The first appellant was the Director General of the Kuwait Public Institution for Social Security between 1984 and 2014. He was under investigation by the Kuwait Authorities for public funds theft, assistance and facilitation of public funds theft, damaging public funds and money laundering while exercising his functions. The second appellant, the wife of the first appellant, was only under investigation for money laundering offences.
The investigation had begun in 2008 after a whistle blower had made allegations against the first appellant and others. Following the investigations, Kuwait sought a restraining order in Switzerland, which was granted, and USD 100 million were restrained in Swiss bank accounts belonging to the first appellant and his family.
Information recovered as a result of proceedings in Switzerland, appeared to show that the first appellant and his family had transferred some of the money derived from illegal commission payments to other countries, including the United Kingdom. The Kuwaiti authorities then sent a request for mutual assistance to the United Kingdom asking for the restraint of the money found in several bank accounts.
On 5 March 2015, the Crown Court granted a restraint order of the appellants’ bank accounts which assets amounted to USD 23,5 million. The court acted on an application by the Director of Public Prosecutions further a Letter of Request from the State of Kuwait.
The appellants applied to vary or set aside the restraint order which was denied.
On 23 March 2016, the Court of Appeal (Criminal Division) held its judgment on the applicants appeal against the judge’s refusal to vary or set aside the order which restrained the applicants UK bank accounts assets. The court dismissed the appeal.
科威特大不列颠及北爱尔兰联合王国
瑞士Confiscation procedures were set in three different countries as part of the Kuwaiti investigation on the embezzlement and money laundering allegedly committed by the appellants.
First, Kuwaiti courts had restrained USD 75 million of the appellants’ assets in Kuwait following court restraint orders in January 2015.
Second, about USD 100 million were seized in Switzerland in execution of a request for mutual assistance submitted by the Kuwaiti authorities. The funds were seized in accordance with the Swiss Federal Act on International Mutual Assistance in Criminal Matters. The seizure was confirmed by the Swiss Supreme Court on 8 December 2014.
Third, following a request for mutual assistance submitted by the Kuwaiti authorities, the UK Crown Court granted a restraint order on USD 23,5 million on 5 March 2015. The restraint order related to twelve bank accounts in the United Kingdom and was ordered in accordance with the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (the 2005 Order).
大不列颠及北爱尔兰联合王国科威特瑞士The Kuwaiti authorities sent a request for mutual assistance to Switzerland as part of the investigation on the appellants for public fund theft and money laundering. The Swiss authorities provided Kuwait with banking documents regarding fifteen accounts in Swiss banks. The Swiss authorities also seized the money available in the account, amounting to about USD 100 million.
The Kuwaiti authorities also sent a request for mutual assistance based on the United Nations Convention against Corruption and the United Nations Convention against Organised Crime to the United Kingdom asking for the restraint of the money found in several bank accounts. The Crown Court granted a restraint order in respect of twelve bank accounts which total amounted to USD 23,5 million.
Crown Court
On 5 March 2015, the Crown Court at Blackfriars held a hearing on the confiscation of the appellants’ assets found in 12 bank account in the United Kingdom. The court acted on an application by the Director of Public Prosecutions under the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 further a Letter of Request from the State of Kuwait from 19 February 2015.
The court granted a restraint order of the 12 bank accounts which assets amounted to USD 23,5 million.
On 30 July 2015 the appellants applied to vary or set aside the restraint order. On 7 August 2015, the judge ordered that the restraint order should continue to 6 February 2016, when it would expire unless renewed.
Court of Appeal (Criminal Division)
On 23 March 2016, the Court of Appeal (Criminal Division) held its judgment on the applicants appeal against the judge’s refusal to vary or set aside the order which restrained the applicants UK bank accounts assets. The appellants received limited permission to appeal on two grounds.
The appellants argued that the conditions for making a restraint order set forth in the 2005 Order were not respected. They held that the assets already restrained worldwide would be sufficient to satisfy any future confiscation order by the Kuwaiti authorities and thus that there was no need to restrain the appellants assets in the UK.
The appellants also argued that that the judge which granted the restraint order did not deal with evidence of misinformation from the Kuwaiti authorities.
The Court of Appeal (Criminal Division) dismissed the appeal against the judge’s refusal to vary or set aside the restraint order.
Regarding the first ground of appeal, the court held that while the Kuwaiti investigation was first limited to allegations of commissions and retrocessions which amount was equivalent to the amount already restrained worldwide (USD 125 million), the ongoing investigation had showed that the appellants had received payments amounting to more than USD 230 million. The amount already restrained worldwide would thus not be sufficient to satisfy any future confiscation order by the Kuwaiti authorities.
Regarding the second group of appeal, the court rejected the argument of the appellants, stating that the issue of misinformation was “explored at length at the hearing”.
The appellant was the Director General of the Kuwait Public Institution for Social Security between 1984 and 2014. He was investigated by the Kuwaiti authorities for allegedly skimming commission payments from the government investment fund for which he was responsible. The money was then allegedly laundered by purchasing assets overseas and depositing massive sums in offshore accounts and in banks in Switzerland and the UK.
The appellant was also investigated for having invested the pension funds in high-risk shares, which was forbidden and resulted in more than USD 900 million losses for the fund. This alleged behaviour would constitute damaging public funds and, if done intentionally, corruption.
As the appellant had left Kuwait and was living in the UK, the Kuwaiti authorities had issued an international warrant against him.
The appellant is the wife of the first defendant. She was allegedly implicated in the concealment, movement and laundering of the funds illegally acquired by her husband.
As the appellant had left Kuwait and was living in the UK, the Kuwaiti authorities had issued an international warrant against her.
Court of Appeal (Criminal Division)
This case gives an example of a mutual legal assistance request made pursuant to the United Nations Convention against Transnational Organised Crime and the United Nations Convention against Corruption (UNCAC).
Both Kuwait and the United Kingdom are parties to the Conventions and the Court of Appeal highlighted that they both emphasised “the need to provide assistance to State Parties with regards to the 'instrumentalities' of crime. The Court also underlined that article 55(1) of UNCAC “requires compliance "to the greatest possible extent" with a request from another State Party for the confiscation of instrumentalities.”