Wed | Nov 21, 2018

Appeal court leaves FID in limbo - Ruling creates uncertainty over $150m seized under act

Published:Tuesday | June 5, 2018 | 12:00 AMLivern Barrett/Senior Gleaner Writer

A ruling by the nation's second highest court has placed in limbo some 40 cases involving close to $150 million in cash that has been seized by the Financial Investigations Division (FID) under the Proceeds of Crime Act (POCA).

The Court of Appeal, in its unanimous decision handed down last Monday, made it clear that the wrong procedure is being used before the Parish Courts to confiscate cash under POCA.

"In the absence of any dedicated procedural rule under POCA, the correct way to commence proceedings for either the forfeiture or release of cash seized under the legislation is by way of a [com]plaint accompanied by particulars of claim," the panel of three judges ruled.

FID boss Robyn Sykes has, however, revealed that the agency was heading to the United Kingdom-based Privy Council to challenge the decision.

"We are of the view that the court was not correct in coming to its finding. We believe that the court has placed priority on form rather than substance and we are currently in the process of formulating an appeal to the Privy Council," Sykes told The Gleaner yesterday.

The ruling by the Court of Appeal came after it had heard legal arguments, in separate cases, questioning whether an application for the forfeiture of cash under POCA can be done by a notice of application for court orders before a Parish Court judge.

Norman Godfrey, the attorney for Anthony Hendricks, the man who filed one of the legal challenges, argued that such a procedure is "alien to the RM [Resident Magistrate] Act" and the Resident Magistrate's Court rules and the appeal court agreed.

"Although the learned resident magistrate (now parish judge), in Mr Hendricks' case, sought to rectify the procedure by having the witness testify on oath and their affidavit tendered into evidence, the action having been commenced by notice and affidavit, this was indeed procedure entirely alien to the RM Act," the court ruled.

Sykes acknowledged that the agency has used that 'incorrect' procedure, but said it was discontinued in 2014.