“We, National Westminster Bank Plc, have recently undertaken a review of the banking arrangements that you have with us. We have, with regret, reached the conclusion that we will no longer provide these facilities for you. Consequently, you will need to make alternative payment arrangements within 60 days of the date of this letter. These arrangements must be made outside of The Royal Bank of Scotland Group plc, which includes National Westminster Bank Plc. … We will not be able to provide references for you. … We assure you that we have only reached this decision after careful consideration, however, our decision is final and we are not prepared to enter into any discussion in relation to it.”
“(1) A party may inspect a document mentioned in— (a) a statement of case; (b) a witness statement;…”.
“12. Section 327 of the 2002 Act creates offences of “concealing, disguising, converting, transferring or removing criminal property from the jurisdiction.”
“(1) For the purposes of this Part a disclosure is authorised if— (a) it is a disclosure to a constable, a customs officer or a nominated officer by the alleged offender that property is criminal property, and … (c) the first, second or third condition set out below is satisfied. (2) The first condition is that the disclosure is made before the alleged offender does the prohibited act. …” 15. Under section 335(1) POCA “appropriate consent” is defined as the consent of a nominated officer to do a prohibited act if an authorised disclosure is made to the nominated officer. A person who makes an authorised disclosure, and who is not given notice of refusal within a 7 working day notice period, or, having received such notice, does not receive before the end of the 31 day moratorium period notice of an order freezing the account, is bound to act in accordance with the customer's instructions (see sections 335(2)-(6) of the 2002 Act). Conversely, if notice of refusal is given initially for 7 days and then, if necessary, for another 31 days, the customer's instructions may not be implemented. 16. Section 333 POCA creates an offence of “tipping off”
“(1) A person commits an offence if— (a) the person discloses any matter within subsection (2); (b) the disclosure is likely to prejudice any investigation that might be conducted following the disclosure referred to in that subsection; and (c) the information on which the disclosure is based came to the person in the course of a business in the regulated sector. (2) The matters are that the person or another person has made a disclosure under this Part— … (d) to a [National Crime Agency officer] 2 authorised for the purposes of this Part by the Director General of that Agency, of information that came to that person in the course of a business in the regulated sector.”
“‘personal data’ means data which relate to a living individual who can be identified – (a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual;”
“Where a data controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless – (a) the other individual has consented to the disclosure of the information to the person making the request, or (b) it is reasonable in all the circumstances to comply with the request without the consent of the other individual.”
“In determining for the purposes of subsection (4)(b) whether it is reasonable in all the circumstances to comply with the request without the consent of the other individual concerned, regard shall be had, in particular, to – (a) any duty of confidentiality owed to the other individual, (b) any steps taken by the data controller with a view to seeking the consent of the other individual, (c) whether the other individual is capable of giving consent, and (d) any express refusal of consent by the other individual.” (a) any duty of confidentiality owed to the other individual, (b) any steps taken by the data controller with a view to seeking the consent of the other individual, (c) whether the other individual is capable of giving consent, and (d) any express refusal of consent by the other individual.”
“For the purposes of section 7(4) and (5) another individual can be identified from the information being disclosed if he can be identified from that information, or from that and any other information which, in the reasonable belief of the data controller, is likely to be in, or to come into, the possession of the data subject making the request.”
“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”
“39. It is the defendant’s case that it has a good defence to the failure to execute payment instructions if it can show it had a suspicion that the transaction involved criminal property. The reason for this, on the defendant’s pleaded case, is that the existence of an obvious and/or necessary implied term permitted the bank to refuse to execute the payment instructions in the absence of ‘appropriate consent’ under s.335 of POCA where it suspected the transaction constituted money laundering… 45. …I am led to the conclusion that the term for which the defendant contends is to be implied by reason of the statutory provisions. In my judgment the ‘precise and workable balance of conflicting interests’ in POCA that Longmore LJ noted in K Ltd v National Westminster Bank plc Parliament has struck …, requires the implication of this term in the contract between a banker and his customer. … 236. There is an implied term in the contract that permitted the defendant to refuse to execute payment instructions in the absence of ‘appropriate consent’ under s.335 POCA where it suspected a transaction constituted money laundering.”
“there were terms implied into all contracts between the parties, necessary for the business efficacy of the contracts, that in the event of the Defendant knowing or suspecting or having reasonable grounds for knowing or suspecting that funds in any of the Claimant’s bank accounts with the Defendant were the proceeds of crime, the Defendant would be entitled to: 20.1 Make a report or reports to the relevant authorities, in this case including the National Crime Agency; and 20.2 freeze the Claimant’s bank accounts.”
“Paragraph 20 is admitted. If the Defendant genuine[ly] suspected that money in each of the Claimant’s accounts at the time the reports were made and the accounts frozen was criminal property within the meaning ofsection 340(3) of the Proceeds of Crime Act 2002 then it was entitled to freeze the account in question.”
“The defendant was not under a duty to provide the claimants with the information sought. Further or alternatively the defendant was obliged to refuse to provide the information where the defendant, its servants or agents, in providing that information might contravene duties under s.333 and/or s.342 of POCA.”
“In order to impugn the decision to make an authorised disclosure under POCA and the consequent failure immediately to execute the claimants’ payment instructions the claimants must challenge the good faith of the suspicion which HSBC states that its employees held. They cannot and do not seek to do so. In such circumstances I conclude that there is no real prospect of the claimants establishing that the failure to execute their payment instructions was a breach of duty and that this claim should accordingly be dismissed.”
“22. … For my part, I cannot see why, rather than submit to summary judgment dismissing the claim, Mr Shah cannot require the bank to prove its case that it had the relevant suspicion and be entitled to pursue the case to trial so that the bank can make good its contention in this respect. … 24. It must be remembered that it is for the bank to prove that it suspected Mr Shah to be involved in money laundering. It is, to say the least, unusual to grant summary judgment in favour of a party who has the burden of proving a primary fact which is in issue. Normally one expects evidence to be adduced at trial. … 25. …any claim by a customer that his bank has not executed his instructions is, on the face of it, a strong claim if the instructions have not, in fact, been executed. It will seldom, if ever, be contradicted by the documentary evidence on which it is founded. It is only when the bank says that it suspects the customer was money laundering that any defence to the claim begins to emerge. That may not, of itself, make the claim a complex claim but there is, subject to [Counsel for the bank’s] second submission, no reason why the bank should not be required to prove the important fact of suspicion in the ordinary way at trial by first making relevant disclosure and then calling either primary or secondary evidence from relevant witnesses. … 28. …It does not at all follow that, if the customer institutes ordinary (non-summary) proceedings against the bank, the bank should be able to obtain (reverse) summary relief against the customer merely be authorising its solicitor to make a witness statement that various unidentified people in the bank entertained a suspicion. By the time of any trial the dust will have settled and it is most unlikely that the tipping-off provision will continue to be relevant. It will almost certainly be known whether any investigation is or might be taking place which any disclosure by admissible evidence in court proceedings would be likely to prejudice within s.333(1). If any such investigation is occurring (or is likely to occur) the court can be informed of that matter in an admissible manner. But it is, in my judgment, too strong for the court to say now that the bank would be bound to win any trial and should, therefore, now be entitled to summary judgment.”
“One appreciates, of course, that the 2002 Act has put banks in a most unenviable position. They are at risk of criminal prosecution if they entertain suspicions but do not report them or, if they report them, and then nevertheless carry out their customer’s instructions without authorisation. If they do not act as instructed, their customers are likely to become incensed and some of those so incensed may begin litigation. But it cannot be right that proper litigation should be summarily dismissed without any appropriate inquiry of any kind. The normal procedures of the court are not to be side-stepped merely because Parliament has enacted stringent measures to inhibit the notorious evil of money laundering, unless there is express statutory provision to that effect.”
“Nonetheless, the Defendant confirms that it had a suspicion that money in the Claimant’s bank account was the proceeds of crime prior to the sending of the Reports to the NCA.”
“42.2 HSBC suspected that the funds in the claimants’ bank account constituted criminal property (namely benefit from criminal conduct or represented such benefit in whole or in part (whether directly or indirectly)). 42.3 The relevant people employed by HSBC at all three levels of the reporting process held a suspicion in respect of each transaction. 42.4 At least three different people were suspicious in respect of each transaction. 42.5 In respect of each transaction, at least one member of HSBC’s Money Laundering Reporting Office held a suspicion and independently approved the making of the authorised disclosures, which HSBC was required to make in order to comply with the claimants’ instructions in respect of the First to Fourth Transactions.”
“It is important to remember that it is not always necessary to consider ‘biographical significance’ to determine whether data is personal data. In many cases data may be personal data simply because its content is such that it is ‘obviously about’ an individual. Alternatively, data may be personal data because it is clearly ‘linked to’ an individual because it is about his activities and is processed for the purpose of determining or influencing the way in which that person is treated. You need to consider ‘biographical significance’ only where information is not ‘obviously about’ an individual or ‘clearly linked to’ him.”
“82. The underlying purpose of the right of access to personal data is for the data subject to check the accuracy of the data and to see that they are being processed lawfully. The first place where this point is made is in recital (41)… 90 In some cases, it has been said that the supply of information does not tell the data subject anything he or she did not already know. In many cases that would miss the point. To take a simple example: everyone knows their own name and date of birth. A data subject may well make a SAR SAR is here used to mean subject access request rather than suspicious activity report. , not for the purpose of discovering his name or date of birth, but for the purpose of checking whether the data controller has correctly recorded them. … Likewise a data subject may ask for information about a particular meeting that he or she attended, not for the purpose of finding out what happened at the meeting (which is already known), but for the purpose of checking the accuracy of any personal data recorded in a note of the meeting.”
“If the whole of a meeting is about a particular individual then, assuming the minutes are held as data, they will be personal data about that individual. The meeting may concern the behaviour and actions or the condition of an individual. The personal data will include not only those facts about the condition or behaviour of the individual discussed at the meeting, but also any third parties’ opinions about the individual in question and any indication of the intentions of any person in respect of that individual. These expressions of opinion or intention are personal data of the individual being discussed.”
“Data used in deliberations or decisions about an individual may include data about unauthorised alterations to a house in breach of planning law where that data is processed to determine whether to prosecute the individual house owner. The data about the unauthorised alterations may be processed by reference to the house address but the data clearly relates to the individual who carried out the alterations in that the data is being processed to determine whether to take action against that person.”
“69. The disclosure regime under section 7(4)-(6) of the DPA seeks to strike a balance between competing interests of the requester and the objector, both of which are anchored in the right to respect for private life inArticle 8 of the European Convention on Human Rights … As part of the rights or interests of data subjects which the Directive is intended to protect, data subjects are accorded a right under certain conditions to have access to their personal data held by a data controller to check that those data are accurate: Article 12. A data subject’s right to respect for his private life may be infringed if things are done by a data controller on the basis of personal data about him which are materially wrong or inaccurate in some way. 70. …I do not think that the balancing regime in section 7(4)-(6) of the DPA includes any presumptive starting point or hurdle which either the requestor or the objector has to overcome. … Both sets of rights and interests are important and there is no simple or obvious priority as between them which emerges from consideration of their nature or their place in the legislative regime.”
“There are occasions when the person to whom a statement is made has a special interest in learning the honestly held views of another person, even if those views are defamatory of someone else and cannot be proved to be true. When the interest is of sufficient importance to outweigh the need to protect reputation, the occasion is regarded as privileged. Sometimes the need for uninhibited expression is of such a high order that the occasion attracts absolute privilege, as with statements made by judges or advocates or witnesses in the course of judicial proceedings. More usually, the privilege is qualified in that it can be defeated if the plaintiff proves the defendant was actuated by malice.”
“Over the years the courts have held that many common form situations are privileged. Classic instances are employment references, and complaints made or information given to the police or appropriate authorities regarding suspected crimes. The courts have always emphasised that the categories established by the authorities are not exhaustive. The list is not closed. The established categories are no more than applications, in particular circumstances, of the underlying principle of public policy. The underlying principle is conventionally stated in words to the effect that there must exist between the maker of the statement and the recipient some duty or interest in the making of the communication. … The requirement that both the maker of the statement and the recipient must have an interest or duty draws attention to the need to have regard to the position of both parties when deciding whether an occasion is privileged. But this should not be allowed to obscure the rationale of the underlying public interest on which the privilege is founded. The essence of this defence lies in the law’s recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the law is concerned to attain. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end. Thus the court has to assess whether, in the public interest, the publication should be protected in the absence of malice.”
“We would, however, ask that the Court be informed of the NCA’s interest in the issue of disclosure … and that any order for disclosure provide that no documents are to be given up for a period of seven days from the date of the order. That would provide the NCA with an opportunity to consider its position in the light of any disclosure that is actually ordered.”