Sun | Sep 19, 2021

‘Substance over form’ - Landmark Privy Council ruling on POCA upholds forfeiture

Published:Friday | February 26, 2021 | 12:15 AMRomario Scott/Gleaner Writer
"What the courts must look at is what is the substance of the application,” Michael Hylton, QC, told The Gleaner. 
"What the courts must look at is what is the substance of the application,” Michael Hylton, QC, told The Gleaner. 

A decision by the Court of Appeal in Jamaica that had been cited as cause for lawyers to demand millions in repayment from the police and the Financial Investigations Division (FID) has been overturned by the United Kingdom Privy Council in a landmark ruling.

The case involves a detective sergeant’s attempt to execute the forfeiture of $700,000 under the Proceeds of Crime Act.

The money was seized, in June 2010, from Patrick Spence, who was advanced monies from Kurbriton Limited as an independent scrap dealer in order to make legitimate purchases for the company, according to court documents.

At the heart of the issue is that in 2011, Detective Sergeant Pilmar Powell filed and served a notice with a view to obtaining an order under Section 79 for the forfeiture of the cash, which was believed to have been obtained, or intended to be used, unlawfully.

However, the Court of Appeal in Jamaica upheld a ruling from a parish judge that the police officer should have lodged a ‘plaint’, instead of a ‘notice’, rendering the proceedings void and dismissed the forfeiture application.

The Gleaner understands that in the past, such method had been employed. Since the Court of Appeal ruling that it was null and void, there have been demands for repayment from the FID.

This landed the matter in the UK Privy Council.

In the ruling handed down on February 22, the council found that despite the term difference, the notice satisfied the requirements prescribed under POCA. That included the name of the person making the application, name of the interested parties, the respondent, the nature of the claim, who filed it, and the stamp with a receipt from the court.

Because POCA does not have a regulation, the Resident Magistrates Act was then applied, although the latter was crafted in the 1800s.

Lawyers for Kurbriton and its director, Frederick Graham, who had laid claim to the money, argued that the document the police produced did not amount to an originating document and that proceedings had not, in fact, commenced.

The Privy Council, however, found that Powell’s application was effectively commenced by the filing of the notice, notwithstanding discrepancies between the paperwork used and the conventional form of a plaint.

It said that Powell’s documentation had fulfilled the role of a summons with particulars of the claim.

“In all the circumstances, the board is of the view that the notice was, in substance, a plaint satisfying the requirements of Section 143. Such defects as there were in it were matters of form only,” said the Privy Council.

In fact, the Privy Council said the parish judge had the authority to cure the defect under Section 190 of the Resident Magistrates Act.

“Since the board has now concluded that the requisite information is already incorporated in the notice and affidavit, it can see no real point in those documents being amended.

“The notice is capable of standing as the plaint, notwithstanding its title,” the judgment read.

Michael Hylton, who represented Powell, said the decision by the Privy Council was consequential.

Hylton, a former solicitor general, predicted that many lawyers would use the case as precedent.

“It is sending a message that you must put substance over form. What the courts must look at is what is the substance of the application,” Hylton told The Gleaner.

“From a jurisprudence point of view, it doesn’t just affect POCA. It is a general issue that many of our courts have where they look to the strict language of a section or a form and say, ‘If you don’t follow that, then it’s null and void.’”