The World Uyghur Congress (WUC), an NGO, brought a claim for judicial review against the National Crime Agency (NCA). In essence, the WUC sought to challenge the Defendants’ decision not to investigate imported cotton goods originating from the Xinjiang Uyghur Autonomous Region (‘XUAR’) in light of human rights concerns.

The factual evidence underlying the claim was not disputed. Instead, the case turned on the interpretation of the Defendants’ powers under the Proceeds of Crime Act 2002 (‘POCA’), which sets out the offences applicable to dealing with ‘criminal property,’ which is defined broadly to include property that constitutes a persons’ benefit from criminal conduct (directly or indirectly), regardless of where that criminal conduct occurred.

The Parties’ Submissions

The Claimant highlighted that 30% of the world’s production of cotton originates in China; and of that portion, 85% originates in Xinjian, the centre of the human rights abuses committed by the PRC against the Uyghur minority, including forced / prison labour. Flowing from this, it was submitted that the Defendant’s policy of only investigating potential breaches of POCA on a ‘reactive basis’ (rather than launching their own pro-active investigations into cotton consignments from the XUAR) was a misdirection in law.

The Defendants responded that there was insufficient evidence to meet the necessary standard of proof. Enforcement officers had to be satisfied that a specific consignment of cotton constituted criminal goods. The Defendant could not deal in hypotheticals, and the statistical approach adopted by the Claimant did not amount to proof such as to engage their statutory powers. Moreover, the Defendants submitted that POCA offences necessitated the identification of individuals who knew (or suspected) that the importation arrangements facilitated the acquisition of criminal property; and, establishing this means rea would add an untenable layer of complexity, particularly in the context of international logistics networks.

Judgment

The Court of Appeal preferred the Claimant’s analysis, overturning the decision of the High Court ([2023] EWHC 88 (Admin. The judgment of the Lady Chief Justice, Lord Justice Bean and Lady Justice Andrews provided two significant points of clarity.

Firstly, the Court of Appeal held that the NCA does not need to need to identify specific evidence of ‘unlawful conduct’ before it can decide to open and investigation: “it is obvious […] that the investigating body does not need that the recoverable property exists before commencing an investigation, since the specific purpose of that investigation may be to ascertain that fact” [§47]. Moreover, it was noted that, where the Defendant’s analysis to be upheld, there would be a risk that enforcement agencies could be discouraged from investigation potential corruption (particularly where it occurs overseas) in the absence of “concrete evidence of particular crimes carried out by particular persons” [§55].

Secondly, the Court of Appeal clarified that the provision of adequate consideration (i.e., paying market value) for criminal property does not cleanse the property of its criminal nature everywhere in the supply chain.

On this basis, the Defendant’s policy was remitted to the NCA for reconsideration.