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Judge raps Assets Recovery Agency

Published:Tuesday | September 29, 2015 | 12:00 AMLivern Barrett

A high Court judge has blasted the Assets Recovery Agency (ARA), the arm of the Finance Ministry responsible for taking the profit out of crime, for using what he described as an "illegitimate" approach to enforce the Proceeds of Crime Act (POCA).

POCA, enacted in 2007, places the burden of proof on the State to prove that properties to be restrained, and ultimately forfeited, were derived from criminal activity.

In discharging court-ordered restraints against the assets of four individuals last month, Justice Bryan Sykes pointed out that in a number of cases brought before him, the ARA, through an "illegitimate form of reasoning", appears to have shifted that burden of proof to accused persons instead.

"The illegitimate reasoning goes like this: 'A has no legitimate income, so far as the agency can determine; A has property. Since A has no legitimate income to acquire property, therefore A must have acquired it through crime," he wrote in his ruling.

"The next step in the illegitimate reasoning is this: The property can be restrained for ultimate taking, and if A does not want this to happen, then A must prove that he acquired it legitimately," he continued.

No evidence required

"The deep and profound flaw in this reasoning is that nowhere is the agency even required to establish, at the lowest level of legal proof, that A committed a criminal offence or benefited from the commission of a criminal offence," the judge said.

Sykes underscored that the absence of income alone does not prove that a property was derived, directly or indirectly, from criminal activity. Noting that there may be several explanations, he insisted that the "legal starting point is that the State must make the case".

"It is this insistence that provides protection against oppressive conduct from the agency," he cautioned.

Sykes' ruling came in response to an application by attorneys for Upert Smith, Gwendolyn Smith, Rebecca Smith, Roderick McKay and Rojay McKay to remove restraint orders that were imposed by the court in January.

The restraint order was granted after the ARA indicated, in sworn affidavit, that United States law-enforcement authorities informed them, in September, last year, that Upert Smith and Roderick Smith were arrested a month earlier on various drug charges.

Charges dismissed

As it turned out, the charges were also dismissed in August.

"If it was, indeed, the case that the information was first received in September 2014 and all that was said was that the two gentlemen, were arrested than that information received from the United States law-enforcement agency was extremely misleading because ... the criminal charges were terminated in August 2014," Sykes noted.

While noting the ARA's acknowledgment that it did not have the information, the high court judge said the agency had sufficient time to double-check the information and to "check it's continued accuracy" before seeking to restrain their assets.

"The application was for the draconian restraint order. There can hardly be any reasonable excuse for not checking on the status of the alleged defendants," he said.

"Once the gentlemen were no longer charged, then a very serious issue arose as to whether there was any reasonable cause to believe that any predicate crime had been committed, which is necessary for there to be even a whiff of money laundering, to say nothing of whether someone benefited from the antecedent crime," he continued.

livern.barrett@gleanerjm.com