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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of Johnson [2010] JRC 206A (17 November 2010) URL: http://www.bailii.org/je/cases/UR/2010/2010_206A.html Cite as: [2010] JRC 206A |
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[2010]JRC206A
royal court
(Samedi Division)
17th November 2010
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Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham and Marett-Crosby. |
IN THE MATTER OF THE PROCEEDS OF CRIME (JERSEY) LAW 1999 AS MODIFIED AND INCLUDED IN THE SECOND SCHEDULE TO THE PROCEEDS OF CRIME (ENFORCEMENT OF CONFISCATION ORDERS)(JERSEY) REGULATIONS 2008
AND IN THE MATTER OF AN APPLICATION SEEKING REGISTRATION OF AN EXTERNAL CONFISCATION ORDER MADE AGAINST DALE ANTHONY JOHNSON
Crown Advocate A. J. Belhomme for the Attorney General.
judgment
the deputy bailiff:
1. On 20th June, 2008, Dale Anthony Johnson ("DAJ") and his co-accused were convicted before Great Grimsby Crown Court of fraudulently evading duty in relation to a quantity of cigarettes, and both were sentenced to nine months imprisonment, suspended for two years. On 22nd September, 2009, the Great Grimsby Crown Court determined that DAJ had benefited from his crimes in the sum of £212,161.22 and made a confiscation order in the sum of £156,091.14. DAJ was ordered to pay £34,979.16 towards satisfaction of the order as representing the balance attributed to accounts held by him in Jersey. The payment was to be made within 28 days, and the balance of the order was to be satisfied within six months, in default of which a term of two years imprisonment was imposed.
2. On 23rd September, 2010, a saise judiciaire was granted by the Royal Court in respect of DAJ's realisable property in Jersey. As a result, the Viscount has taken possession of monies in bank accounts in Jersey totalling £54,296.93.
3. The Attorney General has applied to register the External Confiscation Order pursuant to Article 39 of the Proceeds of Crime (Jersey) Law 1999 as modified by the Proceeds of Crime (Enforcement of Confiscation Orders) (Jersey) Regulations 2008 ("the Modified Law"). A short but important procedural point arises - should the Attorney General be required to give notice to DAJ at this stage of the application which has been made? It is a novel point in the sense that it is one which has not yet been decided previously in relation to this piece of legislation. Article 39 of the Modified Law is in these terms:-
4. Crown Advocate Belhomme, for the Attorney General argues that it is not necessary to convene DAJ at this stage. He says that Article 39 of the Modified Law does not make any express provision for giving notice of an application to register the External Confiscation Order. He points out that where there has been a saise judiciaire, as here, the person who is the subject of the External Confiscation Order will have been served with a copy of the Act of Court confirming the saise judiciaire has been ordered. He submits that Article 17 of the Modified Law, which deals with the realisation process, enables the Court to empower the Viscount, on the application of the Attorney General, to realise any realisable property that has vested in the Viscount pursuant to a saisie. He submits that the time for any argument from the person who is the subject of the confiscation order comes later in the procedure, because the Court is not to exercise the powers under Article 17(1) until a reasonable opportunity has been given to persons holding any interest in the property to make representations to the Court, pursuant to paragraph (2) of the same article. As a matter of statutory interpretation, the Attorney General therefore takes the position that no service of process on the person who is the subject of the External Confiscation Order is necessary at the time of the application for registration of that order. As a subsidiary argument, the Attorney General contrasts the position in the United Kingdom and the Isle of Man where under their legislation, there is similarly no requirement to give notice of the application to register the External Confiscation Order in advance, but there is express provision for giving notice of the registration to any person affected by it afterwards. By contrast, Guernsey's legislation is in similar terms to the Modified Law.
5. When Crown Advocate Belhomme was pressed with the nature of the asserted disadvantage in giving the person who was subject to the confiscation order notice of the application to register that order, his answer came in two parts. First of all he said it would give such a person an opportunity to re-litigate the matter which had already been decided in the Court making the External Confiscation Order, and secondly it was unnecessary because the Attorney General was the gate-keeper in the sense that no External Confiscation Order could be registered except on the Attorney General's application.
6. The Court heard argument from Crown Advocate Belhomme on 5th November and ordered that the application should be served personally on DAJ out of the jurisdiction with a return date at 10.00 a.m. on Friday 26th November. We now give our reasons.
7. It is trite law that a Court cannot act as an appellate Court in respect of its own orders. Other than where the Court is acting in an administrative capacity, such as the administration of an oath on passing contracts for the transfer of real estate; or in a procedural or interlocutory capacity where no final order is made; or in a provisional capacity such as where an Ordre Provisoire or interim injunction is ordered, the remedy where the Court has made a final order is to proceed by way of appeal. The first question therefore is to ask what exercise the Court is performing on the registration of an External Confiscation Order.
8. The answer to this question appears to be that it is a mixed function. Sub paragraphs (a) and (b) of Article 39(1) could arguably be said to be little more than conditions precedent to the exercise of an administrative function. It seems to us that sub paragraph (c) is however of a different category. The Court has to be satisfied that enforcing the order in Jersey would not be contrary to the interests of justice. It has to reach a view on a matter of substance which, one assumes, would be capable of being argued one way or the other depending on the facts of the case.
9. It is not apparent that it would be open to any person to argue at any other stage that registration of the order in Jersey would be contrary to the interests of justice, once the External Confiscation Order has been registered. Article 17(2) allows for a reasonable opportunity to be given to persons holding any interest in the property to make representations to the Court before enforcement takes place. It seems to us that the nature of the representations which they might make are limited by the fact that the Court has already reached the view under Article 39(1)(c) that the registration of the order in Jersey is not contrary to the interests of justice. The position is not entirely clear, but it does seem that the Court has to exercise a discretion under Article 39(1) and that this is not any form of provisional exercise of discretion.
10. Crown Advocate Belhomme argued that there was an inherent power to set aside the registration at a later stage. It is not at all apparent to us that it is so. Clearly there is room to do so on the application of the slip rule, or where there is an obvious mistake on the face of the record, but there are two reasons why it seems to us that no such inherent power otherwise arises. The first is that there is nothing on the face of the statute which compares with an express power to set aside at a later date on objections being raised by the person against whom the External Confiscation Order was made. A comparator would be the position under Article 6 of the Reciprocal Enforcement of Judgments (Jersey) Law 1960 which specifically contains this provision. It is clear that under that legislation, the registration of the foreign judgment does not need to occur inter partes because there are provisions which enable that registration to be set aside. By contrast no similar provision is found in the Modified Law. Secondly, paragraph (3) of Article 39 does provide for particular circumstances where the registration of an External Confiscation Order can be cancelled. It is to be implied therefore that these are the only circumstances in which such an order can be cancelled and the provisions of this paragraph militate against any decision that there is an inherent power to set aside registration. Furthermore the provisions of paragraph (3) by application suggest that the exercise of registering an External Confiscation Order is not a provisional one. The registration is final save in so far as the Court is conferred power to cancel the registration under the terms of that paragraph.
11. That being our view of the nature of the jurisdiction involved in Article 39, the question as to whether notice should be served becomes much simpler. One starts from the principle that wherever the Court is exercising any form of final jurisdiction, the party against whom an order might be made should have the opportunity of being heard. That has always been part of our judicial process, as indeed it is part of the administrative processes as summarised in the principle of audi alterem partem. Furthermore, it is well established that confiscation orders are part of the criminal process. Under our laws, the accused is entitled to be present, subject to the obvious exceptions, at "tous les debats" - see Article 72 of the Loi (1864) Réglant sur la Procedure Criminelle. As a matter of fairness therefore, it appears to us that there is simply no doubt that notice should be given to the person who is the subject of the External Confiscation Order of an application to register it under Article 39(1). We do not find the UK and Isle of Man position particularly helpful because their legislation is entirely different. As to the Guernsey legislation, which is very similar, we were not shown any decisions of the Guernsey Courts which suggest that notice would not have to be given to the person against whom the External Confiscation Order was made before it is registered.
12. The Attorney General argued through Advocate Belhomme that the fact that Article 16 of the Modified Law required notice to be given to any person affected by the saise judiciaire after the making of the order indicated that there was no need to give notice for applications under Article 39. We do not accept that submission because it is plain that the granting of a saise judiciaire is a provisional order. The nature of these provisional orders is that they generally are obtained ex parte in order to ensure that the assets are indeed restrained, and it is entirely appropriate that any person affected by the order should have notice of it immediately thereafter so that the making of the order could if necessary be challenged. Had we considered that orders made under Article 39 were also provisional orders our decision may have been different, but, for the reasons given, that is not our view of the jurisdiction we are asked to exercise.
13. The requirement in Article 39(1)(c) to form a view as to whether enforcing the order in Jersey would be contrary to the interests of justice should not in our judgment generally lead to re-litigating the matters which have been decided by the Court in which the External Confiscation Order was first made. It is clear that that Court was seized of the issues which led to the making of the order, and it is before that Court that all the evidence would have been produced. It would, other than in exceptional circumstances, be inappropriate to anticipate the same evidence having to be produced again in the Royal Court. The rationale of these provisions is to enable the Courts of one jurisdiction to give assistance to the Courts of the original jurisdiction in order to prevent criminals benefiting from the worldwide financial system and being able to hide their proceeds of crime for their benefit. One cannot of course anticipate all factual circumstances which might arise in any hypothetical case, and it therefore would be unhelpful to go further than saying that in our view the risks of re-litigation seem to us to be small. Article 39(1)(c) requires the Court to consider the interests of justice and the starting point subject to argument to the contrary, would be that justice had been done at the time the external confiscation order was made in the court exercising that jurisdiction.
14. For these reasons, we consider that notice of the application to register the External Confiscation Order should be given.
