AG v Smith

JurisdictionJersey
CourtRoyal Court
JudgeBailiff
Judgment Date23 September 2004
Neutral Citation[2004] JRC 168A
Date23 September 2004

[2004] JRC 168A

ROYAL COURT

(Samedi Division)

Before:

M.C. St. J. Birt, Esq., Deputy Bailiff, sitting alone.

Attorney General
and
Gerald Roger Alun Smith
Defendant

and

Clearwater International Limited and Carey Olsen Trustees (Jersey) Limited
First Intervenors

and

Paul Chilcott
Second Intervenor

and

Karryn Leslie Smith
Third Intervenor

Crown Advocate C.E. Whelan on behalf of the Attorney General

Advocate N. Benest for the defendant;

Advocate W. Grace for the first intervenors;

Advocate L. Springate for the third intervenor;

The second intervenor did not appear and was not represented.

Authorities

Proceeds of Crime (Jersey) Law 1999

Proceeds of Crime (Jersey) Law 1999 (Appointed Day) Act 1999

Article 1(3) Drug Trafficking Offences (Jersey) Law 1988

Criminal Procedure (Taking Offences into Consideration) (Jersey) Rules 2000

Indictments (Jersey) Rules 1972

AG v Young (12th January 1998) Jersey Unreported; [1998/4]

Le Vannais v Island Development Committee [1987/88] JLR 662

Lesquende Limited v Planning and Environment Committee [1996] JLR 254

Representation of Mauger [2000] JLR 112

Le Monnier v AG [1989] JLR 170

In the matter of Ostroumoff [1999] JLR 238

Denny v Hodge [1973] JJ 2429

Macready v Amy [1950] JJ 11

Overseas Insurance Brokers Limited [1963] JJ 325

New Guarantee Trust Finance Ltd v Birbeck (1980) JJ 117

Criminal Justice Act 1988, as amended: ss. 72AA & 102(4)

R v Chrastny (No2) [1991] 1 WLR 1385

R v Sekhon (2003) 1 WLR 165

Phillips v Eyre (1870) LR 6 QB 1

Secretary of State v Tunnicliffe [1991] 2 All ER 712

In re Barretto [1994] QB 392

Carson v Carson [1964] 1 WLR 511

Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553

Carter v Bradbeer (1975) 1 WLR 1204

States' debate on Proceeds of Crime (Jersey) Law 1999

Halsbury's Laws Vol. 44(I) 14 th ed.

House of Commons Debates 14 th April 1993 vol. 22 col. 870

Francis Bennion ‘Statutory Interpretation’ (4 th Ed'n): s.312

AG v Batalla-Esquival (2001) JLR 160

Maxwell on Interpretation of Statutes (12 th Ed'n): p.201.

On 29th April 2004, the Defendant was sentenced to 5 years' imprisonment ( see [2004] JRC 074), following a Guilty plea, entered on 12th April 2004, to 13 counts of fraudulent conversion.

Proper interpretation of Article 3(2) of the Proceeds of Crime (Jersey) Law 1999, which relates to the Court's powers to make Confiscation Orders in criminal proceedings.

Bailiff DEPUTY
1

This application raises a short point of law concerning the proper interpretation of Article 3(2) of the Proceeds of Crime (Jersey) Law 1999 (“the 1999 Law”), which relates to the power of the Court to make confiscation orders in criminal proceedings.

The background
2

The defendant appeared before the Royal Court on 12 th April 2004 and pleaded guilty to 13 counts of fraudulent conversion. These counts showed that between March 1996 and March 2003 he converted some £1,070,625. These funds were taken from various trust and company structures he was responsible for administering. On 29 th April 2004 the defendant was sentenced to 5 years imprisonment. The issue of confiscation was postponed under provisions of the 1999 Law. Since then Clearwater International Limited (“CIL”), Carey Olsen Trustees Jersey Limited (“COT”) and Mr Paul Chilcott have been given leave to intervene on the basis that one or more of them are the victims of the defendant's fraud. They do not wish the defendant's assets to be applied towards a confiscation order; on the contrary they wish them to be applied towards repaying the amounts which have been lost by the victims. CIL and COT have initiated civil proceedings against the defendant reclaiming their losses. The defendant's wife has also been given leave to intervene in the confiscation proceedings in relation to certain assets which she contends belong to her rather than to the defendant.

3

Counts 1 to 8 of the indictment relate to offences which were committed before 1 st July 1999, which was the date upon which the confiscation provisions contained in Article 3 of the 1999 Law came into effect. All the parties are agreed that no confiscation order may be made in relation to those offences. The remaining offences (counts 9–12 and 14) took place from March 2000 onwards, i.e. after the confiscation provisions came into effect. The Attorney General asks for a confiscation order in respect of those offences.

The issue
4

So far as material, Article 3 of the 1999 Law provides:–

“Confiscation orders

  • (1) Where a defendant appears before the Court to be sentenced in respect of one or more offences specified in the First Schedule and he has not previously been sentenced or otherwise dealt with in respect of his conviction for the offence or (as the case may be) any of the offences concerned:–

    If the Attorney General asks the Court to proceed under this Article; or

    If the Court considers that, even though the Attorney General has not asked it to do so, it is appropriate for it to proceed under this Article,

    the Court may act in accordance with this Article.

  • (2) However this Article shall not apply in the case of any proceedings against any defendant where he is convicted in those proceedings of an offence which was committed before this Article comes into force.

  • (3) Where the Court is proceeding under this Article, it may first determine whether he has benefited from any relevant criminal conduct.

  • (4) If the Court determines that he has so benefited it may, before sentencing or otherwise dealing with him in respect of the offence or (as the case may be) any of the offences concerned:–

    • (a) determine in accordance with Article 4 the amount to be recovered in his case by virtue of this Article; and

    • (b) make a confiscation order, to the effect that he pay that amount……”

5

CIL and COT, to whom, for convenience, I shall refer as “the intervenors”, submit that the effect of Article 3(2) is that, because some of the offences of which the defendant was convicted were committed before Article 3 came into effect (“pre-Law offences”) no confiscation order may be made even in respect of those offences which were committed after Article 3 came into effect (post-Law offences). The Attorney General, on the other hand, submits that this interpretation would lead to absurd results and that Article 3(2) does not have this effect; it simply prohibits a confiscation order being made in respect of pre-Law offences but does not prohibit it in respect of post-Law offences contained in the same indictment.

6

The underlying reasoning for the differing interpretations can be shortly stated. The intervenors submit that the reference to ‘proceedings’ in para (2) of Article 3 means the proceedings as a whole. There is thus one set of proceedings which encompasses all the offences charged in those proceedings. The Attorney General, on the other hand, submits that ‘proceedings’ in para(2) means proceedings for a single offence, such that each offence has separate proceedings. This would then allow confiscation in respect of post-Law offences but not in respect of pre-Law offences.

The intervenors' submissions
7

Mr Grace prepared detailed and helpful submissions, both written and oral. I have carefully considered them although I propose only to summarise them briefly in this judgment. He began by drawing my attention to a passage in Re Ostroumoff (1999) JLR 238 where, at 246, the Court listed twelve propositions for the construction of statutory provisions which counsel in that case had extracted from the earlier case of New Guarantee Trust Finance Limited v Birbeck (1980) JJ 117. It is not clear how far the Court in fact approved these twelve propositions as it went on to say, immediately after the last of them at 248:–

“Overall, of course, although Advocate Dessain did not say so in so many words, it may be better for us (bearing in mind all the valuable judicial authority above) to remember what is said by Bennion in his seminal work Statutory Interpretation at 259 (1984) where he says:–

“The basic rule of statutory interpretation is that it is taken to be the legislator's intention that the enactment shall be construed in accordance with the general guides to legislative intention laid down by law; and that where these conflict the problem shall be resolved by weighing and balancing the factors concerned.””

In my judgment the twelve listed propositions are helpful but they are certainly not to be taken as exhaustive. There are a number of principles of construction which are not included in those propositions.

8

Mr Grace's primary submission was that the plain and ordinary meaning of the words in Article 3(2) was that, if any of the offences of which a defendant was convicted in the proceedings was a pre-Law offence, the confiscation powers conferred by Article 3 could not be exercised. The reference to ‘proceedings’ took its colour from paragraph (1) of Article 3 which, although not specifically saying so, effectively provided a definition of the word ‘proceedings’ and clearly referred to the proceedings as a whole. The use of the word ‘However’ at the beginning of para (2) clearly linked that paragraph to the ‘proceedings’ envisaged in para (1).

9

He accepted that there was no statutory definition of ‘proceedings’ in the 1999 Law but submitted that the interpretation which he put forward was consistent with its clear meaning elsewhere in the statute. He took me through a number of provisions of the 1999 Law in order to support this assertion. An example was Article 6(11) which reads:–

“In this Article “the date of “conviction” means:–

  • (a) …………..

  • (b) where he was convicted, in the same proceedings but on different dates, of two or more offences that are comprised in relevant criminal conduct, the date of the latest of those convictions.”

The Attorney General conceded...

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