Assets Recovery Agency (ex parte) (Jamaica)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hughes |
| Judgment Date | 19 January 2015 |
| Neutral Citation | [2015] UKPC 1 |
| Date | 19 January 2015 |
| Docket Number | Appeal No 0036 of 2014 |
| Court | Privy Council |
[2015] UKPC 1
Lord Clarke
Lord Reed
Lord Carnwath
Lord Hughes
Lord Hodge
Appeal No 0036 of 2014
Privy Council
From the Court of Appeal of Jamaica
Appellant
Michael Hylton QC Sundiata Gibbs
(Instructed by Sheridans)
Advocate (Pro Bono)
Tana'ania Small Davis
Heard on 2 December 2014
The relatively new Jamaican Proceeds of Crime Act 2007 contains in Part VI provision for specific evidence-gathering orders which may be made by a judge on the application of police and other investigators in defined circumstances. In the present case, the judge and the Court of Appeal have both refused an application by the Assets Recovery Agency for a customer information order ("CIO") pursuant to sections 119–125. The Agency appeals to Her Majesty.
If granted, a CIO is directed to a financial institution, such as a bank, building society or investment manager. It requires the institution to divulge to the prosecution personal information about its customer, such as his name, address, taxpayer's registration details and the like. Other related orders include account monitoring orders (section 126), which direct a financial institution to divulge the transactions on a customer's account, disclosure orders (section 105), which require any named person to produce specified information or material to the investigator, and search and seizure orders (section 115), which may be made to reinforce a disclosure order which has not been obeyed.
These various orders may be applied for by police officers, customs officers, or officers of the Assets Recovery Agency in aid of specific investigations. Section 103 defines them. They are:
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(i) a "forfeiture investigation", which means an investigation into:
"(a) whether a person has benefited from his criminal conduct; or
(b) the extent and location of a person's benefit from his criminal conduct;"
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(ii) a "money-laundering investigation", which is an investigation into:
"whether a person has committed a money laundering offence;"
and
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(iii) a "civil recovery investigation", which means an investigation into:
"(a) whether property is recoverable property or associated property;
(b) who holds the property; or
(c) the extent or whereabouts of the property."
These three types of investigation reflect the three principal areas of statutory provision contained in the Proceeds of Crime Act 2007.
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(i) The Act provides, firstly, for orders which may be made against a convicted criminal after his conviction. In this Act, those may take two forms. One is a "forfeiture order" which is an order for the seizure of identified property which represents the defendant's benefit from his crime (see section 5(3)(a)). The second is a "pecuniary penalty order", which is an order for the payment, out of any available assets held by the defendant, of a sum equal to the value of his benefit from his crime (see section 5(3)(b) and the definition in section 2(1)). It is to be noted that a "forfeiture investigation", as defined in section 103, covers an investigation with a view to either of these two forms of order.
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(ii) Secondly, the Act provides for civil recovery orders, which are orders for the seizure of specific, identified property which is the product of crime; civil recovery orders may be made against any person in possession of the property and independently of any prosecution for that crime (see section 55 and following). The present case is not concerned with civil recovery.
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(iii) Thirdly, the Act creates specific criminal offences of money laundering, that is to say of doing, with the prescribed state of mind, specified acts in relation to criminal property (see section 92 and following).
The conditions for making a CIO are set out in section 121, which provides:
"121. The requirements for making a customer information order are that —
(a) in the case of a forfeiture investigation, there are reasonable grounds for believing that the person specified in the application for the order has benefited from his criminal conduct;
(b) in the case of a civil recovery investigation, there are reasonable grounds for believing that —
(i) the property specified in the application for the order is recoverable property or associated property; and
(ii) the person specified in the application holds all or some of the property;
(c) in the case of a money laundering investigation, there are reasonable grounds for believing that the person specified in the application for the order has committed a money laundering offence;
(d) in the case of any investigation, there are reasonable grounds for believing that customer information which may be provided in compliance with the order is likely to be of substantial value, whether or not by itself, to the investigation for the purposes of which the order is sought; and
(e) in the case of any investigation, there are reasonable grounds for believing that it is in the public interest for the customer information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained."
The application in the present case was manifestly defective in a number of ways: see below. The Court of Appeal dismissed the appeal against the judge's refusal to make the order, in part for this reason. As will be seen, the Board is of the clear view that there can be no complaint about this part of the decision in the Court of Appeal. However, in dismissing the appeal, the Court of Appeal also held, inter alia, that:
It is these propositions of general application which have been the subject of examination before the Board, which has had the advantage of submissions by Mr Hylton QC on behalf of the Agency which were clearly very different from those made to the courts below. It has also been much assisted by cogent submissions by Ms Small Davis, appearing pro bono as amica curiae.
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(i) before a CIO could be made in aid of a money-laundering investigation it was necessary that there should have been a conviction of somebody for the antecedent (or "predicate") offence which had caused the property to be criminal property; and
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(ii) further, before a CIO could be made in aid of a money-laundering investigation, it was necessary that the person whose details were sought should be "proved to have some connection with" the criminal property which he was said to have laundered; and
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(iii) before a CIO could be made in aid of a forfeiture investigation it was necessary that there should have been the conviction of the defendant in respect of whom the investigation was being made.
The Proceeds of Crime Act 2007 creates new substantive offences of money laundering. They are contained in sections 92–93. Under both sections, the offences created consist of doing specified acts (with the prescribed state of mind) in relation to "criminal property". In turn, "criminal property" is defined in section 91(1)(a) as follows:
"91 (1) For the purposes of this Part —
(a) property is criminal property if it constitutes a person's benefit from criminal conduct or represents such a benefit, in whole or in part and whether directly or indirectly (and it is immaterial who carried out or benefitted from the conduct);"
This definition therefore depends in part on the meaning of the expression "criminal conduct", for which one turns to section 2, where it is defined as follows:
"'criminal conduct' means conduct occurring on or after the 30th May, 2007, being conduct which —
(a) constitutes an offence in Jamaica;
(b) occurs outside of Jamaica and would constitute such an offence if the conduct occurred in Jamaica;"
There can be no doubt that this means that before a substantive offence of money laundering can be committed, there must have been an antecedent (or "predicate") offence committed by someone, which generated the criminal property concerned. The antecedent offence might of course be one of several different types. Fraud, drug trafficking, smuggling and the management of prostitution are no doubt common kinds of offence which generate money benefits which fall within the definition of criminal property, but there are also many others. So, for a prosecution for a substantive money laundering offence to succeed, the Crown must prove that such an antecedent offence was committed by somebody. The House of Lords so held in relation to similar earlier English legislation in R v Montila [2004] UKHL 50; [2004] 1 WLR 3141.
It does not, however, follow that for a defendant to be convicted of a substantive offence of money laundering, there must have been a conviction for the antecedent offence. What has to be proved is that an antecedent offence was committed, not that a conviction followed. It may quite often happen that there has been no conviction, for example if the antecedent offender has died before he could be prosecuted, or has escaped to a place from which he cannot be extradited. A conviction is only one way of proving that an offence has been committed.
Moreover, it may often happen that a plain case of money laundering is revealed but it cannot be known exactly what the antecedent offence was. In other cases, there may be a plain case of money laundering but a mixture of antecedent offences. In the kind of case where the money launderer is someone misusing a business which has a legitimate reason to handle large sums of cash, such as a bureau de change or a casino, it may well happen that what is proved is that there were numerous clandestine receipts of a great deal of cash, perhaps delivered in anonymous places by anonymous couriers, and payments out justified by invoices for consumables which can be proved to be forged documents emanating from non-existent suppliers. The service may well be being provided to a mixture of drug dealers,...
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