The Representation of Batalla-Esquival

JurisdictionJersey
CourtRoyal Court
JudgeBailhache, Bailiff
Judgment Date02 March 2001
Date02 March 2001
ROYAL COURT
Bailhache, Bailiff

M.P.G. Lewis for the representor;

A.J. Belhomme for the Attorney General.

Cases cited:

(1) Illinois Dist. Ct., In re, 1995 JLR N-10, considered.

(2) S-L, Re, [1996] Q.B. 272; [1995] 4 All E.R. 159, followed.

Additional case cited by counsel:

JL, In re, [1994] T.L.R. 241.

Legislation construed:

Drug Trafficking Offences (Designated Countries and Territories) (Jersey) Regulations 1997 (R. & O. 9148), Third Schedule, art. 3(3): The relevant terms of this paragraph are set out at para. 6.

art. 8(1): The relevant terms of this paragraph are set out at para. 5.

Drug Trafficking Offences (Jersey) Law 1988, art. 8(1)(c), as modified by the Drug Trafficking Offences (Designated Countries and Territories) (Jersey) Regulations 1997 (R. & O. 9148), Second Schedule, art. 5(a)(ii): The relevant terms of this sub-paragraph are set out at para. 14.

art. 8(3), as modified by the Drug Trafficking Offences (Designated Countries and Territories) (Jersey) Regulations 1997 (R. & O. 9148), Second Schedule, art. 5(c): The relevant terms of this paragraph are set out at para. 17.

art. 9(1), as modified by the Drug Trafficking Offences (Designated Countries and Territories) (Jersey) Regulations 1997 (R. & O. 9148), Second Schedule, art. 6(a): The relevant terms of this paragraph are set out at para. 14.

Text cited:

Maxwell on Interpretation of Statutes, 12th ed., at 201 (1969).

Criminal Lawdrugsproceeds of traffickingsaisie judiciairemay grant saisie over realizable property under Drug Trafficking Offences (Designated Countries and Territories) (Jersey) Regulations 1997, Third Schedule, art. 8(1), whether relevant foreign proceedings in rem or in personamdefinition of "defendant" as person in art. 3(3) not exclusive and defendant not limited to persons for purposes of art. 8(1)

Criminal lawdrugsproceeds of traffickingsaisie judiciairemay grant saisie under Drug Trafficking Offences (Designated Countries and Territories) (Jersey) Regulations 1997, Third Schedule, art. 8(1)(c), where reasonable grounds for believing external confiscation order may be made in foreign proceedingsimmaterial that foreign court's jurisdiction to make order dependent upon saisie already having been granted

The representor sought to set aside a saisie judiciaire of property in which he had an interest.

The Attorney General applied for a saisie judiciaire in respect of the defendant's realizable property pursuant to the Drug Trafficking Offences (Designated Countries & Territories) (Jersey) Regulations 1997, on the grounds that proceedings were to be instituted against property of the defendant in the United States and an external confiscation order might be made. Under US law, however, the US court would only have jurisdiction to make such an order over the Jersey assets if they had first been made subject to a saisie judiciaire by the Jersey court, thereby bringing them within the US court's constructive control. A saisie judiciaire was granted on February 8th, 2000, pursuant to the court's powers under art. 8(1)(c) of the Third Schedule to the Regulations and the Viscount was ordered to take possession of all of the defendant's realizable property.

The order related to, inter alia, 16 bank accounts, which the representor claimed had been settled under Jersey trusts. He further claimed to be beneficially interested in 12 of the bank accounts and in all but one of the trusts. At the time of the present representation, no proceedings had been instituted in the United States.

The representor submitted that the order should be set aside on the grounds that (a) the court only had jurisdiction to grant a saisie judiciaire under art. 8(1) where proceedings had been, or were to be, instituted against a "defendant in the designated country" and, as art. 3(3) of the Third Schedule to the 1997 Regulations defined a defendant as a being a "person," such an order could not be made where the foreign proceedings were in rem, as in this case; (b) the court did not have jurisdiction where the foreign court's jurisdiction to issue an external confiscation order depended upon the issuance of the saisie judiciaire and had no independent basis; and (c) there had been an unreasonable delay in the bringing of the US proceedings and the order should therefore be discharged pursuant to art._8(3) of the Drug Trafficking Offences (Jersey) Law 1988.

Held, refusing to set aside the order at present but adjourning the proceedings for other parties to be convened:

(1) The court had jurisdiction to grant a saisie judiciaire whether the foreign proceedings were in rem or in personam. The purpose of the legislation was to reduce drug trafficking and it was undesirable for the court to adopt a restrictive view. Although art. 3(3) of the Third Schedule to the 1997 Regulations defined a "defendant" as a person, it was not an exclusive definition and did not operate so as to prevent art. 8(1) from applying to proceedings in rem ( paras. 8-10; para. 13).

(2) Furthermore, the fact that the US court's jurisdiction relied upon the fact that a saisie judiciaire had already been granted by the...

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8 cases
  • Attorney General v Smith
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    ...was not represented. Cases cited: (1) Att. Gen. v. Young, 1998 JLR 22, dicta of Le Quesne, Commr. applied. (2) Batalla-Esquival, In re, 2001 JLR 160, observations of Bailhache, Bailiff followed. (3) Carter v. Bradbeer, [1975] 1 W.L.R. 1204; [1975] 3 All E.R. 158, dicta of Lord Diplock appli......
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