HM Attorney General v Ian Joseph Ellis

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith O.B.E.,Jurats Olsen,Dulake
Judgment Date22 July 2019
Neutral Citation[2019] JRC 141
Date22 July 2019

[2019] JRC 141

ROYAL COURT

(Samedi)

Before:

J. A. Clyde-Smith O.B.E., Commissioner, and Jurats Olsen and Dulake

In the Matter of the Representation of her Majesty's Attorney General

And in the Matter of the Forfeiture of Assets (Civil Proceedings) Law 2018

In the Matter of Ian Joseph Ellis

Between
Her Majesty's Attorney General
Representor
and
Ian Joseph Ellis
Respondent

M. T. Jowitt Esq., Crown Advocate for the Representor.

Advocate P. G. Nicholls for the second Respondent.

Authorities

Forfeiture of Assets (Civil Proceedings) (Jersey) Law 2018.

Sophianou v Defence Committee [1987–88] JLR Notes 17a.

Civil Asset Recovery (International Co-operation) (Jersey) Law 2007.

Doraville Properties Corporation v AG [2016] (2) JLR 44.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

Proceeds of Crime Act 2002.

Proceeds of Crime (Cash Seizure) (Jersey) Law 2008.

Foster v AG [1992] JLR 6.

Income Tax (Jersey) Law 1961.

Michel v AG [2006] JLR 287.

Proceeds of Crime (Jersey) Law 1999.

Acturus v AG [2001] JLR 43.

Ahmed v HMRC (2013) EWHC 2241 (Admin).

Human Rights (Jersey) Law 2000

Forfeiture of assets

THE COMMISSIONER:
1

In this case, the Attorney General applies for an order under Article 11(4) of the Forfeiture of Assets (Civil Proceedings) (Jersey) Law 2018 (“the Forfeiture of Assets Law”) forfeiting a bank account in Jersey in the name of the respondent on the grounds that it is “ tainted property”.

2

Before setting out the facts upon which the Attorney General relies in seeking this order, it is helpful to set out the material provisions of the Forfeiture of Assets Law.

Forfeiture of Assets Law
3

Articles 10 and 11 of the Forfeiture of Assets Law provide for a “ summary procedure” for the forfeiture of accounts held at a bank in Jersey, in other words a procedure conducted with less formality for the speedy disposal of the matter. Under Article 10(1), the Attorney General may give notice to a Jersey bank account holder where the conditions set out in Article 10(2) are satisfied. Those conditions are as follows:-

“(2) The conditions mentioned in paragraph (1) are that –

  • (a) the Attorney General has reasonable grounds to believe that property held in the bank account is tainted property;

  • (b) in relation to the bank account or any property in the bank account, a consent request has been made to an authorized officer;

  • (c) an authorized officer refused the consent requested; and

  • (d) notification of the refusal was given to the person making the request at least 12 months before the date on which the notice is to be served.”

4

Tainted property” is defined under Article 2(1) as follows:-

“2 Meaning of “tainted property”

(1) For the purposes of this Law, “tainted property” means property (as further defined by paragraphs (2) to (7)) which is or, by the Attorney General or any officer on whom powers are conferred by this Law, is reasonably suspected to be or have been –

  • (a) used in, or intended to be used in, unlawful conduct; or

  • (b) obtained in the course of, from the proceeds of, or in connection with, unlawful conduct.”

5

An immediate anomaly arises, in that Article 10(2)(a) requires the Attorney General to have “ reasonable grounds to believe” that the bank Account is “ tainted property”, whereas, within the definition of “ tainted property” Article 2(1) provides for the lower test of “ reasonable suspicion” on the part of the Attorney General.Reasonable grounds to believe” requires both an honest belief and reasonable cause for that belief (see Sophianou v Defence Committee [1987–88] JLR Notes – 17a). Bearing in mind the draconian nature of this legislation, we think it right to apply the higher test of “ reasonable grounds to believe”.

6

Unlawful conduct” is defined under Article 1(1) in this way:-

“unlawful conduct” means conduct –

(a) constituting an offence against a law of Jersey; or

(b) which, if it occurs or has occurred outside Jersey, would have constituted such an offence if occurring in Jersey;”

7

The definition of “ tainted property” in the Forfeiture of Assets Law is the same as that used in the Civil Asset Recovery (International Co-operation) (Jersey) Law 2007, the parameters of which were considered by the Court in Doraville Properties Corporation v AG [2016] (2) JLR 44. Quoting from paragraphs 123 and 124 of that judgment:-

“123 The definition of ‘tainted property’ has two parts. Under the first part it means property ‘found’ to have been ‘used in, or intended to be used in, unlawful conduct’. In broad terms, this first part is concerned with property which is not necessarily the proceeds of crime but the instrumentalities of crime. The second part is concerned with property ‘found’ to have been ‘obtained in the course of, from the proceeds of, or in connection with, unlawful conduct.’ This second part is concerned with the proceeds of crime .

124 It must be the case that the first part of the definition adds something to the second part. If property ‘used in’ unlawful conduct has itself to comprise the proceeds of crime, then the first part of the definition becomes redundant. Thus in the first part of the definition, the property ‘used in’ unlawful conduct may comprise property from legitimate sources that is used in unlawful conduct.”

8

Article 10(2)(b) refers to a “ consent request” made to an authorized officer and that is defined under Article 10(3) as follows:-

“(3) For the purposes of paragraph (2)(b), a “consent request” means a request –

(i) under Article 32 of the proceeds of Crime (Jersey) Law 1999, for consent to do any act or to deal with property held in the bank Account in any way which would, apart from paragraph (3) of that Article, amount to the commission of an offence under Article 30 or 31 of that Law; or

(ii) under Article 18 of the Terrorism (Jersey) Law 2002, for consent to do anything which would, apart from paragraph (1) of that Article, amount to the commission of an offence under Article 15 or 16 of that Law ,

made by a person making a disclosure in accordance with either of those Articles.”

9

Article 10(4) provides that notice shall be by way of representation and shall be served on both the holder of the bank account and the bank at which the account in question is held. It must specify the property in the bank account which in the opinion of the Attorney General is tainted property and give the holder of the account a time to attend before the Court to show cause why the property so specified is not tainted property and should not be forfeited.

10

Under Article 11(1), if the account holder fails to attend the hearing as required by the notice, the Attorney General can apply forthwith for a forfeiture order, but if the account holder appears, then Article 11(2) (3) and (4) set out the procedure to be followed in this way:-

“(2) If the respondent appears (whether in person or by a legal representative) at the hearing, the respondent may –

  • (a) at the hearing, satisfy the Court that the property is not tainted property or

  • (b) request that the question of whether or not the property is tainted property be determined at such later date as the Court may order .

(3) If the respondent makes a request under paragraph (2)(b), the respondent must provide an affidavit in answer to the notice within the period of 21 days beginning with the date on which the matter is placed on the list, satisfying the court that the property is not tainted property .

(4) Unless the respondent satisfies the court that the property is not tainted property, the court shall, upon the application of the Attorney General, make a forfeiture order in relation to the property specified in the notice or any part of it.”

11

Article 26 of the Forfeiture of Assets Law provides that proceedings under this part of the Law are civil proceedings and any issue in such proceedings shall be determined on the balance of probabilities. Article 29(4) provides that the Attorney General shall not be liable in costs for any proceedings under the Forfeiture of Assets Law, except where it is shown that the proceedings were commenced or (having been lawfully commenced) were continued in bad faith. That means that absent proving bad faith on the part of the Attorney General, the cost to the account holder of defending such a notice may become disproportionate to the amounts involved in the case of bank accounts with modest sums.

Procedure in this case
12

In this case, the Attorney General served a notice on the respondent by way of representation under Article 10 on the 3 rd December, 2018, and required the respondent to attend upon the Court on the 1 st February, 2019, to show cause why his account (“the Account”) at Standard Chartered Bank, Jersey branch (“the Bank”) with a balance of £33,804.52, should not be forfeited. Appended to the notice is the information upon which the Attorney General based the application, comprising a Summary of the Facts and the relevant supporting documentation. That was comprised within an affidavit sworn by Ms Charlotte Compton of the Law Officer's Department dated 21 st November, 2018, in support of an application for leave to serve the notice upon the respondent outside the jurisdiction of Jersey.

13

The respondent, who now lives in Cyprus, appeared through counsel on 1 st February, 2019, and it was agreed that the matter would be adjourned to be determined at a later date. The respondent complied with his obligations under Article 11(3) by filing an affidavit dated 28 th February, 2019.

14

At a directions hearing on 22 nd May, 2019, the Court refused an application by the Attorney General to order the respondent to attend the hearing in order to be cross-examined on the basis that no precedent in civil proceedings for such an order had been produced and refused the...

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3 cases
  • The Attorney General v Ian Joseph Ellis
    • Jersey
    • Court of Appeal
    • 1 June 2020
    ...General Advocate P. G. Nicholls for the Respondent. Authorities Forfeiture of Assets (Civil Proceedings) (Jersey) Law 2018. AG v Ellis [2019] JRC 141. Ahmed v HMRC [2013] EWHC 2241 (Admin) AG v Ellis [2019] JRC 219. Court of Appeal (Jersey) Law 1961 AG v Ellis [2019] JRC 220. Crociani v. C......
  • The Attorney General v Ian Joseph Ellis
    • Jersey
    • Royal Court
    • 31 October 2019
    ...Ian Joseph Ellis Respondent Advocate M. T. Jowitt for the Representor. Advocate P. G. Nicholls for the Respondent. Authorities AG v Ellis [2019] JRC 141. Forfeiture of Assets (Civil Proceedings) (Jersey) Law 2018. Ahmed v HMRC [2013] EWHC 2241 (Admin). R v Waya [2012] UKSC 51. Proceeds of......
  • HM Attorney General v Ian Joseph Ellis
    • Jersey
    • Royal Court
    • 24 November 2020
    ...General. The Respondent was not present or represented. Authorities Forfeiture of Assets (Civil Proceedings)(Jersey) Law 2018. AG v Ellis [2019] JRC 141. AG v Ellis [2019] JRC 219. Ahmed v HMRC [2013] EWHC 2241 (Admin) AG v Ellis [2020] JRC 098. Forfeiture of assets THE COMMISSIONER: 1 Thi......

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