Jersey Unreported Judgments

2002/109

ROYAL COURT

(Samedi Division)

 

29^th May, 2002. 

 

 

 

 

 

IN THE MATTER OF THE DRUG TRAFFICKING OFFENCES (JERSEY) LAW, 1988, AS AMENDED.

 

APPLICATION BY THE ATTORNEY GENERAL PURSUANT TO ARTICLE 16C(1) OF THE DRUG TRAFFICKING OFFENCES (JERSEY) LAW, 1988, AS AMENDED, SEEKING FORFEITURE OF THE PROCEEDS OF DRUG TRAFFICKING, IN RESPECT OF: SERGE PEACOCK, MARTIN YANN ROBERTS, AND MATTHEW LAKEMAN.

 

M. St J O'Connell., Esq, Crown Advocate;

Martin Yann Roberts on his own behalf;

Serge Peacock and Matthew Lakeman did not appear and

were not represented.

 

 

judgment

(on application by Martin Yann Roberts for an adjournment)

the bailiff:

1.        This is an application by Martin Roberts to adjourn the application by the Attorney General for a Forfeiture Order under the Drug Trafficking Offences (Jersey) Law 1988 relating to a sum of money of approximately £10,000 which was seized by the police.  

2.        We remind ourselves first of all that these are civil proceedings.  The Representation of the Attorney General was brought before the Court on the 12^th April, and the hearing of the Representation was fixed for today.  Seven witnesses have been summoned to appear before the Court and are present. 

3.        Mr Roberts was served with notice of the application as someone potentially interested in the sum of money in question.  Two other persons were also served with notice, namely Matthew Lakeman, and Serge Peacock. Neither Lakeman nor Peacock wishes to contest the application by the Attorney General. The applicant has told us that he is interested only in £3,000 of the money seized by the police. 

4.        So far as notice of these proceedings is concerned, the Crown Advocate has placed before us the letter dated 11^th April, 2002 notifying Mr Roberts of the proposed application by the Attorney General and advising him to seek legal advice and giving him the name and address of the acting Bâtonnier, and particulars of how legal aid could be obtained.

5.        A further letter was sent on the 3^rd May, 2002, notifying Mr Roberts that the matter was to be heard on 29^th and 30^th May, and again giving him the same information about legal aid.  On 14^th May a further letter was sent to Mr Roberts reiterating the notice that the application was to be heard on 29^th May, and asking him to contact the Crown Advocate or his office in the event that Mr Roberts should wish to contest the making of the forfeiture order.

6.        Mr Roberts has told us that he contacted Peacock after receiving the last letter, and was given to understand that the forfeiture order had already been made.  On that basis he took no action to obtain legal advice, and it was only after he had been told by his father that he was required to appear before the Court that he applied his mind again to the question of whether legal advice should be obtained.

7.        He telephoned the office of the Crown Advocate yesterday and subsequently attempted to make contact with the Legal Aid Office but was unsuccessful.   The basis of his application for an adjournment is that he would like to have legal assistance in relation to this claim for £3,000 which he says belongs to him.

8.        The Crown Advocate has submitted that an adjournment would be inappropriate as being disproportionate to the costs which have already been incurred, and which will be incurred, if the matter is put off to another day.  

9.        We have given careful consideration to all the points made to us by Mr Roberts, but given the history which we have recounted, we do not think it is appropriate to grant the application for an adjournment.  The issue before the Court is essentially a simple factual issue, which is whether or not the Court is satisfied that the money in question directly, or indirectly, represents any person's proceeds of, or is intended by any person for use in, drug trafficking.  It will be open to Mr Roberts to give evidence on oath as to why he contends that this money is his property, and we do not believe that he will be disadvantaged by the absence of legal counsel to represent him in this matter.   The application is accordingly refused.

judgment

10.      This is an application by the Attorney General pursuant to Article 16(C ) of the Drug Trafficking Offences (Jersey) Law 1988 (as amended) for the forfeiture of a sum of £9,480, which has been seized by the police.   Article 16(C ) provides:

11.    The Royal Court may order the forfeiture of any money which has been seized under Article 16(B) if satisfied, on an application made while the money is detained under that Article, that the money directly, or indirectly, represents any person's proceeds of,  or is intended by any person,  for use in drug trafficking.

12.      Paragraph 3 provides that the standard of proof in proceedings on any application under this Article shall be that applicable in civil proceedings, and an order may be made under this Article whether or not proceedings are brought against any person for an offence with which the money in question is connected.  No issue has been taken that the money was not properly seized under Article 16(B) of the law, and has been so held since its seizure, subject to the appropriate orders made by a Judge of this Court.

13.       The Article makes it clear that the Attorney General must satisfy the Court on a balance of probabilities either that the money in question represents the proceeds of drug trafficking, or that it was intended by any person for use in drug trafficking.

14.      A brief history of this application is that on 15^th June, 2001, one Kevin McCaig went to the Post Office at Georgetown. He attracted the attention of the staff by his conduct because he appeared to be heavily under the influence of drugs and had large amounts of cash stuffed untidily in his pockets.  McCaig divided the cash into four bundles and asked for it to be sent by recorded delivery to an address in Edinburgh.  The cash was accordingly put into four postal packets, duly addressed, and accepted by the Post Office staff.  

15.      The staff however then reported their suspicions regarding the transaction to the Joint Financial Crime Unit.   Customs Officers attended and seized the four packets pursuant to Article 16(B) of the Drug Trafficking Offences (Jersey) Law 1988 (as amended).   The cash was counted and found to total £9,480, made up of mixed denomination notes.

16.      On the same day McCaig was the victim of two separate assaults.  It is unnecessary for us to describe those assaults, other than to say that they led to the arrest of three young men.   The first was Serge Peacock who was arrested on Saturday 16^th June. He was questioned about the assaults and subsequently about the money in question.  During the course of the interview Peacock claimed that McCaig had stolen the money which he believed to amount to approximately £10,000, from his home.   Peacock stated that £3,000 of the money was his and that he was looking after the remaining £7,000 for two persons whom he appeared to be reluctant to name.  Later however, he said that he had been holding £3,000 for Martin Roberts, and £4,000 for Matthew Lakeman.   Peacock said that he had had the money in his possession for about 3 weeks and that he had concealed it behind a panel in his bathroom.   He said that it was the proceeds of their joint savings. He claimed that the three were intending to purchase a boat with the money and that it had been his task to look after the money because he was not working at the time, and therefore had more time available to look at boats.

17.      Lakeman was arrested on Sunday 17^th June, and was also questioned by the police.  He referred regularly during the course of the interview to the missing money as belonging to Peacock, it was put to him that Peacock had said that £4,000 belonged to him, but Lakeman denied that any of the money was his.

18.      Roberts was also arrested on the 19^th June and questioned about the assaults upon McCaig.  It was also put to him during the course of the interview that Peacock had said that part of the money in question was his.  Mr. Roberts' account broadly concurred with that of Peacock. He said that he had given £3,000 in cash to Peacock on 23^rd May, 2001 in order to purchase a boat.

19.      Later McCaig was charged with the larceny of the £9,480, pleaded guilty to the offence, and was bound over to leave the Island for 3 years by the Magistrate.   Subsequently, as we have stated, application was made to the Deputy Bailiff by officers of the Financial Investigation Unit of the States of Jersey Police for an order under Article 16(B) of the Drug Trafficking Offences (Jersey) Law 1988 and that application was granted.

20.      Subsequent orders have enabled the continued detention of the moneys seized for periods not exceeding 3 months.   Notice was served by the Attorney General on Peacock, Roberts, and Lakeman that this application for forfeiture was to be made.

21.      Peacock and Lakeman have not appeared to contest the application; indeed Lakeman instructed Counsel to make that position clear to us.  Peacock has 4 convictions for drugs offences, including one drug trafficking offence for which he was sentenced to 3 years imprisonment by a French Court.  Lakeman has 4 convictions for drug offences, including one conviction for a drug trafficking offence. He was said by Roberts to be a heroin addict, and as we have stated the money was secreted in what might be regarded as an unusual place, and neither Peacock nor Lakeman has appeared to contest the Attorney General's application.

22.       We express ourselves satisfied on a balance of probabilities that the sum of £6,480 represents the proceeds of drug trafficking, and we order its forfeiture.

23.      We turn to the remaining £3,000 which is claimed by Roberts.   The evidence of Roberts was that all his earnings had been legitimate.  He was employed during most of the relevant period and we have seen bank statements of his account with HSBC bank, which indeed he authorised the police to inspect.

24.       Those statements contained two payments which on the face of it were suspicious.  The first was a payment into the account on 27^th March, 2001 of £3,111. At that time Roberts was employed by Moore Stephens & Co, as a trainee Trust and Company Administrator.  Payments by that firm had been made into the account during November and December 2000, but no further payments in appeared to have been made.

25.      Roberts explained to us that the firm operated a scheme whereby employees could place their earnings into an account operated by the firm which gave a much more generous rate of interest than Roberts could have obtained on his own account. The money which he had earned from Moore Stephens was accordingly represented by that payment of £3,111, which was paid to him on the termination of his employment at the beginning of March, 2001.  We accept his explanation as to the origin of this sum of money.

26.      The second payment which on the face of it gave rise to some suspicion was a payment into his account at the beginning of June 2001 of £2,000.   Roberts' explanation for this was that he had obtained a loan from a business man, by whom he is now employed, to enable him to start up his own decorating business.   This business man was unwilling, for his own personal reasons, to give evidence in support of Roberts' account.  We were however shown statements of a trade account with the Jersey Paint and Wallpaper Company Limited, which was operated from about the time when Roberts stated that he began his decorating business.   We are satisfied that the explanation is genuine and we accept it.

27.      We also note that the evidence obtained by the Police from the records of the Employment and Social Security Department show that between January, 1999, and February, 2001, Roberts earned about £16,500.  During this period he was living at the home of his parents, and his expenses were accordingly low.

28.      He has a record of previous convictions, which is not particularly good.  The record includes a conviction on 5^th May, 1999, of various offences involving the misuse of drugs.  He was convicted of possessing cannabis, possessing ecstasy, and supplying cannabis and was placed on probation for 2 years and ordered to do 50 hours' community service. 

29.      Roberts explained to us that the conviction for supplying cannabis resulted from his frankness with the police when he admitted that he had handed a cannabis reefer to one of his friends.  That had led to the charge of supplying.   It is right to record that the probation order was satisfactorily completed, as was the order for community service.

30.      Having taken into account all this evidence, much of which has emerged during the course of this hearing, we have concluded that we are not satisfied that the £3,000 represented the proceeds of drug trafficking.   Indeed, fairness to Roberts requires us to state that we are satisfied on a balance of probabilities that the £3,000 represents his legitimate earnings.

31.      We turn next to the question whether there is evidence that the money was intended for use in drug trafficking.  We have already found that the money which was held with the £3,000 was tainted, and we have ordered its forfeiture.  There is however no evidence before us of any intention on the part of Roberts that the money was to be used for drug trafficking purposes.

32.      The Crown Advocate invited us to infer from his association with Peacock and Lakeman, that the money was intended for such a purpose. We do not think that we can make such a finding of guilt by association.   We accordingly express ourselves not satisfied on a balance of probabilities that Roberts intended to use the money for some drug trafficking purpose.  Whatever the intentions of Peacock and Lakeman might have been in relation to the proposed purchase of a boat, we think that Roberts' intention was to purchase a boat for his own legitimate purposes.

33.       We therefore order the release of the sum of £3,000 and accumulated interest, to Roberts.  It only remains for me to state that Roberts might not have found himself in this position if he had been more open and co-operative with the police, and indeed, if he had paid more attention to the correspondence from the Crown Advocate.  I therefore propose to make no order for costs in relation to this application.

 

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