Acturus Properties Ltd and 47 Others v HM Attorney General

JurisdictionJersey
CourtRoyal Court
JudgeBailiff
Judgment Date12 January 2001
Neutral Citation[2001] JRC 10
Date12 January 2001

[2001] JRC 010

ROYAL COURT

(Samedi Division)

Before:

M.C. St. J. Birt, Esq., Deputy Bailiff & Jurats Rumfitt and Allo

In the matter of Notices issued to Sefta Financial Services Limited under the Investigation of Fraud (Jersey) Law, 1991

Between
Acturus Properties Ltd and 47 Others
Representors
and
H.M. Attorney General
Respondent

Advocate A. Clarke for the Representors

Crown Advocate J.A. Clyde-Smith for the Respondent

AUTHORITIES.

In re McMahon & Probets (1993) JJ 35 .

Investigation of Fraud (Jersey) Law 1991.

Royal Court Rules 1992: Rule 12A.

McMahon and Probets -v- Attorney General (1993) JLR 108 .

R -v- Director of Serious Fraud Office ex p Smith (19th December 1991) Unreported Judgment of the Divisional Court.

R. -v- Director of the SFO ex p Johnson (12th January 1992), Unreported Judgment of the Divisional Court.

Bassington -v- H.M. Procureur (2nd December 1998) Unreported Judgment of the Guernsey Court of Appeal.

R. -v- Central Criminal Court and the Home Secretary ex p Propend Finance Property Limited (1996) 2 Cr. App. R 26 .

R. -v- Home Secretary ex parte Fininvest S.p.A. (1996) 1 WLR 743 .

In re Sheikh Mahfouz (17th February 1994) Jersey Unreported .

Barclays Bank Plc -v- Taylor (1989) 3 All ER 563 .

De Smith's Judicial Review of Administrative Action (4th Ed'n): page 286.

Re: Attorney General of the Isle of Man (1997/98) 1 OFLR 419 .

Planning & Environment Committee -v- Lesquende Limited (1998) JLR 1 C of A .

Counsel of Civil Service Unions -v- Minister for the Civil Service (1984) 3 All ER 935 .

Associated Provincial Picture Houses Ltd v Wednesbury Corp. (1947) 2 All ER 680 , (1948) 1 KB 223.

Gouriet -v- Union of Post Office Workers (1978) AC 435 .

R -v- Attorney General ex p Ferrante (6th July 1994) Unreported Judgment of the High Court of England.

R -v- Solicitor General ex p Taylor (1995) 8 Admin Law Reports 206 .

A.G. -v- Hall (1995) JLR 102 .

Knight -v- Thackeray's Limited (1997) JLR 279 .

IRC v Rossminster Limited (1980) AC 952 .

R v Inland Revenue Commissioners Ex p TC Coombs & Co. (1991) 2 AC 283 .

R. v. Commissioners of Inland Revenue Ex p. Banque Internationale Luxembourg S.A. (23rd June 2000) Unreported Judgment of the High Court of England.

Ahluwalia v. Employment & Social Security Committee (27th July 2000) Jersey Unreported .

Conway -v- Rimmer (1968) AC 910 .

Bertoli v. Malone (1990–91) CILR 58

Bertoli v. Malone (22nd April, 1991) Unreported Judgment of the Judicial Committee of the Privy Council.

European Convention on Human Rights: Article 1 of Protocol 1; Article 6(1).

R v. Ministry of Defence ex p. Smith (1996) QB 517 .

Saunders -v- UK (1996) 23 EHRR 313 .

The decisions of the Attorney General taken pursuant to Article 2 or Article 3 of the 1991 Law are subject to judicial review on the traditional grounds of illegality, irrationality or procedural impropriety;

However, as the power is invoked in connection with a criminal investigation, the Attorney General is not required to give reasons for his determination that his power exists or for the manner in which he has chosen to exercise the power and public interest immunity provides justification for any refusal on his part to do so.

A presumption of regularity applies to the exercise of the Attorney General's powers under the law. The onus lies on an applicant to produce evidence of facts which cannot be reconciled with there having been reasonable grounds for the Attorney General's belief that he should exercise the relevant power under the 1991 Law or alternatively which cannot be reconciled with his having held such belief at all.

Whilst it is always open to Attorney General to consult with Home Office, Court holds that, under Jersey law, there is no duty on the Attorney General to consult with the Home Secretary before he exercises his powers under the 1991 Law to give assistance to a foreign jurisdiction.

The evidence produced in this case by the Representors comes nowhere near the level required to call the Attorney General's exercise of his powers into question

Attorney General is entitled, as a matter of law, to assume the correctness of what he is told and is under no duty to request sight of the evidence upon which the information in the letter of request is based.

Article 6(1) of European Convention on Human Rights of no application at this stage: proceedings are not at stage of a criminal prosecution. This is merely an investigation which may or may not lead to a prosecution in South Africa.

A notice under the 1991 Law does not, as a matter of law, have to say who is under investigation and, therefore, an incomplete description of the person who is under investigation cannot invalidate the notice but recommends that, save where there is good reason to do otherwise, the name of the person(s) under investigation should continue to be included but merely as a matter of good practice, not a requirement of law.

Bailiff

THE DEPUTY

1

In In re McMahon & Probets (1993) JJ 35, the Royal Court held that the exercise of the Attorney General's powers under the Investigation of Fraud (Jersey) Law 1991 (“the 1991 Law”) was not subject to judicial review on the conventional grounds but only on certain narrower grounds spelt out in the judgment. Amongst other issues, this case raises the question of whether the Court should follow the decision in McMahon.

The 1991 Law
2

The relevant provisions of the 1991 Law are as follows:–

“ARTICLE 2

Attorney General's Powers of Investigation

  • (1) The powers of the Attorney General under this Article shall be exercisable in any case in which it appears to him that –

    • (a) there is a suspected offence involving serious or complex fraud, wherever committed; and

    • (b) there is good reason to do so for the purpose of investigating the affairs, or any aspect of the affairs, of any person.

  • (2) The Attorney General may by notice in writing require the person whose affairs are to be investigated (“the person under investigation”) or any other person who he has reason to believe has relevant information to answer questions or otherwise furnish information with respect to any matter relevant to the investigation at a specified place and either at a specified time or forthwith.

  • (3) The Attorney General may by notice in writing require the person under investigation or any other person to produce at such place as may be specified in the notice and either forthwith or at such time as may be so specified any specified documents which appear to the Attorney General to relate to any matter relevant to the investigation or any documents of a specified description which appear to him so to relate; and

    • (a) if any such documents are produced, the Attorney General may –

      • (i) take copies or extracts from them;

      • (ii) require the person producing them to provide an explanation of any of them;

    • (b) if any such documents are not produced, the Attorney General may require the person who is required to produce them to state, to the best of his knowledge and belief, where they are.

ARTICLE 3

Disclosure of information

(3) Subject to paragraph (1) and to any provision of an agreement for the supply of information which restricts the disclosure of the information supplied, information obtained by the Attorney General or any person duly authorised under paragraph (10) of Article 2 may be disclosed –

  • (a) to any person or body for the purposes of any investigation of an offence or prosecution in the Bailiwick or elsewhere; and

  • (b) to any competent authority”.

The Factual Background
3

The relevant facts are, for the most part, not in dispute. The Representors are companies incorporated in the British Virgin Islands with the exception of the fourteenth and forty-fifth Representors, which are Jersey trusts, and the thirty-third and thirty-fourth Representors, which are companies incorporated in Jersey. Sefta Financial Services Limited (“Sefta”) is a Jersey company carrying on business in Jersey as a trustee and company administrator. At the relevant time it was acting as administrator of the Representors.

4

On 18th April 2000 the Attorney General received a faxed copy of a letter of request from the Investigating Directorate: Serious Economic Offences, National Prosecuting Authority of South Africa (“IDSEO”). The letter sought the assistance of the Attorney General in connection with a criminal investigation which was in progress in South Africa. The Attorney General has not produced the letter of request on the grounds that it contains information which, if disclosed, could prejudice the investigation. He has however sworn an affidavit setting out certain of the information made available to him in the letter of request and what follows is taken substantially from his affidavit.

5

The letter of request disclosed that IDSEO was investigating allegations of fraud and theft allegedly committed by a group of companies known as the Wheels of Africa Group (“WOA”), the majority of which were incorporated in the Republic of South Africa, Botswana or the British Virgin Islands. The principal activity of WOA was the importing, assembling, distributing and selling of Hyundai and Volvo vehicles in South Africa. In December 1999/January 2000 the majority of WOA companies registered in South Africa and Botswana went into liquidation with considerable debts. The business activities of WOA were structured in a complicated manner but essentially the BVI companies placed orders with Korea and Sweden for vehicle units, which were sold on to Botswana, where there were assembly plants. They in turn sold on to the Republic of South Africa. Companies in all three jurisdictions raised loans and banking facilities.

6

In essence the frauds...

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