High Court Judge Shawn Innocent has “set aside” a ruling issued by a local magistrate for a detention order and a continued detention of a sum of cash seized by the police from three individuals, more than 10 years ago.
On May 26, 2010 law enforcement officers from the Royal St Lucia Police Force [RSLPF] arrested and charged Peter Hippolyte, Michael Augustin and Martinus Alexander as suspects in a case involving the offence of unlawful possession contrary to section 441 of the Criminal Code.
At the time, it is reported that police had made a ‘significant cash seizure’ and the confiscated money remained in the custody of law officers until April 24, 2019.
Moving forward to December 31, 2018 the Director of Public Prosecutions (‘DPP’) withdrew the indictment against the claimants and the criminal proceedings were discontinued.
On April 25, 2019 the police made an application to the magistrate to continue holding the cash that had been seized previously. One day later, on April, 26 the magistrate ordered that the police continue holding onto the cash seized for a period of three months.
On April 30, 2019 the claimants filed an application before the magistrate who had granted the continued detention order, to declare the magistrate’s order as “ a nullity and that the seized cash (the ‘property’) be released to the claimants.”
The claimants were represented by Counsel Horace Fraser; while appearing for the defendant Magistrate Bertlyn Reynoldswere Seryozha Cenac, Senior Crown Counsel, and George K. Charlemagne, Crown Counsel, Attorney General’s Chambers.
Subsequently, this application was opposed and was heard before the magistrate on July 26, 2019. At the conclusion of the hearing, the magistrate reserved her decision to 23rdAugust 2019, and the detention order was continued until that date.
In her delivery, on 23rd August 2019, the magistrate dismissed the claimants’ application, stating that , the magistrates’ court had jurisdiction to continue with the process of civil detention having made a detention order on 26thApril 2019. The magistrate made a further order for the continued detention order for a period of three months.
On February 16, 2022 the claimants filed for a judicial review, by virtue of which they sought the following declarations and orders, that included the following points – a declaration that the magistrate’s decision of 26th April 2019 granting a detention order…was unlawful and ultra vires the provisions of section 29A of the Proceeds of Crime Act as amended by the Proceeds of Crime (Amendment) Act, No.14 of 2013 (‘POCA’); a declaration that the decision of the magistrate was irrational; a declaration that the continued detention order made by the magistrate on 26th April 2019 and continued and extended on19th August 2019 was null, void and without legal effect; and a declaration that the magistrate had no jurisdiction to grant the detention order.
In a nutshell, the Attorney General argued that the Financial Intelligence Authority [ FIA] was authorised by the provisions of section 29A of the POCA to seize cash suspected to be the proceeds of criminal conduct and to make the necessary application to the magistrates’ court for the continued detention of property seized.
Notably , in handing down judgment , the high court judge stated that during the period 5th December 2013 and 25th April 2019 there was “no application made by a police officer in their capacity as a financial investigator of the FIA for the detention of the property pursuant to section 29A of the POCA on account of the same having been seized by them”.
Summing up the matter, the judgment states , “Therefore, it is the court’s view that the continued detention and seizure of the property by the police during the period December 31st 2018 and 25th April 2019 was unlawful being contrary to the dictates of section 29A(2) of the POCA.”
The judgment adds that, Fraser’s complaint was that the property was unlawfully in the possession of the police after 31st December 2018 and therefore, there was no justification for the retention of the property by the police after that time.
Said Judge Innocent: “It seems that the magistrate mistakenly or erroneously imported the reasoning in the case law as it pertained to PACE in arriving at her decision as to the lawfulness of the continued detention of the property by the police subsequent to 31st December 2018”.
The judge added that, it was on this basis that the court accepts Fraser’s argument.
The Attorney General’s argument was that the property was seized by an entity other than the RSLPF, in this case the FIA. The court found this to be a wholly misconceived and fallacious argument which seemingly flouts the operation of the provisions of sections 5 to 8 of the MLPA.
However , Judge Innocent deduced that , “Taken to its logical conclusion, the argument made out on behalf of the claimants, suggested that the actions of the police were not only arbitrary but also capricious to the extent that the police, being well aware of the claimants’ possessory title to the property and their unlawful detention of it, took active steps towards its re-seizure and eventual forfeiture, seemingly in an effort to frustrate any claim that the claimants may have had to secure its return to them”.
In the court’s view, said the judge, “the learned magistrate erred in law when she found that the property was lawfully detained by the police authorities”.
Judge Innocent noted: “Therefore, in light of the court’s findings contained in this judgment, the magistrate’s decision of 25th April 2019 and 19th August 2019 granting a detention order and a continued detention order respectively is set aside.”
In addition , the high court ruled that , Costs to be awarded to the claimants will be assessed in accordance with CPR 65.11 and 65.12 “unless agreed between the parties within 21 days of the date of this judgment.”
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