the judiciary interpret them.'

Plus a change! Roll forward then to 2 May 2007 when the Draconian powers of the Serious Organised Crime Agency (SOCA) - a body orbiting substantially outside judicial reach - found themselves under the beady judicial eye of the Court of Appeal in R (UMBS Online Ltd) v Serious Organised Crime Agency [2007] EWCA Civ 406. And, thanks to the independent reviewing power of the courts, the long arm of the law proved sufficiently flexible to winkle-out an injustice.

In essence SOCA had refused consent to a bank to operate accounts held by the Claimant's payment process company which essentially stalled the Claimant's relevant business operations. The case concerned the application of Part 7 of the Proceeds of Crime Act 2002, Part 7 of which deals with money laundering. As Ward LJ pointed out, sections 327, 328 and 329 of the 2002 Act '. . .make it an offence to engage in a range of activities such as concealing, or being concerned in arrangements dealing with, or acquiring, using or possessing criminal property, which, as defined by s.340, is property which constitutes a person's benefit from criminal conduct and the offender knows or suspects it'. Section 328, in particular provides that it is an offence if a person:

'. . .enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person'.

Therefore, a bank would commit an offence if it were to permit ordinary banking business to be conducted in respect of funds suspected to be criminal property unless that bank had made an authorised disclosure under section 338 and received the appropriate consent under section 335. It is an offence under sections 330 to 332 for a person not to disclose to SOCA that he knows or suspects that another is engaged in money laundering. And...