State agency wants Privy Council to determine if it can access bank accounts of persons not convicted of crimes
Barbara Gayle, Justice Coordinator
The State entity, the Assets Recovery Agency, is heading to the United Kingdom-based Privy Council to get interpretations on various sections of the Proceeds of Crime Act (POCA).
This follows a recent Court of Appeal ruling which the Agency says will severely affect its investigations into money laundering.
An application was first made in 2011 before Justice Patrick Brooks in the Supreme Court for a Customer Information Order (CIO) to direct a financial institution to provide the agency with specific information regarding 14 named persons.
The judge, in refusing to grant the order which was made under POCA, held that before the CIO could properly be made, it should be shown that either the suspect had been convicted of a crime or at least a prima facie case of his criminal conduct should be demonstrated.
The information being sought was in relation to a US$1-million transaction, but the alleged account holders and participants were not parties to the proceedings.
The agency appealed on the grounds that the judge erred when he stated that a CIO was not designed as an investigative tool for assisting in determining if a substantive offence has been committed.
On appeal, lawyers representing the agency argued that the CIO allowed investigators to "actually go fishing" for evidence of the commission of a crime.
It was argued that the CIO was an investigative tool relevant to the investigation of crimes, and could be used not only to trace ill-gotten gains of individuals but also to ascertain if criminal conduct exists.
The lawyers representing the agency said the CIO allowed the investigators to request an institution to disclose information on the accounts specified, whether held solely or jointly by the target of an investigation.
Submissions were also made that the CIO was really aimed at recovering the fruits of criminal conduct rather than for discovering whether a substantive offence had been committed.
In dismissing the appeal, Justice Seymour Panton, president of the Court of Appeal, Justice Mahadev Dukharan and Justice Carol Lawrence-Beswick held that, "where forfeiture and money laundering investigations were concerned, the CIO must have a conviction at its foundation."
The court ruled that the person specified in the application must be proved to have a conviction.
"The CIO, therefore, is not designed to assist in determining if a substantive offence outside of the act has been committed, as it is not to be ordered until there has already been that determination and a conviction exists," the Appeal Court ruled.
The Appeal Court further said while it was well known that the tentacles of crime continue to multiply and have become more invasive of the social fabric, and that the need to fight the expansion of crime and to deprive criminals of their criminal activity is as obvious as it is great.
"However, this must be balanced against the rights of individuals," the Appeal Court said.
It also referred to the Constitution which, it says, clothes every person in Jamaica with the presumption of innocence, and highlighted the fact that it was not until a person was proven guilty or pleads guilty that the person was a criminal and suffers the consequences of having committed the crime.
"Suspicious behaviour, without more, is not a crime," the judges said.
In its request to take the matter to the Privy Council, the agency argued that this was the first case in Jamaica in which these questions have been considered by an appellate court.
It pointed out that the public and the agency will benefit greatly from the Privy Council's guidance on how proceeds of crime investigations are to be conducted.
"These rulings will have an impact far beyond the application that led to this appeal because they will determine the way in which all present and future applications for customer information orders under the Proceeds of Crime Act are dealt with and, therefore, the way in which all present and future money laundering, forfeiture and civil recovery investigations are conducted," the agency stated.