Re O'Brien

CourtRoyal Court
JudgeBailhache, Bailiff
Judgment Date07 January 2003
Date07 January 2003
Bailhache, Bailiff

R. Da S. Tremoceiro for the defendant;

A.J. Belhomme, Crown Advocate for the Attorney General.

Cases cited:

(1) Att. Gen. v. Kenward, 2000 JLR N-59, followed.

(2) Barham, Re, [1995] C.L.Y. 1198, not followed.

(3) Customs & Excise Commrs. v. Norris, [1991] 2 Q.B. 293; [1991] 2 All E.R. 395, not followed.

(4) Peters, Re, [1988] Q.B. 871; [1988] 3 All E.R. 46, not followed.

Additional cases cited by counsel:

Armco Inc. v. Donohue, 1998 JLR N-12.

L (Restraint Order: Legal Costs), In re, The Times, July 10th, 1996.

Legislation construed:

Drug Trafficking Offences (Jersey) Law 1988, art. 3:

"(3) For the purposes of this Law, a person who has at any time . . . received any payment . . . in connexion with drug trafficking . . . has benefited from drug trafficking.

(4) If the Court determines that he has so benefited, the Court may, before sentencing . . . determine . . . the amount to be recovered in his case . . ."

art. 9: The relevant terms of this article are set out at para. 14.

art. 16A(1), as added by the Drug Trafficking (Miscellaneous Provisions) (Jersey) Law 1996:

"A person is guilty of an offence if he—

(a) conceals or disguises any property which is, or in whole or in part directly or indirectly represents, his proceeds of drug trafficking; or

(b) converts or transfers that property or removes it from the jurisdiction,

for the purpose of avoiding prosecution for a drug trafficking offence or the making or enforcement in his case of a confiscation order."

Texts cited:

Fortson, The Law on the Misuse of Drugs & Drug Trafficking Offences, 2nd ed., paras. 12-145-12-146, at 260-261; paras. 12-157-12-159, at 264-265; para. 12-160, at 265 (1992).

Civil Procedure, Autumn 2002, O.115, sc115.4.3, at 1715.

Criminal Law—drugs—proceeds of trafficking—saisie judiciaire—primary purpose of Drug Trafficking Offences (Jersey) Law 1988, art. 16A(1)(b) to recover proceeds of drug trafficking—legal costs, living allowance, medical and travel expenses not automatically available to defendant—analogous English legislation of limited value in helping court exercise discretion

Criminal Law—drugs—proceeds of trafficking—saisie judiciaire—analogous to declaration en désastre—may be discharged or varied in relation to property vested in Viscount on application of defendant at any time—distinct from Mareva injunction as court believes defendant benefited from crime, only available to Attorney General and kept under continuous review

The defendant sought the variation of a saisie judiciaire vesting his realisable property in the Viscount.

The defendant, an English resident, had been convicted and imprisoned for various drug-related offences in England. He was then charged in Jersey with transferring the proceeds of criminal conduct into accounts in the Island contrary to art. 16A(1)(b) of the Drug Trafficking Offences (Jersey) Law 1988, as amended.

The court imposed a saisie judiciaire, vesting his realisable property in the Island (valued at £1,288,126) in the Viscount. The defendant admitted receiving £180,000 from drug trafficking but claimed that £1m. of the seized assets had been obtained by legitimate means. He sought the variation of the saisie judiciaire to pay (a) a monthly allowance to him of £800; (b) his travel costs from England to attend hearings in Jersey; (c) his legal costs; and (d) the cost of an eye examination and spectacles.

The defendant submitted that (a) on an application for the release of certain sums for specific purposes, a saisie judiciaire attracted similar considerations to a Mareva injunction; (b) although the entire fund preserved by the restraint order was required to meet the confiscation order, neither order would survive if it was shown that the property was obtained by legitimate means, and it was therefore appropriate to release sufficient funds to allow him to do so; and (c) it was appropriate to release the funds in this case because (i) his current expenditure, which exceeded his income, was supported by his family and it was inappropriate for the court to force them to support him further; (ii) as a matter of principle, he should be allowed to spend his own money on litigation rather than be legally-aided; and (iii) the projected legal costs were reasonable and would be controlled.

The Crown submitted in reply that (a) the saisie judiciaire, like the restraint order under analogous English legislation, was intended to prevent the defendant disposing of illegally-obtained assets prior to conviction, rendering a potential confiscation order nugatory; (b) although the defendant was entitled to maintain himself and his family, within reasonable limits from the resources available to him, the anticipatory discharge of liabilities which arose only after conviction was contrary to the underlying purpose of the Act; and (c) the court was therefore to balance the defendant's reasonable financial needs against the need to keep the assets available to satisfy a potential confiscation order.

Held, allowing the appeal:

(1) Although the primary purpose of the Drug Trafficking Offences (Jersey) Law 1988, art. 16A(1)(b), as amended, was identical to that of the English legislation, i.e. to recover the proceeds of drug trafficking and prevent a defendant enjoying his ill-gotten gains once he had served a period of imprisonment, the Jersey Law did not expressly provide for the payment of legal fees or living expenses and therefore (a) there was no automatic expectation that legal expenses or a living allowance were available to the defendant; and (b) the English legislation was of limited assistance when considering how the court should exercise its discretion ( paras. 13-15).

(2) It was not appropriate for the court in the current application to adopt the approach taken in relation to a Mareva injunction, because the saisie judiciaire (a) was made when the court believed the defendant had benefited from serious criminality; (b) vested the defendant's property in the Viscount; (c) could only be obtained by the Attorney General, the principal law officer of the Crown; and (d) was kept under continuous review to ensure that no injustice was being perpetrated. It was more appropriate to draw an analogy between the saisie judiciaire and a declaration en désastre, which could be discharged or varied in relation to any property on the application of the defendant at any time ( paras. 16-18).

(3) No prejudice would be caused to the defendant by refusing to vary the saisie judiciaire to allow his legal expenses to be paid as (a) in Jersey, advocates subject to the tour de rôle had a legal obligation to defend a person without the means to pay for his own representation and such representation had already been organized; (b) if it were established that all or part of the property was obtained legitimately, the saisie judiciaire would be varied or revoked to allow the defendant to meet the costs of his legal representation; (c) if it were not, the defendant's legal advisers would be in no worse position than if he had been, at all times, completely impecunious; and (d) the prospect that property which potentially represented the proceeds of drug trafficking should be used to pay the defendant's legal costs was unappealing ( paras. 20-23).

(4) Moreover, the saisie judiciaire would not be varied to provide a monthly allowance and meet the cost of optical treatment as (a) the defendant, who was capable of work, had provided insufficient reason for not working; (b) for some considerable time he had not applied to vary the saisie judiciaire to release the assets which he claimed he had earned by legitimate means, even though there was no reason why this application, which was the proper approach to the defendant's difficulty, could not be made; (c) if the seized assets were the proceeds of drug trafficking, there was no reason to enable him to use the tainted money for his own purposes; and (d) he had not demonstrated that undue hardship would result. However, as the defendant was required to stay in England by the licence under which he was released from prison, it was reasonable to release funds to reimburse the expense of attending court in Jersey ( paras. 26-30; paras. 31-32).

1 BAILHACHE, BAILIFF: This is a representation of Michael O'Brien ("the defendant") in relation to a saisie judiciaire imposed by the court on October 6th, 2000. The effect of the saisie judiciaire was to vest in the Viscount all the defendant's realisable property in the Island. The representation seeks a variation of the saisie judiciaire so as to direct...

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