Tue | Sep 26, 2017

Don't blame the judges, Professor

Published:Saturday | January 30, 2016 | 1:00 AM
Peter Champagnie

In an article in your Sunday publication of January 24, 2016, a quote attributed to crime researcher, Professor Anthony Clayton, suggested that none of our local judges knew how to apply the Proceeds of Crime Act (POCA). This suggestion by the professor (if accurately reported) is without any merit and demonstrates a lack of understanding of that which he professes.

It is not for a judge to apply the POCA legislation aggressively, as was put by Professor Clayton. It is the prosecuting authorities that must aggressively apply it. At all times, a judge is expected to be impartial and base his or her decision on the evidence presented and the applicable law governing the area under adjudication.

In referring to similar legislation in the United Kingdom, Professor Clayton noted that "all police investigators are required to show a judge was that a person owns assets without a certifiable source of income". If this was so, I shudder to think how impecunious persons who subsequently benefit from a wealthy estate or inheritance would be treated. Thankfully, the law is not as stated by Professor Clayton.

The decisions arrived at in Director of Asset Recovery Agency v Green 2005 EWCH 3168 and Director of Asset Recovery Agency v Olupitan 2008 EWCA CIV 104 from the jurisdiction of England & Wales are but a few cases that have ruled that the mere fact of a lack of lawful income in support of particular lifestyle is not enough to ground a successful application by prosecutors under the legislation. More is required.

 

FREEZING ORDERS

 

In this regard, one must always bear in mind that initial applications under POCA are ex parte applications. That is, the prosecuting authorities, in seeking to halt the lifestyle of suspected persons, go before the court for freezing orders without notice to these persons.

These persons are not afforded an opportunity initially to defend or respond to the assertion of ill-gotten gains. The burden is, therefore, placed on the prosecuting authorities to prove its case. To suggest, therefore, that POCA operates under the principle where the burden of proof is on the suspected person is not accurate.

It is ironic that an attempt is being made now to lay blame at the feet of our judges as it relates to a failure to appreciate the application of the POCA legislation where recent rulings have clearly demonstrated that it is the investigators themselves who suffer from this failure.

Almost consecutively, in three recent decisions, the Supreme Court has found itself constrained to address the failure of investigators of the Asset Recovery Agency to present proper cases to satisfy the granting of restraint orders. The failings of the investigators have arisen in situations of material misrepresentation or non-disclosure in the course of poor or tardy investigations. These situations have led to the court reminding the investigators of their duty to make full and fair disclosure in their quest for restraint orders under the POCA legislation as set out in yet another English authority in Brink's-MAT Ltd v Elcombe [1988] 1 WLR 1350.

In all the circumstances, it would, therefore, seem that Professor Clayton's critique is misplaced. No one is above criticism. However, great care and caution must be exercised when levelling attacks against judicial officers in circumstances where their office does not permit them to defend themselves publicly. This situation is exacerbated when such criticisms are without any merit.

• Peter Champagnie is an attorney-at-law. Email feedback to columns@gleanerjm.com and peter.champagnie@gmail.com.