Surviving the Challenge: The Constitutionality of the Drug Offences (Forfeiture of Proceeds) Act
| Published date | 01 April 2002 |
| Pages | 296-301 |
| Date | 01 April 2002 |
| DOI | https://doi.org/10.1108/eb027310 |
| Author | Bryan Sykes |
| Subject Matter | Accounting & finance |
Journal of Money Laundering Control — Vol. 5 No. 4
Surviving the Challenge: The Constitutionality of the
Drug Offences (Forfeiture of Proceeds) Act
Bryan Sykes
The Drug Offences (Forfeiture of Proceeds) Act (the
Act) was passed in 1994 by the Jamaican Parliament
in fulfilment of its obligations under the 1988
Convention Against the Illicit Traffic in Drugs and
Psychotropic Substances. The purpose of the Act is
to enable the state to forfeit the proceeds, instru-
mentalities used to commit as well as any benefit
derived from the commission of drug trafficking
offences. Under the Act drug traffickers can be
deprived of their criminally acquired property and
also any property used in the commission of drug
trafficking offences can be forfeited even if the
property does not belong to the convicted person.
In 1999, Gary Thompson, a convicted drug
trafficker, filed a Constitutional Motion in the
Supreme Court of Jamaica.1 In his motion he asked
the court to declare certain sections of the Act uncon-
stitutional. This was the first direct challenge to the
constitutionality of the Act.
THE FACTS
On 27th June, 1997 the police raided premises occu-
pied by Gary Thompson and found ganja, a compres-
sor, plastic wrapping paper and other paraphernalia
of the drug trade.
Mr Thompson was charged with possession, deal-
ing and taking steps preparatory to exporting
ganja.2
He was convicted in the Resident Magistrates Court
on 25th August, 1997, having entered a plea of guilty
on 14th August, 1997 to posession of and dealing in
ganja. Dealing in ganja is one of the prescribed
offences that activates the forfeiture mechanisms of
the Act.
The Director of Public Prosecutions (DPP)
applied to the Supreme Court (a different court
from the trial court) for a forfeiture order under
s. 3 of the Act against the property. In response
to this application the defendant launched a consti-
tutional challenge to the legislation alleging, inter
alia, that
(i) he was being deprived of property without
compensation;
(ii) his right to a fair hearing was being breached;
(iii) he was being placed in jeopardy for an offence
for which he had already been punished;
(iv) by not setting down the hearing of the appli-
cation in open court the DPP was breaching
the right to a hearing in open court.
THE LEGISLATIVE SCHEME
Before looking at the details of the case it is necessary
to set out the relevant provisions of the Act and the
Constitution of Jamaica (the Constitution).
In respect of the constitutional challenge the all-
important definition is that of tainted property.
'Tainted property' is defined in s. 2 of the Act as
(a) property used in, or in connection with the com-
mission of the offence; or
(b) property derived, obtained or realised directly
by the person convicted from the commission
of the offence.
The DPP relied on the definition in part (a) to ground
the application. The DPP was alleging that Mr
Thompson's property was being used as a 'ganja
compression' site. This activity on the property
accounts for the presence of the ganja, the compres-
sor, the plastic wrapping and other paraphernalia of
the drug trade. In other words the property was
being used in connection with the offence of dealing
in ganja, which was the prescribed offence that preci-
pitated the application by the DPP.3
Even though a prescribed offence may be com-
mitted, s. 3 of the Act requires a conviction of
someone (not necessarily the property owner or
even someone with an interest in the property) of a
prescribed offence.
Therefore if the DPP is going to apply for
forfeiture of any property he must establish that
(a) someone has been convicted of a prescribed
offence;
(b) that the property is tainted property in relation
to that offence for which the person is
convicted.
Journal of Money Laundering Control
Vol.
5,
No.
4,
2002,
pp.
296-301
© Henry Stewart Publications
ISSN 1368-5201
Page 296
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